390
Opinion of the Court
Henry, 922 F. 2d, at 338-339; Roberts v. College of the Desert, 870 F. 2d 1411, 1415 (CA9 1988). Cf. Pennhurst, supra, at 121 (suggesting that courts must analyze the applicability of the Eleventh Amendment to each claim rather than case as whole). Since a federal court would have original jurisdiction to hear this case had Schacht originally filed it there, the defendants may remove the case from state to federal courts. See § 1441(a).
Other considerations further undermine the analogy. For example, for purposes of removal jurisdiction, we are to look at the case as of the time it was filed in state court—prior to the time the defendants filed their answer in federal court. See, e. g., St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U. S. 283, 291 (1938) ("[T]he status of the case as disclosed by the plaintiff's complaint is controlling in the case of a removal, since the defendant must file his petition before the time for answer or forever lose his right to remove"). As of that time, a case that involved "incomplete diversity" automatically would have fallen outside the federal courts' "original jurisdiction." By contrast, as of that time, the State's participation as a defendant would not automatically have placed the case outside the federal courts' jurisdictional authority. That is because the underlying relevant condition (the federal courts' effort to assert jurisdiction over an objecting State) could not have existed prior to removal, see, e. g., Maine v. Thiboutot, 448 U. S. 1, 9, n. 7 (1980), and because the State might not have asserted the defense in federal court, but could have decided instead to defend on the merits. (Here, for example, the State, while not waiving its Eleventh Amendment defense, has asserted in the alternative that Schacht could not state a § 1983 claim against the State. See Will v. Michigan Dept. of State Police, 491 U. S. 58, 64 (1989).)
These differences between "diversity" and "Eleventh Amendment" cases with respect to original and removal jurisdiction are sufficient to destroy the analogy upon which
Page: Index Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 NextLast modified: October 4, 2007