Removal, Remand, and Review in Pendent Claim and Pendent Party Cases

Abstract:     
Since 1789 litigants have enjoyed the statutory right to remove to federal court certain cases initiated in state court. New issues in the proper construction of the removal statutes nevertheless continue to arise. The United States Supreme Court recently ruled upon some of the issues raised by the interplay of the removal statutes and the doctrines of pendent and ancillary jurisdiction that have burgeoned over the last twenty-two years. In the interim, the federal courts of appeals had developed conflicting views as to the sets of claims that are removable, the circumstances under which the federal courts are empowered to remand particular claims or entire civil actions that were properly removed, and the permissible occasions for appellate intervention. One such conflict concerned the handling of cases presenting federal questions and pendent state law claims.

This Article examines the removability of civil actions that include either pendent claims or pendent parties joined in addition to parties against whom federal questions are alleged. It discusses the remandability of those civil actions or segments of them, and comments on the law governing appellate review of district court remands to state court. In an effort to reach the wisest resolutions of the various issues posed, it confronts issues of statutory construction, interprets Supreme Court cases, especiallyThermtron Products, Inc. v. Hermansdorfer, and wades in the murky waters of federalism. In the course of this enterprise, the Article analyzes and strongly takes issue with the recent decision of the Supreme Court in Carnegie-Mellon University v. Cohill. The implications of Carnegie-Mellon also are explored.

The Article focuses on the problems that have arisen and can arise in federal question cases removable, if at all, under 28 U.S.C. sections 1441(a) and (b). It is noteworthy that these issues arise frequently, as evidenced by the number of pertinent decisions, and promise to continue to plague the federal courts. The issues of removal jurisdiction, remandability, and reviewability tackled here are questions of federal court jurisdiction, powers, and discretion, that broadly implicate our federalism.

Number of Pages in PDF File: 89

Keywords: removal of causes, federal jurisdiction, pendent jurisdiction

JEL Classification: K40, K41

Accepted Paper Series