Chapter 265 FEDERAL COURTS: JURISDICTION AND REMOVAL PART I. SCOPE 265.

.01 Scope of Chapter This chapter discusses and contains forms related to:

An overview of the grounds for federal court jurisdiction and of the federal courts in California [see 265.10 265.12].

Federal question jurisdiction [see 265.14].

Diversity of citizenship jurisdiction, including in class actions [see 265.15].

Other topics related to the jurisdiction of federal courts [see 265.16 165.20].

Removal of civil actions from state court to federal district court [see 265.30 265.40].

The forms relating to jurisdiction are:

Jurisdictional allegations for use in federal courts in cases in which jurisdiction is based

on diversity of citizenship [see 265.80 265.92].

Jurisdictional allegation for a general federal question [see 265.93].

Jurisdictional allegations for particular federal questions [see 265.94 265.141].

A notice of motion, motion to dismiss for lack of subject matter jurisdiction and accompanying form of order [see 265.142 265.145].

A denial of federal jurisdiction for use in a responsive pleading [see 265.146].

The forms relating to removal of actions are:

Notice of removal [see 265.160].

Allegations of different grounds for removal [see 265.161 265.165].

A notice of filing the notice of removal [see 265.166].

A clerk s certificate on the transcript of record [see 265.167].

 A notice of motion, motion to remand removed action and accompanying form of order [see 265.168 169].

A motion to sever claims and remand nonremovable claims and accompanying order [see 265.170 265.171].

This chapter includes a Research Guide [see 265.50 et seq.]

This chapter also includes Procedural Checklists for seeking removal [see 265.70], opposing removal [see 265.71] and for a hearing on a motion for removal [see 265.72]. 265.02 Cross References For discussion of and other forms of motions and orders, see Ch. 372, Motions and Orders.

For discussion of civil rights actions, see Chs. 112 117A, Civil Rights: GovernmentFunded Programs and Activities, Civil Rights: The Post-Civil War Civil Rights Statutes, Civil Rights: Prisoners Rights, Civil Rights: Employment Discrimination, Civil Rights: Discrimination in Business Establishments, Civil Rights: Housing Discrimination, and Civil Rights: Interference with Civil Rights By Threats, Intimidation, Coercion, or Violence.

For additional discussion of class actions, see Ch. 120, Class Actions.

For discussion of trademark actions, see Ch. 549, Trademark and Trade Names.

 For forms of jurisdictional allegations for use in actions brought under the Jones Act, see Ch. 522, Ships and Shipping. 265.03 265.09 [Reserved] PART II. LEGAL BACKGROUND A. Jurisdiction 265.10 Governing Statutes Jurisdiction based on general federal questions is governed by 28 U.S.C.S. 1331. Jurisdiction based on diversity of citizenship is governed by 28 U.S.C.S. 1332. In addition, there are a number of special provisions in the United States Code that provide independent jurisdictional bases for specific types of actions. 265.11 Federal Courts in California The federal court system in California is divided into four districts. The Northern District has locations in Eureka, San Francisco, San Jose and Oakland. The Eastern District has locations in Sacramento, Fresno, Tahoe, Yosemite, Redding and Bakersfield. The Central District has locations in Los Angeles, Santa Ana and Riverside. The Southern District has locations in San Diego and El Centro. 265.12 Grounds for Federal Jurisdiction Jurisdiction of an action in the federal district court depends on the existence of a general or particular federal question or diversity of citizenship [see 28 U.S.C.S. 1331, 1332; Pan Am. Pac. Corp. v. Superior Court (1961) 366 U.S. 656, 663, 81 S. Ct. 1303, 6 L. Ed. 2d 584]. In addition, at least in cases in which jurisdiction is based on diversity of citizenship, the $75,000 jurisdictional amount requirement must be met [see 28 U.S.C.S. 1332]. 265.13 Federal Jurisdiction Required to Be Pleaded

Federal courts are courts of limited jurisdiction [Grace v. American Central Ins. Co. (1883) 109 U.S. 278, 283, 3 S. Ct. 207, 27 L. Ed. 932]. They are empowered to act only in those specific instances authorized by Congress [McGlynn v. Employers Commercial Union Ins. Co. of America (D.P.R. 1974) 386 F. Supp. 774, 776 777] and only when such a basis for federal jurisdiction is shown in the complaint [Schaedler v. Reading Eagle Publication, Inc. (3d Cir. 1967) 370 F.2d 795, 799]. Therefore, unless governed by specific provisions applicable to special proceedings [see Fed. R. Civ. P., Rules 1, 81], in any suit of a civil nature whether cognizable as a case at law or in equity, a pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross claim, or a third-party claim, must contain a short and plain statement of the grounds on which the court s jurisdiction depends, unless the court already has jurisdictionand the claim needs no new grounds of jurisdiction to support it [Fed. R. Civ. P., Rule 8(a) (1)]. 265.14 Federal Question Jurisdiction [1] In General The federal district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States [28 U.S.C.S. 1331]. An action arises under federal law if the complaint presents a substantial dispute over the effect of a federal law and the result turns on the federal question. Usually, federal law creates the cause of action, but a case may also arise under federal law if vindication of a right under state law turns on a construction of federal law [Berg v. Leason (9th Cir. 1994) 32 F.3d 422, 423 (citing Merrell Dow Pharmaceuticals v. Thompson (1986) 478 U.S. 804, 808, 106 S. Ct. 3229, 92 L. Ed. 2d 650)]. On the other hand, a federal district court does not have subject matter jurisdiction to hear a direct appeal from the final judgment of a state court under this statute [District of Columbia Court of Appeals v. Feldman (1983) 460 U.S. 462, 483, 103 S. Ct. 1303, 75 L. Ed. 2d 206; Noel v. Hall (9th Cir. 2003) 341 F.3d 1148, 1154 (allegation of legal error)].

In addition to the general federal question jurisdiction conferred on the federal courts by 28 U.S.C.S. 1331, federal question jurisdiction may also be conferred on district courts by specific statutes. When it is clear that an action involves a federal question arising under a particular statute, then jurisdiction is conferred on the district court, and there is no additional requirement that general federal question jurisdiction under 28 U.S.C.S. 1331 be alleged. In such a case, any additional allegation of federal court jurisdiction may be stricken from the pleading because the code sections conferring particular and general federal question jurisdiction are independent and mutually exclusive [see American Amusement Co. v. Ludwig (D. Minn. 1949) 82 F. Supp. 265, 266 267]. Thus, in actions arising under a special jurisdictional statute such as suits under the patent, copyright, and trademark laws [28 U.S.C.S. 1338; see, e.g., Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal. App. 4th 238, 244, 107 Cal. Rptr. 3d 373 (dismissing for lack of jurisdiction over patent law issues arising from legal malpractice claim)] or in actions arising out of the violation of laws regulating interstate commerce [28 U.S.C.S. 1337], jurisdiction is conferred on the district courts by pleading the particular act and alleging that the action arises thereunder [see Technical Tape Corp. v. Minnesota Mining & Mfg. Co. (2d Cir. 1952) 200 F.2d 876, 876 877; American Amusement Co. v. Ludwig (D. Minn. 1949) 82 F. Supp.

265, 266].

Federal jurisdiction is also conferred when either the United States or an agency whose congressional charter authorizes it to bring suit in federal court is the plaintiff [28 U.S.C.S. 1345]. Federal jurisdiction may also be available when Congressional charters authorize certain agencies to sue or be sued in federal court [see, e.g., 28 U.S.C.S. 2679 (Federal Employees Liability Reform and Tort Compensation Act of 1988); 36 U.S.C.S. 300105(a)(5) (American Red Cross); see also American Red Cross v. S.G. (1992) 505 U.S. 247, 112 S. Ct. 2465, 2471 2472, 120 L. Ed. 2d 201, 212 (grant of original jurisdiction must be specific as to federal courts)].

However, it should be noted that regardless of whether jurisdiction is conferred on a district court by 28 U.S.C.S. 1331 or some particular federal statute, if the facts giving the court jurisdiction are set forth in the complaint, the statutory provision conferring jurisdiction need not be specifically pleaded [Williams v. United States (9th Cir. 1969) 405 F.2d 951, 954]. [2] Sufficiency of Allegation When the jurisdiction of a district court has been invoked on the sole ground that the cause involves a federal question, it is not enough to allege that questions of a federal character arise in the case; in addition, it must plainly appear that the averments attempting to bring the case within federal jurisdiction are real and substantial [Blumenstock Bros. Advertising Agency v. Curtis Pub. Co. (1919) 252 U.S. 436, 441, 40 S. Ct. 385, 64 L. Ed. 649]. Moreover, a suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under the Constitution or those laws. The claim for relief itself must present a federal question unaided either by anything alleged in anticipation of avoidance of defenses which may be interposed by another party or by a petition for removal [Skelly Oil Co. v. Phillips Petroleum Co. (1949) 339 U.S. 667, 672, 70 S. Ct. 876, 94 L. Ed. 1194]. [3] Abstention or Deferral [a] Distinction Federal and state courts often exercise concurrent jurisdiction over the same subject matter. When that happens, a federal court generally need neither abstain (that is, dismiss the case before it) nor defer to the state proceedings (that is, withhold action until the state proceedings have concluded). However, rare circumstances may dictate otherwise [Growe v. Emison (1993) 507 U.S. 25, 32, 113 S. Ct. 1075, 122 L. Ed. 2d 388].

[b] Abstention Abstention is necessary when the federal action raises difficult questions of state law bearing on important matters of state policy, or when federal jurisdiction has been invoked to restrain ongoing state criminal proceedings [see Colorado River Water Cons. Dist. v. U.S. (1976) 424 U.S. 800, 814 817, 96 S. Ct. 1236, 47 L. Ed. 2d 483]. Accordingly, the comity doctrine counsels lower federal courts to resist engagement in certain cases falling within their jurisdiction. The doctrine reflects a proper respect for state functions, a recognition of the fact that the country is made up of separate state governments, and a continuance of the belief that the federal government will fare best if the states are left free to perform their separate functions in separate ways [Levin v. Commerce Energy, Inc. (2010) ___ U.S., ___, ___, 130 S. Ct. 2323, 176 L. Ed. 2d 1131, 1141]. Comity s constraint has particular force when lower federal courts are asked to pass on the constitutionality of state taxation of commercial activity. Thus, when a federal court finds a tax measure constitutionally infirm, it is to abstain from deciding the remedial effects of such a holding [Levin v. Commerce Energy, Inc. (2010) ___ U.S., ___, ___, 130 S. Ct. 2323, 176 L. Ed. 2d 1131, 1141, 1145 (district court s abstention on comity grounds affirmed with remand to state court for remedy)]. The courts have sometime expressed the guiding principles as comity and federalism [see, e.g., Growe v. Emison (1993) 507 U.S. 25, 32, 113 S. Ct. 1075, 122 L. Ed. 2d 388; Barnes-Wallace v. City of San Diego (2010) 607 F.3d 1167, 1170 (abstaining on questions unique to provisions of state constitution)].

The principle that federal courts should under certain circumstances abstain in favor of ongoing state proceedings was enunciated in Younger v. Harris (1971) 401 U.S. 37, 43, 91 S. Ct. 746, 27 L. Ed. 2d 669. Although Younger involved state criminal proceedings, its holding has been extended to other proceedings that are judicial in nature [Ohio Civil Rights Comm n v. Dayton Schools (1986) 477 U.S. 619, 627, 106 S. Ct. 2718, 91 L. Ed. 2d 512 ; San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose (9th Cir. 2008) 546 F.3d 1087, 1092 ( state civil actions and state administrative proceedings ); Bud Antle, Inc. v. Barbosa (9th Cir. 1994) 35 F.3d 1355, 1365, modified on other grounds 45 F.3d 1261 (1995)]. In addressing Younger abstention issues, federal district courts must exercise jurisdiction except when specific legal standards are met, and may not exercise jurisdiction when those standards are met. There is no discretion vested in the district courts to do otherwise [San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose (9th Cir. 2008) 546 F.3d 1087, 1092]. Accordingly, the limited circumstances in which abstention by federal courts is appropriate remain the exception rather than the rule [San Jose Silicon Valley Chamber of Commerce Political Action Com. v. City of San Jose (9th C ir.2008) 546 F.3d 1087, 1092]. For Younger abstention to be required, three elements are necessary: (1) ongoing state proceedings; (2) implicating important state interests; (3) that afford the plaintiff the opportunity to raise the constitutional claims [Agriesti v. MGM Grand Hotels, Inc. (9th Cir. 1995) 53 F.3d 1000, 1001]. While there are only three threshold elements to application of Younger, there is a vital and indispensable fourth element: The policies behind the Younger doctrine must be implicated by the actions requested of the federal court; once the three aforementioned elements are satisfied, the court does not automatically abstain, but abstains only if there is a Younger-based reason to abstain, i.e., if the court s action would enjoin, or have the practical effect of enjoining, ongoing state court proceedings [AmerisourceBergen Corp. v. Roden (9th Cir. 2007) 495 F.3d 1143, 1149]. An exception to this general rule applies if there is a showing of bad faith, harassment, or some other extraordinary circumstance that would make abstention inappropriate [see Middlesex

County Ethics Comm. v. Garden State Bar Ass n (1982) 457 U.S. 423, 435, 437, 102 S. Ct. 2515, 73 L. Ed. 2d 116; San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose (9th Cir. 2008) 546 F.3d 1087, 1092]. For purposes of Younger abstention, there is no principled distinction between finality of judgments for purposes of appellate review and finality of state-initiated proceedings [San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose (9th Cir. 2008) 546 F.3d 1087, 1093 (administrative proceeding)].

While there is no absolute rule to this effect, abstention is generally disfavored in First Amendment cases and in cases in which there is potential federal preemption of state law [see, e.g., Sycuan Band of Mission Indians v. Roache (9th Cir. 1995) 54 F.3d 535, 541 (abstention not appropriate when, despite state interest in enforcement, the matter is subject to exclusive federal jurisdiction); Yniguez v. Arizonans for Official English (9th Cir. 1995) 42 F.3d 1217, 1227 (First Amendment); Bud Antle, Inc. v. Barbosa (9th Cir. 1994) 35 F.3d 1355, 1365 1366, modified on other grounds 45 F.3d 1261 (1995) (important state interest not implicated because federal law preempted and state court would be acting beyond its jurisdiction to adjudicate the claim); Lind v. Grimmer (9th Cir. 1994) 30 F.3d 1115, 1121, cert. denied sub nom., Wang v. Lind 513 U.S. 1111 (1995) (actual issue not substance of state law but rather its abridgement of freedom of expression granted by First Amendment); cf. Almodovar v. Reiner (9th Cir. 1987) 832 F.2d 1138, 1140 1141 (First Amendment case, but involved state statute susceptible of a limiting construction)].

Whether a case meets the requirements of a particular abstention doctrine is a question of law that a federal court will review de novo [Mission Oaks Mobile Home Park v. City of Hollister (9th Cir. 1993) 989 F.2d 359, 360, cert. denied, 127 L. Ed. 2d 373 (1994)].

California Rules of Court provide a potential alternative to abstention by the federal court that consists of seeking a ruling on a matter of state law from the California Supreme Court [see Cal. Rules Ct., Rule 8.548; for discussion, see Ch. 54, California Supreme Court Review 54.11[6]; see also BarnesWallace v. City of San Diego (2010) 607 F.3d 1167, 1177 (staying federal action pending California Supreme Court ruling on certified state constitutional questions)].

For a detailed discussion of the abstention doctrine, see Moore s Federal Practice, Ch. 122 (3rd ed. Matthew Bender). [c] Deferral

Deferral has been required when (1) the complaint touches a sensitive area of social policy on which the federal courts ought not enter unless there is no open alternative to its adjudication; (2) such constitutional adjudication plainly can be avoided if a definitive ruling on the state issue would terminate the controversy; and (3) the possibly determinative issue of state law is doubtful [see Railroad Commission of Texas v. Pullman Co. (1941) 312 U.S. 496, 498 501, 61 S. Ct. 643, 85 L. Ed. 971; Almodovar v. Reiner (9th Cir. 1987) 832 F.2d 1138, 1140; see also 40235 Washington Street Corp. v. Lusardi (9th Cir. 1992) 976 F.2d 587, 588]. However, deferral under these circumstances is appropriate only when the state statute is sufficiently uncertain that it is clearly subject to a limiting construction or interpretation that would save it from invalidation [Yniguez v. Arizonans for Official English (9th Cir. 1995) 42 F.3d 1217, 1227; Lind v. Grimmer (9th Cir. 1994) 30 F.3d 1115, 1121, cert. den d sub nom. Wang v. Lind, 513 U.S. 1111 (1995) (citing Harman v. Forssenius (1965) 380 U.S. 528, 534-535, 85 S. Ct. 1177, 14 L. Ed. 2d 50)].

Although the Pullman doctrine has been referred to as a form of abstention, it is preferrable to speak of Pullman deferral to highlight the distinction between those circumstances that require dismissal of a suit and those that require postponing consideration of its merits [Growe v. Emison (1993) 507 U.S. 25, 32 n.1, 113 S. Ct. 1075, 122 L. Ed. 2d 388]. The Pullman doctrine is a narrow exception to the district court s duty to decide cases that are properly before it. A district court that abstains under Pullman must dismiss the state-law claim and stay its proceedings on the constitutional question until a state court has resolved the state issue. A district court has no discretion to abstain if the abstention requirements are not met [Cedar Shake & Shingle Bur. v. City of Los Angeles (9th Cir. 1993) 997 F.2d 620, 622].

Questions of deferral may also arise among the federal courts when a case that will adequately address a party s claims is already pending. In this situation, the general principle is to avoid duplicative litigation, and advance judicial economy [Colorado River Water Cons. Dist. v. U.S. (1976) 424 U.S. 800, 817, 96 S. Ct. 1236, 47 L. Ed. 2d 483; O Neill v. U.S. (9th Cir. 1995) 50 F.3d 677, 688]. Those circumstances are exceedingly rare, because the existence of a substantial doubt as to the adequacy of the state court action to address a party s claims precludes the granting of a stay [Smith v. Central Ariz. Water Cons. Dist. (9th Cir. 2005) 418 F.3d 1028, 1033 (stay properly denied)].

Deferral is also appropriate when the case involves a local issue arising out of a complex regulatory scheme [see Burford v. Sun Oil Co. (1943) 319 U.S. 315, 332, 63 S. Ct. 1098, 87 L. Ed. 1424; Hotel Emples. Int'l Union v. Nevada Gaming Com n (9th Cir. 1993) 984 F.2d 1507, 1512] and will impact and unduly burden the state regulatory scheme [Hawthorne Sav. F.S.B. v. Reliance Ins. Co. (9th Cir. 2005) 421 F.3d 835, 848 (as amended) (federal court interpretation of California law concerning whether to defer to insurance insolvency proceedings in other states would not be unduly burdensome)]. A somewhat different deferral test applies in declaratory relief cases [see Brillhart v. Excess Ins. Co. (1942) 316 U.S. 491, 495, 62 S. Ct. 1173, 86 L. Ed. 1620; 40235 Washington Street Corp. v. Lusardi (9th Cir. 1992) 976 F.2d 587, 588].

California Rules of Court provide a potential alternative to deferral by the federal court that consists of seeking a ruling on a matter of state law from the California Supreme Court [see Cal. Rules Ct., Rule 8.548; for discussion, see Ch. 54, California Supreme Court Review 54.11[6]].

For a detailed discussion of deferral, see Moore s Federal Practice, Ch. 122 (3rd ed. Matthew Bender). [4] Preemption Complete preemption of state law by a federal statute provides exclusive federal question jurisdiction [Hall v. North American Van Lines, Inc. (9th Cir. 2007) 476 F.3d 683, 687 688 (claim, but not necessarily relief, must arise under federal law); see Atkins v. Praxair Inc. (9th Cir. 2006) 182 Fed. Appx. 724, 726, (federal question jurisdiction based on Employee Retirement Income Security Act of 1974, 29 U.S.C.S. 1001, et seq., preemption of state law claims that relate to an employee benefit plan under ERISA)]. Partial preemption of state law by a federal law provides federal question jurisdiction over claims based on the subject of preemption [see Peralta v. Hispanic Bus., Inc. (9th Cir. 2005) 419 F.3d 1064, 1068 1069 (federal question jurisdiction based on Employee Retirement Income Security Act of 1974, 29 U.S.C.S. 1001, et seq., preemption of state law claims that relate to an employee benefit plan under ERISA)].

On the other hand, reverse preemption provisions in federal statutes bar federal question jurisdiction [see Qwest Corp. v. City of Surprise (9th Cir. 2006) 434 F.3d 1176, 1184 (federal Tax Injunction Act bars federal subject matter jurisdiction to enjoin state tax collection)].

Similarly, the existence of a defense based upon federal law is insufficient to support jurisdiction [Hall v. North American Van Lines, Inc. (9th Cir. 2007) 476 F.3d 683, 687; Wayne v. DHL Worldwide Express (9th Cir. 2002) 294 F.3d 1179, 1183].

For discussion of preemption as a basis for removal to federal court, see 265.33[2][d]. For discussion of determining whether and to what extent a federal law preempts state law, see 531.91.

 265.15 Diversity of Citizenship Jurisdiction [1] In General The federal district courts have original jurisdiction of all civil actions in which the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and the action is between: (1) citizens of different states; (2) citizens of a state and citizens or subjects of a foreign state; (3) citizens of different states and in which foreign states or citizens or subjects thereof are additional parties; and (4) a foreign state (defined in 28 U.S.C.S. 1603(a)) as plaintiff and citizens of a state or of different states [28 U.S.C.S. 1332(a); see Pub. L. No. 100-702, 201, 102 Stat. 4646 (former $50,000 jurisdictional minimum applies to actions commenced prior to January 19, 1997)].

The amount-in-controversy requirement excludes only interest and costs and therefore includes attorney s fees as well as any other sums that would be paid to a party as a result of judgment [Guglielmino v. McKee Foods Corp. (9th Cir. 2007) 506 F.3d 696, 700 701 (attorney fees and back payments of health benefits and taxes)].

For the purposes of diversity and removal jurisdiction, an alien admitted to the United States for permanent residence is deemed a citizen of the state in which he or she is domiciled [28 U.S.C.S. 1332(a) (applicable to civil actions commenced or removed on or after May 18, 1989)]. For the same purposes, the legal representative of the estate of a decedent is deemed to be a citizen only of the same state as the decedent, and the legal representative of an infant or incompetent is a citizen only of the same state as the infant or incompetent [28 U.S.C.S. 1332(c)(2) (applicable to civil actions commenced or removed on or after May 18, 1989)].

No diversity jurisdiction is conferred on a district court under 28 U.S.C.S. 1332 in a case involving citizens of different states unless proper and complete allegations of diversity of citizenship are made showing that no plaintiff is a citizen of the same state as any of the defendants; that is, each plaintiff must be able to sue each defendant [see Treinies v. Sunshine Mining Co. (1939) 308 U.S. 66, 71, 60 S. Ct. 44, 84 L. Ed. 85; Fifty Associates v. Prudential Ins. Co. of America (9th Cir. 1970) 446 F.2d 1187, 1190; Potter s Photographic Applications Co. v. Ealing Corporation (E.D. N.Y. 1968) 292 F. Supp. 92, 107, 1968 Trade Cas. (CCH) P72622]. Diversity of citizenship is assessed at the time the action is filed. Once established, diversity jurisdiction is not defeated by the addition of a nondiverse party who was not an indispensable party at the time the complaint was filed [Mattel, Inc. v. Bryant (9th Cir. 2006) 446 F.3d 1011, 1013 (intervenor not indispensible); Freeport-McMoRan Inc. v. K. N. Energy (1991) 498 U.S. 426, 428, 111 S. Ct. 858, 112 L. Ed. 2d 951].

Under the court-made domestic relations exception to diversity jurisdiction, federal courts will not exercise diversity jurisdiction in cases involving the issuance of a divorce, alimony, or child custody decree. This exception, however, does not apply to a tort action between former spouses or to an action seeking to enforce an alimony decree rendered by a state court [Ankenbrandt v. Richards (1992) 504 U.S. 689, 703 704, 112 S. Ct. 2206, 119 L. Ed. 2d 468 (tort); Barber v. Barber (1859) 16 L. Ed. 226, 21 How. 582 (enforcement)].

Under the court-made probate exception to diversity jurisdiction, federal courts will not exercise diversity jurisdiction in cases involving probate of a will or administration of an estate. However, federal courts of equity do have jurisdiction to entertain suits in favor of creditors, legatees and heirs and other claimants against a decedent s estate to establish their claims so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court [Marshall v. Marshall (2006) 547 U.S. 293 or , 126 S. Ct. 1735 or ; 126 S. Ct. 1735 or , 164 L. Ed. 2d 480 or , 497 or ]. [2] Improper Joinder A district court does not have jurisdiction of a civil action in which any party, by assignment or otherwise, has been improperly or collusively joined to invoke the jurisdiction of the court [28 U.S.C.S. 1359]. Although motive alone is irrelevant in determining whether a party has been improperly or collusively joined, if a nominal party who has no real or substantial interest in the dispute or controversy is designated simply for the purpose of creating diversity of citizenship, such a party has been improperly or collusively named [McSparran v. Weist (3rd Cir. 1968) 402 F.2d 867, 873, 875]. In addition, if a party has been improperly joined as a plaintiff or defendant to the action in order to create diversity jurisdiction, the court will look beyond the pleadings, arrange the parties according to their sides in the dispute, and, if necessary, dismiss the action for want of jurisdiction [Smith v. Sperling (1957) 354 U.S. 91, 99 100, 77 S. Ct. 1112, 1 L. Ed. 2d 1205; Dawson v. Columbia Ave. Sav. Fund, Safe Deposit, Title, & Trust Co. (1905) 197 U.S. 178, 180, 25 S. Ct. 420, 49 L. Ed. 713].

Sanctions may be imposed against an attorney for failing to conduct a reasonable investigation of a client s domicile before filing a diversity action [Hendrix v. Naphtal (9th Cir. 1992) 971 F.2d 398, 399 400]. [3] Fictitious Defendants Inclusion of fictitious defendants in a complaint originally filed in federal court destroys diversity jurisdiction [Garter-Bare Co. v. Munsingwear, Inc. (9th Cir. 1980) 650 F.2d 975, 981; Molnar v. National

BroadcastingCompany (9th Cir. 1956) 231 F.2d 684, 685 686; compare 28 U.S.C.S. 1441(a) (fictitiously named defendants are disregarded for purposes of removal); for further discussion of removal, see 265.30 et seq.].

When a fictitious defendant allegation has been used, diversity jurisdiction may be restored if the fictitious defendants are subsequently dismissed, or if the fictitious defendants have not been served when the trial begins [Preaseau v. Prudential Ins. Co. (9th Cir. 1979) 591 F.2d 74, 75 76 (dismissal of fictitious defendants); Southern Pacific Co. v. Haight (9th Cir. 1942) 126 F.2d 900, 903 904, cert. denied 317 U.S. 676 (nonservice of fictitious defendants)]. [4] Corporations For the purposes of diversity and removal jurisdiction, a corporation is deemed a citizen of any state by which it has been incorporated and of the state where it has its principal place of business [28 U.S.C.S. 1332(c)(1)]. However, in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party defendant, that insurer is deemed a citizen of the state in which the insured is a citizen, as well as of any state by which the insurer has been incorporated and of the state where it has its principal place of business [28 U.S.C.S. 1332(c)(1) (applicable to civil actions commenced or removed on or after May 18, 1989)]. Unless the cause of action brought against the insurer is of such a nature that liability could be imposed against the insured, the action is not considered a direct action under the diversity statute [Searles v. Cincinnati Ins. Co. (9th Cir. 1993) 998 F.2d 728, 729].

Allegations of diversity jurisdiction in an action in which a corporation is a party must contain both the place of incorporation and the principal place of business of the corporate party [Moore v. Sylvania Elec. Prod., Inc. (3rd Cir. 1972) 454 F.2d 81, 84 n.1]. Principal place of business is best read as referring to the place where a corporation s officers direct, control, and coordinate the corporation s activities. It is normally be the place where the corporation maintains its headquarters, provided that the headquarters is the actual center of direction, control, and coordination, i.e., the nerve center, and not simply an office where the corporation holds its board meetings [The Hertz Corp. v. Friend (2010) U.S. ,130 S. Ct. 1181, 175 L. Ed. 2d 1029, 1041 1042; see Breitman v. May Co. California (9th Cir. 1994) 37 F.3d 562, 564 (citing Industrial Techtronics, Inc. v. Aero Alloy (9th Cir. 1990) 912 F.2d 1090, 1092)]. A bare allegation that a corporation is a citizen of a certain state without such additional allegations is considered a mere conclusion of law and is insufficient to confer diversity jurisdiction on the district court [Fifty Associates v. Prudential Ins. Co. of America (9th Cir. 1970) 446 F.2d 1187, 1190]. [5] Limited Partnerships and Limited Liability Companies

For the purposes of diversity and removal jurisdiction, a limited partnership is not in its own right a citizen of the state that created it [Carden v. Arkoma Assocs. (1990) 494 U.S. 185, 187, 192 196, 110 S. Ct. 1015, 108 L. Ed. 2d 157]. A federal court must look to the citizenship of the general partners and the limited partners to determine whether there is complete diversity [Carden v. Arkoma Associates (1990) 494 U.S. 185, 187, 192 196, 110 S. Ct. 1015, 108 L. Ed. 2d 157, 163]. The same rule applies to limited liability companies [Johnson v. Columbia Props. Anchorage, LP (9th Cir. 2006) 437 F.3d 894, 899]. [6] Class Actions [a] Minimal Diversity [i] In General The Class Action Fairness Act of 2005 (CAFA), which applies to all actions commenced on or after February 18, 2005 [Progressive West Insurance Co. v. Preciado (9th Cir. 2007) 479 F.3d 1014, 1016 (cross complaint filed on February 17, 2005, and subsequently amended not subject to CAFA); Bush v. Cheaptickets, Inc. (9th Cir. 2005) 425 F.3d 683, 686 687 (complaint filed on February 17, 2005 not subject to CAFA)], provides special rules for diversity jurisdiction in class actions. The CAFA adds a new subsection (d) to the diversity statute, U.S.C.S. 1332 providing for federal jurisdiction based on minimal diversity. Under the new subsection, federal district courts have jurisdiction over any class action in which: (1) the matter in controversy exceeds $5 million, and (2) any member of a plaintiff class and any defendant are citizens of different states [U.S.C.S. 1332(d)(2)].

A defendant seeking removal in an action in which the plaintiff s complaint prays for relief in an amount below the jurisdiction amount must prove with legal certainty that the amount in controversy is satisfied [Lewis v. Verizon Communs., Inc. (2010) 627 F.3d 395, 397 (defendant met burden); Lowdermilk v. United States Bank Nat. Ass n (9th Cir. 2007) 479 F.3d 994, 998 1003 (defendant failed to meet burden of proof)]. Unlike some other Courts of Appeals, the Ninth Circuit employs a preponderance of the evidence standard when the complaint does not allege a specific amount in controversy. It thus expressly contemplates the district court s consideration of some evidentiary record on the amount in controversy [Lewis v. Verizon Communs., Inc. (2010) 627 F.3d 395, 397, 400]. Attorney fees are included in the amount in controversy for determining federal class action jurisdiction if an award of fees is authorized by statute [Lowdermilk v. United States Bank Nat. Ass n (9th Cir. 2007) 479 F.3d 994, 1000].

Jurisdiction is also present where any member of the plaintiff class is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a U.S. state, and where any member of the plaintiff

class is a citizen of a U.S. state and any defendant is a foreign state or a citizen or subject of a foreign state [U.S.C.S. 1332(d)(2)].

The eventual denial of class certification in a class action properly removed in accordance with CAFA does not defeat federal jurisdiction to hear the action [United Steel v. Shell Oil Co. (2010) 602 F.3d 1087, 1091 1092 (remand vacated)].

Prior to the enactment of the CAFA, courts did not enjoy diversity jurisdiction over class actions unless there was complete diversity of citizenship between all named representatives of the plaintiff class and all defendants [see State Farm Fire & Casualty Co. v. Tashire (1967) 386 U.S. 523, 87 S Ct 1199, 18 L Ed2d 270].

For purposes of determining diversity jurisdiction, citizenship of the members of the plaintiff class is determined as of the date of filing the complaint or amended complaint [U.S.C.S. 1332(d)(7)]. [ii] Exceptions The CAFA contains some exceptions to the rule of minimal diversity [Serrano v. 180 Connect Inc. (9th Cir. 2007) 478 F.3d 1018, 1023 (provisions set forth in 1332(d)(3), (4) are exceptions to jurisdiction)]:

Minimal diversity jurisdiction is unavailable in a class action in which the primary defendants are states, state officials, or other government entities due to 11th Amendment considerations [28 U.S.C.S. 1332(d)(5); for discussion of the 11th Amendment as it pertains to federal jurisdiction, see 265.18].

Minimal diversity jurisdiction is unavailable in a class action in which there are fewer than 100 members of all proposed plaintiff classes in the aggregate [28 U.S.C.S. 1332(d)(5)].

 Minimal diversity jurisdiction is unavailable in a class action in which two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the state in which the action was originally filed [28 U.S.C.S. 1332(d)(4)(B)].

Minimal diversity jurisdiction is unavailable in a class action in which more than twothirds of the members of all proposed plaintiff classes in the aggregate are citizens of the state in which the action was originally filed; at least one defendant from whom significant relief is sought and whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class is a citizen of the state in which the action was originally filed; principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the state in which the action was originally filed; and during the three years preceding the filing of the class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons [U.S.C.S. 1332(d)(4)(A)].

Minimal diversity jurisdiction is unavailable in certain class actions pertaining to the Securities Act of 1933 and to corporations and business enterprises governance [28 U.S.C.S. 1332(d)(9)].

The objecting party bears the burden of proof as to the applicability of an express statutory exception [Serrano v. 180 Connect Inc. (9th Cir. 2007) 478 F.3d 1018, 1023 1024 (applied to 28 U.S.C.S. 1332(d)(3), (4)) (disapproving Lao v. Wickes Furniture Co., Inc. (C.D. Cal. 2006) 455 F. Supp. 2d 1045)].

Additionally, a court has discretion to decline to exercise minimal diversity jurisdiction if more than onethird but less than two-thirds of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the state in which the action was originally filed [28 U.S.C.S. 1332(d)(3)]. [b] Mass Actions A mass action is any civil action in which monetary relief claims of 100 or more people are proposed to be tried jointly on the ground that the plaintiffs claims involve common questions of law or fact [28 U.S.C.S. 1332(d)(11)(A)]. A mass action is treated as a class action for purposes of diversity jurisdiction except that diversity jurisdiction does not exist over any plaintiff whose individual claim does

not satisfy the $75,000 jurisdiction minimum for diversity jurisdiction [28 U.S.C.S. 1332(d)(11)(A); Abrego Abrego v. The Dow Chem. Co. (9th Cir. 2006) 443 F.3d 676, 686 690 (no individual claim satisfied $75,000 minimum)].

A mass action does not include any civil action in which any of the following is true [28 U.S.C.S. 1332(d)(11)(B)(ii)]:

All of the claims arise from an alleged event or occurrence in the state in which the action was filed, with the allegedly resulting injuries in that state or in states contiguous to that state.

The claims are joined on motion fo a defendant.

All claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to a state statute specifically authorizing such an action.

The claims have been consolidated or coordinated solely for pretrial proceedings. [7] Pleading Jurisdictional Amount [a] In General In any action in which the jurisdiction of the federal court is based on diversity of citizenship, the matter in controversy must exceed, exclusive of interest and costs, the sum or value of $75,000 [see 28 U.S.C.S. 1332(a) (effective January 19, 1997)]. As with other jurisdictional matters, the amount in controversy must be specifically alleged [see Century Southwest Cable Television, Inc. v. CIIF Associates (9th Cir. 1994) 33 F.3d 1068, 1071]. Generally, the sum claimed by the plaintiff in his or her prayer for relief controls if the claim is apparently made in good faith [St. Paul Mercury Indem. Co. v. Red Cab Co. (1938) 303 U.S. 283, 288 289, 58 S. Ct. 586, 82 L. Ed. 845], unless the rest of the complaint qualifies or detracts from the claimed sum so that it cannot be said that jurisdiction appears on the face of the

complaint taken as a whole [KVOS, Inc. v. Associated Press (1936) 299 U.S. 269, 277, 57 S. Ct. 197, 81 L. Ed. 183].

It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal [St. Paul Mercury Indem. Co. v. Red Cab Co. (1938) 303 U.S. 283, 288 289, 58 S. Ct. 586, 82 L. Ed. 845]. The subsequent inability of the plaintiff to recover an amount adequate to give the court jurisdiction does not in itself show his or her bad faith [St. Paul Mercury Indem. Co. v. Red Cab Co. (1938) 303 U.S. 283, 289, 58 S. Ct. 586, 82 L. Ed. 845]. However, except when express provision therefor is otherwise made in a statute of the United States, when the plaintiff is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interests and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff [28 U.S.C.S. 1332(b)]. [b] Joinder of Claims and Parties A single plaintiff is permitted to aggregate his or her claims for relief in order to satisfy the jurisdictional amount requirement, even though such claims are separate and distinct [see Lemmon v. Cedar Point, Inc. (6th Cir. 1969) 406 F.2d 94, 96]. Two or more plaintiffs may not, however, combine separate and distinct claims in a single suit in order to satisfy the requisite jurisdictional amount unless such plaintiffs have united to enforce a single title or right in which they have a common and undivided interest [Pinel v. Pinel (1916) 240 U.S. 594, 596, 36 S. Ct. 416, 60 L. Ed. 817; see Snow v. Ford Motor Co. (9th Cir. 1977) 561 F.2d 787, 789 790 (class members not permitted to aggregate separate and distinct claims for relief to satisfy jurisdictional amount)]. A plaintiff also may not combine his or her claimwith the defendant s compulsory counterclaim in order to satisfy the jurisdictional amount when the defendant has objected from the beginning to the federal court s assumption of jurisdiction over the plaintiff s main action on the ground that the amount in controversy in that action was insufficient [Motorists Mutual Ins. Co. v. Simpson (7th Cir. 1968) 404 F.2d 511, 514]. For discussion of aggregating claims in class or mass actions, see 265.15[6]. [c] Objection by Defendant A court is not bound to dismiss an action on a defendant s motion that is based solely on an alleged insufficient pleading of the amount in controversy if the pleading taken as a whole sufficiently alleges the requisite jurisdictional amount. However, when the allegations regarding the amount in controversy are challenged by the defendant in an appropriate manner, the plaintiff must support them by competent proof [KVOS, Inc. v. Associated Press (1936) 299 U.S. 269, 278, 57 S. Ct. 197, 81 L. Ed. 183 (motion to dismiss for failure to allege requisite jurisdictional amount reciting facts in opposition to plaintiff s jurisdictional allegation)].

