Attorney F.Anthony Lubkin WARRIOR? next week will tell the story.

Attorney F.Anthony Lubkin,
originally uploaded by terrybankert.

SHOULD THE MAYOR  AND CLERKS MAKE A  THE RECALL A "FEDERAL QUESTION?"

All parties should bear in mind that after the notice of removal has been filed, whether improperly or not, the state court has been divested of its jurisdiction and “shall proceed no further unless and until the case is remanded.” 28 USC 1446(d). Thus, filing further motions and pleadings in the state court would be in violation of MCR 2.114(D)(2), requiring that an attorney certify by his or her signature that “to the best of his or her knowledge, information and belief formed after reasonable inquiry, the pleading is well grounded in fact and is warranted by existing law.” Procedure in federal district court after removal is generally controlled by 28 USC 1447.

Removal to Federal District Court,...is this a screw up of the recall attorney or a devious ploy by the attorneys for the clerks or mayor? Somebody will have hell to pay in Detroit next Wednesday.[TRB]

Its is tough business representing informal Citizens groups as they assert their rights under law. You do not make any money, you do it because you think its the right thing to do. Often "citizens Rights" warriors are out side of their regular pr...actice area and face big firms lots of attorneys plying their specialty, stomping on those that cross paths with their client. Attorney F. Anthony Lubkin has earned respect from me for taking on this task. Please understand he is working alone against the best attorney's political power and money can assemble. If it was a mistake to slip in federal claims in a state action it could have been just the fatigued zeal of the moment. That alone does not mean the challenge to the clerks rejection of thousands of signatures was decided. That will come later. Do I think a strategic mistake may have been made, yes. But so what! Democracy and rule of law will be defined by the hearing he ultimately gets.[trb]


THE BURDEN OF PROOF FOR REMOVAL IS ON THE MAYOR OR CLERKS


§4.85 Removal jurisdiction of the federal district court is governed by 28 USC 1441–1452, and federal law controls the criteria for removal. Grubbs v General Elec Credit Corp, 405 US 699, 705 (1972). Removal requires both the “removability” of the allegations in the complaint, 28 USC 1441(b); Union Planters Nat’l Bank v CBS, Inc, 557 F2d 84, 89 (6th Cir 1977), and strict compliance with the procedural requirements of 28 USC 1446. The burden of proof is on the removing party to establish both the jurisdictional grounds for removal and the satisfaction of the statutory time requirements. Hollenbeck v Burroughs Corp, 664 F Supp 280, 281 (ED Mich 1987).



WHAT IS FEDERAL PREEMPTION



Federal preemption is a concept distinct from “federal question” removal and “the fact that plaintiffs’ claim might ultimately prove to be preempted does not establish that it is removable to federal court.” Strong v Telectronics Pacing Sys, Inc, 78 F3d 256, 260 (6th Cir 1996).



THE RECALL ATTORNEY IN HIS OPENING STATEMENT TO JUDGE NEITHERCUIRT TALKED OF FEDERAL ISSUES AND PROUD OF IT.



Unless a “federal question” has been raised, e.g., 28 USC 1331, 1443, or the federal courts have “original jurisdiction,” 28 USC 1441(b), the action is removable under the federal court’s diversity of citizenship jurisdiction “only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Id. (emphasis added); Moor v County of Alameda, 411 US 693 (1973); Tempo, Inc v Gladstone Hous Comm’n, 635 F Supp 879 (WD Mich 1984).

ALL THE CLERKS AND THE MAYOR MUST AGREE TO FLEE TO FEDERAL COURT

Procedurally, before the plaintiff’s choice of a state forum can be avoided, unanimity among the defendants is generally required. Shadley v Miller, 733 F Supp 54 (ED Mich 1990); Godman v Sears, Roebuck & Co, 588 F Supp 121, 123 (ED Mich 1984). The fact that service has not yet been made on a defendant is not sufficient to allow the removing defendant to disregard it. Preaseau v Prudential Ins Co, 591 F2d 74 (9th Cir 1979).



THE DEFENDANTS HAD TO CLAIM FEDERAL JURISDICTION WITHIN 30 DAYS, THEIRS TOOK THIRTY SECONDS.



