Four Big Changes to Removal Under the Federal Courts Jurisdiction and Venue Clarification Act

The Federal Courts Jurisdiction and Venue Clarification Act went into effect on January 6, 2012 and alters removal of cases from state to federal court in four fundamental ways.

First, it now allows each defendant in a multiple defendant case a full thirty days following service on that defendant to file a removal notice.  Previously, there was a split of authority on whether the 30 days ran from the date the first defendant was served.

Second, the Act adopts new procedures for establishing the amount in controversy necessary to sustain diversity jurisdiction, with the default being “the sum demanded in good faith in the initial pleading" or Complaint.  There are several important exceptions, however, including discovery conducted in the state court proceeding after the case is no longer removable being a basis for later removal.

Third, while the one year absolute bar to removal remains, the Act provides that even after one year a case can become removable if “plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”

Finally, the Act eliminates a federal court’s discretion to hear state-law claims asserted in a case removed to federal court on the basis of federal question jurisdiction and requires the district court to "sever from the action all [state-law] claims . . . and . . . remand the severed claims to the State court from which the action was removed.”

Google Search Tips for Litigators

• To restrict searches to a particular domain, like university websites, type in your search terms and then add site:.edu.  It looks like this:  masters degree architecture site:.edu.
• To exclude something, use the minus sign.  It looks like this: Newt-Gingrich.  That search would exclude references to Newt Gingrich.
• To restrict searches to the exact words you are looking for, as opposed to Google’s default mode which includes pleurals, synonyms, etc., put the words in quotation marks.  It looks like this: “motion to dismiss” would not return motions to dismiss.
• Use OR.  Google assumes that a space between search terms means “and.”  If you want to search for more than one term at the same time but not necessarily on the same page separate the words with OR.  It looks like this: class action OR lawsuit.
• If you want to restrict your searches to particular dates, click on the “Search Tools” tab that appears above your results and restrict the results to one of the time frames suggested under “Any Time” or put in a date range in the “Custom Range” option at the bottom of that pull down menu.   Your results are then restricted to that time period.

These and other search tips for litigators are discussed in more detail in the ABA Section on Litigation article entitled "Eight Google Skills All Litigators Should Master."

Cross Exam LInks and Quotes

Professor James Elkins from the West Virginia College of Law has assembled a great set of links and quotes on cross-examination here.

6th Circuit Overturns 17 Years of Precedent in ADA Case

In Lewis v. Humboldt Acquisition Corporation, Inc., __ F.3d ___, 2012 WL 1889389 (6th Cir. May 25, 2012), a 17 year old rule that plaintiffs alleging violation of the Americans with Disabilities Act (ADA) may prevail only if they show that their disability was the “sole” reason for any adverse employment action.  The Court of Appeals reversed, held, en banc, that an employee is not required to show that her disability was the “sole” reason for her termination in order to prevail on her ADA claim. However, the Sixth Circuit refused to adopt the “motivating factor” analysis from Title VII cases and ruled than an employee is required to show that her disability was a “but for” cause of the employer’s adverse employment action.  The Court relied on Gross v. FBL Financial Services, 557 U.S. 167 (2009), where the Supreme Court construed similar language found in the Age Discrimination in Employment Act (ADEA).   

Procedures Attorneys Must Follow in Other States to Take Depositions of Michigan Residents

MCR 2.305(E) permits depositions to be taken of Michigan residents when actions are pending in another state. It provides:

"Action Pending in Another State, Territory, or Country. An officer or a person authorized by the laws of another state, territory, or country to take a deposition in Michigan, with or without a commission, in an action pending in a court of that state, territory, or country may petition a court of record in the county in which the deponent resides, is employed, transacts business in person, or is found, for a subpoena to compel the deponent to give testimony. The court may hear and act on the petition with or without notice, as the court directs."

In addition, Michigan has a statute that establishes a clear procedure for deposing residents of Michigan in actions pending in other states. MCL 600.1852(2) states:

"Any court of record of this state may order a person who is domiciled or is found within this state to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this state. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this state, for taking the testimony or statement or producing the documents or other things. The order shall be issued upon petition to a court of record in the county in which the deponent resides or is employed or transacts his business in person or is found for a subpoena to compel the giving of testimony by him. The court may hear and actupon the petition with or without notice as the court directs. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with that of the court of this state issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court. The person appointed shall have power to administer any necessary oath. A person within this state may voluntarily give his testimony or statement or produce documents or other things for use in a proceeding before a tribunal outside this state."

See also Ewin v. Burnham, 272 Mich. App. 253 (2006).