 265.16 Case or Controversy Requirement [1] In General Article III of the United States Constitution confers jurisdiction only over actual cases and controversies (also referred to as justiciable cases), effectively prohibiting federal courts from rendering advisory opinions [S.E.C. v. Medical Committee for Human Rights (1972) 404 U.S. 403, 407, 92 S. Ct. 577, 30 L. Ed. 2d 560; Muskrat v. United States (1911) 219 U.S. 346, 362, 31 S. Ct. 250, 55 L. Ed. 246]. The application of the following three basic doctrines enables the federal courts to safeguard this aspect of their jurisdiction:

Standing (whether the parties bringing the suit are appropriate to seek redress for the alleged injury).

Ripeness (whether the case is based upon concrete, as distinguished from hypothetical facts).

Mootness (whether resolution of the issues or redress of the rights of the parties has been rendered unnecessary or inappropriate by subsequent events).

A fourth, more obscure doctrine related to justiciability prohibits courts from resolving political questions that would require consideration of policy issues that are more properly the province of the legislative or executive branch. [2] Standing of Parties For a party to have standing to bring a suit in federal court, that party must have suffered an injury in fact that is concrete and particularized, not conjective or hypothetical, that is fairly traceable to the challenged action of the defendant, and that is likely to be redressed by a favorable decision by the court [Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351, 364; Nuclear Information and Resource Service v. Nuclear Regulatory Comm. (9th Cir. 2006) 457 F.3d 941, 950 (procedural injury can satisfy the requirements for standing)]. Under certain circumstances, it is permissible to raise the

rights of third persons, but only when those whose rights have been impaired cannot defend their rights themselves [see, e.g., Griswold v. Connecticut (1965) 381 U.S. 479, 481, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (physicians could raise privacy rights of married couples who would be denied contraceptives if challenged statute enforced); Barrows v. Jackson (1953) 346 U.S. 249, 258 259, 73 S. Ct. 1031, 97 L. Ed. 1586 (party to restrictive covenant barring non-Caucasians from property ownership could raise Fourteenth Amendment rights of those persons)].

A plaintiff meets the redressability requirement if it is likely, even if not certain, that his or her injury can be redressed by a favorable decision [Wolfson v. Brammer (2010) 616 F.3d 1045, 1056].

When the federal cause of action is statutory, the plaintiff must also meet a prudential standing test. The prudential standing analysis examines whether the plaintiff has been granted a right to sue by the statute under which he or she brings suit [Doran v. 7-Eleven, Inc. (9th Cir. 2007) 506 F.3d 1191, 1201 (ADA plaintiff who has Article III standing as a result of at least one barrier at a place of public accommodation may, in one suit, permissibly challenge all barriers in that public accommodation that are related to his or her specific disability); Ashley Creek Phosphate Co. v. Norton (9th Cir. 2005) 420 F.3d 934, 939 940 (standing provision of Administrative Procedures Act, 5 U.S.C.S. 702, requires that the interest sought to be protected be arguably within the zone of interests protected or regulated by the statute on which the claim is based)]. The court is to weigh two considerations: (1) the fitness of the issues for judicial decision and (2) hardship to the parties of withholding court consideration. To meet the hardship requirement, a litigant must show that withholding review would result in direct and immediate hardship and would entail more than possible financial loss. It requires an immediate and significant change in plaintiff s conduct of his or her affairs with serious penalties attached to noncompliance [Wolfson v. Brammer (2010) 616 F.3d 1045, 1060 (primarily legal cause of action does not require substantial further factual development to show hardship)].

When a plaintiff states an overbreadth claim under the First Amendment, the court suspends the prudential standing doctrine because of the special nature of the risk to expressive rights. While the prudential standing doctrine typically prevents the court from hearing lawsuits on the basis of injuries to non-parties, the overbreadth doctrine operates as a narrow exception permitting the lawsuit to proceed on the basis of a judicial prediction or assumption that the statute s very existence may cause others not before the court to refrain from constitutionally protected speech or expression [Get Outdoors II, LLC v. City of San Diego (9th Cir. 2007) 506 F.3d 886, 891]. [3] Ripeness of Controversy The doctrine of ripeness is applied to prevent a case from being decided prematurely or on a hypothetical basis. Litigation is required to be based on actual issues between the parties [see United Public Workers

of America (C.I.O.) v. Mitchell (1947) 330 U.S. 75, 90 91, 67 S. Ct. 556, 91 L. Ed. 754]. This aspect of ripeness is considered in a two prong test: (1) the fitness of the issues for judicial decision; and (2) the hardship to the parties of withholding court consideration [Manufactured Home Cmtys., Inc. v. City of San Jose (9th Cir. 2005) 420 F.3d 1022, 1033]. However, a declaratory judgment is often available in cases in which resolution would otherwise have to await potential violation of a legal standard and the attendant consequences before the issues could be resolved. Common examples are declaratory actions by insurance carriers to determine the availability of coverage [see Maryland Casualty Co. v. Pacific Coal & Oil Co. (1941) 312 U.S. 270, 273 274, 61 S. Ct. 510, 85 L. Ed. 826] and challenges to criminal statutes prior to a potential violator s being subjected to arrest and prosecution see Steffel v. Thompson (1974) 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L. Ed. 2d 505]. While a substantive due process violation by the government is complete as soon as the government action occurs, the mere existence of a statute that may or may not ever be applied to plaintiffs is insufficient to create a ripe case or controversy [Action Apt. Ass n v. Santa Monica Rent Control Opinion Bd. (9th Cir. 2007) 509 F.3d 1020, 1026 1027]. The basic question is whether the facts alleged, under the circumstances, show a substantial controversy between parties having adverse legal interests, of sufficient immediacy and reality to warrant a declaratory judgment [Maryland Casualty Co. v. Pacific Coal & Oil Co. (1941) 312 U.S. 270, 273, 61 S. Ct. 510, 85 L. Ed. 826].

Although the mere existence of a statute is insufficient to create a ripe controversy, the United States Court of Appeals for the Ninth Circuit has applied the requirement of ripeness less stringently in the context of First Amendment claims. In particular, one need not await consummation of the threatened injury before challenging a statute restricting speech, to guard the risk that protected conduct will be deterred. To avoid the chilling effect of restrictions on speech, the Court has endorsed a hold your tongue and challenge now approach rather than requiring litigants to speak first and take their chances with the consequences [Wolfson v. Brammer (2010) 616 F.3d 1045, 1059]. A pre-enforcement First Amendment challenge to a law requires a showing that plaintiff is subject to a genuine threat of imminent prosecution. A claimed threat of prosecution is genuine if: (1) the plaintiff has articulated a concrete plan to violate the law in question, (2) the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and (3) there is history of past prosecution or enforcement under the challenged statute [Wolfson v. Brammer (2010) 616 F.3d 1045, 1058]. [4] Mootness of Claims [a] General Rule A case or issue is considered moot if it has lost its character as a present, live controversy of the kind that must exist if [a court is] to avoid advisory opinions on abstract propositions of law [Lindquist v. Idaho State Bd. of Corrections (9th Cir. 1985) 776 F.2d 851, 853 854 (quoting Connolly v. Pension Benefit Guaranty Corp. (9th Cir. 1982) 673 F.2d 1110, 1113)]. Stated another way, a claim is moot when the issues are no longer live or the parties lack a legally cognizable interest in the outcome [Shoshone-Bannock Tribes v. Fish & Game Com n, Idaho (9th Cir. 1994) 42 F.3d 1278, 1281 (quoting Murphy v. Hunt (1982) 455 U.S. 478, 481, 102 S. Ct. 1181, 71 L. Ed. 2d 353)]. An actual controversy

must exist at all stages of review, not just when the complaint is filed [Alvarez v. Smith (2009) U.S. 130 S. Ct. 576, 580, 175 L. Ed. 2d 447]. Accordingly, mootness is a jurisdictional defect that renders the court unable to proceed and may be raised at any time during the pendency of the litigation by either a party or by the court sua sponte [see Barilla v. Ervin (9th Cir. 1989) 886 F.2d 1514, 1519].

Mootness is a question of law that appellate courts review de novo [Suter v. Goedert (9th Cir. 2007) 504 F.3d 982, 985]. [b] Exceptions Allowing Hearing of Otherwise Moot Claims The following two principal exceptions to the mootness doctrine allow cases or issues that have otherwise been rendered moot to be resolved by the federal courts [Native Village of Noatak v. Blatchford (9th Cir. 1994) 38 F.3d 1505, 1509]:

Cases involving fact patterns that are capable of repetition, yet evading review.

Cases in which the defendant has voluntarily ceased the questioned conduct or practice, but is free to resume it at any time.

Two elements must be established for a case to be considered capable of repetition but evading review. First, the injury suffered by the plaintiff must be one that is so limited in duration that it cannot be fully litigated prior to the cessation or expiration of the circumstances giving rise to the claim [Wolfson v. Brammer (2010) 616 F.3d 1045, 1054 (election cases often fall within this exception); see Roe v. Wade (1973) 410 U.S. 113, 125, 93 S. Ct. 705, 35 L. Ed. 2d 147; Barilla v. Ervin (9th Cir. 1989) 886 F.2d 1514, 1519]. Second, there must be a reasonable expectation that the same complaining party would be subject to the same action in the future [Weinstein v. Bradford (1975) 423 U.S. 147, 149, 96 S. Ct. 347, 46 L. Ed. 2d 350; Wolfson v. Brammer (2010) 616 F.3d 1045, 1054 1055 (plaintiff s declared intent to seek judicial office at some point in the future satisfied second element of mootness exception); Barilla v. Ervin (9th Cir. 1989) 886 F.2d 1514, 1519].

When there is a voluntary cessation of the complained-of conduct by a defendant, but the conduct is capable of being resumed at any time, a case is not generally considered moot [United States v. W.T.

Grant Co. (1953) 345 U.S. 629, 632 633, 73 S. Ct. 894, 97 L. Ed. 1303; Lindquist v. Idaho State Bd. of Corrections (9th Cir. 1985) 776 F.2d 851, 854]. However, a case may be moot if there is no reasonable expectation that the alleged violation will resume and intervening relief or events have irrevocably eradicated the effect of the alleged violation [Lindquist v. Idaho State Bd. of Corrections (9th Cir. 1985) 776 F.2d 851, 854 (citing County of Los Angeles v. Davis (1979) 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642)]. Amendment or repeal of an offending statute or regulation generally renders a case or issue moot despite the technical ability of the legislative or regulatory body to reenact the questioned provision [Native Village of Noatak v. Blatchford (9th Cir. 1994) 38 F.3d 1505, 1510 (citing Burke v. Barnes (1987) 479 U.S. 361, 363, 107 S. Ct. 734, 93 L. Ed. 2d 732)]. Exceptions are rare, and involve situations in which the statute is virtually certain to be reenacted [City of Mesquite v. Aladdin s Castle, Inc. (1982) 455 U.S. 283, 289 & n.11, 102 S. Ct. 1070, 71 L. Ed. 2d 152 (city had expressly stated that the offending statute would be reenacted if the case was dismissed as moot); Native Village of Noatak v. Blatchford (9th Cir.1994) 38 F.3d 1505, 1510]. Mootness of the substantive issues while the case is on review will not deprive the court of authority to enter such orders as are necessary to finally dispose of the suit, however [U.S. Bancorp v. Bonner Mall (1994) 513 U.S. 18, 115 S. Ct. 386, 130 L. Ed. 2d 233, 239 240]. 265.17 Supplemental Jurisdiction [1] In General The Judicial Improvements Act of 1990 [see Pub. L. No. 101-650, 310], sets forth supplemental jurisdiction of federal district courts. In any civil action over which a district court has original jurisdiction, the court has supplemental jurisdiction over all other claims that are so related to claims in the action within the court s original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution [see 28 U.S.C.S. 1367(a)].

Under the former doctrine of pendent jurisdiction, a federal court had jurisdiction over the state-law claims in an action if the federal-law claims and state-law claims in the case derived from a common nucleus of operative fact and were such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding [Carnegie-Mellon Univ. v. Cohill (1988) 484 U.S. 343, 349, 108 S. Ct. 614, 98 L. Ed. 2d 720 ; United Mine Workers v. Gibbs (1966) 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed 2d 218]. The Gibbs Court reasoned that U.S. Const., art. III, 2 contains a grant of judicial power to decide any claim arising under the Constitution, federal laws, or treaties. Therefore, pendent jurisdiction over a state claim existed when the relationship between the federal claim and the state claim permits the conclusion that the entire action before the court comprised but one constitutional case [United Mine Workers v. Gibbs (1966) 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L. Ed 2d 218]. Given that the former Gibbs test for pendent jurisdiction was based on the case requirement of Article III, it appears that the same test was incorporated into the Act s establishment of supplemental jurisdiction: a district court generally has jurisdiction over state-law claims if the state-law and federal-law claims in a case derive from a common nucleus of operative fact and are such that a plaintiff would ordinarily be expected to try them all in one judicial proceeding.

California Rules of Court make it easier for the federal court to exercise supplemental jurisdiction by allowing requests for a ruling on a matter of first impression under state law from the California Supreme Court [see Cal. Rules Ct., Rule 8.548; for discussion, see Ch. 54, Appeals: California Supreme Court Review 54.11[6]]. [2] Exception Under Express Federal Statute Under the Judicial Improvements Act of 1990 [see Pub. L. No. 101-650, 310], federal district courts do not have supplemental jurisdiction when a federal statute expressly so provides [28 U.S.C.S. 1367(a)]. [3] Supplemental Jurisdiction and Joinder or Intervention [a] Generally Permitted The Judicial Improvements Act of 1990 [see Pub. L. No. 101-650, 310] provides generally that supplemental jurisdiction includes claims that involve the joinder or intervention of additional parties [see 28 U.S.C.S. 1367(a)].

The provisions of the Act to the effect that supplemental jurisdiction includes claims that involve the joinder or intervention of additional parties, along with the exceptions where it would be inconsistent with diversity jurisdiction [see 28 U.S.C.S. 1367(c), discussed in [b]] appear to abrogate the prior case law exception to former ancillary jurisdiction [see Finley v. United States (1989) 490 U.S. 545, 548 549, 551, 556, 109 S. Ct. 2003, 104 L. Ed. 2d 593; Ayala v. U.S. (9th Cir.1977) 550 F.2d 1196, 1198] providing that a district court had no jurisdiction over a plaintiff s state-law claims, whether or not they shared a common nucleus of operative facts with federal-law claims in the case, if the state-law claims required for their resolution the joinder of a party or parties for whom no independent basis of jurisdiction existed. [b] Exception Where Inconsistent With Diversity Jurisdiction The district court does not have supplemental jurisdiction in a civil action of which the district court has original jurisdiction founded solely on 28 U.S.C.S. 1332 (diversity jurisdiction) [see 265.15], over the following types of claims if the exercise of jurisdiction would destroy diversity or otherwise be

inconsistent with the jurisdictional requirements of 28 U.S.C.S. 1332 [28 U.S.C.S. 1367(b)]:

(1) Claims by plaintiff against persons made parties under the following:

(a) Fed. R. Civ. P., Rule 14 (claim against third party who is or may be liable for all or part of claim asserted against party in main action);

(b) Fed. R. Civ. P., Rule 20 (permissive joinder when asserted right to relief arises out of same transaction or occurrence and common question of law or fact exists); or

(c) Fed. R. Civ. P., Rule 24 (intervention of right when necessary to protect third party s interest in property or transaction that is subject of main action; permissive intervention when claim and main action have common question of law or fact);

(2) Claims by persons proposed to intervene as plaintiffs under Fed. R. Civ. P., Rule 19 (compulsory joinder of persons needed for just adjudication); or

(3) Claims by persons seeking to intervene as plaintiffs under Fed. R. Civ. P., Rule 24 (intervention of right when necessary to protect third party s interest in property or transaction that is subject of main action; permissive intervention when claim and main action have common question of law or fact). [4] Discretion to Decline Supplemental Jurisdiction in Certain Circumstances Under the Judicial Improvements Act of 1990 [see Pub. L. No. 101-650, 310], a federal district court may decline to exercise its supplemental jurisdiction over any claim if one of the following conditions exists [28 U.S.C.S. 1367(c)]:

(1) The claim raises a novel or complex issue of state law, including the law of the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States [see 28 U.S.C.S. 1367(e) ( state defined)];

(2) The claim substantially predominates over the claim or claims over which the court has original jurisdiction;

(3) The court has dismissed all the claims over which it has original jurisdiction; or

(4) In exceptional circumstances, there are other compelling reasons for declining jurisdiction.

A district court with power to hear state law claims has discretion to keep, or decline to keep, them under the conditions set out above [Acri v. Varian Assocs. (9th Cir. 1997) 114 F.3d 999, 1000 (en banc)].

In cases falling within one of the aforementioned circumstances, case law factors developed for the former doctrine of pendent jurisdiction apply to the district court s exercise of discretion [Wang v. Chinese Daily News, Inc. (9th Cir. 2010) 623 F.3d 743, 762; see Satey v. JPMorgan Chase Co. (9th Cir. 2008) 521 F.3d 1087, 1091 (all federal claims dismissed)]. Accordingly, in deciding whether to exercise its discretion to decline supplemental jurisdiction under a circumstance listed above, the district court must weigh the values of judicial economy, convenience, fairness, and comity between the federal and state judiciary in order to decide whether to hear supplemental state-law claims [see Carnegie-Mellon Univ. v. Cohill (1988) 484 U.S. 343, 349 350, 108 S. Ct. 614, 98 L. Ed. 2d 720; United Mine Workers v. Gibbs (1966) 383 U.S. 715, 726 727, 86 S. Ct. 1130, 16 L. Ed 2d 218; see Wang v. Chinese Daily News, Inc. (9th Cir. 2010) 623 F.3d 743, 762 (district court properly exercised discretion in not declining supplemental jurisdiction over claim under Bus. & Prof. Code 17200[Deering's])].

California Rules of Court make it easier for the federal court to exercise supplemental jurisdiction by

allowing requests for a ruling on a matter of first impression under state law from the California Supreme Court [see Cal. Rules Ct., Rule 8.548; for discussion, see Ch. 54, Appeals: California Supreme Court Review 54.11[6]]. [5] Effect of Dismissal on Limitation Period If the federal court chooses to decline to exercise its supplemental jurisdiction over a state-law claim, the limitations period for the claims is tolled while the claim is pending and for a period of 30 days after it is dismissed, unless state [see 28 U.S.C.S. 1367(e) ( state defined)] law provides for a longer tolling period. The same tolling provision applies to any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the state-law claim [see 28 U.S.C.S. 1367(d)]. This provision does not toll the period of limitations for state-law claims, asserted in federal court against nonconsenting state defendants, that are dismissed by federal court on the ground that such claims are barred by Federal Constitution s Eleventh Amendment [Raygor v Regents of the Univ. of Minn. (2002) 534 U.S. 533, 122 S. Ct. 999, 152 L. Ed. 2d 27]. [6] Disposition of Claims Not Subject to Supplemental Jurisdiction Although one Ninth Circuit case suggests remand of the state law claim(s) is proper even though the case was originally filed in the district court [see Brady v. Brown (9th Cir. 1995) 51 F.3d 810, 816], the more logical rule is that remand is unavailable for claims never filed in or removed from state court [Misischia v. Pirie (9th Cir. 1995) 60 F.3d 626, 631]. 265.18 Sovereign Immunity Bar to Certain Suits Against States [1] In General That the United States Constitution does not disturb States immunity from private suits is firmly enshrined in the constitutional framework. The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the states of sovereign immunity [Alden v. Maine (1999) 527 U.S. 706, 716, 119 S. Ct. 2240, 144 L. Ed. 2d 636]. Sovereign immunity generally extends against both individuals and sovereigns [Blatchford v. Native Village of Noatak (1991) 501 U.S. 775, 781, 111 S. Ct. 2578, 115 L. Ed. 2d 686].

Accordingly, sovereign immunity bars suits against states by such plaintiffs as:

 Citizens of the state to be sued [Hans v. Louisiana (1890) 134 U.S. 1, 21, 10 S. Ct. 504, 33 L. Ed. 842 (1890) (under federal-questin jurisdiction)].

Foreign states [Principality of Monaco v. Mississippi (1934) 292 U.S. 313, 330, 54 S. Ct. 745, 78 L. Ed. 1282], including Native American tribes [Seminole Tribe of Fla. v. Fla. (1996) 517 U.S. 44, 55, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (Indian Commerce Clause); Blatchford v. Native Village of Noatak (1991) 501 U.S. 775, 781, 111 S. Ct. 2578, 115 L. Ed. 2d 686].

Federal corporations [Smith v. Reeves (1900) 178 U.S. 436, 448, 20 S. Ct. 919, 44 L. Ed. 1140]. [1A] Effect of the Eleventh Amendment The Eleventh Amendment of the United States Constitution provides that [t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or subjects of any foreign State [U.S. Const., amend. XI]. Eleventh Amendment immunity is a jurisdictional matter that may be raised at any time during the pendency of the litigation by either a party or the court [see Edelman v. Jordan (1974) 415 U.S. 651, 677 678, 94 S. Ct. 1347, 39 L. Ed. 2d 662], but, unlike subject matter jurisdiction, may be consented to or waived [see discussion in 265.18[4][b]].

After the Supreme Court allowed a citizen of one state to sue another [FMC v. S.C. State Ports Auth., 535 U.S. 743, 752, 122 S. Ct. 1864, 152 L. Ed. 2d 962 (citing Chisholm v. Georgia (1793) 2 U.S. 419, 1 L. Ed. 440, 2 Dallas 419)], the Eleventh Amendment was adopted in response to states fears that federal courts would require them to pay Revolutionary War debts out of their state treasuries [Hess v. Port Authority Trans-Hudson (1994) 513 U.S. 30, 115 S. Ct. 394, 130 L. Ed. 2d 245, 255], and to this day the potential vulnerability of the state treasury to pay federal court judgments remains the most salient factor in determining whether Eleventh Amendment immunity is available [see, e.g., Hess v. Port Authority Trans-Hudson (1994) 513 U.S. 30, 115 S. Ct. 394, 130 L. Ed. 2d 245, 260-261 (whether entity is an agency of a state for Eleventh Amendment purposes largely dependent on whether state funds would be the source of any judgment); Native Village of Noatak v. Blatchford (9th Cir. 1994) 38 F.3d 1505, 1512 (claims against state officials ultimately seeking payment from state treasury barred by Eleventh Amendment)].

Instead of explicitly memorializing the full breadth of the sovereign immunity retained by the States

when the Constitution was ratified, the Eleventh Amendment only addresses the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision [Alden v. Maine (1999) 527 U.S. 706, 723, 119 S. Ct. 2240, 144 L. Ed. 2d 636]. Thus, Eleventh Amendment protection extends only to actions in which the relief sought is retrospective or compensatory in nature and does not barsuits seeking only prospective, injunctive, or declaratory relief [see, e.g., Edelman v. Jordan (1974) 415 U.S. 651, 664 667, 94 S. Ct. 1347, 39 L. Ed. 2d 662; Native Village of Noatak v. Blatchford (9th Cir. 1994) 38 F.3d 1505, 1511 1512; Ulaleo v. Paty (9th Cir. 1990) 902 F.2d 1395, 1398 (citing Ex parte Young (1908) 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714)]. In determining whether the relief sought is prospective or retroactive, the courts will look to the substance of the remedy sought, and not the form in which the claim is made [see Native Village of Noatak v. Blatchford (9th Cir. 1994) 38 F.3d. 1505, 1512 (citing Papasan v. Allain (1986) 478 U.S. 265, 279, 106 S. Ct. 2932, 92 L. Ed. 2d 209; Ulaleo v. Paty (9th Cir. 1990) 902 F.2d 1395, 1399]. For instance, in one case, the Ninth Circuit emphasized that the overriding question in determining whether the remedy sought is prospective, rather than in the nature of damages or reparations, is whether the relief is to remedy future or past wrongs. An injunction that will in practical effect require payment of funds out of the state treasury is nonetheless permissible if it requires only that officials conform their future actions to federal law [Coeur d Alene Tribe of Idaho v. State of Idaho (9th Cir. 1994) 42 F.3d 1244, 1252 (emphasis added; citing Quern v. Jordan (1979) 440 U.S. 332, 337, 99 S. Ct. 1139, 59 L. Ed. 358)] or if payment of state funds [is] a necessary consequence of compliance in the future and is merely ancillary to the prospective relief granted [Edelman v. Jordan (1974) 415 U.S. 651, 667 668, 94 S. Ct. 1347, 39 L. Ed. 2d 662]. [2] Application to State Agencies Agencies, instrumentalities, and arms of the state (collectively state agencies ) are entitled to sovereign immunity, including under the Eleventh Amendment, on the same basis as are the states themselves [Krainsky v. State of Nevada ex. rel. Board of Regents (2010) 616 F.3d 963, 967 (Eleventh Amendment); see, e.g., Florida Dept. of State v. Treasure Salvors, Inc. (1982) 458 U.S. 670, 684, 102 S. Ct. 3304, 73 L. Ed. 2d 1057; (Eleventh Amendment); Ex parte New York (1921) 256 U.S. 490, 500 501, 41 S. Ct. 588, 65 L. Ed. 1057 (sovereign immunity); Franceschi v. Schwartz (9th Cir. 1995) 57 F.3d 828, 831 (per curiam) (Eleventh Amendment)]. Whether an entity is a state agency for Eleventh Amendmentpurposes will depend on the state law creating the agency, including the degree of autonomy granted the agency and the degree of control retained by the state [see Lake Country Estates v. Tahoe Planning Agcy. (1979) 440 U.S. 391, 401, 99 S. Ct. 1171, 59 L. Ed. 2d 401; cf. Hess v. Port Authority Trans-Hudson (1994) 513 U.S. 30, 115 S. Ct. 394, 130 L. Ed. 2d 245, 260-261 (control of agency by state not dispositive)]. However, the overriding factor in assessing the availability of Eleventh Amendmentimmunity to a state agency is whether any recovery against the agency would be payable from the state treasury, i.e., whether the state is the real party in interest [see, e.g., Hess v. Port Authority Trans-Hudson (1994) 513 U.S. 30, 115 S. Ct. 394, 130 L. Ed. 2d 245, 260-261; Alaska Cargo Transport, Inc. v. Alaska R.R. Corp. (9th Cir. 1993) 5 F.3d 378, 380]. Applying this analysis, municipalities, counties, and municipal agencies are generally found not to be state agencies [see Mt. Healthy City Board of Educ. v. Doyle (1977) 429 U.S. 274, 280, 97 S. Ct. 568, 50 L. Ed. 2d 471]. A California school district and county office of education are arms of the state for purposes of Eleventh Amendment sovereign immunity [Stoner v. Santa Clara County Office of Educ. (9th Cir. 2007) 502 F.3d 1116, 1122 (qui tam action under False Claims Act, 31 U.S.C.S. 3729 et seq.)].

[3] Application to State Officials Absolute immunity of state officials under the Eleventh Amendment extends only to a very limited class of officials, including the governor, legislators carrying out their legislative functions, and judges carrying out their judicial functions. Other state officials may be held personally liable under federal law for actions taken in their official capacities [Hafer v. Melo (1991) 502 U.S. 21, 27 31, 112 S. Ct. 358, 116 L. Ed. 2d 301 (other state officials subject to liability under 42 U.S.C. 1983); Stoner v. Santa Clara County Office of Educ. (9th Cir. 2007) 502 F.3d 1116, 1124 1125 (qui tam action under False Claims Act, 31 U.S.C.S. 3729 et seq.)].

Under the doctrine of Ex Parte Young and its progeny, state officials acting under an allegedly unconstitutional statute or in an unauthorized manner are acting individually and not in their official capacities, and can be sued as any other tortfeasor under the theory that a state cannot act in a manner violative of federal law and, therefore, cannot authorize its officials to do so [Va. Office for Prot. & Advocacy v. Stewart (2011) ___ U.S. ___, ___, 131 S. Ct. 1632, 179 L. Ed. 2d 675, 685 686 Ex Parte Young (1908) 209 U.S. 123, 159 160, 28 S. Ct. 441, 52 L. Ed. 714; see also Han v. U.S. Dept. of Justice (9th Cir. 1995) 45 F.3d 333, 338]. However, this doctrine only applies to suits for prospective relief [Va. Office for Prot. & Advocacy v. Stewart (2011) ___ U.S. ___, ___, 131 S. Ct. 1632, 179 L. Ed. 2d 675, 684, 686], such as an injunction or declaratory judgment, because if money judgments against the officials would have to be paid out of the state treasury, the state is the real party in interest [Ford Motor Co. v. Treasury Department (1945) 323 U.S. 459, 464, 65 S. Ct. 347, 89 L. Ed. 389; Almond Hill School v. U.S. Dept. of Agriculture (9th Cir. 1985, 768 F.2d 1030, 1033)].

A distinction is drawn between allegation of violation of federal rights under color of state law by state officials and mere violation of state law not implicating federal rights. Conduct under authority of state law that violates no federal right is merely tortious, and does not implicate an Eleventh Amendment analysis. The test of whether federal rights are implicated can be met by the adequate allegation of an ongoing violation of a federal right [Wilbur v. Locke (9th Cir. 2005) 423 F.3d 1101, 1111 (ongoing violation properly alleged); Coeur d Alene Tribe of Idaho v. State of Idaho (9th Cir. 1994) 42 F.3d 1244, 1251], and the possibility that the state official may eventually prevail on the merits does not confer Eleventh Amendment immunity [Scheuer v. Rhodes (1974) 416 U.S. 232, 238, 94 S. Ct. 1683, 40 L. Ed. 2d 90]. [4] Exceptions [a] In General

The two major exceptions to Eleventh Amendment immunity are (1) consent or waiver by a state, and (2) abrogation of immunity by Congressional action under the enforcement provisions of the Constitution [College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. (1999) 527 U.S. 666 Copyright Cases or Patent Cases, 680 Copyright Cases or Patent Cases, 670, 119 S. Ct. 2219 Copyright Cases or Patent Cases, 144 L. Ed. 2d 605 Copyright Cases or Patent Cases; see, e.g., Atascadero State Hospital v. Scanlon (1985) 473 U.S. 234, 238, 105 S. Ct. 3142, 87 L. Ed. 2d 171; Micomonaco v. State of Washington (9th Cir. 1995) 45 F.3d 316, 319].

In addition, immunity against suits by the United States or other states is deemed to have been surrendered in the plan of convention based on principles of comity and federal supremacy [see Blatchford v. Native Village of Noatak (1991) 501 U.S. 775, 780 782, 111 S. Ct. 2578, 115 L. Ed. 2d 686; South Dakota v. North Carolina (1904) 192 U.S. 286, 317, 24 S. Ct. 269, 48 L. Ed. 448]. Thus, two constitutional exceptions to sovereign immunity apply to specific actors, namely:

Suits by other states [see South Dakota v. North Carolina, 192 U.S. 286, 318, 24 S. Ct. 269, 48 L. Ed. 448 (1904)], and

Suits by the United States [see United States v. Texas, 143 U.S. 621, 12 S. Ct. 488, 36 L. Ed. 285 (1892)].

Furthermore, certain clauses of the original Constitution inherently impose limitations on state sovereign immunity when a state ratifies the Constitution. For example, the nature of the Bankruptcy Clause in preexisting Article I makes states waive sovereign immunity in bankruptcy actions in bankruptcy cases [Central Va. Cmty. Coll. v. Katz (2006) 546 U.S. 356 or , 363 or , 126 S. Ct. 990 or , 163 L. Ed. 2d 945 or (Eleventh Amendment ineffective in bankruptcy case)]. [b] Consent or Waiver by States A state s consent or waiver of its sovereign immunity, including under the Eleventh Amendment, must be unequivocal, expressly stated, or inferred by overwhelming implication [Sossamon v. Texas (2011), ___ U.S. ___, ___, 131 S. Ct. 1651, 179 L. Ed. 2d 700, 709 (sovereign immunity); College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. (1999) 527 U.S. 666 Copyright Cases or Patent Cases, 680 Copyright Cases or Patent Cases, 681, 119 S. Ct. 2219 Copyright Cases or Patent Cases, 144 L. Ed. 2d 605 Copyright Cases or Patent Cases (Eleventh Amendment); United States v. Nordic Village, Inc. (1992), 503 U.S. 30, 37, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992) (equating the unequivocal

expression principle from the Eleventh Amendment context with the principle applicable to federal sovereign immunity)]. The waiver must be specific as to lawsuits in federal court [Atascadero State Hospital v. Scanlon (1985) 473 U.S. 234, 241, 105 S. Ct. 3142, 87 L. Ed. 2d 171; Pennhurst State School & Hosp. v. Halderman (1984) 465 U.S. 89, 99, 104 S. Ct. 900, 79 L. Ed. 2d 67]. A waiver of state court immunity is not necessarily coextensive with a waiver of Eleventh Amendment immunity [Dept. of Health v. Florida Nursing Home Assn. (1981) 450 U.S. 147, 149, 150, 101 S. Ct. 1032, 67 L. Ed. 2d 132; Coeur d Alene Tribe of Idaho v. State of Idaho (9th Cir. 1994) 42 F.3d 1244, 1249 (citing Edelman v. Jordan (1974) 415 U.S. 651, 677 n.19, 94 S. Ct. 1347, 39 L. Ed. 2d 662)]. A state may also waive its immunity in specific cases by appearing and defending a lawsuit on its merits [Fordyce v. City of Seattle (9th Cir. 1995) 55 F.3d 436, 441].

A waiver of sovereign immunity may not be implied, and constructive consent may not be imposed on a state [College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. (1999) 527 U.S. 666 Copyright Cases or Patent Cases, 682 Copyright Cases or Patent Cases, 119 S. Ct. 2219 Copyright Cases or Patent Cases, 144 L. Ed. 2d 605 Copyright Cases or Patent Cases (federal statute specifying that if state does not accept benefit it will be subject to suit cannot impose constructive consent)].

A state s consent or waiver will be strictly construed, in terms of its scope, in favor of the sovereign [Sossamon v. Texas (2011), ___ U.S. ___, ___, 131 S. Ct. 1651, 179 L. Ed. 2d 700, 709]. [c] Abrogation by Congressional Action Under Fourteenth Amendment Congressional abrogation of sovereign immunity, including under the Eleventh Amendment, occurs when suits against the states are authorized by clear statutory language under the enforcement provision of the Constitution or its amendments [Seminole Tribe of Fla. v. Fla. (1996) 517 U.S. 44, 55, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (intent must be obvious under Eleventh Amendment); Blatchford v. Native Village of Noatak (1991) 501 U.S. 775, 786, 111 S. Ct. 2578, 115 L. Ed. 2d 686 (sovereign immunity not abrogated by subject federal statute); see, e.g., Fitzpatrick v. Bitzer (1976) 427 U.S. 445, 456, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (Fourteenth Amendment); Parden v. Terminal R. of Alabama Docks Dept. (1964) 377 U.S. 184, 192, 84 S. Ct. 1207, 12 L. Ed. 2d 233 (Commerce Clause)]. The Congressional abrogation exception still involves an element of waiver by the states; by empowering Congress to regulate by ratifying a Constitutional amendment or by entering statehood, the states have surrendered a portion of their sovereignty [see, e.g., Fitzpatrick v. Bitzer (1976) 427 U.S. 445, 456, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (states waived their Eleventh Amendment defense when assenting to adoption of the Fourteenth Amendment)]. Accordingly, the Supreme Court has only found Congressional power to abrogate sovereign immunity under Section Five of the Fourteenth Amendment to the United States Constitution [Board of Trustees. v. Garrett (2001) 531 U.S. 356, 364, 121 S. Ct. 955, 148 L. Ed. 2d 866; Kimel v. Florida Bd. of Regents (2000) 528 U.S. 62, 80, 120 S. Ct. 631, 145 L. Ed. 2d 522; Seminole Tribe of Fla. v. Fla. (1996) 517 U.S. 44, 72 73, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (Commerce Clause does not permit Congress to abrogate state sovereign immunity); Fitzpatrick v. Bitzer (1976) 427 U.S. 445, 456, 96 S. Ct. 2666, 49 L. Ed. 2d 614].

Thus, if a state takes property without due process in violation of Section 1 of the Fourteenth Amendment, it is subject to Federal Court action [Board of Trustees v. Garrett (2001) 531 U.S. 356, 364, 121 S. Ct. 955, 148 L. Ed. 2d 866; College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. (1999) 527 U.S. 666 Copyright Cases or Patent Cases, 672 Copyright Cases or Patent Cases 673, 119 S. Ct. 2219 Copyright Cases or Patent Cases, 144 L. Ed. 2d 605 Copyright Cases or Patent Cases (no taking of property in competitor s false advertising about its own products barred relief)]. However, the Supreme Court has set a high bar for Congress to reach. For example, in order to authorize private individuals to recover money damages against the States for discrimination, there must be a pattern of discrimination by the States that violates the Fourteenth Amendment, and the remedy imposed by Congress must be congruent and proportional to the targeted violation [Board of Trustees v. Garrett (2001) 531 U.S. 356, 374, 121 S. Ct. 955, 148 L. Ed. 2d 866 (Congress did not have before it evidence of pattern of discrimination before adopting Americans With Disabilities Act); Kimel v. Florida Bd. of Regents (2000) 528 U.S. 62, 89, 120 S. Ct. 631, 145 L. Ed. 2d 522; see South Carolina v. Katzenbach (1966) 383 U.S. 301, 308, 86 S. Ct. 803, 15 L. Ed. 2d 769 (Congress in Voting Rights Act of 1965 responded to clear pattern of discrimination)].

