Removed Cases and Uninvoked Jurisdictional Grounds

34 Pages Posted: 27 Sep 2007 Last revised: 26 Aug 2008

Jeannette Cox

University of Dayton School of Law

Abstract

Traditionally understood, a congressional grant of federal subject matter jurisdiction alone does not confer authority on a federal court to hear a case; a party to the case must also affirmatively invoke the applicable jurisdictional ground. In a sharp break from this traditional understanding, federal courts have recently begun to exercise jurisdiction over cases based on jurisdictional grounds no party has invoked. Courts adopting this practice have concluded that a district court must retain removed cases that meet the requirements of a congressionally-authorized ground of subject matter jurisdiction even when an arguably antecedent requirement - party invocation of that jurisdictional ground - has not occurred. This article identifies and criticizes this development, coining the phrase mandatory retention to describe federal courts' decision to exercise jurisdiction over cases based on jurisdictional grounds no party has invoked. The article recommends that courts equalize plaintiffs' and defendants' abilities to amend their jurisdictional allegations rather than shift responsibility for establishing jurisdiction in removed cases from the defendant to the federal court.

Keywords: jurisdiction, removal, federalism, mandatory, retention, invoke

Suggested Citation

Cox, Jeannette, Removed Cases and Uninvoked Jurisdictional Grounds. North Carolina Law Review, April 2008. Available at SSRN: https://ssrn.com/abstract=1017513

Jeannette Cox (Contact Author)

University of Dayton School of Law ( email )

300 College Park
Dayton, OH 45469
United States
937-229-4656 (Phone)
937-229-2469 (Fax)

HOME PAGE: http://www.udayton.edu/directory/law/cox_jeannette.php

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