By continuing to litigate in state court for more than 30 days “after the receipt by the defendant…of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based,” and/or more than 30 days after receipt of an amended pleading or other paper “from which it may first be ascertained that the case…has become removable,” 28 USC 1446(b), a defendant waives any claimed right to remove. Brown v Demco, Inc, 792 F2d 478, 481 (5th Cir 1986). The test is an objective one and “[d]efendants cannot be allowed to turn on their own mental light bulb for ascertaining removability.” Harrell v Reynolds Metals Co, 599 F Supp 966, 968 (ND Ala 1985). Defendants’ opportunity to remove on diversity grounds has recently been limited by a statute of repose, so that “a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.” 28 USC 1446(b).



THE RECALL ATTORNEY HAD TO MOVE FAST AFTER KNOWLEDGE OF DIVERSITY. IT LOOKS LIKE HE HAS.



If the defendants improvidently remove the case from state court to federal court, plaintiff’s counsel should be prepared to promptly file a motion to remand under 28 USC 1447(c). The motion to remand must be made within 30 days after filing of the notice of removal, but “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” Id.

THE WEIGHT OF LAW WILL BE ON THE SIDE OF SENDING THIS MESS BACK TO STATE COURT

Out of deference to principles of federalism, the removal statutes are strictly construed against removal from the state courts. Shamrock Oil & Gas Corp v Sheets, 313 US 100, 108–109 (1941). So when there is doubt about whether the federal district court has removal jurisdiction, that doubt should be resolved in favor of remand. See, e.g., ANR Pipeline Co v Conoco, Inc, 646 F Supp 439, 442 (WD Mich 1986).



IF THE ANTI RECALL JUST PLAYED A GAME AND DID THIS WRONG THE RECALL GROUP SHOULD GET MONEY FROM THEM



Under 28 USC 1447(c), the district court also has discretion to require payment of just costs and actual attorney fees incurred as a result of improper removal. Oil Well Serv Co v Underwriters at Lloyd’s London, 302 F Supp 384 (CD Cal 1969). The inquiry about imposing sanctions under Fed R Civ P 11 for unfounded removal papers, which were filed without independent investigation of the legal basis concerning claimed diversity jurisdiction, is discussed by Judge Cohn in Pravic. See also Unanue-Casal v Unanue-Casal, 898 F2d 839 (1st Cir 1990) (district court had jurisdiction to sanction party under Fed R Civ P 11 for filing invalid removal petition); Hewitt v City of Stanton, 798 F2d 1230 (9th Cir 1986) (affirming sanctions under Fed R Civ P 11 for frivolous removal petition).



Procedures for removal and remand are quite unforgiving and should be carefully researched and scrupulously followed by plaintiffs and defendants alike. See 28 USC 1446–1447; Fed R Civ P 81(c); ED Mich LCR 81.1. It is not only unethical but a waste of valuable litigation resources to file a case in a court where it does not belong or to remove a case improvidently. The attorney using their best efforts at investigation and research do not reveal a viable claim in the jurisdiction and venue you prefer, either file the case in the correct jurisdiction and venue or decline to represent the client in the matter.



Defendants seeking to remove to federal court, like plaintiffs seeking to stay in or remand to state court, should not venture into this difficult area of law without thoroughly investigating the facts of the case and delving into more exhaustive discussions of the law of removal and remand, such as 16 Moore’s Federal Practice ch 107 (3d ed 1999). See also §§6.21–6.25.



All parties should bear in mind that after the notice of removal has been filed, whether improperly or not, the state court has been divested of its jurisdiction and “shall proceed no further unless and until the case is remanded.” 28 USC 1446(d). Thus, filing further motions and pleadings in the state court would be in violation of MCR 2.114(D)(2), requiring that an attorney certify by his or her signature that “to the best of his or her knowledge, information and belief formed after reasonable inquiry, the pleading is well grounded in fact and is warranted by existing law.” Procedure in federal district court after removal is generally controlled by 28 USC 1447.

See

[uncited]Michigan Civil Procedure ch 4 (Kathleen A. Lang et al eds, ICLE 1999), at http://www.icle.org/modules/books/chapter.aspx/?lib=litigation&book=1999555670&chapter=04
 (last updated 08/27/2010).

[trb] All cap headlines and that cited [trb] product of Terry Bankert http://www.attorneybankert.com/

Sphere: Related Content