To determine when Congress has validly abrogated state sovereign immunity under the Eleventh Amendment, a court must resolve two predicate questions [Seminole Tribe of Fla. v. Fla. (1996) 517 U.S. 44, 55, 116 S. Ct. 1114, 134 L. Ed. 2d 252; Alaska v. U.S. (9th Cir. 2009) 564 F.3d 1062, 1066]:

Whether Congress unequivocally expressed its intent to abrogate; and

If so, whether Congress acted pursuant to a valid grant of constitutional authority. 265.19 Raising Lack of Federal Jurisdiction A defense of lack of jurisdiction over the subject matter to a claim for relief in any pleading, whether a claim, counterclaim, cross claim, or third-party claim, may either be asserted in the responsive pleading thereto, if one is required by the Federal Rules of Civil Procedure, or, at the option of the pleader, be made by motion [Fed. R. Civ. P., Rule 12(b)(1)]. However, a defect in the subject matter jurisdiction of the federal court is such a fundamental defect that a challenge to the court s jurisdiction is not waivable [see Savarese v. Edrick Transfer & Storage, Inc. (9th Cir. 1975) 513 F.2d 140, 142 n.1]. To determine whether subject matter jurisdiction exists, the court may consider extra-pleading material, including affidavits or any other evidence properly before the court [St. Clair v. City of Chico (9th Cir. 1989) 880

F.2d 199, 201, cert. denied, 493 U.S. 993, 110 S. Ct. 541, 107 L. Ed. 2d 539 (1989)]. Such determinations are questions of law subject to de novo review [American International Enterprises, Inc. v. Federal Deposit Insurance Corporation (9th Cir. 1993) 3 F.3d 1263, 1266; see Nike, Inc. v. Comercial Iberica De Exclusivas Deportivas (9th Cir. 1994) 20 F.3d 987, 990; North Star Alaska v. U.S. (9th Cir. 1993) 9 F.3d 1430, 1432]. A court must dismiss the action whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter [Fed. R. Civ. P., Rule 12(h)(3)]. Thus, whether raised on the court s own motion or on the motion of a party to the action, dismissal of an action for lack of subject matter jurisdiction is always timely and permissible, regardless of whether it be made at the trial court level [see In re Union Nat l Bank & Trust Co. of Souderton, Pa. (E.D. Pa. 1968) 287 F. Supp. 431, 433] or at the appellate court level [see Louisville & N.R. Co. v. Mottley (1908) 211 U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126].

PRACTICE TIP: Federal Subject Matter Jurisdiction. There are non-constitutional grounds on which the federal district court may dismiss a suit before considering the existence of federal subject matter jurisdiction. These include jurisdictional grounds that are discretionary, such as pendent jurisdiction [see 265.17] or Younger abstention [see 265.14[3]], grounds of prudential standing, such as statutory standing, and grounds that are logically antecedent to the existence of any Article III issues, such as class certification under Fed. R. Civ. P., Rule 23, and the demand pleading requirements of Fed. R. Civ. P., Rule 23.1 for derivative actions [see Potter v. Hughes (9th Cir. 2008) 546 F.3d 1051, 1055 (derivative action)]. 265.20 Amending Jurisdictional Allegations Defective allegations of jurisdiction may be amended in the trial or appellate court [28 U.S.C.S. 1653]. An amendment to establish jurisdiction is broadly permitted under 28 U.S.C.S. 1653 in order to avoid dismissal on technical grounds [Miller v. Davis (6th Cir. 1974) 507 F.2d 308, 311 (permitting amendment to allege diversity jurisdiction when allegation was erroneously based on nonjurisdictional federal statute)]. However, 28 U.S.C.S. 1653 only addresses incorrect statements about jurisdiction when jurisdiction actually exists; it does not extend to defects in the jurisdictional facts themselves [Newman-Green, Inc. v. Alfonzo-Larrain (1989) 490 U.S. 826, 830 831, 109 S. Ct. 2218, 104 L. Ed. 2d 893]. Therefore, for example, a district court may permit a plaintiff to amend a defective jurisdictional allegation if the court had subject matter jurisdiction over the action at the time the action was commenced. However, if the court did not have jurisdiction over the claims alleged in the original complaint, then the court s order granting leave to amend the complaint would be a nullity [Morongo Band of Mission Indians v. Cal. St. Bd. of Equal. (9th Cir. 1988) 858 F.2d 1376, 1380 1381, cert. denied, 488 U.S. 1006 (1989) (not permitting amendment when case did not arise under federal law)]. 265.21 265.29 [Reserved]

B. Removal of Causes 265.30 Governing Law The removal of civil actions from state courts to federal district courts is governed by 28 U.S.C.S. 1441 1452. The removal of claims related to bankruptcy cases is specifically governed by 28 U.S.C.S. 1452.

Removal of a criminal prosecution appears to follow the general removal procedure for civil actions. Formerly removal of civil actions required the posting of a bond, while criminal actions did not [see former 28 U.S.C.S. 1446(d) (civil action bond requirement), repealed in 1988; see generally Moore s Federal Practice, 107 App. 08[2] (3rd ed. Matthew Bender)]. However, criminal actions are subject to the additional provisions of 28 U.S.C.S. 1446(c) and (e).

The removal statutes and court decisions are intended to have uniform nationwide application. They are construed as setting up national criteria, irrespective of local law, for determining in what instances suits are to be removed from state to federal courts [Grubbs v. General Electric Credit Corp. (1972) 405 U.S. 699, 705, 92 S. Ct. 1344, 31 L. Ed. 2d 612]. 265.31 Availability of Removal [1] Actions Removable Except as otherwise expressly provided by Congress, any civil action brought in a state court of which the federal district courts have original jurisdiction may be removed by the defendant to the federal district court for the district and division embracing the place where that action is pending [28 U.S.C.S. 1441(a)]. If the civil action is founded on a claim or right arising under the Constitution, treaties, or laws of the United States, the action is removable without regard to the citizenship or residence of the parties [for discussion of federal question jurisdiction, see 265.14]. If the civil action is not so founded, the action is removable only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which that action is brought [28 U.S.C.S. 1441(b); for discussion of diversity jurisdiction, see 265.34]. The citizenship of defendants sued under fictitious names is disregarded for purposes of removal [28 U.S.C.S. 1441(a)].

Any civil action brought in a state court against a foreign state may be removed by the foreign state to the district court of the United States for the district and division embracing the place where that action is pending [28 U.S.C.S. 1441(d); see 28 U.S.C.S. 1603(a) (definition of foreign state)].

For purposes of removal, the term civil action appears to encompass civil proceedings, and the fact that a case involves a special proceeding rather than a civil action should not preclude removal [see, e.g., Drainage Dist. No. 19 v. Chicago, M. & St. P. Ry. Co. (W.D. Mo. 1912) 198 F. 253 (assessment proceeding); Katz v. Herschel Mfg. Co. (C.D. Neb. 1902) 198 F. 253 (unlawful detainer proceeding); see also Moore s Federal Practice, 107.12 (3rd ed. Matthew Bender)]. [2] Actions Not Removable Certain civil actions in any state court are not removable to any federal district court. For example, neither an action against a railroad or its receivers or trustees arising under 45 U.S.C.S. 51 60, nor an action arising under the state worker s compensation laws, is removable [see 28 U.S.C.S. 1445(a), (c), respectively]. Nor is an action against a carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments arising under 49 U.S.C.S. 11706 or 14706, unless the matter in controversy exceeds $75,000, exclusive of interest and costs [28 U.S.C.S. 1445(b)]. [3] Removal in Specified Actions A civil action brought in state court against the United States or any of its agencies or any officer (or person acting under that officer) of the United States or any of its agencies, sued in either official or individual capacity for any act under color of office, or a property holder whose title is derived from a federal officer when the action affects the validity of a federal law, an officer of the federal judiciary, or a member of Congress may be removed by the defendant to the district court of the United States for the district and division embracing the place where that action is pending [28 U.S.C.S. 1442(a)]. A defendant who is a federal officer seeking removal under 28 U.S.C.S. 1442(a) must demonstrate that the defendant is a person within the meaning of the statute; there is a causal nexus between the defendant s actions, taken pursuant to a federal officer s directions, and plaintiff s claims; and the defendant can assert a colorable federal defense [Jefferson County v. Acker (1999) 527 U.S. 423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408 (under 28 U.S.C.S. 1442(a)(3) concerning actions against officers of federal courts); Durham v. Lockheed Martin Corp. (9th Cir. 2006) 445 F.3d 1247, 1251 (under 28 U.S.C.S. 1442(a)(1) concerning actions against federal officers generally)]. This rule is an exception to the general rule that an anticipated or actual federal defense generally does not qualify a case for removal [Jefferson County v. Acker (1999) 527 U.S. 423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408]. The right of removal created by this provision is absolute for conduct performed under color of federal office, and the policy favoring removal should not be frustrated by a narrow, grudging interpretation of the statutory language [Medical Dev. Int l v. Cal. Dep t of Corr. & Rehab. (9th Cir. 2009) 585 F.3d 1211, 1216].

A personal action brought in any state court by an alien against a federal civil officer who is not a resident of that state when jurisdiction was obtained by personal service may be removed to the federal district court for the district and division in which the defendant was served with process [28 U.S.C.S. 1442(b)].

Pending cases rendered subject to original federal jurisdiction by the substitution or joinder of an agency with regard to which Congress has granted the capacity to sue or be sued in federal court may be removable on the substitution or joinder of that party, even if the case is already on appeal in state court [Resolution Trust Corp. v. Bayside Developers (9th Cir. 1994) 43 F.3d 1230, 1236 1237; Resolution Trust Corp. v. BVS Development, Inc. (9th Cir. 1994) 42 F.3d 1206, 1211].

Removal of actions against members of the armed forces is governed by 28 U.S.C.S. 1442a. Additional types of actions that have specific provisions are civil rights cases and foreclosure actions against the United States [see 28 U.S.C.S. 1443, 1444, respectively].

Upon the Attorney General s certification under 28 U.S.C.S. 2679, Federal Employees Liability Reform and Tort Compensation Act of 1988, that the federal employee was acting within the scope of his or her employment, filed in a case alleging liability of an individual federal employee, the U.S. government is substituted as the defendant and the case is removed to federal court [28 U.S.C.S. 2679(d)(2); Osborn v. Haley (2007) -549 U.S. 225, 230, 127 S. Ct. 881, 166 L. Ed. 2d 819 (once removed under 28 U.S.C.S. 2679(d)(2), district court may not remand to state court)].

The Securities Litigation Uniform Standards Act of 1998 (SLUSA), 15 U.S.C.S. 78bb(f)(1), authorizes removal and dismissal of actions involving covered securities based on the allegations in the complaint and does not require any additional evidentiary showing from either party. The propriety of removal is determined solely on the basis of the pleadings filed in state court. The court may permit the defendant to support removal by supplementing the pleadings with additional evidence of SLUSA s applicability, no authority requires that a district court must consider additional evidence from the plaintiff on a motion to remand [U.S. Mortg., Inc. v. Saxton, 494 F.3d 833, 842 (9th Cir. 2007)]. The elements of preemption under SLUSA, 15 U.S.C.S. 78bb(f)(2), are: (1) the class action is a covered class action, and it alleges; (2) state and common law claims; (3) a misrepresentation or omission of material fact; (4) the misrepresentations or omissions at issue were in connection with the purchase or

sale of a security under 15 U.S.C.S. 78bb(f)(1)(A); and (5) the action involves covered securities within the meaning of 15 U.S.C.S. 78bb(f)(5)(E) [U.S. Mortg., Inc. v. Saxton (9th Cir. 2007) 494 F.3d 833, 843 844].

The Securing the Protection of our Enduring and Established Constitutional Heritage Act, 28 U.S.C.S. 4101 et seq., grants the right of removal to federal district court of an action brought in a state court to enforce a foreign judgment for defamation that meets one of the statutory conditions, regardless of the amount in controversy. The action may be removed if: (1) a plaintiff is a citizen of a state different from a defendant, (2) a plaintiff is a foreign state or a citizen or subject of a foreign state and a defendant is a citizen of a state, or (3) a plaintiff is a citizen of a state and a defendant is a foreign state or citizen or subject of a foreign state [28 U.S.C.S. 4104]. 265.32 Right of Removal [1] Statutory Right The right of removal from the state courts to the federal courts is statutory. A suit commenced in a state court must remain there until cause is shown under some act of Congress for its transfer [Self v. General Motors Corp. (9th Cir. 1978) 588 F.2d 655, 657]. Removal jurisdiction cannot be conferred on federal courts by consent of the parties [see American Fire & Cas. Co. v. Finn (1951) 341 U.S. 6, 17 18, 18 n.17, 71 S. Ct. 534, 95 L. Ed. 702; Othman v. Globe Indem. Co. (9th Cir. 1985) 759 F.2d 1458, 1460 n.2, overruled on other grounds in Bryant v. Ford Motor Co. (9th Cir. 1987) 844 F.2d 602, 605 (Bryant abrogated by amendment of 28 U.S.C.S. 1441(a))]. [2] Original Jurisdiction of Federal Court A suit may be removed to federal district court only if the action is subject to the district court s original jurisdiction [28 U.S.C.S. 1441(a)]. Federal district courts have original federal jurisdiction of actions arising under the Constitution, laws, or treaties of the United States [28 U.S.C.S. 1331 (original jurisdiction of district courts); Sullivan v. First Affiliated Securities, Inc. (9th Cir. 1987) 813 F.2d 1368, 1371, cert. denied, 484 U.S. 850; see 265.14]. They also have original jurisdiction of diversity suits brought between citizens of different states when the matter in controversy exceeds $75,000, exclusive of interests and costs [28 U.S.C.S. 1332; for discussion of diversity as a basis of removal, see 265.34[1]]. Although the 28 U.S.C.S. 1441(a) reference to original jurisdiction mainly involves 28 U.S.C.S. 1331 or 1332, that reference is as broad as the grant of original federal jurisdiction [see Moore s Federal Practice, 107.14 (3rd ed. Matthew Bender)]. Federal district courts also have original jurisdiction as provided in 28 U.S.C.S. 1333 et seq., and in actions involving specific federal agencies as provided by statute [see, e.g., 12 U.S.C.S. 1441(a)(l) (Resolution Trust Corporation); 12 U.S.C.S. 1819(b)(2)(B) (Federal Deposit Insurance Corporation)].

[3] Burden of Proof The burden of establishing federal jurisdiction is placed on the party seeking removal. The removal statute is strictly construed against removal jurisdiction [Sullivan v. First Affiliated Securities, Inc. (9th Cir. 1987) 813 F.2d 1368, 1371, cert. denied, 484 U.S. 850; see also Abrego Abrego v. The Dow Chem. Co. (9th Cir. 2006) 443 F.3d 676, 683 686 (burden of proof unchanged under Class Action Fairness Act of 2005, 28 U.S.C.S. 1453(b))]. Placing a strict burden on the party seeking removal reflects the notion that a plaintiff should be free to decide what law he or she will rely on [Carpenters Southern Cal. Admin. v. Majestic Housing (9th Cir. 1984) 743 F.2d 1341, 1343 1344; see Karambelas v. Hughes Aircraft Co. (9th Cir. 1993) 992 F.2d 971, 974 (party can base removal on facts developed at deposition); see also discussion in 265.37[1][a]].

When a complaint filed in state court alleges on its face an amount in controversy sufficient to meet the federal jurisdictional threshold, such requirement is presumptively satisfied unless it appears to a legal certainty that the plaintiff cannot actually recover that amount [Guglielmino v. McKee Foods Corp. (9th Cir. 2007) 506 F.3d 696, 699; Sanchez v. Monumental Life Ins. Co. (9th Cir. 1996) 102 F.3d 398, 402].

If the amount of damages plaintiff seeks is unclear, the defendant seeking removal bears the burden of proving by a preponderance of the evidence the facts supporting federal jurisdiction, including the jurisdictional amount [Guglielmino v. McKee Foods Corp. (9th Cir. 2007) 506 F.3d 696, 699 (variance between sections of complaint warranted application of this standard); Gaus v. Miles, Inc. (9th Cir. 1992) 980 F.2d 564, 566 567]. [4] Waiver of Right of Removal Only clear and unequivocal waivers will defeat a party s right to remove to federal court. A defendant can, however, make such affirmative use of the processes of a state court as to constitute waiver or estoppel of any right of removal. What acts legally constitute waiver are not always clear, but acts performed before removability becomes apparent will not constitute waiver [California Republican Party v. Mercier (C.D. Cal. 1986) 652 F. Supp. 928, 931; see Moore s Federal Practice, 107.18 (3rd ed. Matthew Bender)]. The filing of a permissive counterclaim or third-party complaint does constitute waiver, as does the seeking of a continuance in an unlawful detainer proceeding [see California Republican Party v. Mercier (C.D. Cal. 1986) 652 F. Supp. 928, 931 932]. Although there is some authority that filing an answer in the state court also constitutes a waiver [see, e.g., Vendetti v. Schuster (W.D. Pa. 1965) 242 F. Supp. 746, 754; General Phoenix Corp. v. Malyon (S.D. N.Y. 1949) 88 F. Supp. 502, 503], the better view appears to be that such a filing does not result in waiver, at least if the notice of removal itself is timely filed [see Haun v. Retail Credit Co. (W.D. Pa. 1976) 420 F. Supp. 859, 864; Moore s Federal Practice, 107.18 (3rd ed. Matthew Bender)]. Similarly, moving to dismiss or quash

service or filing a demurrer has been held not to result in a waiver [see Polizzi v. Cowles Magazines, Inc. (1952) 345 U.S. 663, 664, 73 S. Ct. 900, 97 L. Ed. 1331 (motion to dismiss or quash); Hildreth v. General Instrument, Inc. (D. S.C. 1966) 258 F. Supp. 29, 30 31 (demurrer)]. Nevertheless, waiver will be strictly applied when removal occurs close to the time of trial in the state action [California Republican Party v. Mercier (C.D. Cal. 1986) 652 F. Supp. 928, 931 932].

In a case where removal first became available during the pendency of an appeal due to the substitution of the Resolution Trust Corporation for an insolvent financial institution, the RTC s filing of a petition for rehearing concurrently with its notice of removal did not constitute waiver of the right to remove the action. The court held that the petition for rehearing was a defensive action required to prevent the automatic entry of judgment and did not manifest an intent to litigate in state court [Resolution Trust Corp. v. Bayside Developers (9th Cir. 1994) 43 F.3d 1230, 1240]. 265.33 Federal Question [1] Arises Under Federal Law Federal question jurisdiction involves a right or immunity created by the Constitution or laws of the United States as raised by the plaintiff s cause of action [see 28 U.S.C.S. 1441(a), (b); Takeda v. Northwestern Nat. Life Ins. Co. (9th Cir. 1985) 765 F.2d 815, 821 822; for further discussion, see 265.31[1], above]. If a federal law does not provide a private right of action, then a state law action based on its violation does not raise a substantial federal question [see Merrell Dow Pharmaceuticals v. Thompson (1986) 478 U.S. 804, 813 814, 106 S. Ct. 3229, 92 L. Ed. 2d 650; see also Utley v. Varian Associates, Inc. (9th Cir. 1987) 811 F.2d 1279, 1283, 1286, cert. denied 484 U.S. 824 (executive order)]. For a form of allegation of federal jurisdiction as a ground for removal, see 265.161. For additional general discussion of federal jurisdiction, see 265.12. [2] Well-Pleaded Complaint Rule [a] In General Whether a case is one arising under the Constitution, a law, or a treaty of the United States to satisfy the requirements of 28 U.S.C.S. 1331 must be determined from what necessarily appears in the plaintiff s statement of his or her own claim in the complaint, bill, or declaration, unaided by anything alleged in anticipation of avoidance of defenses that the defendant may interpose. Thus, a federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action, but also asserts that federal law deprives the defendant of a defense he or she may raise, or that a federal defense that may be raised by the defendant is insufficient to defeat the claim. A defendant may not remove a case to federal court unless the plaintiff s complaint establishes that the case arises under federal law. A right

or immunity created by the Constitution, laws, or treaties of the United States must be an essential element of the plaintiff s cause of action. This requirement has been termed the well-pleaded complaint rule [Franchise Tax Bd. v. Laborers Vac. Trust (1983) 463 U.S. 1, 9 11, 103 S. Ct. 2841, 77 L. Ed. 2d 420; Ramirez v. Fox Television Station, Inc. (9th Cir. 1993) 998 F.2d 743, 747; Carpenters Southern Cal. Admin. v. Majestic Housing (9th Cir. 1984) 743 F.2d 1341, 1344]. Accordingly, a plaintiff cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, thereby selecting the forum in which the claim shall be litigated [Karambelas v. Hughes Aircraft Co. (9th Cir. 1993) 992 F.2d 971, 974]. Conversely, the presence of underlying federal issues does not create jurisdiction over a well-pleaded state law claim [Hall v. North American Van Lines, Inc. (9th Cir. 2007) 476 F.3d 683, 687].

The well-pleaded complaint rule does not apply to removal by a federal officer under 28 U.S.C.S. 1442(a) [Durham v. Lockheed Martin Corp. (9th Cir. 2006) 445 F.3d 1247, 1253 (citing Jefferson County v. Acker (1999) 527 U.S. 423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408)] or to cases in which federal jurisdiction is afforded under a separate and independent jurisdictional grant [American Red Cross v. S.G. (1992) 505 U.S. 247, 112 S. Ct. 2465, 2472, 120 L. Ed. 2d 201]. [b] Plaintiff as Master of Complaint Normally, the existence of federal jurisdiction on removal must be determined from the face of the plaintiff s complaint. As master of the complaint, the plaintiff should be free to frame and pursue his or her theory of pleading. When an area of law is regulated by both federal and state law, if the federal law does not preempt all state regulation, federal jurisdiction is not preferred. The plaintiff has the prerogative of determining the theory of his or her action and, so long as fraud is not involved, may defeat removal to the federal courts by avoiding allegations that provide a basis for the assertion of federal jurisdiction [Salveson v. Western States Bankcard Ass n (9th Cir. 1984) 731 F.2d 1423, 1426 1427]. Thus, a suit brought on a state statute does not automatically arise under the laws or the Constitution of the United States because the act complained of is prohibited thereby [Garibaldi v. Lucky Food Stores, Inc. (9th Cir. 1984) 726 F.2d 1367, 1370, cert. denied, 471 U.S. 1099 (1985)]. It should be noted, however, that a plaintiff choosing to pursue only a state action in state court, despite the availability of a federal cause of action, may be precluded from raising the parallel federal action in any future proceedings by the doctrine of res judicata [Williams v. Caterpillar Tractor Co. (9th Cir. 1986) 786 F.2d 928, 933, aff d 482 U.S. 386, 107 S. Ct. 2425, 96 L. Ed. 2d 318, 326 (1987)]. [c] Artful Pleading Exception One important exception to the well-pleaded complaint rule arises when the claim, although ostensibly asserted under state law, is in fact a federal law claim, but by artful pleading is misrepresented in order to defeat the defendant s right to a federal forum [Salveson v. Western States Bankcard Ass n (9th Cir. 1984) 731 F.2d 1423, 1426 1427]. Essentially this exception renders a case removable, regardless of the pleading, if the only remedy available to the plaintiff is federal, and the state court necessarily must look

to federal law in passing on the claim [Sullivan v. First Affiliated Securities, Inc. (9th Cir. 1987) 813 F.2d 1368, 1372, cert. denied, 484 U.S. 850]. The federal law need not afford the same remedies as state law to support removal [Hyles v. Mensing (9th Cir. 1988) 849 F.2d 1213, 1215].

The artful pleading doctrine is a narrow exception to the straightforward rules of removal jurisdiction, and will be applied only if the particular conduct complained of is governed exclusively by federal law [Sullivan v. First Affiliated Securities, Inc. (9th Cir. 1987) 813 F.2d 1368, 1372, cert. denied sub nom. First Alliance Sec. v. Sullivan, 98 L. Ed. 2d 106]. By its very nature, resolution of the artful pleading issue requires looking outside the facts of the complaint [Salveson v. Western States Bankcard Ass n (9th Cir. 1984) 731 F.2d 1423, 1427]. Looking beyond the actual complaint is particularly appropriate when the central federal claim is inseparable from the state law theory, and when the question of federal jurisdiction turns on the out-of-state status of the parties and the interstate nature of the transactions involved [T.O.C., Inc. v. United Artists Theatre Circuit (ND Cal. 1986) 631 F. Supp. 832, 834]. [d] Complete Preemption One corollary of the well-pleaded complaint rule developed in case law is that Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character. Whether or not federal law has completely preempted state law depends on whether the preemptive force of the federal statute is so powerful as to displace entirely any state cause of action. If so, then any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a cause of action in the absence of the federal statute [see Caterpillar v. Williams (1987) 482 U.S. 386, 107 S. Ct. 2425, 96 L. Ed. 2d 318, 327 328; Metropolitan Life Ins. Co. v. Taylor (1987) 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55, 63]. In areas in which federal law completely preempts state law, a claim purportedly based on state law is considered to be a federal claim from its inception, so that such claims are considered to have arisen under federal law for the purposes of removal [Hall v. North American Van Lines, Inc. (9th Cir. 2007) 476 F.3d 683, 688 (removal for complete preemption is instance of artful pleading rule); Miles v. Okun (9th Cir. 2005) 430 F.3d 1083, 1088]. Removal is proper under the complete preemption doctrine only when Congress intended the federal cause of action to be exclusive [Beneficial Nat l Bank v. Anderson (2003) 539 U.S. 1, 8 9 & n.5, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (exclusive jurisdiction by complete exemption of usury claims against national banks under 12 U.S.C.S. 85, 86); Miles v. Okun (9th Cir. 2005) 430 F.3d 1083, 1088 (11 U.S.C.S. 303(i) provides exclusive cause of action for damages resulting from filing of involuntary bankruptcy petition)].

Complete preemption is the exception rather than the rule, and has been found in a limited number of cases [see Caterpillar Inc. v. Williams (1987) 482 U.S. 386, 107 S. Ct. 2425, 96 L. Ed. 2d 318, 327 328, 328 n. 8]. The test for complete preemption is whether Congress clearly manifested an intent to convert state law claims into federal question claims [Ansley v. Ameriquest Mortgage Co. (9th Cir. 2003) 340 F.3d 858, 862]. Among the most prominent cases of complete preemption are the following: Metropolitan

Life Ins. Co. v. Taylor (1987) 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55, 65 (state contract and tort claims for improper processing of disability claim and wrongful termination completely preempted by and within civil enforcement provisions of ERISA (29 U.S.C.S. 1001)); Oneida Indian Nation v. County of Oneida (1974) 414 U.S. 661, 675, 94 S. Ct. 772, 39 L. Ed. 2d 73 (state law complaint alleging right of possession to Indian tribal lands completely preempted); and Avco Corp. v. Aero Lodge, I.A.M. & A.W. (1968) 390 U.S. 557, 559 561, 88 S. Ct. 1235, 20 L. Ed. 2d 126 (state law action to enforce collective bargaining contracts completely preempted by 301 of Labor[Deering's] Management Relations Act (29 U.S.C.S. 185(a)). 265.34 Diversity Jurisdiction [1] In General Diversity jurisdiction exists when the civil action involves citizens of different states and the matter in controversy exceeds $75,000, exclusive of interests and costs [28 U.S.C.S. 1332(a)]. The citizenship of a corporation is its state of incorporation and the state where its principal place of business is located [28 U.S.C.S. 1332(c), 1441(b)]. For a form of allegation of diversity of citizenship as a ground for removal, see 265.162. For additional general discussion of diversity jurisdiction, see 265.15.

Diversity cases are removable only if no party in interest, properly joined as a defendant, is a citizen of the state in which the action is brought [28 U.S.C.S. 1441(b); Motor Vehicle Cas. Co. v. Russian, Etc. (N.D. Cal. 1981) 538 F. Supp. 488, 491 n.5]. When an action is removed on the basis of diversity, the requisite diversity must exist both when the action is filed in state court and when the defendant petitions for removal [Miller v. Grgurich (9th Cir. 1985) 763 F.2d 372, 373; Strasser v. KLM Royal Dutch Airlines (C.D. Cal. 1986) 631 F. Supp. 1254, 1256; for discussion of how plaintiff s actions may affect diversity, see 265.35[3], below]. A court may dismiss nondiverse defendants in order to preserve jurisdiction if they are not indispensable parties [Othman v. Globe Indem. Co. (9th Cir. 1985) 759 F.2d 1458, 1463, overruled on other grounds in Bryant v. Ford Motor Co. (9th Cir. 1987) 844 F.2d 602, 605 (Bryant abrogated by amendment of 28 U.S.C.S. 1441(a))]. Federal diversity jurisdiction is not defeated when there is a legitimate controversy between diverse citizens and aliens are additional parties [Transure, Inc. v. Marsh and McLennan, Inc. (9th Cir. 1985) 766 F.2d 1297, 1298; see 28 U.S.C.S. 1332(a)(3)].

Removal is not improper because of the existence or the possibility of the existence of an unnamed party with an interest [Lincoln Property Co. v. Roche (2005) 546 U.S. 81 or 126 S. Ct. 606 or , 163 L. Ed. 2d 415 or , 421]. [2] Fictitious Defendants

For purposes of removal, the citizenship of defendants sued under fictitious names shall be disregarded [28 U.S.C.S. 1441(a) (as amended November 19, 1988)].

Prior to the 1988 amendment of 28 U.S.C.S. 1441(a), the Ninth Circuit Court of Appeals in Bryant v. Ford Motor Co. (9th Cir. 1987) 844 F.2d 602 held that the presence of Doe defendants destroyed diversity and precluded removal, and that if a defendant attempted to remove a case prior to the dismissal or unequivocal abandonment of all Doe defendants, the district court was required to remand the case to state court [Bryant v. Ford Motor Co. (9th Cir. 1987) 844 F.2d 602, 605 606]. Before Bryant, the general rule was that the presence of fictitiously named defendants, or Doe defendants, defeated diversity jurisdiction, and removal was not possible [Bryant v. Ford Motor Co. (9th Cir. 1987) 844 F.2d 602, 605]. However, there were many exceptions to that general rule [Bryant v. Ford Motor Co. (9th Cir. 1987) 844 F.2d 602, 605], including the following: (1) when the named defendants proved that the Doe defendants were wholly fictitious [see, e.g., Grigg v. Southern Pacific Co. (9th Cir. 1957) 246 F.2d 613, 619]; (2) when the complaint contained no charging allegations against the Doe defendants [see, e.g., Chism v. National Heritage Life Ins. Co. (9th Cir. 1985) 637 F.2d 1328, 1330]; and (3) when the Doe defendants were not indispensable parties [see, e.g., Othman v. Globe Indem. Co. (9th Cir. 1985) 759 F.2d 1458, 1463].

The 1988 amendment of 28 U.S.C.S. 1441(a) applies retroactively to cases pending on November 19, 1988 [Kruso v. International Telephone & Telegraph Corp. (9th Cir. 1989) 872 F.2d 1416, 1424 1425]. As a result, it appears that 28 U.S.C.S. 1441(a) applies to those cases already pending in state court that could not previously be removed because of the Bryant decision and to cases pending in federal court that under Bryant would have been remanded to state court. [3] Class Actions The Class Action Fairness Act of 2005 added a new provision to the removal statutes. 28 U.S.C.S. 1453 authorizes removal by any defendant without consent of the other defendants [28 U.S.C.S. 1453(b)]. Removal shall be in accordance with 28 U.S.C.S. 1446, except that the usual one-year limit on removal is inapplicable to class actions [28 U.S.C.S. 1453(b)].

For further discussion of diversity jurisdiction in class and mass actions, see 265.15[6]. 265.35 Joinder of Parties

[1] Fraudulent Joinder Normally in an action that is sought to be removed the district court must take the plaintiff s pleadings as it finds them. But when a colorable claim of fraudulent joinder of parties is raised, the court may look beyond the pleadings to determine if the joinder, although fair on its face, is a sham or fraudulent device to prevent removal. In so doing, the court may pierce the pleadings, consider the entire record, and determine the basis of joinder by any means available. If the joinder of a nondiverse defendant is shown to be only a fraudulent device to prevent removal, the court may disregard the joinder and retain jurisdiction [Lewis v. Time Inc. (E.D. Cal. 1979) 83 F.R.D. 455, 460, aff d 710 F.2d 549, 550 (1983)].

Fraudulent joinder is a term of art, and does not reflect on the integrity of the plaintiff or counsel. It is merely the rubric applied when a court finds either that no cause of action is stated against the nondiverse defendant, or in fact no cause of action exists. A joinder is fraudulent if there is no real intention to get a joint judgment, and there is no colorable ground for so claiming. Doubt arising from merely inartful, ambiguous, or technically defective pleadings should be resolved in favor of remand. Additionally, a fraudulent joinder claim ordinarily must be capable of summary determination [Lewis v. Time Inc. (E.D. Cal. 1979) 83 F.R.D. 455, 460, aff d 710 F.2d 549, 550 (1983)]. For a form that includes an allegation of fraudulent joinder of parties for use in a notice of removal, see 265.162.

Different considerations apply in an action implicating First Amendment rights. The proper course when a strong claim of fraudulent joinder is made in such a case is for the court to retain jurisdiction without prejudice to the plaintiff s right to move for remand at any point in the litigation when it can be demonstrated that the cause of action that is assertedly without substance is in fact a viable claim [Lewis v. Time Inc. (E.D. Cal. 1979) 83 F.R.D. 455, 462, aff d 710 F.2d 549, 550 (1983)]. [2] Joinder After Removal If the plaintiff seeks to amend the original complaint through the joinder of an additional defendant after the case has been removed to federal court, he or she must obtain leave of the court or the written consent of the defendant [Desert Empire Bank v. Ins. Co. of N. America (9th Cir. 1980) 623 F.2d 1371, 1374 1375; see Fed. R. Civ. P., Rules 15, 20]. If there is an attempt to join a necessary, non-diverse party after the case has been removed to federal court, the district court has the following options [28 U.S.C.S. 1447(e); Fed. R. Civ. P., Rule 19; Yniques v. Cabral (9th Cir. 1993) 985 F.2d 1031, 1035]:

(1) Deem the party indispensable and dismiss the case;

(2) Deem the party not indispensable and continue its jurisdiction over the lawsuit without joinder; or

(3) Allow joinder and remand the case to state court.

The district court, however, does not have the option of authorizing joinder and then dismissing the case [Yniques v. Cabral (9th Cir. 1993) 985 F.2d 1031, 1035]. [3] Voluntary-Involuntary Rule When diversity of citizenship is the basis for removal, diversity must exist both when the action is filed in state court and when the defendant petitions for removal [Strasser v. KLM Royal Dutch Airlines (C.D. Cal. 1986) 631 F. Supp. 1254, 1256]. The voluntary-involuntary rule, an important exception to this rule, requires that a suit remain in state court unless a voluntary act of the plaintiff brings about a change that renders the case removable [Self v. General Motors Corp. (9th Cir. 1978) 588 F.2d 655, 657; see Bertha v. Beech Aircraft Corp. (C.D. Cal. 1987) 674 F. Supp. 24, 25 26]. The result of this exception is that federal jurisdiction will lie whenever dismissal of nondiverse defendants results from the plaintiff s voluntary act, even though diversity was lacking when the action was originally filed in state court. This serves to nullify the danger that a plaintiff might join a nondiverse defendant merely to defeat jurisdiction, and then dismiss the suit concerning that defendant [see Strasser v. KLM Royal Dutch Airlines (C.D. Cal. 1986) 631 F. Supp. 1254, 1256].

Thus, a voluntary termination of the case against the resident defendant, such as a voluntary dismissal, discontinuance, or other abandonment of the action by the plaintiff, allows for removal of the action on the remaining defendant s request [Schmidt v. Capitol Life Ins. Co. (N.D. Cal. 1986) 626 F. Supp. 1315, 1318]. However, an involuntary termination of the case against the resident defendant, such as a summary judgment or other dimissal on the merits, over the plaintiff s objection, does not support removal [Strasser v. KLM Royal Dutch Airlines (C.D. Cal. 1986) 631 F. Supp. 1254, 1256]. Any case removed to the federal court that fails to satisfy this voluntary-involuntary test must be remanded for lack of federal subject matter jurisdiction. No action, much less inaction, by either party can confer federal subject matter jurisdiction [Strasser v. KLM Royal Dutch Airlines (C.D. Cal. 1986) 631 F. Supp. 1254, 1257 1258].

The voluntary-involuntary rule also applies to actions arising under federal law. Thus, if a case is transformed into an action arising under federal law not by the voluntary action of the plaintiff, but instead by action of a defendant, the action is not removable and must remain in state court [People of State of Cal. v. Keating (9th Cir. 1993) 986 F.2d 346, 348 (defendant filed third-party claim under federal law against Resolution Trust Corporation; but only RTC had right to remove under former 12 U.S.C.S. 1441a(l)(3) exemption)]. 265.36 Separate and Independent Claim Whenever a separate and independent claim or cause of action within the court s federal question jurisdiction is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed. The district court may determine all issues in the case or, in its discretion, may remand all matters in which state law predominates [28 U.S.C.S. 1441(c); see 28 U.S.C.S. 1331 (federal question jurisdiction), discussed in 265.14[1]]. Before Congress enacted the Judicial Improvements Act of 1990 (Pub. L. No. 101-650), diversity jurisdiction over the separate and independent claim was also a ground for removing the entire case to federal court, and the court had the discretion to remand the claims over which it had no diversity jurisdiction [see former 28 U.S.C.S. 1441(c)]. By limiting removal to those cases in which the anchoring claim involves a federal question, the Act significantly restricts the doctrine of removal based on federal jurisdiction over a separate and independent claim. For a form of allegation of a separate and independent claim for use in a notice of removal, see 265.165. For a form of motion to sever claims and remand an action, see 265.170. For an order granting severance and remand, see 265.171.

When there is a single wrong to the plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under 28 U.S.C.S. 1441(c) [American Fire & Cas. Co. v. Finn (1951) 341 U.S. 6, 13 14, 71 S. Ct. 534, 95 L. Ed. 702; Motor Vehicle Cas. Co. v. Russian, Etc. (N.D. Cal. 1981) 538 F. Supp. 488, 494]. The plaintiff s pleading controls in the federal court s determination whether or not the claim is separate and independent [American Fire & Cas. Co. v. Finn (1951) 341 U.S. 6, 14, 71 S. Ct. 534, 95 L. Ed. 702]. Additionally, the court does not focus on whether there was a single primary right involved, but whether the various claims involve a single wrong to the plaintiff [Boggs v. Lewis (9th Cir. 1988) 863 F.2d 662, 664 665 (negligence claim against driver and bad faith refusal to settle claim against insurer were separate and independent under state law, involved substantially different facts and transactions, and sought markedly different relief); Motor Vehicle Cas. Co. v. Russian, Etc. (N.D. Cal. 1981) 538 F. Supp. 488, 494]. An appeal is not a separate and independent claim; rather, it is a continuation of the same action commenced in the trial court [Resolution Trust Corp. v. Bayside Developers (9th Cir. 1994) 43 F.3d 1230, 1240]. 265.37 Effect of Removal

[1] Jurisdiction Acquired by District Court [a] In General The filing of the notice of removal and bond (bond requirement contained in former 28 U.S.C.S. 1446(d) was repealed in 1988), the provision of written notice to all adverse parties, and the filing of a copy of the notice with the state court effects removal immediately [28 U.S.C.S. 1446(d)].

