To remove a diversity case from a Tennessee Circuit or Chancery Court to a U.S. District Court requires that the matter in controversy exceed $75,000. Assume you file a lawsuit in state court asking for exactly $75,000 - no more. Or assume you file suit demanding only $25,000. Can the defendant remove to federal court?

The removal statute, 28 U.S.C. §1332, clearly says "no." But the worst civil procedure opinion in the 2001 Tennessee Law Institute seminar book says "yes."

I'm upset by the Sixth Circuit's habit of using trial judges to write opinions the appellate judges were appointed to write. And I am more than a little offended when an opinion such as Rogers v. Wal-Mart Stores Inc., 230 F.3d 868, demonstrates that neither the Ohio district judge nor the appellate judges understood controlling Tennessee law.

The reason advanced in this new mischievous precedent is that "state [Tennessee] law would have allowed plaintiff to recover damages in excess of what she prayed for." You and I know that this statement is simply incorrect.

Tennessee Rule of Civil Procedure 15.02, not even mentioned in the opinion, prohibits "amendment after verdict so as to increase the amount sued for." Even more egregious is the panel's truncated quotation from Tennessee Rule 54.03: "Every final judgment shall grant relief to the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings."

The judges or their law clerks should have read the rest of the Tennessee version, which adds to the federal version: "but the court shall not give the successful party relief, though such party may be entitled to it, where the propriety of such relief was not litigated and the opposing party had no opportunity to assert defenses to such relief."

Rogers deletes from the statute the jurisdictional amount requirement. Now any Tennessee lawsuit with diversity of citizenship filed in a court of general jurisdiction can be removed. We joke about how legislative sausage is made. Have some judicial sausage.

Addendum

My column in the January Tennessee Bar Journal, "Sequestration of Experts Abolished," discussed implications of State v. Bane. The official citation, unavailable at press deadline, is 57 S.W.3d 411.

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Donald F. Paine is a past president of the Tennessee Bar Association and a partner in the Knoxville firm of Paine, Tarwater, Bickers, and Tillman. He was elected to membership in the American College of Trial Lawyers and the American Law Institute. Paine lectures for the Tennessee Law Institute, BAR/BRI Bar Review and the Tennessee Judicial Conference. He is reporter to the Supreme Court's Advisory Commission on the Rules of Practice and Procedure.