1st Multiple Choice Question on Midterm - with answer key

1. In each of these cases the plaintiff or plaintiffs bring suit against D in state court in New York. In which of these cases is D’s attempt to remove the case to federal court most likely to succeed?
    
a.    P (a French subject admitted for permanent residency in the U.S. who is domiciled in New York) sues D (a German subject admitted for permanent residency in the U.S. who is domiciled in New Jersey). P’s suit is for violation of New York negligence law in connection with a car accident in New York. P asks for $100,000 in damages.

b.    P (a citizen of New York), who is a beneficiary of a trust, sues the trustee, D (a citizen of California). P claims that D violated his fiduciary obligations to P under New York trust law by investing in securities that are illegal under federal law.

c.    P (a New York citizen) sues D (French citizen domiciled in France) under New York law for $100,000 in child support that D owes P for care of P’s and D’s children in New York.

d.    P1 and P2 (both citizens of California) own separate lots adjacent to property in New York owned by D (a citizen of New York). P1 and P2 sue D under New York nuisance law, requesting an injunction prohibiting D from building a rendering plant on his property. Alternatively, they ask for $40,000 each, which is the damages they will sustain from the plant’s operation. The cost of D’s abiding by the injunction is $80,000.

e.    P1, a New York citizen, and P2, a California citizen, sue D, a California citizen, for violations of New York negligence law concerning a car accident in New York. P1 asks for $100,000 in damages from D, but P2 asks for only $20,000.

1.    In each of these cases the plaintiff or plaintiffs bring suit against D in state court in New York. In which of these cases is D’s attempt to remove the case to federal court most likely to succeed?

a.    P (a French subject admitted for permanent residency in the U.S. who is domiciled in New York) sues D (a German subject admitted for permanent residency in the U.S. who is domiciled in New Jersey). P’s suit is for violation of New York negligence law in connection with a car accident in New York. P asks for $100,000 in damages.

Wrong – this cannot be removed because it does not have SMJ. It does not have SMJ under 1332(a)(1) or (a)(3) because it is not a suit between “citizens of different States.” In fact there is no citizen of a state in the case at all (there are just citizens or subjects of foreign states). It does not have SMJ under 1332(a)(2) because it is not a suit between “citizens of a State and citizens or subjects of a foreign state.” Again, there is no citizen of a state in the case at all. Plus there are citizens and subjects of a foreign state on both sides.

Notice that the fact that P and D are admitted for permanent residency and domiciled in a state is irrelevant for SMJ. 1332(a)(2) mentions this only to remove SMJ from what would be an alienage case. It says that there is SMJ for controversies “between citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.” An example would be if P were a New Jerseyan and D was a German subject admitted for permanent residency in the U.S. who is domiciled in New Jersey. Indeed, there is no way that Congress could send this case to federal court because it does not fall under any of the categories in Article III. Congress cannot send a case between two foreigners (whether or not domiciled in a US state) that does not arise under federal law to federal court.

b.    P (a citizen of New York), who is a beneficiary of a trust, sues the trustee, D (a citizen of California). P claims that D violated his fiduciary obligations to P under New York trust law by investing in securities that are illegal under federal law.

Correct – This was offered as an example of a case arising under federal law under 1331 in class (it is a lot like Smith v. Kansas City Title & Trust Co. (US 1921)). For those who forgot that, you should have recognized that it was at least possible for this case to have SMJ under 1331 given the Grable test you read in Gunn v. Minton (US 2013). Notice that P needs both state and federal law to justify recovery in this case. The federal element is not a defense as it was in Mottley.

c.    P (a New York citizen) sues D (French citizen domiciled in France) under New York law for $100,000 in child support that D owes P for care of P’s and D’s children in New York.

Wrong – this falls under the domestic relations exception to diversity/alienage jurisdiction.

d.    P1 and P2 (both citizens of California) own separate lots adjacent to property in New York owned by D (a citizen of New York). P1 and P2 sue D under New York nuisance law, requesting an injunction prohibiting D from building a rendering plant on his property. Alternatively, they ask for $40,000 each, which is the damages they will sustain from the plant’s operation. The cost of D’s abiding by the injunction is $80,000.

Wrong – this is a diversity case with an in-state defendant. It cannot be removed due to 1441(b)(2).

e.    P1, a New York citizen, and P2, a California citizen, sue D, a California citizen, for violations of New York negligence law concerning a car accident in New York. P1 asks for $100,000 in damages from D, but P2 asks for only $20,000.

Wrong – this does not have complete diversity and so does not have SMJ under 1332(a). For those who thought that P2’s action might have supplemental jurisdiction, that only works in complete diversity cases when a co-plaintiff’s action against a defendant is below the jurisdictional minimum.