Once a notice of removal is filed, the district court will determine whether federal jurisdiction can be invoked, either by diversity or federal question [Schroeder v. Trans World Airlines, Inc. (9th Cir. 1983) 702 F.2d 189, 191]. Although the removability of an action must be judged by the pleadings at the time of removal, the court can consider a plaintiff s subsequent attempt to amend the complaint as relating to his or her true intent at the time the action was removed [Green v. Mutual of Omaha (N.D. Cal. 1982) 550 F. Supp. 815 Copyright Cases or Patent Cases, 818; for discussion of the burden of proof, see 265.32[3], above]. The notice of removal, including supporting affidavits, may be used to clarify the action in determining whether it raises a federal question or diversity jurisdiction [Bright v. Bechtel Petroleum, Inc. (9th Cir. 1986) 780 F.2d 766, 769, 769 n.3; Schroeder v. Trans World Airlines, Inc. (9th Cir. 1983) 702 F.2d 189, 191].

Ordinarily, when a case has been properly removed, federal jurisdiction is not defeated by later changes or developments in the suit, such as changes in citizenship, parties, the amount involved, or the cause of action pleaded [Williams v. Costco Wholesale Corp. (9th Cir. 2006) 471 F.3d 975, 976 (no amended notice of removal is necessary); Lopez v. General Motors Corp. (9th Cir. 1983) 697 F.2d 1328, 1332]. However, a notable exception to this rule involves the destruction of diversity caused by the joinder of an indispensable party. Thus, when the district court finds a necessary party was not joined and that person should be joined, if that person s citizenship destroys diversity jurisdiction, the case may be remanded to state court [Takeda v. Northwestern Nat. Life Ins. Co. (9th Cir. 1985) 765 F.2d 815, 819 821; see Fed. R. Civ. P., Rule 19 (joinder of necessary parties)]. For discussion of the procedures for remanding a proceeding back to state court, see 265.40[1]. [b] District Court s Jurisdiction Is Not Derivative The district court to which an action is removed is not precluded from hearing and determining any claim in that action because the state court from which that action is removed did not have jurisdiction over that claim [28 U.S.C.S. 1441(e)].

[c] Pendent State-Law Claims On removal, a federal court has the power to hear the entire case, including state-law claims sharing a common nucleus of operative facts with the federal-claim claims in the case, by exercising its supplemental jurisdiction, known before the enactment of the Judicial Improvements Act of 1990 (Pub. L. No. 101 650) as pendent jurisdiction [see 28 U.S.C.S. 1367 (supplemental jurisdiction); Bale v. General Telephone Co. of California (9th Cir. 1986) 795 F. 2d 775, 778 (removal of pendent state claims); see also discussion in 265.17[1]]. Supplemental jurisdiction is discretionary, however, and the district court may decline to exercise it [Carnegie-Mellon Univ. v. Cohill (1988) 484 U.S. 343, 350, 357, 108 S. Ct. 614, 98 L. Ed. 2d 720]. If the court determines that pendent state-law claims properly belong in state court, it may either dismiss the state-law claims without prejudice, allowing the plaintiff to refile an action in state court, or may remand the state-law claims to the state court [see Carnegie-Mellon Univ. v. Cohill (1988) 484 U.S. 343, 350 351, 357, 108 S. Ct. 614, 98 L. Ed. 2d 720]. For a discussion of 28 U.S.C.S. 1367(c), which sets forth the factors to be considered by the court in deciding whether to exercise its supplemental jurisdiction, see 265.17[2].

Remand to the state court, rather than dismissal of state-law claims without prejudice, may be particularly appropriate when the applicable state statute of limitations has expired, foreclosing the plaintiff from filing a new action in state court [see Carnegie-Mellon Univ. v. Cohill (1988) 484 U.S. 343, 352 353, 357, 108 S. Ct. 614, 98 L. Ed. 2d 720]. If the court chooses to dismiss the state-law claims, however, the limitations period for those claims is tolled while the claims are pending and for a period of 30 days after they are dismissed, unless state law provides for a longer tolling period. The same tolling provision applies to any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the state-law claims [see 28 U.S.C.S. 1367(d)]. [2] Termination of State Court Jurisdiction Removal of a civil action from a state court to a federal court operates as a literal removal of the action from the state court and terminates that court s jurisdiction to proceed in the action. Thereafter the federal court has exclusive jurisdiction and may conduct proceedings accordingly, although, if federal jurisdiction is subsequently found wanting, the federal court must remand the action to the state court of origin. The state courtmay resume its first-instance jurisdiction if, and only if, there is a remand of the action to it from the federal court. If the federal court dismisses the action rather than remanding it, there is no action in which the state court can resume jurisdiction. The state court will exceed its jurisdiction if it permits further proceedings in the action after the federal court has dismissed the action [Sugimoto v. Exportadora de Sal, S.A. de C.V. (1991) 233 Cal. App. 3d 165, 168, 284 Cal. Rptr. 275; Allstate Ins. Co. v. Superior Court (1982) 132 Cal. App. 3d 670, 674 676, 183 Cal. Rptr. 330; see 28 U.S.C.S. 1446(d) (filing copy of notice of removal with state court clerk effects removal unless and until case is remanded)]. After removal, a state court lacks jurisdiction even to dismiss the case without prejudice [Sugimoto v. Exportadora de Sal, S.A. de C.V. (1991) 233 Cal. App. 3d 165, 168, 284 Cal. Rptr. 275].

In keeping with the exclusive nature of the federal court s jurisdiction on removal, subsequent actions in the state court involving the same claims will not be allowed. For example, injunctive relief enjoining prosecution of a state action was appropriate in one case after the plaintiff unsuccessfully moved to remand an action back to the state court, and then filed a second state court action alleging the same claims raised in federal action [see Takeda v. Northwestern Nat. Life Ins. Co. (9th Cir. 1985) 765 F.2d 815, 817 818].

It appears, however, that the removal procedure may not be used to exploit the plaintiff s inability to proceed in state court. Thus, when a case is ultimately remanded back to the state court, it appears that the filing of a notice of removal may toll the deadline for appealing from certain state court orders [see Strasser v. KLM Royal Dutch Airlines (C.D. Cal. 1986) 631 F. Supp. 1254, 1257 (appeal from summary judgment)]. [3] Impact of Proceedings in State Court The federal rules apply after removal and neither add to nor abrogate what has been done in the state court prior to removal. The federal court takes the case as it finds it on removal and treats everything that occurred in the state court as if it had taken place in federal court [Butner v. Neustadter (9th Cir. 1963) 324 F.2d 783, 785; see Fed. R. Civ. P., Rule 81(c)]. Thus, a default judgment entered in the state court is not set aside as a matter of law on removal to the district court. Instead, it must be regarded as valid unless and until the district court sets it aside [Butner v. Neustadter (9th Cir. 1963) 324 F.2d 783, 785 786]; Resolution Trust Corp v. Bayside Developers (9th Cir. 1994) 43 F.3d 1230, 1238 (district court determined that it sat as though reviewing California Court of Appeal s decision and addressed a motion for new trial on the merits)]. A state court s denial of summary judgment, however, does not preclude the federal court from revisiting the issue after removal [Crane v. The Arizona Republic (9th Cir. 1992) 972 F.2d 1511, 1516 n.3]. [4] Judicial Review of Removal Removal of a case from state to federal court is a question of federal subject matter jurisdiction that is reviewable de novo by the federal court of appeals [Ramirez v. Fox Television Station, Inc. (9th Cir. 1993) 998 F.2d 743, 747; Williams v. Caterpillar Tractor Co. (9th Cir. 1986) 786 F.2d 928, 930, aff d 482 U.S. 386, 391, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987) (appeal from judgment following removal of action and subsequent dismissal)].

If a case is removed without objection (for example, if the plaintiff did not make a motion to remand),

tried on its merits, and judgment is entered by the district court, the issue in subsequent proceedings on appeal is not whether the case was properly removed, but whether the federal district court would have had original jurisdiction of the case had it been filed in that court [Grubbs v. General Electric Credit Corp. (1972) 405 U.S. 699, 702, 92 S. Ct. 1344, 31 L. Ed. 2d 612; Harper v. San Diego Transit Corp. (9th Cir. 1985) 764 F.2d 663, 666 n.1]. 265.38 Procedure for Removal [1] Notice of Removal A defendant or defendants desiring to remove any civil action from a state court must file in the district court of the United States for the district and division within which that action is pending a notice of removal signed pursuant to Fed. R. Civ. P., Rule 11, and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served on him or her in that action [28 U.S.C.S. 1446(a)]. For a form of notice of removal, see 265.160. The civil removal statute has no requirement that all grounds for removal be listed in the notice [Williams v. Costco Wholesale Corp. (9th Cir. 2006) 471 F.3d 975, 976 (if original complaint supports federal jurisdiction on both diversity and federal question grounds, defendant is not required to list both grounds in notice of removal)].

Although formerly a bond was required to accompany the notice of removal, the bond requirement was deleted in 1988 [see former 28 U.S.C.S. 1441(d); see also 265.39[2]]. The notice need not be accompanied by discovery documents such as interrogatories and notices of depositions, or other discovery requests [Visicorp v. Software Arts, Inc. (N.D. Cal. 1983) 575 F. Supp. 1528, 1531]. [2] Joinder of Defendants [a] Generally When there is more than one defendant, removal may not be had unless all the defendants file or join in a notice of removal [Varney v. Johns-Manville Corp. (N.D. Cal. 1987) 653 F. Supp. 839, 840 n.1]. However, the Ninth Circuit Court of Appeals does not require the joinder of a defendant who has not been served; the defendants who have been served can remove by themselves. Thus, the failure to include defendants, who had never been served, in the notice of removal does not preclude removal [Salveson v. Western States Bankcard Ass n (9th Cir. 1984) 731 F.2d 1423, 1429]. For further discussion of who must join in notices of removal, see Moore s Federal Practice, 107.30 (3rd ed. Matthew Bender).

Proper joinder of the defendants may involve some troublesome distinctions concerning nominal or formal parties, and proper, necessary, and indispensable parties. Federal law, not state law or characterization by parties, determines who is the plaintiff and who is the defendant for removal purposes [Chicago, R.I. & P.R. Co. v. Stude (1953) 346 U.S. 574, 580, 74 S. Ct. 290, 98 L. Ed. 317; for additional discussion, see Moore s Federal Practice, 107.30 (3rd ed. Matthew Bender)].

Removal under 28 U.S.C.S. 1442(a) represents an exception to the general rule that all defendants must join in the removal petition. Given that the federal officer is the only one entitled to remove under 1442, the officer can remove without other defendants joining in the petition, and the entire case is removed to the federal court [Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co. (9th Cir. 1981) 644 F.2d 1310, 1315]. [b] Class Action Rules Under the Class Action Fairness Act of 2005 any defendant may remove the action to federal court without consent of the other defendants [28 U.S.C.S. 1453(b)]. Removal must be in accordance with 28 U.S.C.S. 1446, except that the usual one-year limit on removal is inapplicable to class actions [28 U.S.C.S. 1453(b)].

For further discussion of diversity jurisdiction in class and mass actions, see 265.15[6]. [3] Deadline for Filing Notice of Removal [a] Action Initially Removable The notice of removal must be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief on which that action or proceeding is based, or within 30 days after the service of summons on the defendant if that initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter [28 U.S.C.S. 1446(b); see Blankenberg v. Commercial Ins. Co. of Newark, N.J. (N.D. Cal. 1987) 655 F. Supp. 223, 225]. In some cases, the particular statute authorizing removal may specify the time limits for filing notices of removal [see, e.g., 12 U.S.C.S. 1819(b)(2)(B)].

The thirty-day time period for removal starts to run from defendant s receipt of the initial pleading only

when that pleading affirmatively reveals on its face the facts necessary for federal court jurisdiction [Harris v. Bankers Life & Casualty Co. (9th Cir. 2005) 425 F.3d 689, 690 691 (statement of party s residency, rather than citizenship, and not at time of filing of action, in initial complaint was insufficient to ascertain diversity)]. Parties are not charged with notice of removability until they ve received a paper that gives them enough information to remove [Durham v. Lockheed Martin Corp. (9th Cir. 2006) 445 F.3d 1247, 1251]. [b] Action Subsequently Becomes Removable If the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one thatis or has become removable, except that a case may not be removed on the basis of diversity jurisdiction conferred by 28 U.S.C.S. 1332 more than one year after commencement of the action [28 U.S.C.S. 1446(b); Harris v. Bankers Life & Casualty Co. (9th Cir. 2005) 425 F.3d 689, 694 (facts in initial complaint insufficient to establish diversity)]. The papers that trigger the 30-day period of 28 U.S.C.S. 1446(b) are limited to papers in the case. Thus, when an action was not removable when filed, but subsequently became removable by a statutory amendment, that amendment is not within the parameters of 28 U.S.C.S. 1446(b), and the defendant will not be permitted to remove the case [Chen v. China Airlines Ltd. (N.D. Cal. 1989) 713 F. Supp. 1322, 1323; but see Resolution Trust Corp. v. Bayside Developers (9th Cir. 1995) 43 F.3d 1230, 1234 1235 (although amendment to former 12 U.S.C.S. 1441a(l), providing that RTC did not have to be formally substituted into a case to remove the case, was enacted during pendency of action, the amendment was considered procedural and not substantive, and could be applied)].

When the voluntary dismissal or abandonment of a resident defendant creates complete diversity between the parties to state proceedings, the nonresident defendant may remove the case to federal court within 30 days of the dismissal or abandon ment. The defendant need not speculate on or anticipate an abandonment from the plaintiff s expressions of intent or other equivocal action. Rather, the defendant is entitled to await affirmative and certain action by a plaintiff confirming that abandonment before exercising the right of removal [Schmidt v. Capitol Life Ins. Co. (N.D. Cal. 1986) 626 F. Supp. 1315, 1318; see 28 U.S.C.S. 1446(b)].

Similarly, a nonresident defendant is under no obligation to investigate the status of resident codefendants as to facts bearing on whether plaintiff will abandon claims against the codefendants [Harris v. Bankers Life & Casualty Co. (9th Cir. 2005) 425 F.3d 689, 696 697 ( clue in complaint that nonresident defendant could have used to determine that resident codefendant was dead does not run period for filing removal)]. [c] Effect of Multiple Defendants

When there is more than one defendant, and the defendants receive notice of the removability of the case at different times, the 30-day filing requirement of 28 U.S.C.S. 1446(b) begins when one defendant receives notice that the case has become removable. This is consistent with the requirement that the statute be strictly interpreted against permitting removal [Varney v. Johns-Manville Corp. (N.D. Cal. 1987) 653 F. Supp. 839, 840].

However, a separate 30-day filing period begins to run upon the service of papers sufficient to establish the right to removal in cases against federal officers under 28 U.S.C.S. 1442(a), regardless of the officer s knowledge of other grounds for removal [Durham v. Lockheed Martin Corp. (9th Cir. 2006) 445 F.3d 1247, 1253 (denial of removal was improper)]. [d] Waiver of Objection to Untimely Notice of Removal The right to raise the issue of the untimeliness of the defendant s notice of removal may be waived. Thus, a plaintiff who appears repeatedly before the district court before raising the timeliness objection waives that right [Meadows v. Bicrodyne Corp. (9th Cir. 1986) 785 F.2d 670, 672]. [4] Notice to Adverse Parties Promptly after the filing of the notice of removal and bond (bond requirement contained in former 28 U.S.C.S. 1446(d) was repealed in 1988), the defendant must give written notice of them to all adverse parties andmust file a copy of the notice with the clerk of the state court, which shall effect the removal. The state court will proceed no further in the case [28 U.S.C.S. 1446(d)]. For a form of notice of filing of the notice of removal and bond, see 265.166. 265.39 Procedure After Removal [1] Orders, Process, and Records In any case removed from a state court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the state court or otherwise [28 U.S.C.S. 1447(a)]. It may require the party seeking removal to file with its clerk copies of all records and proceedings in the state court or may cause the same to be brought before it by writ of certiorari issued to the state court [28 U.S.C.S. 1447(b)]. For a form for use in obtaining a state clerk s certificate on the transcript of record, see 265.167.

In all cases removed to any federal district court in which any one or more of the defendants has not been served with process, the service has not been perfected prior to removal, or the process served proves to be defective, that process or service may be completed or new process issued in the same manner as in cases originally filed in that district court [28 U.S.C.S. 1448]. Section 1448 does not deprive any defendant on whom process is served after removal of his or her right to move to remand the case [28 U.S.C.S. 1448].

When a party is entitled to copies of the records and proceedings in state court, to be used in any district court, and the clerk of that state court, on demand and the tender of the legal fees, fails to deliver certified copies, the district court may, on affidavit reciting those facts, direct that record to be supplied by affidavit or otherwise. Thereupon those proceedings, trial, and judgment may be had in that district court, and all such process awarded, as if certified copies had been filed in the district court [28 U.S.C.S. 1449]. [2] Attachment, Bond, or Order in State Court Whenever any action is removed from a state court to a federal district court, any attachment or sequestration of the goods or estate of the defendant in that action in the state court will hold the goods or estate to answer the final judgment or decree in the same manner as they would have been held to answer final judgment or decree had it been rendered by the state court [28 U.S.C.S. 1450]. Similarly, all bonds, undertakings, or security given by either party in an action prior to its removal will remain valid and effectual notwithstanding that removal [28 U.S.C.S. 1450; see also Ch. 538, Suretyship, Bonds, and Undertakings]. All injunctions, orders, and other proceedings had in an action prior to its removal willremain in full force and effect until dissolved or modified by the district court [28 U.S.C.S. 1450]. [3] Application of Federal Rules [a] In General The Federal Rules of Civil Procedure apply to civil actions removed to the federal district courts and govern procedure after removal. Repleading is not necessary unless the court orders it [Fed. R. Civ. P., Rule 81(c)]. [b] Timing of Answer

In a removed action in which the defendant has not answered, the defendant must answer or present other available defenses or objections within 20 days after the receipt through service or otherwise of a copy of the initial pleading, within 20 days after the service of summons on the initial pleading, then filed, or within 5 days after the filing of the notice of removal, whichever period is longest [see Fed. R. Civ. P., Rule 81(c)]. [c] Demand for Jury Trial If at the time of removal all necessary pleadings have been served, a party entitled to trial by jury will be accorded it, if the party s demand for a jury trial is served within 10 days after the notice of removal is filed if the party is the defendant. If that party is not the defendant, that demand must be served within 10 days after service on the party of the notice of the filing of the notice of removal [see Fed. R. Civ. P., Rule 81(c); see, e.g., Tushner v. United States Dist. Court (9th Cir. 1987) 829 F.2d 853, 854 856 (calculation of time period for filing jury demand in removed case)]. A party who, prior to removal, made an express demand for trial by jury in accordance with state law, need not make a demand after removal. If the applicable state law does not require the parties to make express demands for a jury trial, they need not make demands after removal unless the court directs that they do so within a specified time if they desire to claim trial by jury. The court may make this demand on its own motion and must do so as a matter of course at the re quest of any party. The failure of a party to make demand as directed constitutes a waiver of trial by jury [see Fed. R. Civ. P., Rule 81(c)]. [4] Limitation Period for Naming Fictitious Defendants Code Civ. Proc. 474[Deering's] and 583.210[Deering's] operate to extend the statute of limitations in situations in which an identified defendant may be substituted in for a previously named fictitious defendant in a removed action; the timeliness of the claim is not determined by Fed. R. Civ. P., Rule 15(c) [Lindley v. General Elec. Co. (9th Cir. 1986) 780 F.2d 797, 799 801, cert. denied 476 U.S. 1186 (period of limitation extended three years from commencement of action to discovery of Doe s identity and service of summons)]. 265.40 Procedure for Remand [1] In General A case removed from state court to federal court may be remanded back to the state court only in accordance with 28 U.S.C.S. 1447 [Thermtron Products, Inc. v. Hermansdorfer (1976) 423 U.S. 336, 345 346, 96 S. Ct. 584, 46 L. Ed. 2d 542]. A narrow exception to this rule exists with regard to any claim that is both independently nonremovable and separate and independent from the claim providing the basis for removal; such a claim may be remanded in the court s discretion [28 U.S.C.S. 1441(c); see Carnegie-Mellon Univ. v. Cohill (1988) 484 U.S. 343, 354 356, 108 S. Ct. 614, 98 L. Ed. 2d 720, 732 734; see discussion in 265.36, above]. Remand may occur any time before final judgment [28

U.S.C.S. 1447(c)].

The proper procedure for challenging removal is by motion to remand, which puts in issue the validity of the grounds for the removal itself [Societa Anonima Lucchese, Etc. v. Catania S. Corp. (D. Mass. 1977) 440 F. Supp. 461, 463; see also discussion in [4], below]. A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal [28 U.S.C.S. 1447(c)].

Although generally the motion for remand is made by the party who initially brought the action in state court, the party who filed the notice of removal also may move for remand [see American Fire & Cas. Co. v. Finn (1951) 341 U.S. 6, 17 18, 71 S. Ct. 534, 95 L. Ed. 702]. Additionally, the federal district court may sua sponte remand an action [see 28 U.S.C.S. 1447(c)]. Indeed, when there is a lack of federal jurisdiction the district court to which an action is removed has an immediate and continuing duty to remand the case on its own motion [Strasser v. KLM Royal Dutch Airlines (C.D. Cal. 1986) 631 F. Supp. 1254, 1258]. Nevertheless, the district court may not remand a case sua sponte on procedural grounds after the 30-day period to remand has expired [Lively v. Wild Oats Markets, Inc. (2006) 456 F.3d 933, 939 942 (review of remand ordered on basis of violation of forum defendant rule in 28 U.S.C.S. 1441(b) is subject to 30-day limit in 28 U.S.C.S. 1447(c); sua sponte remand was improper); Maniar v. Federal Deposit Ins. Corp. (9th Cir. 1992) 979 F.2d 782, 785 786 (untimely removal is a procedural rather than a jurisdictional defect)].

For a form of motion to remand an action, see 265.168. For a form of motion to sever and remand separate claims, see 265.170. [2] Grounds for Remand If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case will be remanded [28 U.S.C.S. 1447(c); for further discussion of federal jurisdiction, see 265.32[2]]. A case may also be remanded on the basis of any defect in the removal procedure [28 U.S.C.S. 1447(c)].

Where plaintiff moves to remand and it is unclear or ambiguous from the face of a state court complaint whether the requisite amount in controversy is pled, the removing defendant bears the burden of establishing, by a preponderance of the evidence, that the amount in controversy exceeds the

jurisdictional amount. Under this burden, the defendant must provide evidence establishing that it is more likely than not that the amount in controversy exceeds that amount [Guglielmino v. McKee Foods Corp. (9th Cir. 2007) 506 F.3d 696, 701].

An otherwise properly removed action may not be remanded because the district court considers the federal docket too crowded, and a court that remands an action for that reason will have exceeded its authority in remanding on grounds not permitted by the controlling statute [Thermtron Products, Inc. v. Hermansdorfer (1976) 423 U.S. 336, 344 345, 96 S. Ct. 584, 46 L. Ed. 2d 542].

Under the principles of Thermtron, a federal court with jurisdiction over a removed case may not remand it on discretionary grounds. Abstention is a judicially created doctrine; its application is discretionary. Thus, when abstention, rather than a ground in 28 U.S.C.S. 1447(c), is the basis of a remand, the remand is in error [Ryan v. State Bd. of Elections of State of Ill. (7th Cir. 1981) 661 F.2d 1130, 1133 1134]. Nevertheless, after removal of a case has been effected, a federal district court arguably may invoke principles of abstention or deferral while retaining jurisdiction in any situation when they would apply in a case within the court s original jurisdiction [see Moore s Federal Practice, 107.31, 107.41 (3rd ed. Matthew Bender)]. For further discussion of when a federal court may abstain from or defer hearing a case, see 265.14[3].

The denial of class certification in a class action properly removed in accordance with CAFA is not grounds to remand the action [United Steel v. Shell Oil Co. (2010) 602 F.3d 1087, 1091 1092 (remand vacated)]. [3] Remand Order A certified copy of the order of remand will be mailed by the clerk of the district court to the clerk of the state court. The state court may thereupon proceed with the case [28 U.S.C.S. 1447(c)]. For a form of order granting a remand, see 265.169. For a form of order granting severance and remand, see 265.171.

A remand order ends the federal court s jurisdiction [Seedman v. United States Dist. Court (9th Cir. 1988) 837 F.2d 413, 414 (second removal petition does not reinvest jurisdiction in federal district court); Pelleport Investors v. Budco Quality Theatres (9th Cir. 1984) 741 F.2d 273, 279 n. 3]. Such an order is res judicata and constitutes collateral estoppel in a subsequent proceeding for removal when the

identical parties and identical issues of fact and law are involved [see Mertan v. E.R. Squibb & Sons, Inc. (C.D. Cal. 1980) 581 F. Supp. 751, 753]. [4] Costs On remand, the court may require the payment of just costs and any actual expenses, including attorney s fees, incurred as a result of the removal [28 U.S.C.S. 1447(c)]; The determination of when costs may be awarded must balance the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, and the right to remove as a general matter, when the statutory criteria are satisfied. The standard for awarding fees should turn on the reasonableness of the removal. Absent unusual circumstances, courts may award attorney s fees only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied [Martin v. Franklin Cap. Corp. (2005) 546 U.S. 132 or , 141 or , 126 S. Ct. 704 or , 163 L. Ed. 2d 547 or ].

An award of fees pursuant to 28 U.S.C.S. 1447(c) is collateral to the decision to remand. Thus, the district court retains jurisdiction after a remand to entertain a plaintiff s motion for attorney s fees [Moore v. Permanente Medical Group, Inc. (9th Cir. 1992) 981 F.2d 443, 445, 448].

A party is well advised to seek a remand when it appears removal is improper or the court is without jurisdiction, because failure to do so may result in a reduction of the costs ultimately awarded. For example, in one case in which the defendant removed the action because it presented federal law issues, yet once in federal court argued against its jurisdiction and moved to dismiss the federal claims and to remand the state law causes of action, the court found that the defendant s removal merited an award of costs. However, the court also found that the plaintiff had failed to attempt to remand the action to state court, and thus reduced the costs awarded to the plaintiff [Johnson v. Smith (N.D. Cal. 1986) 630 F. Supp. 1, 5 6].

Similarly, a plaintiff s own acts in the state court action may affect the availability of costs. For example, in another case the action was improperly removed because the removal petition (now notice of removal) was not timely filed, but the plaintiff s motion for costs was still denied. The court reasoned that the defendants had presented a plausible argument regarding the timeliness of the petition and the plaintiff failed to notify all the defendants of the dismissal of the defendant that created the complete diversity of citizenship, thereby creating confusion regarding the commencement of the 30-day filing limit [Varney v. Johns-Manville Corp. (N.D. Cal. 1987) 653 F. Supp. 839, 840 841].

When there is no change of parties or issues following the remand of an action to state court on the ground of lack of diversity, a subsequent notice of removal is a misuse of process that warrants an award of costs to the plaintiff and the plaintiff s counsel, as well as to the state court, for the necessary and reasonable expenses incurred because of the unwarranted delay in trial and the forced preparation of opposing pleadings caused by the defendant s oppressive and futile actions [Mertan v. E.R. Squibb & Sons, Inc. (C.D. Cal. 1980) 581 F. Supp. 751, 753].

A decision to grant costs under 28 U.S.C.S. 1447(c) is reviewed under the standard of abuse of discretion and will be overturned if it is based on an erroneous determination of law [Durham v. Lockheed Martin Corp. (9th Cir. 2006) 445 F.3d 1247, 1250]. 265.41 Review of Ruling on Motion for Remand [1] When Motion Denied The district court s order denying a motion to remand an action to state court is reviewable [see Sullivan v. First Affiliated Securities, Inc. (9th Cir. 1987) 813 F.2d 1368, 1370, cert. denied 98 L. Ed. 2d 106]. It appears review may be by an interlocutory appeal of the order denying remand [see Sullivan v. First Affiliated Securities, Inc. (9th Cir. 1987) 813 F.2d 1368, 1370, cert. denied 98 L. Ed. 2d 106], or by an appeal after final judgment [see Carpenters Southern Cal. Admin. v. Majestic Housing (9th Cir. 1984) 743 F.2d 1341, 1343 (review after summary judgment); Salveson v. Western States Bankcard Ass n (9th Cir. 1984) 731 F.2d 1423, 1426 (review after dismissal)]. [2] When Motion Granted [a] General Statute Denying Review [i] Narrow Interpretation An order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise [28 U.S.C.S. 1447(d)]. The policy underlying the general nonreviewability of 28 U.S.C.S. 1447(d) is to prevent delay by protracted litigation over jurisdictional issues. Thus, the district court is the final arbiter of whether it has jurisdiction to hear the case [Pelleport Investors v. Budco Quality Theatres (9th Cir. 1984) 741 F.2d 273, 276 277; see Clorox Co. v. United States Dist. Court for Northern Dist. (9th Cir. 1985) 779 F.2d 517, 519 521].

Reading 28 U.S.C.S. 1447(c) and (d) together, however, the U.S. Supreme Court has ruled that only remands based on grounds specified in 1447(c) are immune from review under 1447(d). Those two grounds are: (1) lack of subject matter jurisdiction or (2) nonjurisdictional defects in removal procedure [Powerex Corp. v. Reliant Energy Services (2007) 551 U.S. 224 or , , 127 S. Ct. 2411 or , 168 L. Ed. 2d 112 or ; Quackenbush v. Allstate Insurance Co. (1996) 517 U.S. 706, 712, 116 S. Ct. 1712, 135 L. Ed. 2d 1].

Accordingly, review of a district court s characterization of its remand as resting upon lack of subject matter jurisdiction, to the extent it is permissible at all, is limited to confirming that that characterization was colorable [Powerex Corp. v. Reliant Energy Services (2007) 551 U.S. 224 or , 127 S. Ct. 2411 or , 2418 or , 168 L. Ed. 2d 112 or ; Atlantic Nat l Trust LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 937]. In order to determine whether a court of appeals lacks jurisdiction under 28 U.S.C.S. 1447(d) in cases where the basis of a district court s remand order is unclear, the court looks to the substance of the order to determine whether it was issued pursuant to 1447(c) [Atlantic Nat l Trust LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 935]. [ii] Exception in Civil Rights Cases A statutory exception to the general rule that the granting of a remand to state court is nonreviewable provides that an order remanding a case to the state court from which it was removed pursuant to 28 U.S.C.S. 1443 (civil rights case) is reviewable by appeal or otherwise [28 U.S.C.S. 1447(d)]. [iii] Review of Issues Outside Scope An order for remand that is not based on lack of subject matter jurisdiction or nonjurisdictional defects in removal procedure is subject to review [Quackenbush v. Allstate Insurance Co. (1996) 517 U.S. 706, 712, 116 S. Ct. 1712, 135 L. Ed. 2d 1]. Under this rule, order granting remand on the following grounds were subject to appellate review:

District court s application of the abstention doctrine [Quackenbush v. Allstate Insurance Co. (1996) 517 U.S. 706, 712, 116 S. Ct. 1712, 135 L. Ed. 2d 1].

 Events subsequent to removal that caused the district court to lose jurisdiction [Reddam v. KPMG LLP (9th Cir. 2006) 457 F.3d 1054, 1058 1059 (designated arbitration organization declined jurisdiction)].

Violation of the forum defendant rule contained in 28 U.S.C.S. 1441(b) [Lively v. Wild Oats Markets, Inc. (2006) 456 F.3d 933, 939 942].

The overcrowded condition of the federal docket [Thermtron Products, Inc. v. Hermansdorfer (1976) 423 U.S. 336, 344 345, 96 S. Ct. 584, 46 L. Ed. 2d 542].

In addition, an appellate court has jurisdiction to decide whether a district court has the power to issue a remand order, although the appellate court cannot examine whether a particular exercise of power was proper [Northern California District Council of Laborers v. Pittsburg-Des Moines Steel Co. (9th Cir. 1995) 69 F.3d 1034, 1037 1038; see Thermtron Products, Inc. v. Hermansdorfer (1976) 423 U.S. 336, 351 352, 96 S. Ct. 584, 46 L. Ed. 2d 542 (decided under prior version of section 1447(c))]. Furthermore, failure to comply with the 30-day time limit deprives the district court of power to order remand on the basis of a defect in removal procedure, and a remand order based on a nonjurisdictional procedural defect that was not raised within the 30-day period may be vacated by the appellate court [Northern California District Council of Laborers v. Pittsburg-Des Moines Steel Co. (9th Cir. 1995) 69 F.3d 1034, 1038; Maniar v. FDIC (9th Cir. 1992) 979 F.2d 782, 786].

Similarly, when a district court bypasses the jurisdictional arguments and reaches the merits of the case, the statute is inapplicable, and review is possible. For example, remand based on a forum selection clause is subject to review, because denial of review would deprive the defendant of the right to appeal the court s decision on the substantive issue of the validity of the clause [Pelleport Investors v. Budco Quality Theatres (9th Cir. 1984) 741 F.2d 273, 276 277; see Clorox v. U.S. Dist. Ct. for N.D. of California (9th Cir. 1985) 779 F.2d 517, 519 521]. [b] Statute on Review After Supplemental Jurisdiction Declined A federal district court s remand after declining supplemental jurisdiction under 28 U.S.C.S. 1367(c) (3) is appealable under 28 U.S.C.S. 1291, rather than subject to review by mandamus under 28 U.S.C.S. 1651 [California Dep t of Water Resources v. Powerex Corp. (9th Cir. 2008) 533 F.3d 1087, 1095 1096 (overruling prior contrary rulings)].

[c] Statute on Review of Class Actions Under the Class Action Fairness Act of 2005 (CAFA), a party may seek leave to appeal a remand order to the court of appeals, which has discretion whether to accept the appeal [28 U.S.C.S. 1453(c)(1)]. The Act does not explain how an appellate court should decide whether to accept an appeal of a remand order. The Ninth Circuit Court of Appeal has adopted criteria for deciding whether exercise its informed discretion to accept an appeal of a remand order involving CAFA as guides, not a series of bright-line rules. Those criteria include [Coleman v. Estes Express Lines, Inc. (2010) 627 F.3d 1096, 1100]:

1. The importance of the CAFA-related question to the case at hand,

2. The likelihood that the question will evade effective review if left for consideration only after final judgment,

3. Whether the record is sufficiently developed and the order sufficiently final to permit intelligent review, and

4. Inquiry into the balance of the harms.

The presence of an important CAFA-related question in the case is a key factor in determining whether to accept an appeal. Discretion to hear appeals exists in part to develop a body of appellate law interpreting CAFA, the presence of a non-CAFA issue, even an important one, is generally not thought to be entitled to the same weight. If the CAFA-related question is unsettled, immediate appeal is more likely to be appropriate, particularly when the question appears to be either incorrectly decided by the court below or at least fairly debatable [Coleman v. Estes Express Lines, Inc. (2010) 627 F.3d 1096, 1100].

The application for review of an order remanding a class action to state court must be made to the court

of appeals within seven court [see Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc. (9th Cir. 2005) 435 F.3d 1140, 1146 (applying Fed. R. App. P., Rule 26(a)(2))] days after the entry of the remand order [28 U.S.C.S. 1453(c)(1); Amalgamated Transit Union Local 1309, AFLCIO v. Laidlaw Transit Servs., Inc. (9th Cir. 2005) 435 F.3d 1140, 1146 (intent of Congress was to require filing of application within 7 days of entry of remand); Bush v. Cheaptickets, Inc. (9th Cir. 2005) 425 F.3d 683, 685 (appeal filed on the seventh day after entry of order is timely)]. [3] Means of Obtaining Review When an order granting remand is subject to review, as discussed in 265.40[5][a], above, the proper method for obtaining review is to appeal the order [Quackenbush v. Allstate Insurance Co. (1996) 517 U.S. 706, 714 715, 116 S. Ct. 1712, 135 L. Ed. 2d 1 (disavowing statement in Thermtron Products, Inc. v. Hermansdorfer (1976) 423 U.S. 336, 352 353, 96 S. Ct. 584, 46 L. Ed. 2d 542, that review is available only by mandamus)].

As a discretionary appeal, the appeal of the remand of a class action under 28 U.S.C.S. 1453(c) (1) requires the permission of the court of appeals, which must be applied for in accordance with Fed. R. App. P., Rule 5 [Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc. (9th Cir. 2005) 435 F.3d 1140, 1145; for discussion of discretion, see [2][c], above]. The entry of the order granting permission serves as the notice of appeal for all timing issues [Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc. (9th Cir. 2005) 435 F.3d 1140, 1144]. If all of the deadlines have been satisfied by the parties, an appeal must be decided within sixty days after it is filed [28 U.S.C.S. 1453(c)(2); Lewis v. Verizon Communs., Inc. (2010) 627 F.3d 395, 396].

Occasionally, the issues of removal and remand may be inseparable from another issue. For example, when an action is removed to district court and that court enjoins the prosecution of a parallel state action, the propriety of the underlying removal is intertwined with the propriety of the granting of the injunction. Thus, the refusal to remand is an issue properly reviewable on an appeal of the propriety of the preliminary injunction [Takeda v. Northwestern Nat. Life Ins. Co. (9th Cir. 1985) 765 F.2d 815, 818]. [4] Standard of Review The standard of review in determining whether the district court erred in denying remand to the state court is whether the case was properly removed to the federal court under 28 U.S.C.S. 1441 in the first instance. The court will strictly construe the removal statute against removal jurisdiction [Takeda v. Northwestern Nat. Life Ins. Co. (9th Cir. 1985) 765 F.2d 815, 818; Salveson v. Western States Bankcard Ass n (9th Cir. 1984) 731 F. 2d 1423, 1426; see Karambelas v. Hughes Aircraft Company (9th Cir. 1993) 992 F.2d 971, 973 (if party makes no motion to remand case to state court, question is not whether

removal was proper, but whether federal court would have had original jurisdiction had case been filed in that court)]. Because 28 U.S.C.S. 1441 authorizes removal of any action based on a claim or right arising under federal law, the question on review thus becomes whether the district court correctly concluded that the plaintiff s claim arose under federal law [Carpenters Southern Cal. Admin. v. Majestic Housing (9th Cir. 1984) 743 F.2d 1341, 1343]. That question is reviewed de novo [Sullivan v. First Affiliated Securities, Inc. (9th Cir. 1987) 813 F.2d 1368, 1371, cert. denied sub nom. First Alliance Sec. v. Sullivan 98 L. Ed. 2d 106].

