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Monday, April 07, 2014

Another (easy) procedure case

SCOTUS today granted cert in Dart Cherokee Basin Operating Co. v. Owens, to resolve whether a Notice of Removal must include evidence in support of subject matter jurisdiction (as the district court held here and the ) or whether it is enough that the Notice contain a "short and plain statement" of jurisdiction (as seven circuits have held), with no evidence necessary until arguing the Motion for Remand. I concur with Scott Dodson that this is going to be a 9-0 reversal, likely written by Justice Ginsburg.

Many in the wave of procedure/jurisdiction cases from the Roberts Court have been unanimous or near-unanimous. And Dart fits a particular pattern--a lopsided circuit split, with most of the circuits getting it right and the Court granting cert to bring the outlier court into line.

Update: Scott points out two subsidiary issues in the case. First is how to treat an insufficient short and plain statement (assuming that is all that is required in the Notice)--whether it represents a jurisdictional defect, which can be the basis for a motion to remand at any time, or a procedural defect, which must be asserted within 30 days. Second is whether the court of appeals had jurisdiction over the case under the Class Action Fairness Act, whether the court complied with CAFA's timing requirements, and whether the defendant filed its cert petition in a timely manner. The latter potentially complicates things.

Posted by Howard Wasserman on April 7, 2014 at 04:01 PM in Civil Procedure, Howard Wasserman | Permalink

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Comments

What else are you and Scott talking about these days?

Posted by: Dalvino | Apr 7, 2014 6:56:35 PM

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