Thursday, August 28, 2008

Erie and the History of the One True Federalism

Susan A. Bandes has posted Erie and the History of the One True Federalism on SSRN, which reviews Ed Purcell's book, Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America (New Haven: Yale University Press, 2000).--Counseller

August 28, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, August 25, 2008

Fraudulent Joinder: Right versus Obligation to Remove

Fraudulent joinder is a familiar removal tool for defendants.  The doctrine establishes a right to remove by disregarding a jurisdictional spoiler's citizenship.  And 30 days is a familiar removal deadline for defendants: the removal statute's 30-day clock starts ticking from particular occurrences.  The interrelationship between the right to remove and the obligation (in the clock-ticking sense) is not always clear.   For example, an amended pleading clarifying that the amount in controversy exceeds the jurisdictional minimum starts the 30-day clock, but defendants need not wait for that amended pleading if they choose to remove and attempt to prove the amount by a preponderance of the evidence.  The clock starts ticking, generally, when a court paper makes it obvious, but the right to remove does not depend upon obviousness in the state-court record.  When does the 30-day clock start ticking in fraudulent-joinder cases?   What if the state court petition reveals an obviously bogus claim against the state-court spoiler?  Does this trigger the 30-day clock?  Recently, Judge Martinez didn't quite answer this question, but he did remand a case because "by not clearly stating when they learned of the alleged fraudulent joinder, Defendants have created both ambiguity and doubt in their Notice of Removal,and as a result the court finds that they did not properly remove the action."  Heads up, removers: Download Ayres.pdf   --RR

August 25, 2008 | Permalink | Comments (0) | TrackBack (0)