When an order granting remand is reviewable [see discussion in [b], above], apparently the district court s order should not be overturned unless it was clearly erroneous as a matter of law [see Survival Sys. v. U.S. Dist. Ct. for S.D. Cal. (9th Cir. 1987) 825 F.2d 1416, 1419 n.2, cert. denied, 484 U.S. 1042 (1988)]. The type of review depends on the nature of the decisions made in the remand order [Sever v. Alaska Pulp Corp. (9th Cir. 1992) 978 F.2d 1529, 1539].

Review of a district court s construction and applicability of the Class Action Fairness Act of 2005, 28 U.S.C.S. 1332(d), 1453, is de novo [United Steel v. Shell Oil Co. (2010) 602 F.3d 1087, 1090]. The standard for reviewing an award of attorney s fees under 28 U.S.C.S. 1447(c) is whether the district court abused its discretion [Moore v. Permanente Medical Group, Inc. (9th Cir. 1992) 981 F.2d 443, 447 448]. 265.42 265.49 [Reserved] PART III. RESEARCH GUIDE A. Jurisdiction 265.50 Related Matthew Bender Publications For forms pertaining to federal practice, see Bender s Federal Practice Forms (Matthew Bender) and Moore s Manual Forms (Matthew Bender)

For discussion of federal practice and procedure, see Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California (Matthew Bender), Bender s Federal Practice Manual (Matthew Bender), Federal Litigation Guide (Matthew Bender), Moore s Federal Practice (3rd ed. Matthew Bender), and

Moore s Manual Federal Practice and Procedure (Matthew Bender)

For forms relating to discovery in federal court, see Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California (Matthew Bender) and Bender s Forms of Discovery (Matthew Bender)

For discussion relating to evidence in federal courts, see Weinstein s Evidence, United States Rules (Matthew Bender) 265.51 Federal Statutes Original jurisdiction of district courts in all civil actions arising under the Constitution, laws, or treaties of United States. 28 U.S.C.S. 1331

Denial and imposition of cost in cases in which plaintiff adjudged to be entitled to recover less than $75,000. 28 U.S.C.S. 1332

Federal courts have original jurisdiction of all civil actions in which matter in controversy exceeds $75,000, exclusive of interest and costs, and is between citizens of different states, citizens of state and foreign states, citizens of different states in which foreign citizens are additional parties, and foreign state as plaintiff and citizens of state or different states. 28 U.S.C.S. 1332(a)

Corporation deemed citizen for purposes of diversity jurisdiction of state by which it has been incorporated and of state where it has its principal place of business. 28 U.S.C.S. 1332(c)(1)

In direct action against insurer to which insured not joined as defendant, insurer deemed citizen of state of which insured is citizen, as well as of any state in which insurer is incorporated and of any state where it has principal place of business. 28 U.S.C.S. 1332(c)(1)

Legal representative of decedent s estate deemed citizen only of same state as decedent for purposes of diversity jurisdiction and removal. 28 U.S.C.S. 1332(c)(2)

Legal representative of infant or incompetent deemed citizen only of same state as infant or incompetent for purposes of diversity jurisdiction and removal. 28 U.S.C.S. 1332(c)(2)

District court lacks jurisdiction in action in which any party, by assignment or otherwise, has been improperly joined to invoke court s jurisdiction. 28 U.S.C.S. 1359

Supplemental jurisdiction over related state claims, including joinder or intervention of additional parties. 28 U.S.C.S. 1367(a)

Exceptions applicable to diversity cases. 28 U.S.C.S. 1367(b)

Factors to be considered in deciding whether to exercise supplemental jurisdiction. 28 U.S.C.S. 1367(c)

Tolling of limitation period for claim asserted under supplemental jurisdiction. 28 U.S.C.S. 1367(d)

Defective allegations of jurisdiction permitted to be amended, upon terms in trial or appellate courts. 28 U.S.C.S. 1653

Citizenship of national banks for purposes of diversity jurisdiction. 28 U.S.C.S. 1348 265.52 Federal Rules of Civil Procedure Pleading setting forth claim for relief must contain short and plain statement of grounds on which court s jurisdiction depends, unless court already has jurisdiction and claim needs no new grounds of jurisdiction to support it. Fed. R. Civ. P., Rule 8(a)(1)

Defense of lack of subject matter jurisdiction may be asserted either in responsive pleading or by motion. Fed. R. Civ. P., Rule 12(b)(1)

Dismissal of action when court lacks jurisdiction of subject matter. Fed. R. Civ. P., Rule 12(h)(3)

Unincorporated association or partnership having no capacity to sue or be sued as permitted to sue or be sued in its common name in federal courts for purpose of enforcing for or against it a substantive right existing under Constitution or laws of United States. Fed. R. Civ. P., Rule 17(b)

Capacity or authority of party to sue or be sued in representative capacity as required to be alleged in order to show jurisdiction of court. Fed. R. Civ. P., Rule 9(b)

Executor, administrator, guardian, bailee, trustee of express trust, party with whom or in whose name contract has been made for benefit of another, or party authorized by statute as permitted to sue in his or her own name without joining party for whose benefit action is brought. Fed. R. Civ. P., Rule 17(a)

Interpleader. Fed. R. Civ. P., Rule 22 265.53 Local Federal Rules

[1] Central District of California Form of pleadings and papers filed with court. U.S. Dist. Ct., Cen. Dist. of Cal., Rule 3

Jurisdictional allegations. U.S. Dist. Ct., Cen. Dist. of Cal., Rule 3.7.1 [2] Eastern District of California Form of papers presented for filing with the court. U.S. Dist. Ct., East. Dist. of Cal., Rules 3-200, 7-130

Jurisdictional allegations. U.S. Dist. Ct., East. Dist. of Cal., Rule 8-204 [3] Northern District of California Format and filing of pleadings, papers, and amendments. U.S. Dist. Ct., No. Dist. of Cal., Rules 3-2, 3-4 et seq.

Jurisdictional allegations. U.S. Dist. Ct., No. Dist. of Cal., Rule 3-5 [4] Southern District of California Format and filing of pleadings, papers, and amendments. U.S. Dist. Ct., So. Dist. of Cal., Rules 3.1, 5.1 265.54 Decisions [1] Amending of Jurisdictional Allegations Amendment of incorrect jurisdictional allegation permitted only when jurisdiction does in fact exist. Newman-Green, Inc. v. Alfonzo-Larrain (1989) 490 U.S. 826, 830 831, 109 S. Ct. 2218, 104 L. Ed. 2d

893 [2] Ancillary Jurisdiction State claim raised in ongoing federal action by defendant, or by another person whose rights might be lost irretrievably if claim cannot be raised in action, falls within federal court s ancillary jurisdiction if claim has logical dependence on original complaint. Owen Equipment & Erection Co. v. Kroger (1978) 437 U.S. 365, 375 376, 98 S. Ct. 2396, 57 L. Ed. 2d 274

Federal court extends jurisdiction to encompass ancillary disputes whenever complete justice may be done thereby. Consolo v. Federal Maritime Comm n (1966) 383 U.S. 607, 617 n.14, 86 S. Ct. 1018, 16 L. Ed. 2d 131 [3] Case or Controversy [a] Mootness When injury suffered by plaintiff is limited in duration and there is a reasonable expectation that plaintiff will be subject to same action in the future, case is capable of repetition yet evading review, and not moot. Roe v. Wade (1973) 410 U.S. 113, 125, 93 S. Ct. 705, 35 L. Ed. 2d 147

Amendment or repeal of a statute generally moots the action challenging it. Native Village of Noatak v. Blatchford (9th Cir. 1994) 38 F.3d 1505, 1510 [b] Ripeness Person challenging constitutionality of criminal statute did not have to first violate the statute and risk arrest and prosecution for case to be ripe for review. Steffel v. Thompson (1974) 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L. Ed. 2d 505

Declaratory relief action to determine existence of insurance coverage not barred by doctrine of ripeness. Maryland Casualty Co. v. Pacific Coal & Oil Co. (1941) 312 U.S. 270, 273 274, 61 S. Ct. 510, 85 L. Ed. 826

Without a more fully developed factual record, including evidence of some real threat of enforcement of canons for judicial candidates, and without a showing that withholding federal adjudication would have imposed hardship on plaintiff, the district court should have declined jurisdiction for lack of a justiciable case or controversy. Given that the constitutional challenges were not ripe, the appellate court vacated the district court s order and judgment and remanded with instructions to dismiss. Alaska Right to Life v. Feldman (9th Cir. 2007) 504 F.3d 840, 851 852

An as-applied taking claim is ripe only if the landowner can establish that (1) the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue, and (2) the landowner has sought compensation through the procedures the state has provided for doing so. Vacation Vill., Inc. v. Clark County (9th Cir. 2007) 497 F.3d 902, 912 [c] Standing Assignee of claim has standing under Lujan s standards for Article III jurisdiction. Sprint Communs. Co., L.P. v. APCC Servs. (2008) 554 U.S. 269, 128 S. Ct. 2531 or , 171 L. Ed. 2d 424 or , 431 or , 437

General criteria for dismissing action for lack of standing. Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351

Physician challenging statute limiting distribution of contraceptives could assert constitutional privacy rights of couples denied access to the contraceptives. Griswold v. Connecticut (1965) 381 U.S. 479, 481, 85 S. Ct. 1678, 14 L. Ed. 2d 510

Party to restrictive race covenant who sold property in violation of covenant could also assert Fourteenth Amendment rights of non-Caucasian potential homebuyers. Barrows v. Jackson (1953) 346 U.S. 249, 258 259, 73 S. Ct. 1031, 97 L. Ed. 1586

As to Lujan s requirement that a plaintiff s injury be actual or imminent, a disabled individual who is currently deterred from patronizing a public accommodation due to a defendant s failure to comply with the Americans with Disabilities Act (ADA) has suffered actual injury. Doran v. 7-Eleven, Inc. (9th Cir. 2007) 506 F.3d 1191, 1196

A plaintiff has standing to challenge barriers in a public accommodation under the Americans With Disabilities Act when he or she has actually encountered those barriers. A plaintiff may challenge barriers not personally encountered if those barriers have deterred the plaintiff from patronizing the public accommodation. Skaff v. Meridien N. Am. Beverly Hills, LLC (9th Cir. 2007) 506 F.3d 832, 838

To establish Article III standing, a litigant must show that the allegedly unlawful conduct caused him to suffer an actual or imminent injury not a hypothetical, conjectural, or abstract injury that a favorable decision would likely redress. United States v. Lazarenko (9th Cir. 2006) 469 F.3d 815, 822

To show a concrete and particularized interest, environmental plaintiffs must allege that they will suffer harm by virtue of their geographic proximity to and use of areas that will be affected by the agency s policy. Nuclear Information and Resource Service v. Nuclear Regulatory Comm. (9th Cir. 2006) 457 F.3d 941, 953 [4] Choice of Law as Separate Issue Choice-of-law concerns are separate from jurisdictional questions, and arise only after jurisdiction is established and should not complicate or distort jurisdictional inquiry. Keeton v. Hustler Magazine, Inc. (1984) 465 U.S. 770, 778, 104 S. Ct. 1473, 79 L. Ed. 2d 790 [5] Diversity of Citizenship Jurisdiction [a] In General State law limiting the availability of the class action based on the relief sought did not apply under federal diversity jurisdiction. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co. (2010) U.S. , 130 S. Ct. 1431, 176 L. Ed. 2d 311, 318 319

When jurisdiction is based on diversity of citizenship, court lacks power to entertain claim against thirdparty defendant when action was dismissed as to primary defendant and both plaintiff and third-party defendant were citizens of same state. Owen Equipment & Erection Co. v. Kroger (1978) 437 U.S. 365, 376 377, 98 S. Ct. 2396, 57 L. Ed. 2d 274

In cases in which jurisdiction is based on diversity of citizenship, all parties on one side must be of diverse citizenship to those on other side. Treinies v. Sunshine Mining Co. (1939) 308 U.S. 66, 71, 60 S. Ct. 44, 84 L. Ed. 85

California State Board of Equalization, as agency of state for assessing and collecting state taxes, has no citizenship for purposes of diversity jurisdiction under 28 U.S.C.S. 1332 or interpleader under 28 U.S.C.S. 1335, which requires diversity of citizenship. Morongo Band of M. Indians v. Cal. St. Bd. of Equal. (9th Cir. 1988) 849 F.2d 1197, 1200

District court s abstention from exercising diversity jurisdiction because of subsequent parallel state actions held to be abuse of discretion because there was no possibility of fragmentation of case between federal and state courts, issues before district court had been fully briefed and were ripe for resolution, state proceedings had been stayed, and no significant question of state law or sensitive area of state policy was involved. Mobil Oil Corp. v. City of Long Beach (9th Cir. 1985) 772 F.2d 534, 541 543

Diversity of citizenship destroyed by joinder under Fed. R. Civ. P., Rule 19, of employer as necessary party in action by employee against provider ofgroup medical insurance to employer s company. Takeda v. Northwestern Nat. Life Ins. Co. (9th Cir. 1985) 765 F.2d 815, 819 821

Fed. R. Civ. P., Rule 19(a)(2), required joinder of child in parent s action because child had interest relating to subject of action and was so situated that disposition of action in his absence could impair or impede his ability to protect that interest. Aguilar v. Los Angeles County (9th Cir. 1985) 751 F.2d 1089, 1091 1094

Federal court as having jurisdiction over cases when domestic relations issues are implicated only tangentially; court as able to exercise discretion to decline jurisdiction when issues are closely related to domestic relations exception, and comity and policy counsel against federal court intervention. Fern v. Turman (9th Cir. 1984) 736 F.2d 1367, 1370

When jurisdiction of district court is based on diversity of citizenship, pleading Doe defendants in complaint destroys that jurisdiction. Garter-Bare Co. v. Munsingwear, Inc. (9th Cir. 1980) 650 F.2d 975, 981

Permissive joinder properly allowed when defendant joined was proper party to litigation but diversity jurisdiction was destroyed because party defendant s residence was state of plaintiff bank s incorporation. Desert Empire Bank v. Ins. Co. of N. America (9th Cir. 1980) 623 F.2d 1371, 1374

Citizenship of each member of unincorporated association or partnership as required to be alleged regardless of fact that under state law such entity is capable of suing or being sued. Fifty Associates v. Prudential Ins. Co. of America (9th Cir. 1970) 446 F.2d 1187, 1190 (applying rule to partnerships)

Citizenship of bankrupt as determinative and that of trustee as immaterial. Bush v. Elliott (1906) 202 U.S. 477, 484, 26 S. Ct. 668, 50 L. Ed. 1114

In passing on presence of diversity jurisdiction, court as required to consider citizenship of real party in interest. Fernandez-Cerra v. Commercial Ins. Co. of Newark (D. P.R. 1972) 344 F. Supp. 314, 317

In cases where one party represents another, nature of representation, as defined by state law, as required to be studied to determine whether representing party is real party in interest or nominal beneficiary party. Fernandez-Cerra v. Commercial Ins. Co. of Newark (D. P.R. 1972) 344 F. Supp. 314, 317

Federal court as not having jurisdiction to entertain suit in which both plaintiff and defendant are aliens. Dassigienis v. Cosmos Carriers & Trading Corp. (2d Cir. 1971) 442 F.2d 1016, 1017

Alien required to aver that he or she is subject or citizen of foreign state. Blair Holdings Corp. v. Rubenstein (S.D. N.Y. 1954) 122 F. Supp. 602, 603

Actual service of process on diverse defendants as required to confer subject matter jurisdiction under 28 U.S.C.S. 1335. Cripps v. Life Ins. Co. of North America (9th Cir. 1992) 980 F. 2d 1261, 1265 1266

Subject matter jurisdiction under interpleader as unavailable to settle rent money dispute involving California Indian tribe, member of that tribe, and California State Board of Equalization; no diversity of citizenship between tribe and tribal member, and state agency as not having citizenship for purposes of diversity jurisdiction under 28 U.S.C.S. 1332 and interpleader. Morongo Band of M. Indians v. Cal. St. Bd. of Equal. (9th Cir. 1988) 849 F.2d 1197, 1200

Reverse preemption provisions in federal statutes not barring federal diversity jurisdiction. Hawthorne Sav. F.S.B. v. Reliance Ins. Co. (9th Cir. 2005) 421 F.3d 835, 842 844 [b] Corporations Petitioner s unchallenged declaration suggests that corporation s center of direction, control, and coordination, its nerve center, and its corporate headquarters are one and the same, and they are located in New Jersey, not in California. The Hertz Corp. v. Friend (2010) U.S. , 130 S. Ct. 1181, 175 L. Ed. 2d 1029, 1044

Corporation s principal place of business to be determined by application of operations or nerve center test. Breitman v. May Company California (9th Cir. 1994) 37 F.3d 562, 564

Allegations of diversity jurisdiction in action in which corporation is party are required to contain both place of incorporation and principal place of business. Moore v. Sylvania Elec. Prod., Inc. (3rd Cir. 1972) 454 F.2d 81, 84 n.1

Allegations of diversity jurisdiction, in case in which corporation is party, are required to show manner corporation is citizen. Fifty Associates v. Prudential Ins. Co. of America (9th Cir. 1970) 446 F.2d 1187, 1190

A national bank is located for the purpose of qualification for diversity jurisdiction in the State designated in its articles of association as its main office. Wachovia Bank, National Association v. Schmidt (2006) 546 U.S. 303, 307, 126 S. Ct. 941, 163 L. Ed. 2d 797 [c] Improper Joinder Court permitted to look beyond pleadings and arrange parties according to actual sides in dispute. Dawson v. Columbia Ave. Sav. Fund, Safe Deposit, Title, & Trust Co. (1905) 197 U.S. 178, 180 25 S. Ct. 420, 49 L. Ed. 713

If nominal party having no real or substantial interest in dispute is designated simply for purpose of creating diversity of jurisdiction, such party as having been improperly joined. McSparran v. Weist (3d Cir. 1968) 402 F.2d 867, 873

Motive is relevant in determining whether party has been improperly joined to invoke jurisdiction of federal court. McSparran v. Weist (3d Cir. 1968) 402 F.2d 867, 874 [d] In Class Actions District court s finding that affidavit showing that its total charges exceeded $5 million was insufficient, where the plaintiff has neither acknowledged nor sought to establish that the class recovery was potentially any less, and district court assumed that only a portion of charges were in controversy, was error. Lewis v. Verizon Communs., Inc. (2010) 627 F.3d 395, 401 402

[6] Sovereign and Eleventh Amendment Immunity [a] General Immunity From Federal Suit Potential vulnerability of state treasury to pay federal court judgments is the most salient factor in determining whether Eleventh Amendmentimmunity is available. Hess v. Port Authority Trans-Hudson (1994) 513 U.S. 30, 115 S. Ct. 394, 130 L. Ed. 2d 245, 260-261

Eleventh Amendment immunity is available only in actions in which the relief sought is compensatory or retrospective in nature; the test is whether the relief will remedy future or past wrongs. Coeur d Alene Tribe of Idaho v. State of Idaho (9th Cir. 1994) 42 F.3d 1244, 1252 [b] Exceptions to Sovereign Immunity The authorization in the Religious Land Use and Institutionalized Persons Act of 2000 of appropriate relief against a government, 42 U.S.C.S. 2000cc-2(a), is not the unequivocal expression of state consent to suit that precedents require. Appropriate relief does not so clearly and unambiguously waive sovereign immunity to private suits for damages that one can be certain that the State in fact consents to a suit. Sossamon v. Texas, ___ U.S. ___, ___, 131 S. Ct. 1651, 179 L. Ed. 2d 700, 709; Holley v. Cal. Dep t of Corr. (2010) 599 F.3d 1108, 1112

The two major exceptions to Eleventh Amendment Immunity are waiver by a state and abrogation of immunity by Congressional action under the enforcement provisions of the Constitution. Atascadero State Hospital v. Scanlon (1985) 473 U.S. 234, 238, 105 S. Ct. 3142, 87 L. Ed. 2d 171

Government Employee Rights Act s provision, 42 U.S.C.S. 2000e-5(g)(1), makes congressional intent to abrogate state sovereign immunity unmistakably clear, in that it expressly covers state employees, and expressly gives them a right to collect damages payable by the employer, the state. Alaska v. U.S. (9th Cir. 2009) 564 F.3d 1062, 1066 [c] State Agencies Overriding factor in determining whether Eleventh Amendment immunity is available to a state agency is

whether any recovery against the agency would be payable from the state treasury; i.e., whether the state is the real party in interest. Hess v. Port Authority Trans-Hudson (1994) 513 U.S. 30, 115 S. Ct. 394, 130 L. Ed. 2d 245, 260-261 [d] State Officials State officials acting under an unconstitutional statute or in an unauthorized manner are acting individually and not in their officials capacities on the theory that a state cannot act in an unconstitutional manner and, hence, cannot authorize its officials to do so. Ex Parte Young (1909) 209 U.S. 123, 159 160, 28 S. Ct. 441, 52 L. Ed. 714

District court properly dismissed claims against state university and its employees on grounds of immunity under the Eleventh Amendment to the U.S. Constitution. Krainsky v. State of Nevada Ex. Rel. Board of Regents (2010) 616 F.3d 963, 967 968 [7] Federal Jurisdiction Required to Be Pleaded Case cognizable in federal trial court, in absence of diversity of citizenship, unless it appears from face of complaint that determination of suit depends on question of federal law. Pan American Pac. Corp. v. Superior Court (1961) 366 U.S. 656, 663, 81 S. Ct. 1303, 6 L. Ed. 2d 584

Federal courts are courts of limited jurisdiction. Grace v. American Central Ins. Co. (1883) 109 U.S. 278, 283, 3 S. Ct. 207, 27 L. Ed. 932

Failure to present specific basis for federal jurisdiction in complaint is not fatal when facts alleged are sufficient to support jurisdiction. L.A. Branch NAACP v. L.A. Unified School Dist. (9th Cir. 1983) 714 F.2d 946, 951, cert. denied, 467 U.S. 1209 (1984) [8] Federal Question Jurisdiction Registration requirement of 17 U.S.C.S. 411(a) was nonjurisdictional, notwithstanding prior jurisdictional treatment, and therefore did not implicate the subject-matter jurisdiction of federal courts. Reed Elsevier, Inc. v. Muchnick (2010) ___ U.S. ___, 130 S. Ct. 1237, 176 L. Ed. 2d 18, 32

Complaint alleging violation of federal statute as element of state cause of action, when Congress has determined that no private federal cause of action exists for violation, does not state claim arising under the Constitution, laws, or treaties of the United States under 28 U.S.C.S. 1331. Merrell Dow Pharmaceuticals v. Thompson (1986) 478 U.S. 804, 817, 106 S. Ct. 3229, 92 L. Ed. 2d 650, 664

In suit involving jurisdiction based on federal question, plaintiff s claim must present federal question unaided by anything alleged in anticipation of avoidance of defenses that defendant may interpose. Skelly Oil Co. v. Phillips Petroleum Co. (1949) 339 U.S. 667, 672, 70 S. Ct. 876, 94 L. Ed. 1194

In causes involving federal question jurisdiction, averments of complaint attempting to bring case within federal jurisdiction must be real and substantial. Blumenstock Bros. Advertising Agency v. Curtis Pub. Co. (1919) 252 U.S. 436, 440, 40 S. Ct. 385, 64 L. Ed. 649

Malicious prosecution action brought after successful defense of federal securities and racketeering charges did not present a federal question because task of deciding whether underlying federal claims had been legally tenable did not raise a substantial question of federal law. Berg v. Leason (9th Cir. 1994) 32 F.3d 422, 425

When declaratory judgment plaintiff asserts claim that is in nature of defense to threatened or pending action, character of threatened or pending action determines whether federal question jurisdiction exists with regard to declaratory judgment action; if declaratory judgment defendant could have brought coercive action in federal court to enforce its rights, jurisdiction exists for declaratory relief. Levin Metals Corp. v. Parr-Richmond Terminal Co. (9th Cir. 1986) 799 F.2d 1312, 1315

Suit challenging city s interpretation of ordinance is not forbidden appeal of state court final judgment under Rooker-Feldman doctrine. Manufactured Home Cmtys., Inc. v. City of San Jose (2005) 420 F.3d 1022, 1029 1030

Specific statutes may grant jurisdictional exceptions to the Rooker-Feldman doctrine doctrine. Doe v. Mann (2005) 415 F.3d 1038, 1043

Jurisdiction on basis of claim arising under laws of United States is not established by assertion of federal preemption defense to claims arising under state law. Fern v. Turman (9th Cir. 1984) 736 F.2d 1367, 1368 1369 (court applied domestic relations exception to diversity jurisdiction)

Jurisdictional amount need not be alleged under 28 U.S.C.S. 1337. Felter v. Southern Pac. Co. (1959) 359 U.S. 326, 329 330, 79 S. Ct. 847, 3 L. Ed. 2d 854

Action under 49 U.S.C.S. 20(11) (now see 49 U.S.C.S. 11707(a)(1)) as arising under 28 U.S.C.S. 1337 (act of Congress regulating commerce). Peyton v. Railway Express Agency, Inc. (1942) 316 U.S. 350, 351 353, 62 S. Ct. 1171, 86 L. Ed. 1525

Erroneous discharge and union s breach of duty entitle employees to remedy against both union and employer. Hines v. Anchor Motor Freight, Inc. (1976) 424 U.S. 554, 572, 96 S. Ct. 1048, 47 L. Ed. 2d 231

Pleading multiple bases of federal court jurisdiction as permitted. Technical Tape Corp. v. Minnesota Mining & Mfg. Co. (2d Cir. 1952) 200 F.2d 876, 877 878

General subject matter jurisdiction of federal court not narrowed by Safe Drinking Water Act, 42 U.S.C.S. 300g 3(b)(2)1453(c)(1). United States v. Alisal Water Corp. (9th Cir. 2005) 431 F.3d 643, 651

Jurisdiction of action to rescind sale and recover consideration under 15 U.S.C.S. 77v(a) irrespective of citizenship of parties or amount in controversy. Deckert v. Independence Shares Corp. (1940) 311 U.S.

282, 289 290, 61 S. Ct. 229, 85 L. Ed. 189

Federal Employers Liability Act creates cause of action against state-owned railroad enforceable in state court. Hilton v. S.C. Pub. R. Com. (1991) 502 U.S. 197, 112 S. Ct. 560, 116 L. Ed. 2d 560, 567, 572

Jurisdiction, where no diversity of citizenship, as dependent on Federal Employers Liability Act even though act complained of constitutes violation of Safety Appliance Act. Jacobson v. New York, New Haven & Hartford Co. (1st Cir. 1953) 206 F.2d 153, 158

Federal district court has concurrent jurisdiction with United States Claims Court over Tucker Act claims and mixed-Tucker Act claims not exceeding $10,000, but Federal Circuit and not Ninth Circuit has exclusive jurisdiction over appeal. Brant v. Cleveland Nat. Forest Service (9th Cir. 1988) 843 F.2d 1222, 1223 1224

Suit to recover value of property taken by government as founded either on Constitution or on implied promise to pay. United States v. Dickinson (1947) 331 U.S. 745, 747, 67 S. Ct. 1382, 91 L. Ed. 1789

Jurisdictional amount as required to be alleged in suit by or against corporation incorporated by Act of Congress and of which United States is more than one-half owner. Federal Intermediate Credit Bank v. Mitchell (1927) 277 U.S. 213, 214, 48 S. Ct. 114, 72 L. Ed. 854

Jurisdiction under 28 U.S.C.S. 1353 is not available for dispute over rent due on lease of Indian allotment, because complaint assumed validity of Indian s interest in allotment and authority to enter into lease with respect to that interest. Morongo Band of Mission Indians v. Cal. St. Bd. of Equal. (9th Cir. 1988) 849 F.2d 1197, 1201

Operation of Attorney General s certification invoking 28 U.S.C.S. 2679, Federal Employees Liability Reform and Tort Compensation Act of 1988, upon federal jurisdiction over individual federal

employee. Osborn v. Haley (2007) 549 U.S. 225, 127 S. Ct. 881, 166 L. Ed. 2d 819

California Elections Commission proceeding was ongoing for purposes of Younger abstention, in that while the commission had determined violation, it had not yet ascertained the applicable fine, so the federal district court was required to abstain under the four Younger principles. San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose (9th Cir. 2008) 546 F.3d 1087, 1092

Trial court s grant of demurrer on grounds of exclusive jurisdiction of federal courts under 28 U.S.C. 1338 was reversed, because to the extent patent law was relevant in the case, it was tangential, providing the background for deciding a question of state law. The client s complaint did not rest on the assertion that defendant s negligence caused it to lose or fail to enforce patent rights that it was entitled to enforce. E-Pass Technologies, Inc. v. Moses & Singer, LLP (2010) 189 Cal. App. 4th 1140, 1147, 117 Cal. Rptr. 3d 516

California court of appeal could exercise jurisdiction over case concerning assignment of patent royalties, even if the affirmative defense of the invalidity of the patent itself was raised. Applera Corp. v. MP Biomedicals, LLC (2009) 173 Cal. App. 4th 769, 785, 93 Cal. Rptr. 3d 178

Inventor s claim for damages for having to defend the reexamination of patents during which he was unable to enforce his patent rights arose under federal patent laws and therefore was subject to the exclusive jurisdiction of the federal courts under 28 U.S.C. 1338. Lockwood v. Sheppard, Mullin, Richter & Hampton (2009) 173 Cal. App. 4th 675, 687 93 Cal. Rptr. 3d 220 [9] Forum Selection Clause Carmack Amendment, 49 U.S.C.S. 11706, governing bills of lading issued by domestic rail carriers, did not applied to inland portion of shipment under bill of lading containing Tokyo forum selection clause. Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp. (2010) ___ U.S. ___, ___, 130 S. Ct. 2433, 177 L. Ed. 2d 424, 437 440

Federal court jurisdiction is not precluded by forum selection clause (in contract between New Jersey corporation and Delaware corporation operating in California) that states courts of California, County

of Orange, shall have jurisdiction over any action at law relating to this contract ; clause is permissive, not mandatory. Hunt-Wesson Foods, Inc. v. Supreme Oil Co. (9th Cir. 1987) 817 F.2d 75, 77

District court was in error in assuming that state and federal courts would have had jurisdiction in absence of forum selection clause when there were insufficient contacts with California to confer jurisdiction over New Jersey corporation; when forum selection clause is permissive, not mandatory, federal district court errs in remanding to state court. Hunt-Wesson Foods, Inc. v. Supreme Oil Co. (9th Cir. 1987) 817 F.2d 75, 77 78 [10] Grounds for Federal Jurisdiction Federal courts have only the power that is authorized by U.S. Const., art. III, and statutes enacted by Congress pursuant to that article. Bender v. Williamsport Area School Dist. (1986) 475 U.S. 534, 541, 106 S. Ct. 1326, 89 L. Ed. 2d 501

Federal rules of civil procedure do not create or withdraw federal jurisdiction. Owen Equipment & Erection Co. v. Kroger (1978) 437 U.S. 365, 370, 98 S. Ct. 2396, 57 L. Ed. 2d 274

States have no power to enlarge or contract federal jurisdiction, however extensive their power to create and define substantive rights. BNSF Rail. Co. v.O Dea (9th Cir. 2009) 572 F.3d 785, 788 789; Duchek v. Jacobi (9th Cir. 1981) 646 F. 2d 415, 417 419

Federal courts are empowered to act only in those specific instances authorized by Congress. McGlynn v. Employers Commercial Union Ins. Co. of America (D.P.R. 1974) 386 F. Supp. 774, 776 777 [11] Pendent Jurisdiction District court has jurisdiction over state-law claims in action if federal-law claims and state-law claims in action derive from common nucleus of operative fact and are such that plaintiff would ordinarily be expected to try them all in one judicial proceeding. Carnegie-Mellon Univ. v. Cohill (1988) 484 U.S. 343, 349, 108 S. Ct. 614, 98 L. Ed. 2d 720

If state and federal claims derive from common nucleus of operative fact, or, without regard to federal and state character, claims are such that they would ordinarily be brought in single proceeding, then, assuming substantiality of federal issues, court may exercise its pendent jurisdiction to hear both federal and state claims. United Mine Workers v. Gibbs (1966) 383 U.S. 715, 725, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218

No separate and independent claim or cause of action under 28 U.S.C.S. 1441(c) as occurring when there is single wrong to plaintiff, for which relief is sought, arising from interlocked series of transactions. American Fire & Cas. Co. v. Finn (1951) 341 U.S. 6, 13 14, 71 S. Ct. 534, 95 L. Ed. 702

Refusal to exercise supplemental jurisdiction in case raising novel issues of state law. Manufactured Home Cmtys., Inc. v. City of San Jose (2005) 420 F.3d 1022, 1034

Dismissal of pendent state constitutional claims authorized when they raised novel questions of state law and court had already dismissed federalconstitutional claims. Harris v. Joint School District No. 241 (9th Cir. 1994) 41 F.3d 447, 449

Pendent jurisdiction depends on federal court s jurisdiction over one claim, to which second, nonfederal claim may be appended; without federal claim on which to append related state cause of action, federal court has no basis for asserting jurisdiction. Aragon v. Federated Dept. Stores, Inc. (9th Cir. 1985) 750 F.2d 1447, 1457 1458

Federal court s refusal to exercise its power to assume pendent jurisdiction requires dismissal of state claims; court is unable to decline to exercise its power for purposes of jurisdiction and assert its power for purposes of ordering dismissed claims to arbitration. Kehr v. Smith Barney, Harris Upham & Co., Inc. (9th Cir. 1984) 736 F.2d 1283, 1287

Pendent jurisdiction existed over state claims of fraud and malpractice against class attorneys, deriving from common operative fact with federal claims, when jurisdiction over claims of fraud in earlier

settlement existed. Valerio v. Boise Cascade Corp. (9th Cir. 1981) 645 F.2d 699, 700 [12] Amount [a] In General Sum claimed by plaintiff in prayer for relief controls for purposes of determining requisite jurisdictional amount if claim is apparently made in good faith. St. Paul Mercury Indem. Co. v. Red Cab Co. (1937) 303 U.S. 283, 288 289, 58 S. Ct. 586, 82 L. Ed. 845

Dismissal of action for failure to allege requisite jurisdictional amount permitted only when it appears to legal certainty that claim is really for less than jurisdictional amount. St. Paul Mercury Indem. Co. v. Red Cab Co. (1937) 303 U.S. 283, 288 289, 58 S. Ct. 586, 82 L. Ed. 845

Inability of plaintiff to recover amount adequate to give court jurisdiction does not in itself show bad faith. St. Paul Mercury Indem. Co. v. Red Cab Co. (1937) 303 U.S. 283, 289, 58 S. Ct. 586, 82 L. Ed. 845

Failure to allege jurisdictional amount deprives court of diversity jurisdiction. Century Southwest Cable Television, Inc. v. CIIF Associates (9th Cir. 1994) 33 F.3d 1068 1071

Parties permitted to aggregate all claims over which court would independently have jurisdiction but for jurisdictional amount requirement; single plaintiff is able to aggregate as many claims as he or she has against single diverse defendant in order to meet jurisdictional amount, even if no single claim reaches that amount; plaintiff may aggregate several federal question claims against single defendant in order to reach jurisdictional amount; right of aggregation exists even when one claim is based on diversity of citizenship and one or more on presence of federal question. Hunter v. United Van Lines (9th Cir. 1984) 746 F.2d 635, 650 [b] Joinder of Claims and Parties Multiple-party plaintiffs not permitted to combine separate and distinct claims in single suit in order to satisfy requisite jurisdictional amount unlessplaintiffs have joined to enforce single title or right in which

they have common and undivided interest. Pinel v. Pinel (1916) 240 U.S. 594, 596, 36 S. Ct. 416, 60 L. Ed. 817

Claims of minority shareholders of telephone company against majority shareholders for breach of fiduciary duty were common and undivided interest under California law that could therefore be aggregated to satisfy jurisdictional amount. Eagle v. American Tel. and Tel. Co. (9th Cir. 1985) 769 F.2d 541, 545 547

Plaintiffs in class action not permitted to aggregate claims or combine potential attorney s fees to meet jurisdictional amount requirement. Goldberg v. CPC Intern., Inc. (9th Cir. 1982) 678 F.2d 1365, 1367

Plaintiff permitted to aggregate causes of action in order to satisfy jurisdictional amount requirement. Lemmon v. Cedar Point, Inc. (6th Cir. 1969) 406 F.2d 94, 96

Plaintiff not permitted to combine claim with defendant s compulsory counterclaim if defendant has properly objected to court s jurisdiction. Motorists Mutual Ins. Co. v. Simpson (7th Cir. 1968) 404 F.2d 511, 514 [c] Objection by Defendant Plaintiff has burden of proof when jurisdiction of court challenged by defendant in answer. KVOS, Inc. v. Associated Press (1936) 299 U.S. 269, 278, 57 S. Ct. 197, 81 L. Ed. 183 [13] Raising Lack of Jurisdiction Dismissal of action for lack of subject matter jurisdiction always timely and permissible. Louisville & N.R. Co. v. Mottley (1908) 211 U.S. 149, 152, 29 S. Ct. 42, 53 L. Ed. 126 (appellate court); In re Union Nat l Bank & Trust Co. of Souderton, Pa. (E.D. Pa. 1968) 287 F. Supp. 431, 433 (trial court)

Federal jurisdiction not created by aggregating state-law claim with federal claim that does not meet

jurisdictional amount requirement even if state-law claim arises out of same nucleus of operative facts as federal claim. Hunter v. United Van Lines (9th Cir. 1984) 746 F.2d 635, 652

Challenge to court s jurisdiction is not waivable. Savarese v. Edrick Transfer & Storage, Inc. (9th Cir. 1975) 513 F.2d 140, 142 n.1

Challenge to district court s subject matter jurisdiction as not waivable and when made as required to be considered by court. Savarese v. Edrick Transfer & Storage, Inc. (9th Cir. 1975) 513 F.2d 140, 142 n. 1

Burden of proving jurisdiction of district court as resting with the party alleging it. McNutt v. General Motors Acceptance Corp. (1935) 298 U.S. 178, 189, 56 S. Ct. 780, 80 L. Ed. 1135

Motion to dismiss for lack of subject matter jurisdiction as always timely and permissible. In re Union Nat l Bank & Trust Co. of Souderton, Pa. (E.D. Pa. 1968) 287 F. Supp. 431, 433 265.55 Law Reviews Oakley, Recent Statutory Changes in the Law of Federal Jurisdiction and Venue: The Judicial Improvements Acts of 1988 and 1990, 24 U.C. Davis L. Rev. 735 (1991)

Note, The Congressional Resurrection of Supplemental Jurisdiction in the Post-Finley Era, 42 Hastings L.J. 1611 (1991)

Note, The Proper Scope of Pendent Appellate Jurisdiction in the Collateral Order Context, 100 Yale L.J. 511 (1990)

Note, Second Bites at the Jurisdictional Apple: A Proposal for Preventing False Assertions of Diversity of Citizenship, 41 Hastings L.J. 1417 (1990)

Note, Federal Court Abstention in Diversity of Citizenship Cases, 62 S. Cal. L. Rev. 1237 (1989)

Doernberg, There s NO Reason for It; It s Just Our Policy: Why the Well-Pleaded Complaint Rule Sabotages the Purposes of Federal Question Jurisdiction, 38 Hastings L.J. (1987)

Winters, Jurisdiction Over Unnamed Plaintiffs in Multistate Class Actions, 73 Cal. L. Rev. 181 (1985)

Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895 (1984)

Comment, Federal Jurisdiction and the Domestic Relations Exception: A Search for Parameters, 31 UCLA L. Rev. 843 (1984)

Note, Suits by Foreigners Against Foreign States in United States Courts: A Selective Expansion of Jurisdiction, 90 Yale L.J. 1861 (1981) 265.56 265.59 [Reserved] B. Removal of Causes 265.60 Related Matthew Bender Publications For forms relating to removal, see 4 Bender s Federal Practice Forms and 1 Moore s Manual Federal Practice Forms, ch. 8 (Matthew Bender)

For discussion relating to removal, see Moore s Federal Practice, Ch. 107 (3rd ed. Matthew Bender), 1 Moore s Manual Federal Practice and Procedure, ch. 8, and Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 3 (Matthew Bender) 265.61 Federal Statutes Federal question jurisdiction. 28 U.S.C.S. 1331

Diversity of citizenship jurisdiction. 28 U.S.C.S. 1332

Other grounds for original federal district court jurisdiction. 28 U.S.C.S. 1333 et seq.

