34 Pages Posted: 27 Sep 2007 Last revised: 26 Aug 2008
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: Suggested Citation
Cox, Jeannette, Removed Cases and Uninvoked Jurisdictional Grounds. North Carolina Law Review, April 2008. Available at SSRN: https://ssrn.com/abstract=1017513