Crosscurrents: Supplemental Jurisdiction, Removal, and the ALI Revision Project

Abstract

When Congress enacted the federal supplemental-jurisdiction statute, it gave little or no consideration to how that law would operate when it intersected with the statutes governing removal of actions from the state to the federal courts. The enactment of 28 U.S.C. § 1367 posed a variety of questions concerning its effects on removability and remand, and concerning its application in removed cases generally. In this Article, I survey the issues that arise in the intersections between the removal and the supplemental-jurisdiction statutes, and examine the cases that have addressed these issues. I also look into whether and how the draft proposals of the American Law Institute (“ALI”) Federal Judicial Code Revision Project (“Revision Project” or “Project”) address those same issues, and at how they otherwise would alter the interactions between the removal/remand scheme and supplemental jurisdiction.

I do want to emphasize, however, that the Project proposals, and particularly those concerning removal, are at a very preliminary stage. They should not be taken to reflect even the Reporter's own firm views and considered judgments, much less the views and judgments of ALI Advisers or members of the Consultative Group for this Project, ALI Council members, or the membership of the ALI generally. My intention here is to inform those unaware of this work in progress, and to help improve the final product, if I can. Both the pertinent present statutes and revisions proposed in Project drafts are set out in Appendices A and B, for the reader’s convenience.

Because of the breadth of the issues canvassed, this Article is not knit together by a unifying theme. I have, however, focused only on civil actions removed under the general removal statute, 28 U.S.C. § 1441, and on the provisions governing remands in such cases.

Keywords: supplemental jurisdiction, removal, removal of actions

JEL Classification: K10