Actions removable generally. 28 U.S.C.S. 1441

Removal in specified actions. 28 U.S.C.S. 1442 et seq.

Nonremovable actions. 28 U.S.C.S. 1454

Removal procedure. 28 U.S.C.S. 1446

Defendant seeking removal as required to give written notice to all adverse parties. 28 U.S.C.S.

1446(d)

Procedure after removal generally. 28 U.S.C.S. 1447

Procedure for remand. 28 U.S.C.S. 1447(c), (d)

District court may remand all matters in which state law predominates if they were removed by joinder with separate and independent claim or cause of action within court s federal question jurisdiction. 28 U.S.C.S. 1441(c)

Authority of district court to order case remanded, and to order payment of just costs, actual expenses, and attorney s fees on remand. 28 U.S.C.S. 1447(c)

Remand order as generally not reviewable on appeal or otherwise. 28 U.S.C.S. 1447(d)

Process or service after removal. 28 U.S.C.S. 1448

Supplying state court record. 28 U.S.C.S. 1449

Effect of attachment, bond, or order in state court action. 28 U.S.C.S. 1450

Removal of bankruptcy related claims. 28 U.S.C.S. 1452

Corporation as citizen of state where it is incorporated and state where it has its principal place of business for purposes of removal under 28 U.S.C.S. 1441. 28 U.S.C.S. 1332(c)(1)

In direct action against incorporated or unincorporated insurer, when insured is not joined as defendant, insurer as also citizen of state where insured is citizen. 28 U.S.C.S. 1332(c)(1)

Removal of otherwise nonremovable claim or cause of action when joined with separate and independent claim or cause of action within district court s federal question jurisdiction. 28 U.S.C.S. 1441(c)

Removal of action or proceeding relating to an arbitration agreement subject to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 9 U.S.C.S. 204

Removal of actions involving covered securities under the Securities Litigation Uniform Standards Act of 1998. 15 U.S.C.S. 78bb(f)

Removal of certain actions brought in a state court to enforce a foreign judgment for defamation that meets one of the statutory conditions, regardless of the amount in controversy. 28 U.S.C.S. 4104 265.62 Federal Rules of Civil Procedure Service and filing of motions and papers. Fed. R. Civ. P., Rule 5

Time for service of motions and affidavits. Fed. R. Civ. P., Rule 6(d), (e)

Motion procedures generally. Fed. R. Civ. P., Rule 7(b)

Form of pleadings. Fed. R. Civ. P., Rule 10

Signing of pleadings, motions, and papers; sanctions. Fed. R. Civ. P., Rule 11

Defense based on lack of jurisdiction. Fed. R. Civ. P., Rule 12(b)

Dismissal of action for lack of jurisdiction. Fed. R. Civ. P., Rule 12(h)(3)

Procedure in federal action after removal and application of Federal Rules of Civil Procedure generally. Fed. R. Civ. P., Rule 81(c) 265.63 Local Federal Rules [1] Central District of California Form of pleadings and papers. U.S. Dist. Ct., Cen. Dist. of Cal., Rule 3

Jurisdictional allegations. U.S. Dist. Ct., Cen. Dist. of Cal., Rule 3.7.1

Making and opposing motions. U.S. Dist. Ct., Cen. Dist. of Cal., Rule 7

[2] Eastern District of California Form of pleadings and papers. U.S. Dist. Ct., East. Dist. of Cal., Rules 3-200, 7-130

Jurisdictional allegations. U.S. Dist. Ct., East. Dist. of Cal., Rule 8-204

Making and opposing motions. U.S. Dist. Ct., East. Dist. of Cal., Rule 78-230

Bonds and sureties. U.S. Dist. Ct., East. Dist. of Cal., Rule 233 [3] Northern District of California Form of pleadings and papers. U.S. Dist. Ct., No. Dist. of Cal., Rules 3-2, 3-4 et seq.

Jurisdictional allegations. U.S. Dist. Ct., No. Dist. of Cal., Rule 3-5

Making and opposing motions. U.S. Dist. Ct., No. Dist. of Cal., Rule 7 [4] Southern District of California Form of pleadings and papers. U.S. Dist. Ct., So. Dist. of Cal., Rules 3.1, 5.1

Making and opposing motions. U.S. Dist. Ct., So. Dist. of Cal., Rule 7.1

Bonds and sureties. U.S. Dist. Ct., So. Dist. of Cal., Rule 65.1.2 265.64 Decisions [1] Actions Removable Only state court actions that originally could have been filed in federal court as removable to federal court. Caterpillar Inc. v. Williams (1987) 482 U.S. 386, 107 S. Ct. 2425, 96 L. Ed. 2d 318, 327

Complaint alleging violation of federal statute as element of state cause of action, when there is no private, federal cause of action for violation of federal statute, as not stating claim arising under Constitution, laws, or treaties of United States and removal of cause of action to federal court is improper. Merrell Dow Pharmaceuticals v. Thompson (1986) 478 U.S. 804, 817, 106 S. Ct. 3229, 92 L. Ed. 2d 650 [2] Artful Pleading Artful pleading doctrine as invoked only in exceptional circumstances. Redwood Theatres, Inc. v. Festival Enterprises (9th Cir. 1990) 908 F.2d 477, 479

When prior federal judgment was grounded in state rather than federal law, res judicata as no basis for removal of subsequent state claims arising out of same facts. Ultramar America, Ltd. v. Dwelle (9th Cir. 1990) 900 F.2d 1412, 1417

Artful pleading doctrine as not justifying removal on basis of facts not alleged in complaint. Caterpillar v. Williams (1987) 482 U.S. 386, 107 S. Ct. 2425, 96 L. Ed. 2d 318, 330

Complaint omitting allegations of federal law that are essential to establishment of plaintiff s claim as artfully pleaded; court as properly recharacterizing artfully pleaded complaint as though it had been well pleaded. Paige v. Henry J. Kaiser Co. (9th Cir. 1987) 826 F.2d 857, 860 861

Artful pleading doctrine as not basis for denying remand of state law action that had been filed shortly before federal action alleging substantially samefacts, since state law claims were not barred by res judicata or preempted. Sullivan v. First Affiliated Securities, Inc. (9th Cir. 1987) 813 F.2d 1368, 1376, cert. denied sub nom. First Alliance Sec. v. Sullivan, 98 L. Ed. 2d 106

If state claim is found on removal to be artfully pleaded federal claim that was previously before federal court and was dismissed, res judicata as applicable and case should be dismissed. Salveson v. Western States Bankcard Ass n (9th Cir. 1984) 731 F.2d 1423, 1432 [3] Diversity Appropriateness of petition for removal alleging diversity as close question when petition was filed after trial against nondiverse defendant was bifurcated from trial against diverse defendant, but was neither frivolous nor legally unreasonable so as to warrant sanctions under Fed. R. Civ. P., Rule 11. Lemos v. Fencl (9th Cir. 1987) 828 F.2d 616, 618 619

Removal based on diversity of citizenship as proper even though plaintiffs and original corporate defendant were all residents of California, when principal creditor of corporation with which bankrupt original corporate defendant merged was resident of another state. Meadows v. Bicrodyne Corp. (9th Cir. 1986) 785 F.2d 670, 671 672

Voluntary-involuntary rule as requiring that suit remain in state court unless voluntary act of plaintiff brings about change rendering case removable. Self v. General Motors Corp. (9th Cir. 1978) 588 F.2d 655, 657

Personal injury action brought by California resident in state court against California citizen and out-ofstate corporation as not removable to federal court after final judgment against California defendant; plaintiff as neither dismissing nor discontinuing case against that defendant voluntarily or otherwise. Self v. General Motors Corp. (9th Cir. 1978) 588 F.2d 655, 660

Joinder of nondiverse defendants as fraudulent if pleadings do not minimally satisfy state pleading requirements, if in fact no cause of action exists, or there is no intention to secure joint judgment. Lewis v. Time Inc. (E.D. Cal. 1979) 83 F.R.D. 455, 465, aff d 710 F.2d 549, 550 (1983) [4] Effect of Removal Removal of civil action as according exclusive jurisdiction in federal court; state court as unable to resume jurisdiction of case unless case is remanded. Allstate Ins. Co. v. Superior Court (1982) 132 Cal. App. 3d 670, 674 675, 183 Cal. Rptr. 330 [5] Federal Question Question whether claim arises under federal law as determined by complaint; defense that raises federal question as inadequate to confer federal jurisdiction. Merrell Dow Pharmaceuticals v. Thompson (1986) 478 U.S. 804, 808, 106 S. Ct. 3229, 92 L. Ed. 2d 650

Federal jurisdiction sufficient for removal as not created by defendant pleading counter-claim presenting federal question. Takeda v. Northwestern Nat. Life Ins. Co. (9th Cir. 1985) 765 F.2d 815, 821 822 [6] Pendent State Claims District court as having discretion to remand removed case involving pendent claims on proper determination that retaining jurisdiction would be inappropriate, such as when all federal law claims have dropped out of action and only pendent state law claims remain. Carnegie-Mellon Univ. v. Cohill (1988) 484 U.S. 343, 350 351, 357, 108 S. Ct. 614, 98 L. Ed. 2d 720

Federal court as acquiring jurisdiction over pendent state law claims when it acquires jurisdiction on removal; dismissal of federal claim as not depriving federal court of power to adjudicate remaining pendent state claims. Bright v. Bechtel Petroleum, Inc. (9th Cir. 1986) 780 F.2d 766, 771 [7] Preemption Federal preemption as ordinarily raised as defense to allegations in complaint; case as not removable to

federal court on basis of federal defense, including defense of preemption, even if defense is anticipated in complaint, and even if both parties concede that federal defense is the only question truly at issue. Caterpillar Inc. v. Williams (1987) 482 U.S. 386, 392 393, 107 S. Ct. 2425, 96 L. Ed. 2d 318, 327

Fact that defendant might ultimately prove that plaintiff s claims are preempted as not establishing that they are removable. Caterpillar v. Williams (1987) 482 U.S. 386, 398, 107 S. Ct. 2425, 96 L. Ed. 2d 318

State common law action, preempted by and within civil enforcement provisions of ERISA (29 U.S.C.S. 1001), as arising under federal law and removable to federal court. Metropolitan Life Ins. Co. v. Taylor (1987) 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55, 60-65

When federal law completely preempts state law claim and supplants it with federal claim, state law claim as removable to federal court even if federal law fails to provide plaintiff with remedies available under state law or if federal defense completely bars federal claim. Young v. Anthony s Fish Grottos, Inc. (9th Cir. 1987) 830 F.2d 993, 998 999

Carmack Amendment, 49 U.S.C.S. 14706, is the exclusive cause of action for contract claims alleging delay, loss, failure to deliver or damage to property by interstate carriers, and thus provides a basis for removal of completely preempted state-law cause of action. Hall v. North American Van Lines, Inc. (9th Cir. 2007) 476 F.3d 683, 687 688 [8] Remand The bar on review of remand to state court for lack of federal subject matter jurisdiction contained in 28 U.S.C.S. 1447(d) is applicable to a suit removed under the Foreign Sovereign Immunities Act of 1976, 28 U.S.C.S. 1441(d). Powerex Corp. v. Reliant Energy Services, Inc. (2007)551U.S.224, 127 S. Ct. 2411 or , 2419 or 2421, 168 L. Ed. 2d 112 or

Once an action alleging liability of an individual federal employee is removed to federal court upon the Attorney General s certification under 28 U.S.C.S. 2679, Federal Employees Liability Reform and Tort Compensation Act of 1988, that the federal employee was acting within the scope of his or her

employment, federal district court may not remand to state court.28 U.S.C.S. 2679(d)(2); Osborn v. Haley (2007) 549 U.S. 225, 127 S. Ct. 881, 166 L. Ed. 2d 819

Ninth Circuit Court of Appeals granted discretionary appeal of order granting remand of action subject to Class Action Fairness Act of 2005. Coleman v. Estes Express Lines, Inc. (2010) 627 F.3d 1096, 1100 1101

District court s remand order was vacated in class action where finding that jurisdictional amount under Class Action Fairness Act of 2005 was not met was error. Lewis v. Verizon Communs., Inc. (2010) 627 F.3d 395, 401 402

Completely preempted contract claim presenting a federal question as constituting grounds for properly denying motion to remand. Hall v. North American Van Lines, Inc. (9th Cir. 2007) 476 F.3d 683, 687 688

Remand of action outside the scope of complete preemption by 301 of the Labor[Deering's] Management Relations Act as error. Ward v. Circus Circus Casinos, Inc. (9th Cir. 2007) 473 F.3d 994, 999

Amendment of complaint after removal in manner giving diversity jurisdiction precluding remand after dismissal of sole claim in original complaint giving federal question jurisdiction. Williams v. Costco Wholesale Corp. (9th Cir. 2006) 471 F.3d 975, 977

Remand order based on defendant s waiver of right of removal by participation in state court action as within bounds of 28 U.S.C.S. 1447(c) and as not reviewable by appeal or otherwise; remand order based on untimeliness of removal as similarly not reviewable. Schmitt v. Insurance Co. of North America (9th Cir. 1988) 845 F.2d 1546, 1551

28 U.S.C.S. 1447(d) as barring review of remand orders by appeal or mandamus, even if district court s decision that under 28 U.S.C.S. 1447(c), removal was improvident and without jurisdiction, was erroneous. Kunzi v. Pan American World Airways, Inc. (9th Cir. 1987) 833 F.2d 1291, 1293

Once basis for removal jurisdiction is dropped from proceedings, federal court as possessing power to hear remaining state claims, although not obliged to exercise that power; district court as having discretion to remand rest of action to state court from which it was removed. Price v. PSA, Inc. (9th Cir. 1987) 829 F.2d 871, 876

When only issue decided by remand order is jurisdictional issue, e.g., that claim was state claim and not artfully pled federal claim, remand order as not reviewable on appeal as substantive decision, and only avenue of review available as by mandamus. Survival Sys. v. U.S. Dist. Ct. for S.D. Cal. (9th Cir. 1987) 825 F.2d 1416, 1418

28 U.S.C.S. 1447(d) as barring review of only those remand orders that are based on lack of jurisdiction; 1447(d) as not foreclosing review of remand order based on resolution of merits of some matter of substantive law apart from any jurisdictional decision. Clorox v. U.S. Dist. Ct. for N.D. of California (9th Cir. 1985) 779 F.2d 517, 520

Procedural defect of failure to obtain consent of all defendants as basis for denying review of remand order under 28 U.S.C.S. 1447(d) for any grounds listed in 28 U.S.C.S. 1447(c). Aguon-Schulte v. Guam Election Comm. (2006) 469 F.3d 1236, 1240 1241 [9] Removal Jurisdiction Federal district court as authorized to impose sanctions under Fed. R. Civ. P., Rule 11, even if district court is later determined to be without subject-matter jurisdiction to hear removed action and case is remanded to state court. Willy v. Coastal Corp. (1992) 503 U.S. 131, 112 S. Ct. 1076, 117 L. Ed. 2d 280, 285 286, 290

The requirement in 28 U.S.C.S. 1442(a) of any act under color of such office is construed as requiring a causal connection between the charged conduct and the official authority. That connection is

established where the challenged conduct involves actions entrusted to a receiver in his or her capacity as receiver. Medical Dev. Int l v. Cal. Dep t of Corr. & Rehab. (9th Cir. 2009) 585 F.3d 1211, 1216

Jurisdictional requirement as met when district court has jurisdiction over all parties to render judgment; prevailing party in original two-sided litigation as not required to show that there was also jurisdiction regarding virtually unrelated claims that state court had permitted to be joined in same lawsuit. Grubbs v. General Electric Credit Corp. (1972) 405 U.S. 699, 705 706, 92 S. Ct. 1344, 31 L. Ed. 2d 612

Party seeking removal as bearing burden of establishing federal jurisdiction. Miller v. Grgurich (9th Cir. 1985) 763 F.2d 372, 373

Party invoking removal statute as having burden of establishing jurisdiction; removal statute as strictly construed against removal jurisdiction. Salveson v. Western States Bankcard Asso. (9th Cir. 1984) 731 F.2d 1423, 1426, 1984 1 Trade Cas. (CCH) P65974 [10] Removal Procedure Process, pleadings, and orders served that must be filed with removal petition as not including discovery and discovery requests from state court action. Visicorp v. Software Arts, Inc. (N.D. Cal. 1983) 575 F. Supp. 1528, 1531

Right to remove state court case to federal court as limited to defendants; plaintiff as not permitted to accomplish removal by re filing of state court complaint. American Intern. Underwriters v. Continental Ins. (9th Cir. 1988) 843 F.2d 1253, 1260 1261

Or otherwise language of 28 U.S.C.S. 1446(b) as pertaining only to those states that allow plaintiff to commence suit without filing or serving initial pleading immediately; or otherwise as not meaning that receipt of initial pleading without proper service will trigger removal period. Thomason v. Republic Ins. Co. (E.D. Cal. 1986) 630 F. Supp. 331, 333 334

Removal petition as timely filed even though petition was not made within 30 days of receipt of copy of initial pleading, when defendant was not properly served and never received equivalent of service. Thomason v. Republic Ins. Co. (E.D. Cal. 1986) 630 F. Supp. 331, 334

Unless agreement specifies otherwise, refusal of designated arbitration organization to accept jurisdiction under Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not eliminate basis for federal jurisdiction [Reddam v. KPMG LLP (9th Cir. 2006) 457 F.3d 1054, 1058] [11] Well-Pleaded Complaint Well-pleaded complaint rule does not apply to questions of jurisdiction under statutory independent jurisdictional grant. American Nat l Red Cross v. S.G. (1992) 505 U.S. 247, 112 S. Ct. 2465, 2472, 120 L. Ed. 201

Presence or absence of federal jurisdiction as governed by well-pleaded complaint rule; well-pleaded complaint rule as providing that federal jurisdiction exists only when federal question is presented on face of complaint. Caterpillar Inc. v. Williams (1987) 482 U.S. 386, 107 S. Ct. 2425, 96 L. Ed. 2d 318, 327

Presence or absence of federal-question jurisdiction is governed by well-pleaded complaint rule; wellpleaded complaint rule as providing that federal jurisdiction exists only when federal question is presented on face of complaint. Hall v. North American Van Lines, Inc. (9th Cir. 2007) 476 F.3d 683, 687

Well-pleaded complaint rule as basic principle marking boundaries of federal question jurisdiction of federal district courts. Metropolitan Life Ins. Co. v. Taylor (1987) 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55, 63

Although plaintiff is master to decide what law to rely on, independent corollary of well-pleaded complaint rule as establishing that plaintiff is unable to defeat removal by omitting to plead necessary federal questions in complaint. Franchise Tax Bd. v. Laborers Vac. Trust (1983) 463 U.S. 1, 22, 103 S. Ct. 2841, 77 L. Ed. 2d 420

 265.65 Law Reviews Hermann, Certifying Appeals From Remand Orders, 11(8) Cal. Law. 59 (1991)

Braun, Reviewability of Remand Orders; Striking the Balance in Favor of Equality Rather Than Expediency, 30 Santa Clara L. Rev. 21 (1990)

Rosenblatt, Removal of Criminal Prosecutions of Federal Official: Returning to the Original Intent of Congress, 29 Santa Clara L. Rev. 21 (1989)

Yeomans, How to Avoid Rule 11 Sanctions, 34 Prac. Law. 61 (1988)

Doernberg, There s No Reason for It; It s Just Our Policy: Why the Well-Pleaded Complaint Rule Sabotages the Purposes of Federal Question Jurisdiction, 38 Hastings L.J. 597 (1987)

Note, Removal Doctrine Reaffirmed: Franchise Tax Board v. Construction Laborers Vacation Trust, 70 Cornell L. Rev. 557 (1985)

Comment, Federal Preemption, Removal Jurisdiction, and the Well-Pleaded Complaint Rule, 51 U. Chi. L. Rev. 634 (1984) 265.66 265.69 [Reserved] PART IV. PROCEDURAL CHECKLIST

 265.70 Party Seeking Removal [1] Preliminary Determinations NOTE: The following procedural guide deals with removal of general civil actions. It does not address removal in criminal cases, civil actions involving federal officers or members of the armed forces, or actions dealing with civil rights or bankruptcy.

Determine if action is within original jurisdiction of district court [see 28 U.S.C.S. 1331 1365, 1441(a); see 265.12].

Grounds for federal jurisdiction:

Federal question involves claim or right arising out of Constitution, treaties, or laws of United States [see 28 U.S.C.S. 1441(b); see 265.12].

Diversity of citizenship [see 28 U.S.C.S. 1332(a), 1441(b); see 265.15]:

No defendant is citizen of California.

Matter in controversy exceeds $75,000, exclusive of interests and costs.

 Special minimal diversity rules for class or mass actions [see 265.15[6]].

Determine if action joins nonremovable claim or cause of action with separate and independent claim or cause of action within district court s federal question jurisdiction [see 28 U.S.C.S. 1441(c); see 265.36].

Determine if action is not removable [see 28 U.S.C.S. 1445; see 265.31[2]].

Certain acts such as filing permissive counterclaim or third-party complaint may waive right to remove [see 265.32[4]]. [2] Preparing and Filing Notice of Removal Obtain consent from all other defendants [see 265.38[2]].

Time for filing notice of removal.

When case stated by initial pleading is removable, notice of removal must be filed within the shorter period of following [see 28 U.S.C.S. 1446(b); see 265.38[3][a]]:

30 days after receipt, through service or otherwise, of copy of initial pleading setting forth claim for relief on which state court action is based, or

30 days after service of summons if initial pleading has then been filed in court and is not required to be served.

 When case stated by initial pleading is not removable, notice of removal must be filed as follows [see 265.38[3][b]]:

Within 30 days after receipt, through service or otherwise, of copy of amended pleading, motion, order, or other paper from which it may first be ascertained that case is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by 28 U.S.C.S. 1332 more than one year after commencement of the action [see 28 U.S.C.S. 1446(b)], or

Within 30 days of dismissal or abandonment of any California defendant.

When there are multiple defendants, and they receive notice of removability at different times, 30-day filing period begins with first notice [see 265.38[3][c]].

File notice of removal.

File in United States district court for district and division where action is pending [see 28 U.S.C.S. 1446(a); FORMS: 265.160 265.165].

File copy of all process, pleadings, and orders served in state court action [28 U.S.C.S. 1446(a)].

Notice to adverse parties and state court.

 Promptly after filing notice of removal, give written notice to all adverse parties [see 28 U.S.C.S. 1446(d); FORM: 265.166].

At same time, file copy of notice of removal with state court clerk.

Prepare record.

File copies of all state court records and proceedings with district court clerk [see 28 U.S.C.S. 1447(b); FORM: 265.167]; or

Prepare form of writ of certiorari for district court to issue to state court to obtain those records and proceedings [see 28 U.S.C.S. 1447(b)].

If state court clerk, on demand and tender of legal fees, fails to deliver certified copies of its records and proceedings, prepare affidavit for district court reciting those facts, and directing that record to be supplied by affidavit or otherwise [28 U.S.C.S. 1449].

Any attachment or sequestration of goods or estate in state court action will hold those goods or estate to answer final judgment in same manner in district court. All bonds, undertakings, or security given prior removal will remain valid and effectual after removal [see 28 U.S.C.S. 1450]. [3] Preparing and Filing Motion to Enjoin State Court Proceedings Removal provides district court with exclusive jurisdiction and prohibits further proceedings in state court [see 265.37[2]].

 Prepare, file, and serve notice of motion and points and authorities to enjoin state court proceedings [see Fed. R. Civ. P., Rules 5, 7(b), 11 (general motion procedures)]. [4] Opposing Motion for Remand Preliminary determinations.

Remand is only appropriate when the district court lacks subject matter jurisdiction, or when there is a defect in the removal procedure [see 28 U.S.C.S. 1447(c); see 265.40[2]].

When nonremovable and separate and independent claim is joined with claim within district court s federal question jurisdiction [see 28 U.S.C.S. 1441(c); see 265.36].

Prepare, file, and serve papers opposing motion for remand [see Fed. R. Civ. P., Rules 5, 7(b), 11 (general motion procedures)].

If motion for remand is granted on grounds other than those of 28 U.S.C.S. 1447(c), seek review if appropriate [see 265.40[5]]. 265.71 Party Opposing Removal [1] Preliminary Determinations Remand on the ground that the district court lacks subject matter jurisdiction is available any time before final judgment [see 28 U.S.C.S. 1447(c); see 265.40[2]; for form of motion to remand action, see 265.168].

 A motion to remand on the basis of any defect in the removal procedure must be made within 30 days after the filing of the notice of removal [see 28 U.S.C.S. 1447(c); see 265.40[2]; for form of motion to remand action, see 265.168].

Remand of pendent state law claims is available when federal claims have been eliminated [see 265.37[1][c]]. [2] Preparing and Filing Motion to Remand Removed Action Prepare, file, and serve notice of motion and points and authorities [see Fed. R. Civ. P., Rules 5, 7(b), 11 (general motion procedures)].

Request award of just costs and any actual expenses, including attorney s fees [28 U.S.C.S. 1447(c); see 265.40[4]].

Prepare remand order for court s signature. After certified copy of order is mailed by district court clerk to state court clerk, state court may proceed with case [28 U.S.C.S. 1447(c); see 265.40[3]; FORM: 265.169].

If motion for remand is denied, seek review if appropriate [see 265.40[5]]. [3] Preparing and Filing Motion to Sever and Remand Nonremovable and separate and independent claim may be severed from claim providing basis for removal [see 28 U.S.C.S. 1441(c); see the Introduction under Separate and Independent Claim; FORMS: 265.170 265.171]. For steps involved in preparation and review of motion, see Paragraph II(A)(2), (5).

 265.72through 265.79 [Reserved] PART V. FORMS A. Jurisdiction 265.80 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Natural Persons [28 U.S.C.S. 1332(a)(1)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Natural Persons [28 U.S.C.S. 1332(a)(1)]

Plaintiff ___________________[name] is a citizen of the State of ___________________ and defendant is a citizen of the State of ___________________[name of state other than that of plaintiff s citizenship]. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. [2] Use of Form The form of allegation, above, is for use by a plaintiff in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction. 28 U.S.C.S. 1332(a) was amended in 1997. In civil actions commenced on or after January 19, 1997, the matter in controversy must exceed the sum of $75,000, exclusive of interest and costs. Civil actions commenced prior to that date need only meet the former $50,000 jurisdictional minimum. [3] Cross References Moore s Federal Practice, 8.03, 102.02 (3rd ed. Matthew Bender)

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 2.

 265.81 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Multiple Parties [28 U.S.C.S. 1332(a)(1)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Multiple Parties [28 U.S.C.S. 1332(a)(1)]

Plaintiff ___________________[name] is a citizen of the State of ___________________, and plaintiff ___________________[name] is a citizen of the State of ___________________. Each of the defendants is a citizen of the State of ___________________[name of state other than states in which plaintiffs are citizens]. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. [2] Use of Form The form of allegation, above, is for use by a plaintiff in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction in a case with multiple parties. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80. 265.82 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Unincorporated Association [28 U.S.C.S. 1332(a)(1)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Unincorporated Association [28 U.S.C.S. 1332(a)(1)]

Plaintiff is an unincorporated association, composed of the following persons as members: ___________________[state name and citizenship of each member]. Defendant is a citizen of the State

of ___________________[name of state other than state of plaintiff s citizenship]. The matter in controversy exceeds the sum of $75,000, exclusive of interests and costs. [2] Use of Form The form of allegation, above, is for use by a plaintiff unincorporated association in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80. 265.83 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Partnerships [28 U.S.C.S. 1332(a)(1)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Partnerships [28 U.S.C.S. 1332(a)(1)]

Plaintiffs ___________________[name] and ___________________[name], copartners doing business under the firm name of ___________________, are each citizens of the State of ___________________. Defendant ___________________[name] is a citizen of the State of ___________________[name of state other than state of plaintiffs citizenship], and defendant ___________________[name] is a citizen of the State of ___________________[name of state other than state of plaintiffs citizenship]. Defendants are copartners doing business under the firm name of ___________________. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. [2] Use of Form The form of allegation, above, is for use by a plaintiff partnership in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction. [3] Cross References

For general discussion and references relating to allegations based on diversity of citizenship, see 265.80. 265.84 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Trustee in Bankruptcy [28 U.S.C.S. 1332(a)(1)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Trustee in Bankruptcy [28 U.S.C.S. 1332(a)(1)]

Plaintiff is a trustee in bankruptcy of ___________________[name], a citizen of the State of ___________________. Defendant is a citizen of the State of ___________________[name of state other than that of bankrupt s citizenship]. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. [2] Use of Form The form of allegation, above, is for use by a plaintiff trustee in bankruptcy in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80. 265.85 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Estate Administrator [28 U.S.C.S. 1332(a)(1)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Estate Administrator [28 U.S.C.S. 1332(a)(1)]

Plaintiff ___________________[name] is the ___________________[specify legal representative, e.g., personal representative or administrator or executor of the will] of the estate of ___________________[name], deceased, who was a citizen of the State of ___________________. Defendant is a citizen of the State of ___________________[name of state other than that of deceased s citizenship]. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. [2] Use of Form The form of allegation, above, is for use by a legal representative of the estate of a decedent in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction. The legal representative is deemed to be a citizen only of the same state as the decedent [28 U.S.C.S. 1332(c)(2) (applicable to civil actions commenced or removed on or after May 18, 1989)]. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80. 265.86 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Plaintiff as Nominal Representing Party [28 U.S.C.S. 1332(a)(1)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Plaintiff as Nominal Representing Party [28 U.S.C.S. 1332(a)(1)]

Plaintiff brings this action for the use of ___________________[name], a citizen of the State of ___________________. Defendant is a citizen of the State of ___________________[name of state other than that of represented party]. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. [2] Use of Form

The form of allegation, above, is for use where the plaintiff is a nominal representing party bringing an action on behalf of or for the use of the real party in interest [see Fernandez-Cerra v. Commercial Ins. Co. of Newark (D. P.R. 1972) 244 F. Supp. 314, 317]. The legal representative of an infant or incompetent is a citizen only of the same state as the infant or incompetent [28 U.S.C.S. 1332(c)(2) (applicable to civil actions commenced or removed on or after May 18, 1989)]. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80. 265.87 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Representative of Incompetent Where Incompetent s Citizenship Controls [28 U.S.C.S. 1332(a)(1), (c)(2)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Representative of Incompetent Where Incompetent s Citizenship Controls [28 U.S.C.S. 1332(a)(1), (c)(2)]

Plaintiff is an incompetent person and a citizen of the State of ___________________, and brings this action through ___________________[name], his/her ___________________[conservator or guardian ad litem]. Defendant is a citizen of the State of ___________________[name of state other than that of plaintiff s citizenship]. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. [2] Use of Form The form of allegation, above, is for use by a representative of an incompetent, where the incompetent s citizenship controls, in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80. For discussion and references relating to allegations based on diversity of citizenship where

plaintiff is a nominal representing party, see 265.86. 265.88 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Representative of Infant Where Infant s Citizenship Controls [28 U.S.C.S. 1332(a)(1), (c)(2)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Representative of Infant Where Infant s Citizenship Controls [28 U.S.C.S. 1332(a)(1), (c)(2)]

Plaintiff is a minor and a citizen of the State of ___________________, and brings this action through ___________________[name], his/her ___________________[guardian or guardian ad litem]. Defendant is a citizen of the State of ___________________[name of state other than that of plaintiff s citizenship]. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs. [2] Use of Form The form of allegation, above, is for use by a representative of an infant, where the infant s citizenship controls, in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80. For discussion and references relating to allegations based on diversity of citizenship where plaintiff is a nominal representing party, see 265.86. 265.89 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Corporations [28 U.S.C.S. 1332(a)(1), (c)(1)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Corporations [28 U.S.C.S. 1332(a)(1), (c)(1)]

Plaintiff is a corporation incorporated under the laws of the State of ___________________, having its principal place of business in the State of ___________________. Defendant is a corporation incorporated under the laws of the State of ___________________[name of state other than state in which plaintiff is incorporated or has its principal place of business], having its principal place of business in a state other than the State of ___________________[name of state other than state in which plaintiff is incorporated or has its principal place of business]. [2] Use of Form This allegation is for use by a plaintiff corporation in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction. A corporation is a citizen of any state by which it has been incorporated and of the state where it has its principal place of business [28 U.S.C.S. 1332(c)]. However, certain exceptions apply in any direct action against an insurer when the insured is not joined as a party defendant [28 U.S.C.S. 1332(c)(1) (applicable to civil actions commenced or removed on or after May 18, 1989); see 265.15[4]]. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80. 265.90 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Alienage [28 U.S.C.S. 1332(a)(2)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Alienage [28 U.S.C.S. 1332(a)(2)]

Plaintiff is a ___________________[subject or citizen or corporation incorporated under the laws] of the ___________________[Kingdom or Republic or Sovereign State] of ___________________. [Each] defendant is a citizen of the State of ___________________. The matter in controversy exceeds the sum of $75,000, exclusive of interest and costs.

[2] Use of Form The form of allegation, above, is for use by an alien plaintiff in a complaint filed in federal district court to allege diversity of citizenship as the ground of federal jurisdiction. The Constitution extends judicial power to controversies between a state or citizen thereof and foreign states or citizens or subjects thereof [U.S. Const., Art. III, 2]. An alien is admitted to United States for permanent residence as citizen of state of domicile [28 U.S.C.S. 1332(a)]. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80.

Moore s Federal Practice, 102.70 (3rd ed. Matthew Bender)

36 C.J.S. Federal Courts 53 265.91 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Class Action [28 U.S.C.S. 1332(d)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Diversity of Citizen Class Action [28 U.S.C.S. 1332(d)]

Plaintiff ___________________[name] is a member of the plaintiff class and is a citizen of the State of ___________________. Defendant ___________________ is a citizen of the State of ___________________[name of state other than states in which plaintiff named above is a citizens]. The aggregated claims of all plaintiffs exceed $5 million, exclusive of interest and costs. [2] Use of Form

The form of allegation, above, is for use by a plaintiff class in a complaint filed in federal district court to allege diversity of citizenship in a class action as the ground of federal jurisdiction. The new rules of the Class Action Fairness Act of 2005 (CAFA) provide for federal jurisdiction based on minimal diversity [28 U.S.C.S. 1332(d)(6)]. For discussion of the rules of the CAFA, see 265.15[6]. [3] Cross References For general discussion and references relating to allegations based on diversity of citizenship, see 265.80.

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 2. 265.92 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Interpleader [28 U.S.C.S. 1335] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Interpleader [28 U.S.C.S. 1335]

This is an action of interpleader brought under 28 United States Code Section 1335. Defendant ___________________[name of adverse claimant] is a citizen of the State of ___________________ and defendant ___________________[name of adverse claimant] is a citizen of the State of ___________________[name of state other than that of first defendant s citizenship]. The amount in controversy exceeds $500, as hereinafter more fully appears. [2] Use of Form The form of allegation, above, is for use in an interpleader action in which the claimants are citizens of diverse states and the amount in controversy exceeds $500. The federal courts have jurisdiction in an interpleader action by a stakeholder where value of stake is $500 or more and two adverse claimants of diverse citizenship have claim to stake [28 U.S.C.S. 1335(a)(1)]. [3] Cross References

For general discussion and references relating to allegations based on diversity of citizenship, see 265.80.

Moore s Federal Practice, 22.03 22.04 (3rd ed. Matthew Bender)

36 C.J.S. Federal Courts 58(2)

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 2. 265.93 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] General Federal Question [28 U.S.C.S. 1331] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] General Federal Question [28 U.S.C.S. 1331]

This action arises under the ___________________ [United States Constitution, Article ____________________, Section ____________________ or ____________________ Amendment to the United States Constitution, Section ____________________ or Act of ___________________, ___________________ statute ___________________, ___________________ United States Code Section ____________________ or Treaty of the United States with ___________________ (describe treaty)], as hereinafter more fully appears. [2] Use of Form The form of allegation, above, is for use by a plaintiff in a case involving a federal question. Judicial power extends to all cases arising under Constitution, laws of United States, and treaties made, or which shall be made, under their authority [U.S. Const., Art. III, 2]. District courts have original jurisdiction of all civil actions arising under Constitution, laws, or treaties of United States [28 U.S.C.S. 1331].

