Sunday, April 16, 2017

Essay VII--Sample Answer

Sample answer after the jump.

Let me highlight some common problems I saw, both specific to this problem and in legal analysis generally.

As to this problem:

• While the problem turned on the Forum Defendant Rule, you cannot ignore whether there is jurisdiction. § 1441(b)(2) speaks of a case otherwise removable and the basis must be diversity. So you first must establish that there is diversity, before turning to whether the FDR applies.
• There are two distinct questions--whether Trump changed his domicile to D.C. and whether, if not, Trump was a New York citizen. Too many of you focused only on the conclusion that Trump had not changed domicile, without talking about where his domicile is. You need to explain, not just conclude, why it is New York.
• No one explained how diversity jurisdiction applies to Washington, D.C., which is (controversially) not a state.

As to legal analysis generally:

• Get yourselves out of the arguments. It's not "As Zervos, I will argue that the motion should be granted because . . ." or "Zervos will argue that the motion should be granted because . . ." It should be "The motion should be granted because . . ." This saves words and reads much better.
• When you have multiple rules and sub-rules, focus on how they fit together and structure your essay accordingly. This problem is a nice example. The question begins with Removal, which then takes you to § 1332, then to the elements of that, then to citizenship and domicile, then to the facts showing domicile. Structure it that way.
• Watch the repetition. Quote or paraphrase the rule--no need to do both.

Zervos v. Trumps
Zervos' Motion to Remand should be granted. While there is subject matter jurisdiction over the action, such that it could have been filed in federal court initially, Trump is barred from removing by the Forum-Defendant Rule.

A defendant may remove an action brought in state court to a federal district court if the federal court has original jurisdiction over the action, § 1441(a), such that the action could have been filed in federal court in the first instance. The defendant filed a Notice of Removal on March 3. § 1446(a). A plaintiff challenges removal by filing a Motion for Remand. § 1447(c).

Zervos could have filed in federal district court—the amount in controversy exceeds $ 75,000 and the action is between citizens of different states. § 1332(a)(1). An action is “between citizens of different states” if there is complete diversity, meaning no party is a citizen of the same state as any adverse party. Citizenship is defined by domicile, which is a person’s true, fixed, permanent residence and the place he intends to return to when he goes away. Mas. Once a party obtains a domicile, he retains that domicile until he affects a “change of domicile” by taking up residence in a new place with the intention to remain there. Mas.

The lone plaintiff, Zervos, is a citizen of California. There is a question about the citizenship of the lone defendant, Trump, as discussed below. But he is not a citizen of California, as he has never resided there. This is an action between two citizens of different states. Although plaintiff did not specify an amount of damages sought, she seeks compensatory and punitive damages, other defamation plaintiffs have recovered that much, and it does not appear to a legal certainty that she could not recover more than $ 75,000 on a defamation claim. Mas.

Even if the court has jurisdiction, however, removal is subject to procedural limitations that may form the basis for remand. The relevant limitation here is the “Forum-Defendant Rule,” which provides that an action removable solely on the basis of diversity jurisdiction may not be removed if any of the defendants properly joined and served is a citizen of the state in which the action is brought. § 1446(b)(2). Diversity jurisdiction exists to eliminate bias in favor of a local party or against an outsider party, by providing the outsider with a federal forum. Federal judges enjoy procedural protections (tenure during good behavior and guaranteed salary) that insulate them from local passions and biases, offering the outsider party a “fairer” forum. But a defendant sued in his home state does not need the protections of a federal forum—if the plaintiff (who could have chosen to file in federal court) is willing to litigate on the defendant’s home turf, the local defendant does not need, and cannot get, a federal forum or its protections through removal.

Whether this action is removable depends on where Trump was a citizen on January 23, 2017, the day the action was filed. If he was a citizen of New York, the forum-defendant rule precludes removal and remand is proper. If he was a citizen of Washington, D.C. (which is treated as a state for purposes of diversity jurisdiction, § 1332(e)), the Forum-Defendant Rule does not apply and removal was proper.

Prior to January 20, 2017, Trump was a citizen of New York. He was born and raised there. New York City had been his primary residence for his entire adult life since graduating from college, a period of almost fifty years; that long a time residing in New York indicates an intent to remain. His driver’s license and voter registration are both in New York. There is no evidence he primarily lived any place else during this time.

Although Trump took up residence in Washington when he moved into the White House on January 20 and has not been back to New York since, he did not effect a change of domicile because he had not manifested an intent to remain in Washington or to make it his new domicile.

Assuming no unusual occurrences (such as his death, resignation, or impeachment-and-removal), Trump will live in the White House for a minimum of four years (if he does not seek or gain reelection in 2020) and a constitutional maximum of eight years. So his time living in his current residence is expressly limited. And Trump has not shown any intention to remain in Washington once his term is complete. His wife and son continue to live in New York and it is unknown whether either will move to Washington full-time. Recent presidents left Washington and moved elsewhere when their terms were complete. And Trump, who had never worked or lived in Washington before his inauguration, is especially likely to follow that trend, since he has no other connections to D.C. He has not changed either his driver’s license or voter registration to Washington and if history is a guide, likely will not do so.

Trump’s situation is analogous to the graduate student in Mas, who took-up residence in Louisiana while attending graduate school, but did not change her domicile because she never intended to remain there beyond a definite future event—her and her husband’s graduation. Similarly, Trump has not manifested an intent to remain in Washington beyond the definite future event of the end of his presidential term.

These facts show a lack of intent to remain in Washington, which means Trump has not changed his domicile. Because he never established a new domicile, he retains his previous domicile—New York. The lone defendant remains a citizen of the state in which this action was brought and may not remove the action based on diversity jurisdiction. § 1446(b)(2). The Motion to Remand should be granted because the action was improperly removed.