Wednesday, December 31, 2008

Fifth Circuit decides that 28 U.S.C. 1441(c) does not permit remand of removable federal questions

Last month the Fifth Circuit decided Poche v. Texas Air Corps, Inc., No. 07-20618, 2008 WL 4926740 (5th Cir. Nov. 19, 2008).  The question presented was "does 28 U.S.C. § 1441(c) permit a district court to remand federal claims conferring removal jurisdiction where those claims are part of a case 'predominated' by state law?"  Phrased as such, the statutory language seems clearly to demand the answer be "yes."

(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

28 U.S.C. § 1441.  However, the court took a narrow view of the word "matters" and, based on precedent, determined that a court "may not remand the component claims that are conclusively deemed to have arisen under federal law, absent a defect in the removal procedure or circumstances rendering the retention of jurisdiction 'inappropriate.'" (quoting Laurents v. Arcadian Corp., 69 F.3d 535 (5th Cir. 1995)).

Read the whole opinion here.

--Counseller/jtf

http://lawprofessors.typepad.com/civpro/2008/12/fifth-circuit-d.html

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