[3] Cross References Moore s Federal Practice, 8.03[3], [4][a], [b] (3rd ed. Matthew Bender)

35A C.J.S. Federal Civil Procedure 271[Deering's]

36 C.J.S. Federal Courts 28 30

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 2 265.94 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Particular Federal Question [Official Form 2(c)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Particular Federal Question [Official Form 2(c)]

This action arises under the Act of ___________________, ___________________ Statute ____________________, ___________________ United States Code Section ____________________, as hereinafter more fully appears. [2] Use of Form The form of allegation, above, is adapted from Official Form 2(c) and is for use when the jurisdiction of the federal court is founded on the existence of a question arising under a particular statute. Additional forms of jurisdictional allegations based on special jurisdictional provisions of the United States Code may be found in 265.95 265.141.

[3] Cross References Moore s Federal Practice, 8.03[4]; 120.02[1], 120.10 (3rd ed. Matthew Bender)

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 2 265.95 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action to Enjoin, Set Aside, Enforce, Annul, or Suspend Order of Surface Transportation Board [28 U.S.C.S. 1336] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action to Enjoin, Set Aside, Enforce, Annul, or Suspend Order of Surface Transportation Board [28 U.S.C.S. 1336]

This action is one to ___________________[enjoin or review and set aside or enforce or annul or suspend] an order of the Surface Transportation Board. Jurisdiction is conferred on this court by 28 United States Code Section 1336. [2] Use of Form The form of allegation, above, is for use in actions to enforce, enjoin, set aside, annul, or suspend order of Surface Transportation Board [28 U.S.C.S. 1336(a)]. [3] Cross References For general discussion and references relating to allegations based on particular federal questions, see 265.94.

36 C.J.S., Federal Courts, 35(1)

 265.96 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Proceeding to Review Decision of Secretary of Health, Education, and Welfare Under Social Security Act [42 U.S.C.S. 405(g)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Proceeding to Review Decision of Secretary of Health, Education, and Welfare Under Social Security Act [42 U.S.C.S. 405(g)]

This is an action in the judicial district in which plaintiff resides to review a final decision of the Secretary of Health, Education, and Welfare, of which this court has jurisdiction under 42 United States Code Section 405(g), as amended. [2] Use of Form The form of allegation, above, is for use in proceedings to review the final decisions of the Secretary of Health, Education, and Welfare [42 U.S.C.S. 405(g)]. [3] Cross References For general discussion and references relating to allegations based on particular federal questions, see 265.94. 265.97 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages for Violation of the Communications Act of 1934 [47 U.S.C.S. 207] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages for Violation of the Communications Act of 1934 [47 U.S.C.S. 207]

This is an action for damages brought under the provisions of the Act of June 19, 1934, c 652, Section 206, 48 Statute 1072, known as the Communications Act of 1934, 47 United States Code Section 206, as hereinafter more fully appears. Jurisdiction is conferred on this court by 47 United States Code Section

207. [2] Use of Form The form of allegation, above, is for use in an action for damages for violation of the Communications Act of 1934 [47 U.S.C.S. 206, 207]. [3] Cross References For general discussion and references relating to allegations based on particular federal questions, see 265.94. 265.98 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Arising Under Law Regulating Interstate Commerce [28 U.S.C.S. 1337] General Form [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Arising Under Law Regulating Interstate Commerce [28 U.S.C.S. 1337] General Form

This action arises under the ___________________ Act, ___________________ Statute ___________________, ___________________ United States Code Section ___________________, a law of the United States regulating commerce. [2] Use of Form The form of allegation, above, is for use in an action arising under the laws regulating interstate commerce [28 U.S.C.S. 1337]. [3] Cross References For general discussion and references relating to allegations based on particular federal questions, see 265.94.

 265.99 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Against Carrier Under Interstate Commerce Act for Damage to Property [28 U.S.C.S. 1337; 49 U.S.C.S. 11707(a)(1)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Against Carrier Under Interstate Commerce Act for Damage to Property [28 U.S.C.S. 1337; 49 U.S.C.S. 11707(a)(1)]

This is an action under the Interstate Commerce Act, 49 United States Code Section 11707(a)(1), of which this court has jurisdiction under 28 United States Code Section 1337, as hereinafter more fully appears. The defendant operates a line of railroad through this district. [2] Use of Form The form of allegation, above, is for use in an action against a carrier under the Interstate Commerce Act for damage to property [49 U.S.C.S. 11707(a)(1)]. [3] Cross References For general discussion and references relating to allegations based on laws regulating interstate commerce, see 265.98. 265.100 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action to Recover on Reparation Order of Interstate Commerce Commission [28 U.S.C.S. 1337; 49 U.S.C.S. 16(2)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action to Recover on Reparation Order of Interstate Commerce Commission [28 U.S.C.S. 1337; 49 U.S.C.S. 16(2)]

This action is brought to recover damages and reparations under the provisions of the Interstate Commerce Act, 49 United States Code Section 11705(c)(2). Jurisdiction is conferred on this court by this

section and by 28 United States Code Section 1337. [2] Use of Form The form of allegation, above, is for use in an action to recover on a reparation order of the Interstate Commerce Commission [49 U.S.C.S. 16(2)]. [3] Cross References For general discussion and references relating to allegations based on laws regulating interstate commerce, see 265.98. 265.101 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219] General Form [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219] General Form

This action arises under the Fair Labor Standards Act of 1938, 52 Statute 1060, 29 United States Code Sections 201 219, as hereinafter more fully appears. Jurisdiction is conferred on this court by 28 United States Code Section 1337. [2] Use of Form The form of allegation, above, is a general form for use in an action under the Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219]. [3] Cross References For general discussion and references relating to allegations based on laws regulating interstate commerce, see 265.98.

 265.102 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219] For Declaratory Judgment [28 U.S.C.S. 2201] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219] For Declaratory Judgment [28 U.S.C.S. 2201]

This is an action for a declaratory judgment under 28 United States Code Section 2201 for the purpose of determining an actual controversy between the parties concerning the provisions of the Act of June 25, 1938, c 676, 52 Statute 1069, 29 United States Code Sections 201 219, known as the Fair Labor Standards Act. Such controversy involves the proper interpretation and application of the Fair Labor Standards Act, a law of the United States regulating commerce. The controversy is in all respects one of which this court has jurisdiction under 28 United States Code Section 1337. [2] Use of Form The form of allegation, above, is a form for use in an action for declaratory judgment under the Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219; U.S.C.S. 2201]. [3] Cross References For general discussion and references relating to allegations based on laws regulating interstate commerce, see 265.98. For general discussion and general form relating to allegation based on Fair Labor Standards Act, see 265.101. 265.103 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219] For Overtime Compensation [28 U.S.C.S. 2201] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219] For Overtime Compensation [28 U.S.C.S. 2201]

This action is brought to recover from the defendant unpaid overtime compensation, an additional equal amount as liquidated damages and reasonable counsel fees under the provisions of the Act of June, 25, 1938, c 676, 52 Statute 1069, 29 United States Code Sections 201 219, known as the Fair Labor Standards Act, a law of the United States regulating interstate com merce. Jurisdiction is conferred on this court by 28 United States Code Section 1337. [2] Use of Form The form of allegation, above, is a form for use in an action for overtime compensation under the Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219; U.S.C.S. 2201]. [3] Cross References For general discussion and references relating to allegations based on laws regulating interstate commerce, see 265.98. For general discussion and general form relating to allegation based on Fair Labor Standards Act, see 265.101. 265.104 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219] To Enjoin Violation [28 U.S.C.S. 2201] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219] To Enjoin Violation [28 U.S.C.S. 2201]

Plaintiff brings this action to enjoin defendant from violating the provisions of Section 15(a)(2) of the Fair Labor Standards Act of 1938, Act of June 25, 1938, c 676, 52 Statute 1060, 29 United States Code Sections 201 219, hereinafter called the Act. Jurisdiction of this action is conferred on the court by Section 17 of the Act, 29 United States Code Section 217, and by 28 United States Code Section 1337. [2] Use of Form

The form of allegation, above, is a form for use in an action to enjoin a violation of the Fair Labor Standards Act [28 U.S.C.S. 1337; 29 U.S.C.S. 201 219; U.S.C.S. 2201]. [3] Cross References For general discussion and references relating to allegations based on laws regulating interstate commerce, see 265.98. For general discussion and general form relating to allegation based on Fair Labor Standards Act, see 265.101. 265.105 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action by Motor Carrier to Enjoin Interference With Interstate Commerce [28 U.S.C.S. 1331, 1337; 49 U.S.C.S. 10521 10526] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action by Motor Carrier to Enjoin Interference With Interstate Commerce [28 U.S.C.S. 1331, 1337; 49 U.S.C.S. 10521 10526]

This action arises under the Commerce Clause of the United States Constitution, Article I, Section 8, Clause 3, and Part II of the Interstate Commerce Act, 49 United States Code Sections 10521 10526, as hereinafter more fully appears. [2] Use of Form The form of allegation, above, is a form for use in an action by a motor carrier to enjoin interference with interstate commerce [28 U.S.C.S. 1331, 1337; 49 U.S.C.S. 10521 10526]. [3] Cross References For general discussion and references relating to allegations based on laws regulating interstate commerce, see 265.98. 265.106 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Antitrust Action [28 U.S.C.S. 1337] General Form

[1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Antitrust Action [28 U.S.C.S. 1337] General Form

This action arises under a law to protect trade and commerce against restraints and monopolies, in particular ___________________[cite statute], as hereinafter more fully appears. [2] Use of Form The form of allegation, above, is a form for use in an antitrust action arising out of the Sherman Act [15 U.S.C.S. 1 7] or the Clayton Act [15 U.S.C.S. 15 ]. [3] Cross References For general discussion and references relating to allegations based on laws regulating interstate commerce, see 265.98. 265.107 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Treble Damages Under the Sherman Act [15 U.S.C.S. 1, 2] and Clayton Act [15 U.S.C.S. 15] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Treble Damages Under the Sherman Act [15 U.S.C.S. 1, 2] and Clayton Act [15 U.S.C.S. 15]

This action arises under the antitrust laws of the United States, more particularly the Sherman Antitrust Act, 15 United States Code Sections 1 and 2, and Section 4 of the Clayton Act, 15 United States Code Section 15, as hereinafter more fully appears. [2] Use of Form

The form of allegation, above, is a form for use in an action for treble damages under the Sherman Act [15 U.S.C.S. 1, 2] or the Clayton Act [15 U.S.C.S. 15 ]. [3] Cross References For general discussion and references relating to allegations based on antitrust laws, see 265.106. 265.108 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Injunction Under the Sherman Act [15 U.S.C.S. 26] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Injunction Under the Sherman Act [15 U.S.C.S. 26]

This is an action to enjoin violation of the Sherman Antitrust Act, 15 United States Code Sections 1 7 as hereinafter more fully appears. Jurisdiction is conferred on this court by 15 United States Code Section 26. [2] Use of Form The form of allegation, above, is a form for use in an injunction action arising out of the Sherman Act [15 U.S.C.S. 26]. [3] Cross References For general discussion and references relating to allegations based on antitrust laws, see 265.106. 265.109 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under the Securities Act of 1933 to Rescind Fraudulent Sale and to Secure Restitution or for Damages [15 U.S.C.S. 77v(a)] [1] FORM

Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under the Securities Act of 1933 to Rescind Fraudulent Sale and to Secure Restitution or for Damages [15 U.S.C.S. 77v(a)]

This court has jurisdiction of this action under Section 22(a) of the Securities Act of 1933, 48 Statute 86(a), as amended, 15 United States Code Section 77v(a). [2] Use of Form The form of allegation, above, is a form for use in an action under the Securities Act of 1933 to rescind a fraudulent sale and to secure restitution or for damages. The federal courts have jurisdiction over suits brought to enforce liability or duty created by the Securities Act of 1933 [15 U.S.C.S. 77v(a)]. 265.110 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Securities Exchange Act of 1934 [15 U.S.C.S. 78p(b), 78aa] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Securities Exchange Act of 1934 [15 U.S.C.S. 78p(b), 78aa]

This action arises under Section 16(b) of the Securities Exchange Act of 1934, 15 United States Code Section 78p(b), and this court has jurisdiction under Sections 16(b) and 27 of the Act, 15 United States Code Section 78aa, as amended. [2] Use of Form The form of allegation, above, is a form for use in an action for damages under the Securities Exchange Act of 1934 to recover an insider s profit from the purchase and sale of stock within six months [15 U.S.C.S. 78p(b)]. Under 15 U.S.C.S. 78aa, the district courts have exclusive jurisdiction to enforce a liability or duty created by the Securities Exchange Act of 1934. 265.111 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Wrongful Death Under the Federal Employers Liability Act [45 U.S.C.S. 56]

[1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Wrongful Death Under the Federal Employers Liability Act [45 U.S.C.S. 56]

Plaintiff is the executor of the estate of ___________________[name], deceased, who died on ___________________[date], as the result of injuries sustained as hereinafter described.

Before and at the time of the injury sustained by plaintiff s decedent resulting in his/her death, all of which is herein com plained of, defendant owned and operated a railroad extending through the State of California and several other states and was a common carrier engaged in commerce between the several states, territories, District of Columbia, and foreign nations; and the injuries complained of occurred while it was engaging in such commerce and while plaintiff s decedent was employed by defendant in such commerce, his/her duties being in furtherance of interstate and foreign commerce and directly, closely, and substantially affecting such commerce. This action is brought by plaintiff for the benefit of ___________________[describe, e.g., the surviving widow(er)] and ___________________[describe, e.g., minor child], the dependents of the decedent, under and pursuant to the provisions of 45 United States Code Sections 51 60, known as the Federal Employers Liability Act. [2] Use of Form The form of allegation, above, is a form for use in an action for wrongful death under the Federal Employers Liability Act [45 U.S.C.S. 51 60]. This act gives federal courts concurrent jurisdiction [45 U.S.C.S. 56]. [3] Cross References For other forms of federal jurisdictional allegations in actions involving railroads, see Ch. 485 Railroads. 265.112 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under the Federal Employers Liability Act [45 U.S.C.S. 56] and the Safety Appliance Act [45 U.S.C.S. 1 23] [1] FORM

Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Under the Federal Employers Liability Act [45 U.S.C.S. 56] and the Safety Appliance Act [45 U.S.C.S. 1 23]

This action arises under the Federal Employers Liability Act, 45 United States Code 51 60, and under the Safety Appliance Act, 45 United States Code 1 23. [2] Use of Form The form of allegation, above, is a form for use in an action under the Federal Employers Liability Act [45 U.S.C.S. 51 60] and the Safety Appliance Act [45 U.S.C.S. 1 23]. [3] Cross References For a general form of jurisdictional allegation under the Federal Employers Liability Act, see 265.111. 265.113 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages for Violation of Packers and Stockyards Act, 1921 [7 U.S.C.S. 209] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages for Violation of Packers and Stockyards Act, 1921 [7 U.S.C.S. 209]

This is an action for damages for violation of the Packers and Stockyards Act, 1921, particularly ___________________[give specific citation], as hereinafter more fully appears. Jurisdiction thereof is vested in this court by the Act of August 15, 1921, c 64, Section 308, 42 Statute 165, 7 United States Code Section 209. [2] Use of Form The form of allegation, above, is a form for use in an action for damages for violation of the Packers

and Stockyards Act of 1921 [7 U.S.C.S. 209]. 265.114 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Declaration of Invalidity or Noninfringement of Patent [28 U.S.C.S. 1338] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Declaration of Invalidity or Noninfringement of Patent [28 U.S.C.S. 1338]

This is an action to secure a declaratory judgment in respect to validity of a patent and to determine whether such patent, if it be valid, is being infringed by plaintiff. This court has jurisdiction under 28 United States Code Section 1338. [2] Use of Form The form of allegation, above, is a form for an action for declaration of invalidity or noninfringement of a patent. Under 28 U.S.C.S. 1338, the federal district courts have exclusive jurisdiction in patent cases. [3] Cross References Moore s Federal Practice 57.20[2] (3rd ed. Matthew Bender)

Borchard, Declaratory Judgments (2d ed.), 804

36 C.J.S., Federal Courts, 32 265.115 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Infringement of Patent [28 U.S.C.S. 1338; 35 U.S.C.S. 271, 281]

[1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Infringement of Patent [28 U.S.C.S. 1338; 35 U.S.C.S. 271, 281]

This action arises under the patent laws of the United States, more particularly 35 United States Code Sections 271 and 281, as hereinafter more fully appears. Jurisdiction is conferred on this court by 28 United States Code Section 1338. [2] Use of Form The form of allegation, above, is a form for an action for infringement of a patent [35 U.S.C.S. 271, 281]. [3] Cross References For form of allegation of jurisdiction in an action for declaration of invalidity or noninfringement of patent, see 265.114.

For other forms of federal jurisdictional allegations in actions involving patent infringement, see Ch. 411, Patents and Inventions.

Moore s Federal Practice 57.20[2] (3rd ed. Matthew Bender)

Borchard, Declaratory Judgments (2d ed.), 804

36 C.J.S., Federal Courts, 32

 265.116 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Infringement of Trademark and for Unfair Competition [28 U.S.C.S. 1338] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Infringement of Trademark and for Unfair Competition [28 U.S.C.S. 1338]

This is a civil action arising under the trademark laws of the United States, for infringement of a trademark registered in the United States Patent Office and for unfair competition. Jurisdiction is conferred on this court by 28 United States Code Section 1338. [2] Use of Form The form of allegation, above, is a form for an action for infringement of trademark and for unfair competition [28 U.S.C.S. 1338]. 28 U.S.C.S. 1338(a) gives district courts exclusive jurisdiction in actions arising under acts relating to trademarks. 28 U.S.C.S. 1338(b) authorizes joinder of an unfair competition claim with a substantial and related claim under trademark laws. [3] Cross References For form of allegation of jurisdiction in an action for declaration of invalidity or noninfringement of patent, see 265.114.

For a form of jurisdictional allegation in an action for infringement of a registered trademark under the Lanham Trademark Act [15 U.S.C.S. 1051 1127], see Ch. 549, Trademarks and Trade Names. 265.117 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Infringement of Copyright and Unfair Competition [28 U.S.C.S. 1338] [1] FORM

Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Infringement of Copyright and Unfair Competition [28 U.S.C.S. 1338]

This action arises under the copyright laws of the United States, as hereinafter more fully appears. Jurisdiction is conferred on this court by 28 United States Code Section 1338. [2] Use of Form The form of allegation, above, is a form for an action for infringement of copyright and for unfair competition [28 U.S.C.S. 1338]. 28 U.S.C.S. 1338 gives district courts exclusive jurisdiction in actions arising under acts relating to copyright and provides for joinder of unfair competition claims. [3] Cross References For form of allegation of jurisdiction in an action for declaration of invalidity or noninfringement of patent, see 265.114

For another form of federal jurisdictional allegation in an action involving infringement and unfair competition, see Ch. 349, Literary Property and Copyright 265.118 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action to Recover Property Seized Under Law of the United States [28 U.S.C.S. 1356] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action to Recover Property Seized Under Law of the United States [28 U.S.C.S. 1356]

This is an action to recover property owned by plaintiff and seized by ___________________[name] acting under the ___________________ Act, ___________________ Statute ___________________, ___________________ United States Code Section ___________________. Jurisdiction is vested in this court by 28 United States Code Section 1356.

[2] Use of Form The form of allegation, above, is a form for an action for an action to recover property seized under the law of the United States. The federal district courts have exclusive jurisdiction over actions involving seizures under any law of United States not within admiralty and maritime jurisdiction or exclusive jurisdiction of Court of International Trade [28 U.S.C.S. 1356]. 265.119 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages for Injury to Person or Property While Acting Under Federal Law Involving Protection or Collection of Revenue or Right to Vote [28 U.S.C.S. 1357] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages for Injury to Person or Property While Acting Under Federal Law Involving Protection or Collection of Revenue or Right to Vote [28 U.S.C.S. 1357]

This action is for damages for a[n] ___________________[personal injury to plaintiff and an injury to plaintiff s property or injury to plaintiff s property] sustained while acting under the ___________________ Act, ___________________ Statute ___________________, ___________________ United States Code Section ___________________, an Act of Congress for the ___________________ [ ___________________ (protection or collection) of revenues of the United States or for the enforcement of a right of a citizen of the United States to vote in the State of California]. Jurisdiction is vested in this court by 28 United States Code Section 1357. [2] Use of Form The form of allegation, above, is a form for an action for damages for injury to a person or property on account of an act done under a statute for protection or collection of revenues or to enforce a right to vote [28 U.S.C.S. 1357]. 265.120 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] General Form [1] FORM

Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] General Form

This is an action to redress the deprivation under color of ___________________[law or statute or ordinance or regulation or custom or usage] of the State of California, of a[n] ___________________[right or privilege or immunity] secured to plaintiff by the ___________________ [United States Constitution, Article ___________________, Section ____________________ or Act of ___________________ (, ___________________ Statute ___________________, United States Code Section ___________________)], providing for equal rights of citizens or of all persons within the jurisdiction of the United States. Jurisdiction is conferred on this court by 28 United States Code Section 1343. [2] Use of Form The form of allegation, above, is for use in various civil rights actions [see, e.g., 42 U.S.C.S. 1983, 1986, 1988]. The federal courts have jurisdiction over actions to redress deprivation under color of state law of rights secured by the Constitution or a federal statute providing for equal rights [28 U.S.C.S. 1343]. [3] Cross References For forms of federal court jurisdictional allegation for use in an action under 42 U.S.C.S. 1983 for deprivation of rights under color of state law, see Ch. 113, Civil Rights: The Post-Civil War Civil Rights Statutes. 265.121 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] To Enjoin Enforcement of Local Law or Regulation [42 U.S.C.S. 1981, 1982] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] To Enjoin Enforcement of Local Law or Regulation [42 U.S.C.S. 1981, 1982]

This action arises under the Fourteenth Amendment to the United States Constitution, and 42 United States Code Sections 1981 and 1982, as hereinafter more fully appears. Jurisdiction is conferred on this court by 28 United States Code Section 1343. [2] Use of Form The form of allegation, above, is for use in a civil rights action to enjoin enforcement of a local law or regulation [42 U.S.C.S. 1981, 1982]. [3] Cross References For general form of allegation of jurisdiction in a civil rights action, see 265.120 265.122 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] Damages for Conspiracy to Interfere [42 U.S.C.S. 1985] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] Damages for Conspiracy to Interfere [42 U.S.C.S. 1985]

This is an action to recover damages for ___________________ [personal injuries to plaintiff or injury to plaintiff s property or deprivation of plaintiff s right or privilege as a citizen of the United States to ___________________ (describe right or privilege)] by an act done in furtherance of a conspiracy mentioned in 42 United States Code Section 1985, as hereinafter more fully appears. Jurisdiction is conferred on this court by 28 United States Code Section 1343. [2] Use of Form The form of allegation, above, is for use in an action for damages for conspiracy to interfere with civil rights [42 U.S.C.S. 1985]. The federal courts have jurisdiction over actions arising out of 42 U.S.C.S. 1985 [28 U.S.C.S. 1343]. [3] Cross References

For general form of allegation of jurisdiction in a civil rights action, see 265.120 265.123 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] Damages for Failure to Prevent Conspiracy to Interfere [42 U.S.C.S. 1985, 1986] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] Damages for Failure to Prevent Conspiracy to Interfere [42 U.S.C.S. 1985, 1986]

Plaintiff brings this action under 42 United States Code Section 1986 to recover damages for defendant s failure to ___________________[prevent or aid in preventing] a wrong mentioned in 42 United States Code Section 1985, which defendant knew was about to occur and had the power to prevent, as hereinafter more fully appears. Jurisdiction is conferred on this court by 28 United States Code Section 1343. [2] Use of Form The form of allegation, above, is for use in a civil rights action for damages for failure to prevent a conspiracy to interfere [42 U.S.C.S. 1985, 1986]. Jurisdiction is conferred by 28 U.S.C.S. 1343. [3] Cross References For general form of allegation of jurisdiction in a civil rights action, see 265.120 265.124 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] Deprivation of Right to Vote [42 U.S.C.S. 1971] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Civil Rights Action [28 U.S.C.S. 1343] Deprivation of Right to Vote [42 U.S.C.S. 1971]

The jurisdiction of this court is invoked under 28 United States Code Section 1331, this being an action which arises under the United States Constitution, Article I, Sections 2 and 4, Amendments XIV, XV, and XVII to the Constitution, and 42 United States Code Sections 1971 and 1983. The jurisdiction of this court is also invoked under 28 United States Code Section 1357, this being an action to enforce the right of a citizen of the United States to vote in the State of California. The jurisdiction of this court is further invoked under 28 United States Code Section 1343, this being an action authorized by law to be brought to redress the deprivation under color of law, statute, ordinance, regulation, custom, and usage of a state of rights, privileges, and immunities secured by the United States Constitution, Article I, Sections 2 and 4, and Amendments XIV, XV, and XVII to the Constitution, and of rights secured by 42 United States Code Sections 1971 and 1983, all of which hereinafter more fully appears. [2] Use of Form The form of allegation, above, is for use in a civil rights action for deprivation of the right to vote [42 U.S.C.S. 1971]. Jurisdiction is conferred by 28 U.S.C.S. 1343. [3] Cross References For general form of allegation of jurisdiction in a civil rights action, see 265.120 265.125 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Against Alien Property Custodian Under Trading With the Enemy Act to Recover on Debt Owing From Enemy [50 U.S.C.S. App. 9(a)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Against Alien Property Custodian Under Trading With the Enemy Act to Recover on Debt Owing From Enemy [50 U.S.C.S. App. 9(a)]

This action arises under the Trading With the Enemy Act, 40 Statute 411, as amended, 50 United States Code Appendix Section 9(a), as hereinafter more fully appears. [2] Use of Form

The form of allegation, above, is adapted from Markham v. Cabell (1945) 326 U.S. 404, 66 S. Ct. 193, 90 L. Ed. 165 and is for use in an action against an alien property custodian under the Trading With the Enemy Act to recover on a debt owing from the enemy [50 U.S.C.S. App. 9(a)]. Jurisdiction is conferred by 28 U.S.C.S. 1356. 265.126 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Tucker Act [28 U.S.C.S. 1346(a)(2)] General Form [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Tucker Act [28 U.S.C.S. 1346(a)(2)] General Form

This action is brought under 28 United States Code Section 1346(a)(2). The plaintiff s claim does not exceed $10,000, excluding interest and costs, and is founded on ___________________ [a contract with the defendant or the United States Constitution, Article ___________________, Section ___________________ or the Act of ___________________, ___________________ Statute ___________________, ___________________ United States Code Section ___________________ or a regulation of ___________________ (specify executive department)], as hereinafter more fully appears. [2] Use of Form The form of allegation, above, is for use in an action for damages under the Tucker Act, which provides the district court original jurisdiction over actions against the United States not exceeding $10,000 and founded either on the Constitution, an Act of Congress, an executive department regulation, or on express or implied contract with United States, or for damages in cases not sounding in tort [28 U.S.C.S. 1346(a)(2)]. [3] Cross References Moore s Federal Practice 20.06[2] (3rd ed. Matthew Bender) 265.127 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Tucker Act [28 U.S.C.S. 1346(a)(2) To Recover Value of Property Taken by Government [1] FORM

Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Tucker Act [28 U.S.C.S. 1346(a)(2) To Recover Value of Property Taken by Government

This is an action to recover just compensation for certain lands in ___________________ County, California, appropriated for public use, and damages to the residue of the tract, as hereinafter more fully appears. Plaintiff is a citizen of the United States. Plaintiff s claim does not exceed $10,000 and is founded on the Fifth Amendment to the United States Constitution, and jurisdiction is conferred on this court by 28 United States Code Section 1346(a)(2). [2] Use of Form The form of allegation, above, is for use in an action for damages under the Tucker Act to recover the value of property taken by the government [28 U.S.C.S. 1346(a)(2)]. [3] Cross References For general form of allegation of jurisdiction in cases arising under the Tucker Act, see 265.126 265.128 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Tucker Act [28 U.S.C.S. 1346(a)(2) Suit by Alien [28 U.S.C.S. 2502] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Tucker Act [28 U.S.C.S. 1346(a)(2) Suit by Alien [28 U.S.C.S. 2502]

Plaintiff is a ___________________[citizen or subject] of the ___________________[Kingdom or Republic or Sovereign State] of ___________________, which government accords to citizens of the United States the right to prosecute claims against such government in its courts. This action is brought under the provisions of 28 United States Code Sections 1346 and 2502. The plaintiff s claim ___________________ [does not exceed $10,000, exclusive of interest and costs, and is founded on ___________________ (the United States Constitution, Article ___________________, Section ____________________ or the Act of ___________________, ___________________ Statute

___________________, ___________________ United States Code Section ___________________ or a regulation of ___________________[specify executive department] or a contract with the United States) or is for damages, does not sound in tort, and does not exceed $10,000, exclusive of interest and costs], as hereinafter more fully appears. [2] Use of Form The form of allegation, above, is for use in an action by an alien for damages under the Tucker Act [28 U.S.C.S. 1346(a)(2)]. 28 U.S.C.S. 2502 provides a citizen or subject of a foreign government to prosecute a claim against the United States in federal courts. [3] Cross References For general form of allegation of jurisdiction in cases arising under the Tucker Act, see 265.126 265.129 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Against United States for Refund of Federal Taxes [28 U.S.C.S. 1346(a)(1)] Income Taxes [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Against United States for Refund of Federal Taxes [28 U.S.C.S. 1346(a)(1)] Income Taxes

Plaintiff brings this action against the United States for the recovery of income taxes erroneously and illegally assessed and collected from plaintiff. Plaintiff is a citizen of the United States, and jurisdiction is conferred on this court by 28 United States Code Section 1346(a)(1). [2] Use of Form The form of allegation, above, is for use in an action against the United States to recover internal revenue tax erroneously or illegally assessed or collected [28 U.S.C.S. 1346(a)(1)]. 265.130 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Against United States for Refund of Federal Taxes [28 U.S.C.S. 1346(a)(1)] Estate Taxes

[1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Against United States for Refund of Federal Taxes [28 U.S.C.S. 1346(a)(1)] Estate Taxes

Plaintiff is the ___________________[executor of the last will and testament or administrator of the estate] of ___________________[name], deceased. Plaintiff brings this action against the United States to recover estate taxes erroneously and illegally assessed and collected by defendant from plaintiff. Plaintiff is a citizen of the United States, and jurisdiction is conferred on this court by 28 United States Code Section 1346(a)(1). [2] Use of Form The form of allegation, above, is for use in an action against the United States to recover estate taxes internal revenue tax erroneously or illegally assessed or collected [28 U.S.C.S. 1346(a)(1)]. [3] Cross References For general form of allegation of jurisdiction in actions involving income taxes, see 265.129 265.131 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action to Quiet Title and to Cancel Federal Tax Lien [28 U.S.C.S. 2410] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action to Quiet Title and to Cancel Federal Tax Lien [28 U.S.C.S. 2410]

This is an action to quiet title to certain real property on which the United States claims a lien for federal income taxes and for cancellation as to such property of a tax lien filed by the United States. This court has jurisdiction of this action under 28 United States Code Section 2410(a).

[2] Use of Form The form of allegation, above, is for an action to quiet title and to cancel a federal tax lien [28 U.S.C.S. 2410]. Federal courts have jurisdiction over actions affecting property on which the United States has a lien [28 U.S.C.S. 2410(a)]. 265.132 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Federal Tort Claims Act [28 U.S.C.S. 1346(b), 2671 2680] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Damages Under the Federal Tort Claims Act [28 U.S.C.S. 1346(b), 2671 2680]

This action is brought under the Federal Tort Claims Act, 28 United States Code Sections 1346(b) and 2671 2680, as hereinafter more fully appears. Plaintiff is a citizen of the United States. [2] Use of Form The form of allegation, above, is for an action under the Federal Tort Claims Act [28 United States Code Sections 1346(b) and 2671 2680]. District courts have exclusive jurisdiction over actions against the United States for damages for injury caused by the negligence of a government employee [28 U.S.C.S. 1346(b)]. Tort claims procedures can be found in 28 U.S.C.S. 2671 2680. 265.133 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Partition of Lands Where United States Is Tenant in Common or Joint Tenant [28 U.S.C.S. 1347] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action for Partition of Lands Where United States Is Tenant in Common or Joint Tenant [28 U.S.C.S. 1347]

This action is brought by a ___________________[tenant in common or joint tenant] for the partition of

lands, and the United States is one of such ___________________[tenants in common or joint tenants]. Jurisdiction is conferred on this court by 28 United States Code Section 1347. [2] Use of Form The form of allegation, above, is for use in an action for partition of lands where the United States is a tenant in common or a joint tenant. District courts have original jurisdiction in such actions [28 U.S.C.S. 1347]. 265.134 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action by or Against Corporation, More Than One-Half of Whose Stock Is Owned by United States [28 U.S.C.S. 1349] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action by or Against Corporation, More Than One-Half of Whose Stock Is Owned by United States [28 U.S.C.S. 1349]

___________________[Plaintiff or Defendant] is a corporation incorporated by the Act of Congress of ___________________[date], ___________________ Statute ___________________, and more than one-half of its capital stock is owned by the government of the United States. The matter in controversy exceeds the sum of $10,000, exclusive of interest and costs. [2] Use of Form The form of allegation, above, is for use in an action by or against a corporation whose stock is more than one-half owned by the United States 28 U.S.C.S. 1349. 265.135 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Alien s Action for Tort [28 U.S.C.S. 1350 [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Alien s Action for Tort [28 U.S.C.S. 1350

Plaintiff is a ___________________[citizen or subject] of the ___________________[Republic or Kingdom or Sovereign State] of ___________________ and brings this action to recover damages for a tort in violation of the ___________________ [law of nations or treaty of the United States with ___________________ (specify)], as hereinafter more fully appears. [2] Use of Form The form of allegation, above, is for use in an alien s action for a tort committed in violation of the law of nations or a treaty with the United States [28 U.S.C.S. 1350]. 265.136 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Suit Against Consul or Vice Consul [28 U.S.C.S. 1351] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Suit Against Consul or Vice Consul [28 U.S.C.S. 1351]

Defendant is a ___________________[Consul or Vice Consul] appointed by ___________________[name] for ___________________[state appointed position] in the State of ___________________ and duly recognized by the President of the United States. [2] Use of Form The form of allegation, above, is for use in a suit against a consult or vice consul. Federal courts have original and exclusive jurisdiction in all such actions [28 U.S.C.S. 1351]. 265.137 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action on Bond Executed Under Law of United States [28 U.S.C.S. 1352] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action on Bond Executed Under Law of United

States [28 U.S.C.S. 1352]

This is an action on a bond executed under the Act of ___________________, ___________________ Statute ___________________, ___________________ United States Code Section ___________________. Jurisdiction is conferred on this court by 28 United States Code Section 1352. [2] Use of Form The form of allegation, above, is for use in an action on a bond executed under the law of the United States [28 U.S.C.S. 1352]. 265.138 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Involving Right of Indian to Allotment of Land [28 U.S.C.S. 1353] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Involving Right of Indian to Allotment of Land [28 U.S.C.S. 1353]

This action involves the right of plaintiff, a person of ___________________[Indian blood or part Indian blood or Indian descent], to an allotment of land under the ___________________ [Act of ___________________, ___________________ Statute ___________________, ___________________ United States Code Section ___________________ or treaty of the United States with ___________________ (specify)]. Jurisdiction is conferred on this court by 28 United States Code Section 1353. [2] Use of Form The form of allegation, above, is for use in an action involving the right of an American Indian to allotment of land [28 U.S.C.S. 1353]. 265.139 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Between Citizens of Same State Claiming Lands Under Grants From Different States [28 U.S.C.S. 1354]

[1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action Between Citizens of Same State Claiming Lands Under Grants From Different States [28 U.S.C.S. 1354]

This is a suit of a civil nature between citizens of the same state, the State of California, claiming lands under grants from different states. The plaintiff claims under a grant from the State of ___________________ and the defendant claims under a grant from the State of ___________________. [2] Use of Form The form of allegation, above, is for use in an action between citizens of the same state claiming lands under grants from different states [28 U.S.C.S. 1354]. 265.140 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Qui Tam Action Under False Claims Act [31 U.S.C.S. 232] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Qui Tam Action Under False Claims Act [31 U.S.C.S. 232]

___________________[Name], the realtor, institutes and prosecutes this action in the name of, for, and on behalf of the United States and in his own behalf, under and pursuant to 31 United States Code Sections 231, 232, and 235. [2] Use of Form The form of allegation, above, is for use in a Qui Tam action under the False Claims Act [31 U.S.C.S. 232 235]. 265.141 Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action in Name of United States

[Fed. R. Civ. P., Rule 17(a)] [1] FORM Allegation of Jurisdiction [Fed. R. Civ. P., Rule 8(a)(1)] Action in Name of United States [Fed. R. Civ. P., Rule 17(a)]

This is a suit of a civil nature brought in the name of the United States under the Act of ___________________, ___________________ Statute ___________________, ___________________ United States Code Section ___________________. [2] Use of Form The form of allegation, above, is for use in a civil action in the name of the United States [Fed. R. Civ. P., Rule 17(a)]. [3] Cross References Moore s Federal Practice 17.10[3][e] (3rd ed. Matthew Bender) 265.142 Notice of Motion and Motion to Dismiss for Lack of Subject Matter Jurisdiction [Fed. R. Civ. P., Rule 12(b)(1)] Lack of Diversity Jurisdiction [28 U.S.C.S. 1332(a)(1)] [1] FORM Notice of Motion and Motion to Dismiss for Lack of Subject Matter Jurisdiction [Fed. R. Civ. P., Rule 12(b)(1)] Lack of Diversity Jurisdiction [28 U.S.C.S. 1332(a)(1)]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ) ) Civil Action, File No. _____ ) vs. NOTICE OF MOTION AND MOTION TO DISMISS ) COMPLAINT ) ______________________ [name(s)], ) Defendant(s). ______________________ [name], Plaintiff, __________________________________________________ To: ___________________, Attorney for Plaintiff ___________________ [address of attorney] Please take notice that the undersigned will move this court at Room ____________________, United States Court House, ____________________, City of ___________________, on the ____________________ day of ___________________[date], at ____________________ o clock in the forenoon of that day or as soon thereafter as counsel can be heard, for an order to dismiss this action on the grounds that the jurisdiction of this court is invoked solely on the basis that there is diversity of citizenship between the parties to this action. Such diversity does not exist since the controversy is not between citizens of different states in that ___________________ [defendant is a citizen of the State of ___________________, the state of which plaintiff is also alleged to be a citizen or the complaint fails to allege the citizenship of the parties or defendant ___________________ (name) is an indispensable party to this suit since the interest of this defendant is identical with that of the plaintiff s in that ___________________ (state grounds) and, therefore, because this defendant should be realigned as a party plaintiff, defendant ___________________ (name) and this defendant are both citizens of the State of ___________________ ]. Dated: ____________________. ______________________ [firm name, if any] By: ______________________ [signature] ______________________ [typed name] Attorney for Defendant ______________________ [attorney s address] [2] Use of Form The notice of motion and motion, above, is for use in a federal court action in which the plaintiff has invoked the jurisdiction of the court in his or her complaint [see Fed. R. Civ. P., Rule 8(a)(1)] on the diversity of the citizenship of the parties [see 28 U.S.C.S. 1332(a)(1)]. Counsel should consult the appropriate local district court rule before using the foregoing form since some courts require or prefer that a notice of motion and motion be separate documents. Local rules may also vary as to which accompanying papers are required.

