Tuesday, October 7, 2014

SCOTUS Oral Argument in Dart Cherokee

Here is the transcript from today's oral argument in Dart Cherokee Basin Operating Co. v. Owens. Some pretty interesting exchanges--although many of them had nothing to do with the actual question presented. The Justices spent a considerable amount of time on the jurisdictional/abuse-of-discretion argument first raised by Public Citizen in an amicus brief.

The question for which cert. was granted was this:

"Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required 'short and plain statement of the grounds for removal' enough?"

As to that issue, Justice Kagan commented to Petitioner's counsel that "most of us agree with you on the merits," although Justice Alito quickly responded, "That might be a little premature." [p.21]

The whole transcript is worth a read (if you're into that sort of thing), but here's one exchange between Justice Breyer and Respondent's counsel that speaks volumes about the state of pleading standards after Twombly and Iqbal

MR. SHARP: [T]hat was part of the district court's opinion.  There were two parts.  One was that there wasn't any evidence; and the second part was that it was conclusory, that there were no facts. All you said was 8.2 million. And so both of those were possible ­--­

JUSTICE BREYER:  Isn't that a fact?

MR. SHARP:  Excuse me, Your Honor?

JUSTICE BREYER:  Isn't 8.2 million a fact?

MR. SHARP:  It's a conclusory fact.

JUSTICE BREYER:  Well, it's a fact.  They said in their view ­­--

MR. SHARP:  It's a conclusion.

JUSTICE BREYER:  All right.  I don't know what a conclusory fact is as opposed to a regular fact.




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