{ "media_type": "text", "post_content": "Quick question from a semi new attorney: filed a case against an insurance company and a third party, one of the claims is a federal claim. There’s no complete diversity, so defense counsel moved to remove the case to federal court based on federal question jurisdiction. If the federal issue gets dismissed later on, SMJ is gone and we have to move the case back to state court. Does this sound correct to the rest of you?", "post_id": "5fcff4c71ce16f0028b109cc", "reply_count": 2, "vote_count": 2, "bowl_id": "552d1d24dc1c586b09d2d052", "bowl_name": "Law" }

Quick question from a semi new attorney: filed a case against an insurance company and a third party, one of the claims is a federal claim. There’s no complete diversity, so defense counsel moved to remove the case to federal court based on federal question jurisdiction. If the federal issue gets dismissed later on, SMJ is gone and we have to move the case back to state court. Does this sound correct to the rest of you?

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From what I remember it’s actually in the federal court’s discretion if they keep the remaining claims or not (some test about how related they are to the federal claim). But you are correct, they likely will send it back to state if they dispose of all federal issues

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Your best shot at obtaining a remand of the state law claims would be a motion for severance and remand of the state law claims under 28 USC § 1441(c) by arguing as early as possible the court lacks supplemental jurisdiction over the state law claims under 28 USC § 1367(a), (c) (if unrelated). Otherwise, a later dismissal under 1367(c)(3) depends on the Court’a discretion. A SMJ dismissal down the road becomes more unlikely the longer the case is in federal court.

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