The defense of lack of subject matter jurisdiction may be contained in the answer or made by motion

[Fed. R. Civ. P., Rule 12(b)(1)]. Dismissal of the action is proper whenever it appears that court lacks jurisdiction over subject matter [Fed. R. Civ. P., Rule 12(h)(2)]. [3] Cross References For form of order dismissing action for lack of subject matter jurisdiction, see 265.145

Moore s Federal Practice 12.30 (3rd ed. Matthew Bender)

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Chs. 2, 5, 8 265.143 Notice of Motion and Motion to Dismiss for Lack of Subject Matter Jurisdiction [Fed. R. Civ. P., Rule 12(b)(1)] Lack of General Federal Questions [28 U.S.C.S. 1331(a)(1)] [1] FORM Notice of Motion and Motion to Dismiss for Lack of Subject Matter Jurisdiction [Fed. R. Civ. P., Rule 12(b)(1)] Lack of General Federal Questions [28 U.S.C.S. 1331(a)(1)]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ) ) Civil Action, File No. _____ ) vs. NOTICE OF MOTION AND MOTION TO DISMISS ) COMPLAINT ) ______________________ [name(s)], ) Defendant(s). ______________________ [name], Plaintiff, __________________________________________________

To: ___________________, Attorney for Plaintiff ___________________ [address of attorney] Please take notice that the undersigned will move this court at Room ____________________, United States Court House, ____________________, City of ___________________, on the ____________________ day of ___________________[date], at ____________________ o clock in the forenoon of that day or as soon thereafter as counsel can be heard, for an order to dismiss this action on the grounds that the court lacks jurisdiction because it appears on the face of the complaint that the alleged claim does not arise under the Constitution, laws, or treaties of the United States as alleged therein. Dated: ____________________. ______________________ [firm name, if any] By: ______________________ [signature] ______________________ [typed name] Attorney for Defendant ______________________ [attorney s address] [2] Use of Form The form of notice of motion and motion, above, is for use in a federal court action in which the plaintiff has invoked the jurisdiction of the court in his or her complaint [see 28 U.S.C. 1331] on a general question jurisdiction [see 28 U.S.C. 1331(a)(1)]. Counsel should consult the local appropriate district court rule before using the foregoing form since some courts require or prefer that a notice of motion and motion be separate documents. Local rules may also vary as to which accompanying papers are required. [3] Cross References For further discussion and for form of notice of motion and motion to dismiss for lack of subject matter jurisdiction diversity jurisdiction, see 265.142

For form of order dismissing action for lack of subject matter jurisdiction, see 265.145

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Chs. 2, 5, 8 265.144 Notice of Motion and Motion to Dismiss for Lack of Subject Matter Jurisdiction [Fed. R. Civ. P., Rule 12(b)(1)] Lack of Jurisdictional Amount [28 U.S.C.S. 1332(a)(1)]

[1] FORM Notice of Motion and Motion to Dismiss for Lack of Subject Matter Jurisdiction [Fed. R. Civ. P., Rule 12(b)(1)] Lack of Jurisdictional Amount [28 U.S.C.S. 1332(a)(1)]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ) ) Civil Action, File No. _____ ) vs. NOTICE OF MOTION AND MOTION TO DISMISS ) COMPLAINT ) ______________________ [name(s)], ) Defendant(s). ______________________ [name], Plaintiff, __________________________________________________ To: ___________________, Attorney for Plaintiff ___________________ [address of attorney] To plaintiff ___________________[name] and to his/her/its attorney of record: PLEASE TAKE NOTICE that the undersigned will move this court at Room ____________________, United States District Court House, ___________________[street address], ___________________[city], on ___________________[date], at ___________________[time], or as soon thereafter as the matter may be heard, for an order to dismiss this action. This motion is made on the ground that the court lacks jurisdiction because the amount actually in controversy is less than $75,000, exclusive of interest and costs[, all of which more clearly appears in the affidavit(s) of ___________________ (name(s)) attached hereto as Exhibit(s) ____________________ and made a part hereof]. All attached exhibits and a memorandum of law in support of the above motion are attached hereto and made a part hereof. Dated: ____________________. ______________________ [firm name, if any] By: ______________________ [signature] ______________________ [typed name] Attorney for Defendant ______________________ [attorney s address] [2] Use of Form

The combined form of notice of motion and motion, above, is for use in a federal court action in which the plaintiff has invoked the jurisdiction of the court in his or her complaint [see Fed. R. Civ. P., Rule 8(a) (1)] on diversity of citizenship [see 28 U.S.C.S. 1332(a)(1)] and has failed to allege the requisite $75,000 jurisdictional amount. Counsel should consult the appropriate local district court rule before using the form since some courts require or prefer that a notice of motion and motion be separate documents. Local rules may also vary as to which accompanying papers are required. [3] Cross References For further discussion and for form of notice of motion and motion to dismiss for lack of subject matter jurisdiction diversity jurisdiction, see 265.142

For form of order dismissing action for lack of subject matter jurisdiction, see 265.145

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Chs. 2, 5, 8 265.145 Order Dismissing Action for Lack of Subject Matter Jurisdiction [Fed. R. Civ. P., Rule 12(h) (3)] [1] FORM Order Dismissing Action for Lack of Subject Matter Jurisdiction [Fed. R. Civ. P., Rule 12(h)(3)]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ______________________ [name], ) Civil Action, File No. _____ Plaintiff, ) ORDER DISMISSING ACTION FOR LACK OF SUBJECT ) MATTER JURISDICTION vs. )

) ______________________ [name], ) Defendant. __________________________________________________ This cause came on for hearing on ___________________[date], on defendant s motion to dismiss this act for lack of subject matter jurisdiction, and the court having heard the arguments of counsel and being fully advised, IT IS ORDERED, that the defendant s motion be granted and that this action be dismissed for lack of subject matter jurisdiction. Dated: ____________________. ______________________ [signature] United States District Judge [2] Use of Form The form of order, above, may, and under some local district court rules should, be combined with a notice of motion and motion to dismiss for lack of subject matter jurisdiction. Counsel should also consult local district court rules to determine whether any additional requirements must be met in connection with the form. [3] Cross References For forms of motion to dismiss for lack of subject matter jurisdiction, see 265.142 265.144

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Chs. 2, 5, 8 265.146 Denial of Jurisdictional Allegations in Answer [Fed. R. Civ. P., Rule 8(b)] [1] FORM Denial of Jurisdictional Allegations in Answer [Fed. R. Civ. P., Rule 8(b)]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ______________________ [name] ) Plaintiff, ) ) Civil Action, File No. _____ vs. ) ANSWER ) ______________________ [name], ) Defendant. __________________________________________________ Defendant denies that this court has jurisdiction over the subject matter of this action as alleged in Paragraph ____________________ of plaintiff s complaint in that ___________________[there is no diversity of citizenship between the plaintiff and defendant to this action or this action does not arise under the Constitution, laws, or treaties of the United States or the matter in controversy does not exceed the sum of $75,000, exclusive of interest and costs, since the complaint does not set forth any facts to warrant the conclusion that there is such an amount involved]. [2] Use of Form The form of denial, above, is for use in an answer in which defendant wishes to challenge the court s subject matter jurisdiction in the answer. [3] Cross References For form of notice of motion and motion to dismiss for lack of subject matter jurisdiction and related discussion, see 265.142

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Chs. 2, 8 265.147through 265.159 [Reserved] B. Removal of Causes (#ssa00000380#) 265.160 Notice of Removal From State Court to Federal District Court [28 U.S.C.S. 1441, 1446]

[1] FORM Notice of Removal From State Court to Federal District Court [28 U.S.C.S. 1441, 1446]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ______________________ [name(s)], ) Plaintiff(s), ) ) Civil Action, File No. _____ vs. ) NOTICE OF REMOVAL ) ______________________ [name(s)], ) Defendant(s). __________________________________________________ To the Judges of the United States District Court for the ___________________ District of California, ___________________ Division: The notice of removal of ___________________[name] [, by and with the written consent of the other defendant(s) herein,] respectfully shows: 1. On ___________________[date], an action was commenced against defendant in the Superior Court of California, County of ___________________, No. ____________________, entitled ___________________[name], Plaintiff vs. ___________________[name], Defendant. 2. On ___________________[date], service was made on defendant of a summons and complaint, copies of which are annexed to this notice. ___________________[No further proceedings have been had in the state court action or list and attach all other process, pleadings, and orders.] 3. The above-described action is a civil action of which this court has original jurisdiction under the provisions of United States Code, Title ___________________, Section ____________________, and is one that may be removed to this court by defendant, pursuant to ___________________[United States Code, Title 28, Section 1441 or other appropriate reference], according to the following facts: ___________________[set out short and plain statements of facts for each ground that entitle defendant to removal; see, e.g., 265.161 265.164 for allegations of grounds for removal]. [4. Defendant files herewith a bond with good and sufficient surety conditioned that it will pay all costs and disbursements incurred by reason of the removal proceedings hereby brought, should it be determined that this action is not removable or is improperly removed.] [5. Defendant(s) ___________________ (name(s)), and its/their attorney(s), join in and consent to the removal of this cause to the United States District Court for the ___________________ District of California, ___________________ Division.] WHEREFORE, defendant prays that the above action now pending against him/her/it in the Superior Court of California, County of ___________________, be removed therefrom to this Court. Dated: ____________________.

______________________ [firm name, if any] By: ______________________ [signature] ______________________ [typed name] Attorney for Petitioner Office and P.O. Address ______________________ ______________________ [2] Use of Form The form of notice of removal, above, is for use by the defendant in an action brought in state court to remove that action to federal court. A defendant desiring to remove any civil action from a state court must file in the district court of the United States for the district and division within which that action is pending a notice of removal signed pursuant to Fed. R. Civ. P., Rule 11 and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served on him or her in that action [28 U.S.C.S. 1446(a) (term removal petition changed to notice of removal in 1988 without major substantive change); see discussion in 265.39]. For sample allegations of grounds for removal for use in Paragraph 3 of the foregoing form, see 265.161 265.164. [3] Signature Requirement Every notice of removal of a party represented by an attorney must be signed by at least one attorney in the attorney s individual name, and include a statement of that attorney s address. A party who is not represented by an attorney must sign his or her notice of removal and include his or her address. The notice need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by the signer that he or she has read the notice of removal, that to the best of the signer s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose. If a notice of removal is not signed, it will be stricken unless it is signed promptly after the omission is called to the attention of the party seeking removal. If a notice of removal is signed in violation of Fed. R. Civ. P., Rule 11, the court, on motion or on its own initiative, shall impose on the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the notice of removal, including a reasonable attorney s fee [see 28 U.S.C.S. 1446(a); Fed. R. Civ. P., Rule 11]. [4] Filing Requirements The notice of removal must be filed within 30 days after receipt by the defendant, by service or otherwise, of a copy of the initial pleading setting forth the claim for relief on which the action or proceeding is based, or within 30 days after the service of summons on the defendant if the initial pleading has been filed in court and is not required to be served on the defendant, whichever period is

shorter [28 U.S.C.S. 1446(b); for further discussion, see 265.38[3]]. [5] When Removal Complete Giving prompt written notice of the notice of removal to the adverse parties and filing of a copy of the notice with the clerk of the state court will effect removal [28 U.S.C.S. 1446(d); for a form of notice, see 265.166]. If it appears that the district court lacks subject matter jurisdiction, remand may occur at any time before final judgment. If remand is based on any defect in the removal procedure, a motion to remand must be made within 30 days after the filing of the notice of removal [see 28 U.S.C.S. 1447(c); see 265.40[2]; for form of motion to remand action, see 265.168]. [6] Cross References For alternative forms of captions and introductions, see Ch. 108, Captions and Introductions

For alternative forms of prayers and verification, see Ch. 420, Prayers and Ch. 572, Verification

Note, A Uniform Methodology for Assessing Rule 11 Sanctions: A Means to Serve the End of Conserving Public and Private Legal Resources, 63 S. Cal. L. Rev. 1855 (1990)

Moore s Federal Practice, 107.18[2] (3rd ed. Matthew Bender)

1 Moore s Manual Federal Practice and Procedure, ch. 8, 8.05

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 3 265.161 Allegation of Ground for Removal Federal Question [28 U.S.C.S. 1331, 1441(a), (b)]

[1] FORM Allegation of Ground for Removal Federal Question [28 U.S.C.S. 1331, 1441(a), (b)]

It appears from the plaintiff s complaint that this is a civil action that arises under

[EITHER]

the Constitution of the United States, Article ___________________, Section ____________________.

[OR]

the ___________________ Amendment to the Constitution of the United States, Section ___________________.

[OR]

the Act of ___________________, ___________________ Stat. ___________________, United States Code, Title ___________________, Section ____________________.

[OR]

the Treaty of the United States with ___________________[describe treaty].

[CONTINUE]

The action is one arising under this provision in that ___________________[briefly set forth claim as alleged in complaint, showing that action arises under the designated provision]. [2] Use of Form The form of allegation, above, is for use by a defendant in a state court action in his or her notice of removal of that action to a federal court based on the action arising under federal law. When using this allegation, it should be inserted at the end of Paragraph 3 of the notice of removal in 265.160.

Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, laws, or treaties, of the United States is removable without regard to the citizenship or residence of the parties [28 U.S.C.S. 1441(b); see 28 U.S.C.S. 1331]. Such a right must be an essential element of the plaintiff s cause of action before the action will be removed [Takeda v. Northwestern Nat. Life Ins. Co. (9th Cir. 1985) 765 F.2d 815, 822; see 265.14]. [3] Cross References For form of Notice of Removal, see 265.160 and related discussion

Moore s Federal Practice, 107.04, 107.14 (3rd ed. Matthew Bender)

1 Moore s Manual Federal Practice and Procedure, ch. 8, 8.02

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 3 265.162 Allegation of Ground for Removal Diversity of Citizenship [28 U.S.C.S. 1332, 144, (b)] In General [1] FORM Allegation of Ground for Removal Diversity of Citizenship [28 U.S.C.S. 1332, 144,(b)] In General

The above-described action is a civil action of which this court has original jurisdiction under the provisions of Title 28, Section 1332 of the United States Code, and is one that may be removed to this court by defendant, pursuant to Title 28, Section 1441 of the United States Code, in that it is a civil action wherein the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states.

[EITHER, if individual plaintiff and individual defendant]

Plaintiff ___________________[name], at the time this action was commenced, was and still is a citizen of the State of ___________________. Defendant ___________________[name], at the time this action was commenced, was and still is a citizen of the State of ___________________, and was not and is not a citizen of the State of California, wherein this action was brought.

[OR, if individual plaintiff and corporate defendant]

Plaintiff ___________________[name], at the time this action was commenced, was and still is a citizen of the State of ___________________. Defendant ___________________[name], at the time this action was commenced, was and still is a corporation incorporated under the laws of the State of ___________________, with its principal place of business in the State of ___________________, and

was not and is not incorporated under the laws of the State of California, wherein this action was brought. [2] Use of Form The form of allegation, above, is for use by a defendant in a state court action in his or her notice of removal of the action to a federal court based on diversity of citizenship. When using this allegation, it should be substituted for Paragraph 3 of the notice of removal in 265.160.

Any civil action of which the district courts have original jurisdiction is removable if none of the parties in interest properly joined and served as defendants is a citizen of California [28 U.S.C.S. 1441(b)]. For purposes of removal, the citizenship of defendants sued under fictitious names is disregarded [28 U.S.C.S. 1441(a)]. The district courts have original jurisdiction of all civil actions when the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states [28 U.S.C.S. 1332(a); see 265.15]. [3] Cross References For form of Notice of Removal, see 265.160 and related discussion

Moore s Federal Practice, 107.14[2] (3rd ed. Matthew Bender)

1 Moore s Manual Federal Practice and Procedure, ch. 8, Removal From State Courts, 8.02

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 2 265.163 Allegation of Ground for Removal Diversity of Citizenship [28 U.S.C.S. 1332, 144(b)] Improper Designation of Parties [1] FORM

Allegation of Ground for Removal Diversity of Citizenship [28 U.S.C.S. 1332, 144(b)] Improper Designation of Parties

[EITHER, if plaintiff or defendant is nominal party]

___________________[Plaintiff or Defendant] ___________________[name] is not a necessary party to this action, but is only a formal party without any interest in the action, ___________________[in whose favor or against whom] no substantial relief ___________________[is sought or can be granted].

[OR, if parties should be realigned]

Defendant ___________________[name], at the time this action was commenced, was and still is a citizen of the State of ___________________. The interest of that defendant in this action is identical with that of plaintiff ___________________[name] in that his/her interest is ___________________ [set forth interest briefly, e.g., that the alleged lease between ___________________ (name) and ___________________ (name) be declared valid and enforceable against this defendant]; and therefore defendant ___________________[name] should be aligned as a party plaintiff.

[OR, if improper joinder contrary to allegations in complaint]

Plaintiff has fraudulently and improperly joined defendant ___________________[name] as codefendant, in that, contrary to the allegations of the complaint herein, that defendant ___________________[set forth basis of improper joinder, e.g., was not present with defendant in the automobile owned and operated by defendant at the time of the collision complained of, and did not have control of it, and did not, in any manner or degree, contribute to plaintiff s damage either by his own negligence or joint negligence with defendant, all of which was, or readily might have been, known by plaintiff or his counsel] and plaintiff fraudulently and improperly joined ___________________[name] as a sham defendant for the sole purpose of avoiding and defeating the removal of this action to the United States District Court.

[OR, if improper joinder appears from face of complaint]

Plaintiff has fraudulently and improperly joined defendant ___________________[name] as codefendant, in that the complaint shows on its face that ___________________ [set forth basis of improper joinder, e.g., plaintiff has neither alleged, nor has, a claim or cause of action against this defendant on account of ___________________ (describe events in question), and whatever claim or cause of action plaintiff may have by reason of ___________________ (describe events in question) is against defendant ___________________ (name) alone], and that defendant ___________________[name of codefendant] is a sham defendant, joined by plaintiff as a codefendant for the sole purpose of avoiding and defeating the removal of this action to the United States District Court. [2] Use of Form The allegations, above, are for use by a defendant in a state court action in his or her notice of removal of that action to a federal court based on diversity of citizenship. The purpose of each allegation is to demonstrate that there is diverse citizenship, even though diversity does not appear on the face of the complaint. When using these allegations, they should be combined at the end of the appropriate allegation in Form 92 relating to diversity jurisdiction generally, and then be substituted for Paragraph 3 of the notice of removal in 265.160. [3] Cross References For related form of Notice of Removal, see 265.160 and related discussion. For form of allegation of removal on the basis of diversity of citizenship, see 265.162 and related discussion

Moore s Federal Practice, 17.13[2], 102.21(3rd ed. Matthew Bender)

Moore s Manual Federal Practice and Procedure, ch. 8, Removal From State Courts, 8.02

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 2

 265.164 Allegation of Ground for Removal Diversity of Citizenship [28 U.S.C.S. 1332, 1441(b)] Class Action [1] FORM Allegation of Ground for Removal Diversity of Citizenship [28 U.S.C.S. 1332, 144(b)] Class Action

The above-described action is a civil action of which this court has original jurisdiction under the provisions of Title 28, Section 1332(d) of the United States Code, and is one that may be removed to this court by defendant, pursuant to Title 28, Section 1453(b) of the United States Code, in that it is a class action wherein the matter in controversy exceeds the sum or value of $5 million, exclusive of interest and costs, and in which a member of the plaintiff class and a defendant are citizens of different states.

Plaintiff ___________________[name], a member of the plaintiff class, at the time this action was commenced, was and still is a citizen of the State of ___________________. Defendant ___________________[name], at the time this action was commenced, was and still is a citizen of the State of ___________________, and was not and is not a citizen of the State of California, wherein this action was brought. [2] Use of Form The form of allegation, above, is for use by a defendant in a state court class action in his or her notice of removal of the action to a federal court based on minimal diversity of citizenship. When using this allegation, it should be substituted for Paragraph 3 of the notice of removal in 265.160.

Under the Class Action Fairness Act, a class action is removable by a single defendant, without the consent of the other defendants, if (1) the amount in controversy exceeds $5 million, and (2) any member of a plaintiff class and any defendant are citizens of different states [28 U.S.C.S. 1332(d), 1453(b)]. For discussion of the new class action rules, see 265.15[6]. For discussion of removal in class action cases, see 265.34[3].

[3] Cross References For form of Notice of Removal, see 265.160 and related discussion

Moore s Federal Practice, 107.14[2] (3rd ed. Matthew Bender)

1 Moore s Manual Federal Practice and Procedure, ch. 8, Removal From State Courts, 8.02

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 2 265.165 Allegation of Ground for Removal Separate and Independent Claim or Cause of Action Removable if Sued on Alone [28 U.S.C.S. 1441(c)] [1] FORM Allegation of Ground for Removal Separate and Independent Claim or Cause of Action Removable if Sued on Alone [28 U.S.C.S. 1441(c)]

In the above-entitled action, plaintiff ___________________[name] alleges against defendant ___________________[name] a separate and independent claim or cause of action in that ___________________[set forth nature of claim or cause of action to show that it is separate and independent from other claims or causes of action that have been joined]. If sued on alone, that claim or cause of action would be one over which this court has original jurisdiction under the provisions of Section 1331 of Title 28 of the United States Code because it arises under ___________________[cite to specific article or amendment of United States Constitution, section of federal law, or article of treaty]. By virtue of the provisions of Section 1441(c) of Title 28 of the United States Code, this entire case is one that may be removed to this court. [2] Use of Form

The allegation, above, is for use by a defendant in a state court action in his or her notice of removal when otherwise nonremovable claims or causes of action in the case are joined with a separate and independent claim or cause of action that raises a federal question. When using this allegation, it should be substituted for Paragraph 3 of the form of notice of removal in 265.160.

Whenever a separate and independent claim or cause of action within the court s federal question jurisdiction is joined with one or more otherwise nonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues in the case [28 U.S.C.S. 1441(c); see 28 U.S.C.S. 1331 (federal question jurisdiction), discussed in 265.14[1], above]. For further discussion, see 265.36. [3] Cross References For related form of Notice of Removal, see 265.160 and related discussion. For related form of allegation of ground for removal, see 265.161 and related discussion

Moore s Federal Practice, Ch. 107 (3rd ed. Matthew Bender)

Moore s Manual Federal Practice and Procedure, ch. 8, Removal From State Courts, 8.03

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 3 265.166 Notice of Filing Removal Notice [28 U.S.C.S. 1446(d)] [1] FORM Notice of Filing Removal Notice [28 U.S.C.S. 1446(d)]

SUPERIOR COURT OF CALIFORNIA, COUNTY OF ___________________

) ______________________ [name(s)], ) Plaintiff(s), ) NO. _____ ) NOTICE OF FILING NOTICE OF REMOVAL vs. ) [28 U.S.C.S. 1446(d)] ) ______________________ [name(s)], ) Defendant(s). __________________________________________________ To ___________________[name], attorney for plaintiff: [EITHER] NOTICE IS HEREBY GIVEN that ___________________[name], defendant in the above-entitled action, has on ___________________[this date or specify other date] filed his/her/its notice of removal, a copy of which is attached hereto, in the Office of the Clerk of the United States District Court for the ___________________ District of California, ___________________ Division. [OR] NOTICE IS HEREBY GIVEN that a notice of removal of the above-entitled action from the ___________________ Court of the State of California, County of ___________________, to the United States District Court for the ___________________ District of California, ___________________ Division, [a copy of which is attached hereto,] was/were duly filed this day in the United States District Court for the ___________________ District of California. Dated: ____________________. ______________________ [firm name, if any] By: ______________________ [signature] ______________________ [typed name] Attorney for Defendant ______________________ [name] [2] Use of Form The form of notice, above, is for use by a defendant in a state action who is seeking removal to federal court to provide notice of the filing of the notice of removal with the federal district court. Promptly after the filing of the notice of removal, the defendant must give written notice thereof to all adverse parties and must file a copy of the notice of removal with the clerk of the state court. The state court will proceed no further in the case [28 U.S.C.S. 1446(d); see 265.38[4]]. [3] Cross References Moore s Federal Practice, 107.30[2][a], [b] (3rd ed. Matthew Bender)

1 Moore s Manual Federal Practice and Procedure, ch. 8, Removal From State Courts, 8.05

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 3 265.167 Clerk s Certificate on Transcript of Record [28 U.S.C.S. 1447(b)] [1] FORM Clerk s Certificate on Transcript of Record [28 U.S.C.S. 1447(b)]

[EITHER]

[Caption in state court action. See 265.166.]

I, ___________________[name], Clerk of the ___________________ Court of the State of California, for the [City and] County of ___________________, do hereby certify that the foregoing is a full, true, and correct copy of the ___________________[describe records] in the above-entitled action, which constitute all the papers on file in this office in that action.

[OR]

) State of ___________________ , ) ss. [City and] County of ___________________ )

__________________________________________________ I, ___________________[name], Clerk of the ___________________ Court of ___________________, do hereby certify that the above and foregoing is a true and correct copy of the record, and of the whole thereof, in the above-entitled action, heretofore pending in the ___________________ Court, being cause No. ___________________ wherein ___________________[name] is plaintiff and ___________________[name] is defendant, that record consisting of ___________________. All of this record appears in the files and records in my office. [CONTINUE] IN TESTIMONY WHEREOF, I have signed hereunto and affixed the seal of this court on ___________________[date]. ______________________ [signature] Clerk [seal] [2] Use of Form The form, above, is for use by the defendant in a state action to obtain a clerk s certificate on the transcript of the record for use in the removal of that action to federal court. Once the action has been re moved, the district court may require the defendant to file with its clerk copies of all records and proceedings in the state court, or may cause the same to be brought before it by writ of certiorari issued to that state court [28 U.S.C.S. 1447(b)]. In addition to the notice of removal and bond (bond requirement contained in former 28 U.S.C.S. 1446(d) was repealed in 1988), the defendant must file in the district court a copy of all process, pleadings, and orders served on him or her in that action [28 U.S.C.S. 1446(a)]. For further discussion, see 265.39[1]. For a related form of Notice of Filing Removal Notice, see 265.166. [3] Cross References 1 Moore s Manual Federal Practice and Procedure, ch. 8, Removal From State Courts, 8.06

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 3 265.168 Notice of Motion and Motion to Remand Removed Action [28 U.S.C.S. 1447(c)] [1] FORM Notice of Motion and Motion to Remand Removed Action [28 U.S.C.S. 1447(c)]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ______________________ [name(s)], ) Plaintiff(s), ) ) vs. ) ) ______________________ [name(s)], ) Defendant(s).

Civil Action, File No. _____ NOTICE OF MOTION AND MOTION TO REMAND REMOVED ACTION [28 U.S.C.S. 1447(c)] Date: ___________________ Time: ___________________

__________________________________________________ To defendant ___________________[name] and to his/her/its attorney of record: PLEASE TAKE NOTICE that the undersigned will move this court at Room ____________________, United States District Court House, ___________________[street address], ___________________[city], on ___________________[date], at ___________________[time], or as soon thereafter as the matter may be heard, for an order remanding this cause to the ___________________ Court of the State of California for the [City and] County of ___________________. This motion is made on the ground that the cause was improperly removed [and is not within the jurisdiction of this court], in that ___________________[select one or more of the following grounds for improper removal] [EITHER] the notice of removal was not timely filed [AND/OR] defendant did not promptly give notice to the plaintiff of the filing of the notice of removal [and bond for removal] this cause was removable, if at all, when defendant filed his/her/its answer to the ___________________[original or amended pleading]. Defendant failed to move for removal within the thirty days required by Section 1446(b) of Title 28 of the United States Code [AND/OR] the matter in controversy does not exceed $75,000, exclusive of interest and costs [AND/OR] this court has no jurisdiction of the claim asserted in the complaint [AND/OR] no separate and independent claim or cause of action is asserted by plaintiff against defendant ___________________[name] [AND/OR] the complaint herein does not present a claim or right arising under the Constitution, treaties, or laws of the United States [AND/OR] ___________________[name], properly joined and served as a defendant in this action, is a citizen of the State of California, wherein this action was originally brought [AND/OR]

all of the defendants did not join in the notice of removal [AND/OR] defendant is not one of the parties referred to in Section 1442 of Title 28 of the United States Code [AND/OR] defendant is not a member of the armed forces referred to in Section 1442a of Title 28 of the United States Code [AND/OR] this is a civil action arising under the workers compensation laws of the State of California [AND/OR] this action is not a civil rights case within Section 1443 of Title 28 of the United States Code [AND/OR] this action is a civil action against a railroad, arising under Sections 51 60 of Title 45 of the United States Code, and therefore, cannot be removed to this court [AND/OR] this action is a civil action against a carrier to recover damages for loss of shipments, arising under Section 11706 or 14706 of Title 49 of the United States Code, and is not removable because the matter in controversy does not exceed $50,000, exclusive of interest and costs [AND/OR] the controversy is not wholly between citizens of different states, defendant ___________________[name] being a citizen of ___________________, the same state as that of which plaintiff is a citizen [AND/OR] this action is not a civil action within Section 1441(a) of Title 28 of the United States Code [OR specify some other grounds] [CONTINUE as part of same paragraph] [, all of which more clearly appears in the affidavit(s) of ___________________ (name(s)) attached hereto as Exhibit(s) ____________________ and made a part hereof]. Plaintiff further moves this court for an order that defendant ___________________[name] pay plaintiff for all his/her/its costs and actual expenses, including attorney s fees, incurred by reason of the removal proceedings. All attached exhibits and a memorandum of law in support of the above motion are attached hereto and made a part hereof. Dated: ____________________. ______________________ [firm name, if any] By: ______________________ [signature] ______________________ [typed name] Attorney for Plaintiff ______________________ [name] [2] Use of Form The combined form of notice of motion and motion, above, is for use by the plaintiff in the underlying state action to move the federal court to remand back to state court a case that was previously removed to federal court. The alternative clauses set forth different grounds for remand. When appropriate, more than one ground may be used. When the ground for remand is any defect in the removal procedure, the motion must be made within 30 days after the filing of the notice of removal. If the ground for remand is that the district court lacks subject matter jurisdiction, the motion may be made any time before final judgment [see 28 U.S.C.S. 1447(c); see 265.40].

Counsel should consult the appropriate local district court rules before using the form since some courts may require a particular format for the moving papers [see, e.g., U.S. Dist. Ct., So. Dist. of Cal., Rule 7.1; U.S. Dist. Ct., No. Dist. of Cal., Rules 7-2(b)]. The motion should be supported by briefs and memoranda [see, e.g., U.S. Dist. Ct., Cen. Dist. of Cal., Rule 7.5.1; U.S. Dist. Ct., No. Dist. of Cal., Rules 7-2(b)]. Factual contentions raised in the motion must be supported by affidavits or declarations [see U.S. Dist. Ct., Cen. Dist. of Cal., Rule 7.5.2; U.S. Dist. Ct., East. Dist. of Cal., Rule 43-140, 78-230(i); U.S. Dist. Ct., No. Dist. of Cal., Rules 7-2(d), 7-5; U.S. Dist. Ct., So. Dist. of Cal., Rule 7.1(f)].

For the related form of order granting remand, see 265.169. [3] Cross References Moore s Federal Practice, 107.41 (3rd ed. Matthew Bender)

1 Moore s Manual Federal Practice and Procedure, ch. 8, Removal From State Courts, 8.08

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 3 265.169 Order Granting Remand [28 U.S.C.S. 1447(c)] [1] FORM Order Granting Remand [28 U.S.C.S. 1447(c)]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ______________________ [name(s)], ) Plaintiff(s), ) Civil Action, File No. _____ ) ORDER GRANTING REMAND vs. ) [28 U.S.C.S. 1447(c)] ) ______________________ [name(s)], ) Defendant(s). __________________________________________________ The motion of plaintiff ___________________[name] for an order to remand the above-entitled action to the ___________________ Court of the State of California, [City and] County of ___________________, came on regularly for hearing by the court on ___________________[date]. Plaintiff appeared by counsel ___________________[name]; defendant appeared by counsel ___________________[name]. On proof made to the satisfaction of the court that the motion ought to be granted. IT IS ORDERED that the motion be, and it hereby is, granted and that this case be remanded to the ___________________ Court of the State of California, [City and] County of ___________________; and that a certified copy of this order be mailed by the clerk of this court to the clerk of the ___________________ Court of the State of California, [City and] County of ___________________. [IT IS FURTHER ORDERED that plaintiff ___________________[name] have and recover his/her/its costs and disbursements, including attorney s fees, in this court against defendant ___________________[name], to be taxed by the clerk.] Dated: ____________________. ______________________ [signature] United States District Judge [2] Use of Form The form of order, above, is for use by a plaintiff in the state action who has convinced the court that a remand of the case is appropriate. If it appears that the district court lacks subject matter jurisdiction, or that a defect in the removal procedure has occurred, the district court will remand the case [28 U.S.C.S. 1447(c); see 265.40[3]]. An optional award of costs and attorney s fees is included [see 28 U.S.C.S. 1447(c); see 265.40[4]].

For the related form of Notice of Motion and Motion to Remand Removed Action, see 265.168. 265.170 Notice of Motion and Motion to Sever Claims and Remand Nonremovable Claims [28 U.S.C.S. 1441(c)] [1] FORM

Notice of Motion and Motion to Sever Claims and Remand Nonremovable Claims [28 U.S.C.S. 1441(c))]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ______________________ [name(s)], ) Plaintiff(s), ) ) vs. ) ) ______________________ [name(s)], ) Defendant(s).

Civil Action, File No. _____ NOTICE OF MOTION AND MOTION TO SEVER CLAIMS AND REMAND [28 U.S.C.S. 1441(c)] Date: ___________________ Time: ___________________

__________________________________________________ To defendant ___________________[name] and to his/her/its attorney of record: PLEASE TAKE NOTICE that the undersigned will move this court at Room ____________________, United States District Court House, ___________________[street address], ___________________[city], on ___________________[date], at ___________________[time], or as soon thereafter as the matter may be heard, for an order severing the claim or cause of action asserted by him/her/it against defendant ___________________[name] from the claim or cause of action asserted by plaintiff ___________________[name] in this action, and remanding the claim or cause of action asserted by this plaintiff to the ___________________ Court of California, [City and] County of ___________________. This motion is made on the ground that the claim or cause of action asserted by this plaintiff is separate and independent from the claim or cause of action of plaintiff ___________________[name] and involves ___________________[only or predominantly] questions of state law. A memorandum of law in support of the above motion is attached hereto and made a part hereof. Dated: ____________________. ______________________ [firm name, if any] By: ______________________ [signature] ______________________ [typed name] Attorney for Plaintiff ______________________ [name] [2] Use of Form The combined form of notice of motion and motion, above, is for use by a plaintiff, after the action has been removed under 28 U.S.C.S. 1441(c), to sever his or her state claims from another plaintiff s federal claims and remand the state claims to state court. When otherwise nonremovable claims are removed to federal court because a separate and independent claim involving a federal question was

joined in the same action, the district court has the discretion to remand all matters in which state law predominates [see 28 U.S.C.S. 1441(c), discussed in 265.36].

For discussion of how a court determines whether a claim or cause of action arises under federal or state law, see 265.33[2].

For related form of order, see 265.171. For Notice of Motion and Motion to Remand Removed Action, see 265.168. [3] Cross References Moore s Federal Practice, 107.41 (3rd ed. Matthew Bender)

Moore s Manual Federal Practice and Procedure, ch. 8, Removal From State Courts, 8.03, 8.08

Matthew Bender Practice Guide: Federal Pretrial Civil Procedure in California, Ch. 3 265.171 Order Severing Claims and Remanding Nonremovable Claims [28 U.S.C.S. 1441(c)] [1] FORM Order Severing Claims and Remanding Nonremovable Claims [28 U.S.C.S. 1441(c)]

UNITED STATES DISTRICT COURT, ___________________ DISTRICT OF CALIFORNIA

) ______________________ [name(s)], ) Plaintiff(s), ) ) vs. ) ) ______________________ [name(s)], ) Defendant(s).

Civil Action, File No. _____ ORDER GRANTING SEVERANCE OF CLAIMS AND REMAND [28 U.S.C.S. 1441(c)]

__________________________________________________ The motion of plaintiff ___________________[name] for an order severing the claim or cause of action asserted by plaintiff against defendant ___________________[name] from the claim or cause of action asserted by plaintiff ___________________[name] and remanding the above-entitled action to the ___________________ court of the State of California, [City and] County of ___________________, came on regularly for hearing by the court on ___________________[date]. Plaintiff appeared by counsel ___________________[name]; defendant appeared by counsel ___________________[name]. On proof made to the satisfaction of the court that the motion ought to be granted, IT IS ORDERED that the motion be, and it hereby is, granted and that the claim or cause of action asserted by plaintiff ___________________[name] against defendant ___________________[name] be severed from the claim or cause of action asserted by plaintiff ___________________[name] against defendant; and that the claim or cause of action asserted by plaintiff ___________________[name] be remanded to the ___________________ Court of the State of California, [City and] County of ___________________; and that a certified copy of this order be mailed by the clerk of this court to the clerk of the ___________________ Court of the State of California, [City and] County of ___________________. IT IS FURTHER ORDERED that ___________________ [the claim or cause of action asserted by plaintiff ___________________ (name) be and hereby is stricken from the complaint in this action or plaintiff ___________________ (name) file an amended complaint in this action within ___________________ days after service of this order]. Dated: ____________________. ______________________ [signature] United States District Judge [2] Use of Form The combined form of order, above, is for use by a plaintiff in an action that was removed under 28 U.S.C.S. 1441(c) when the district court has granted the plaintiff s motion to sever and remand his or her state law claims. When otherwise nonremovable claims are removed to federal court because a separate and independent claim involving a federal question was joined in the same action, the district court has the discretion to remand all matters in which state law predominates [see 28 U.S.C.S. 1441(c); for discussion of this statute, see 265.36]. 181