28 U.S. Code § 1441, 1446, and 1447: Removal Flashcards
Can a case be removed based on diversity or amount in controversy if one of the defendants is a resident of the state in which the case was brought? (GG)
No. 1441b2
Can a defendant remove a case to where the case could have been filed? (GG)
No. The case will be removed to the district court of the United States for the district and division embracing the place where such action is pending. 1441a
Does filing for removal waive the objection to personal jurisdiction? (GG)
No. A person may remove the case and then respond to it, raising their objections to PJ in federal court.
What is removal in federal civil procedure? (Q)
In federal civil procedure, removal is the process by which a defendant in a state-court case can move the case to federal court. The defendant may do so only if the case falls within the federal court’s original jurisdiction.
Does a defendant need a court’s permission to remove a case from state court to federal court? (Q)
No. A defendant may remove a case from state court to federal court without seeking permission from either court. However, the federal court may remand the case to the state court if the procedural or jurisdictional requirements for removal are not met.
What are the jurisdictional requirements to remove a case from state court to federal court? (Q)
A state-court case may be removed to federal court if it falls within the original jurisdiction of the U.S. district courts.
May a case with multiple defendants be removed from state court to federal court if fewer than all defendants agree to removal? (Q)
No. In a case with multiple defendants, all defendants who have been properly joined and served must agree to removal, or the case may not be removed.
Federal law makes a rare exception to this rule for certain kinds of class actions, in which a single defendant can remove the case even if all other defendants do not agree.
If a defendant removes a case based on federal-question jurisdiction, does the well-pleaded complaint rule apply for purposes of determining whether jurisdiction exists? (Q)
Yes. The well-pleaded complaint rule applies to removal cases just as it does to cases filed originally in federal court. The rule provides that the federal issue on which federal-question jurisdiction is based must appear on the face of the plaintiff’s well-pleaded complaint.
The Supreme Court has recognized an exception to this rule to allow removal if federal law preempts, or displaces, the state law pleaded in the complaint.
If a defendant removes a case based on diversity jurisdiction, is the amount demanded in the complaint used to evaluate whether the statutory amount in controversy is met? (Q)
Yes. The amount demanded in the complaint is used as the basis for the amount in controversy in a removal case, just as it is in a case filed originally in federal court.
If a defendant removes a case based on federal diversity jurisdiction, under what circumstances can the notice of removal state the amount in controversy? (Q)
If a defendant removes a case based on federal diversity jurisdiction, the defendant’s notice of removal can state the amount in controversy if:
the plaintiff seeks nonmonetary relief,
state law does not allow the plaintiff to demand a specific amount, or
state law allows a plaintiff to recover more than the plaintiff has demanded in the complaint.
If multiple defendants are served at different times, and a later-served defendant seeks to remove the case to federal court, can the previously served defendants consent to removal? (Q)
Yes. The defendants who were previously served may consent to removal of the case to federal court. This is true even if the previously served defendants did not seek to remove earlier.
Are any cases made categorically nonremovable by federal law? (Q)
Yes. By federal law, a few categories of cases are not removable. These include some cases against railroads and carriers, workers’-compensation cases, and some statutory tort claims based on gender-motivated violence.
If the state court lacks jurisdiction over a claim, does this lack of jurisdiction prevent removal of that claim to federal court? (Q)
No. A state court’s lack of jurisdiction over a claim does not preclude removal of that claim to federal court.
Can a plaintiff remove a case to federal court if the plaintiff is defending against a defendant’s counterclaim? (Q)
No. A plaintiff may not remove a case to federal court, even if the plaintiff is defending a counterclaim. Only defendants can remove cases to federal court.
What documents must a defendant file to remove a case to federal court? (Q)
To remove a case, a defendant must file in the federal court a signed notice of removal. The notice of removal must indicate the grounds for removal and include all documents and court orders served on the defendant.
After a defendant removes a case to federal court, may the state court take further action in the case? (Q)
No. Once a case is removed to federal court, the state court may not proceed further, unless the federal court remands the case by sending it back to the state court.
If a state-court case is removable when it is filed, how long does the defendant have to remove the case to federal court? (Q)
If the state-court case is removable when it is filed, then the defendant must remove within 30 days of receipt of the initial pleading, or within 30 days of service of the summons, whichever is sooner.
If a state-court case is not removable when it is filed, but later becomes removable, how long does the defendant have to remove the case to federal court? (Q)
If the case is not initially removable, but later becomes removable (for example, if a non-diverse party is dismissed, leaving complete diversity of citizenship), then the defendant must remove the case within 30 days of receipt of the pleading, order, or other paper indicating that the case has become removable.
If removal is based on diversity jurisdiction, the defendant may not remove more than one year after the case was brought in state court, regardless of when the case becomes removable. This rule is waived if the plaintiff has acted in bad faith to prevent removal.
In the context of removal, what is a remand? (Q)
Remand occurs when a federal court sends a removed case back to the state court from which it came. Remand can be based on lack of federal subject-matter jurisdiction or on the defendant’s failure to comply with the procedural requirements for removal.
After a case is removed to federal court, how long does the plaintiff have to file a motion to remand? (Q)
Generally, a plaintiff who seeks remand must file a motion to remand in the federal court within 30 days after the defendant files the notice of removal. However, a plaintiff may seek remand for lack of subject-matter jurisdiction at any time.
In general, if a federal court remands a case to state court, may the defendant appeal the decision to remand? (Q)
No. With limited exceptions, a federal court’s decision to remand is not appealable. The exceptions are for certain civil rights cases and some cases against United States officers or agencies.
If after removal a plaintiff seeks to join additional defendants whose joinder would destroy subject-matter jurisdiction, what two options does the court have? (Q)
If a plaintiff seeks to join additional defendants after removal, and their joinder would destroy subject-matter jurisdiction, then the court may either: (1) deny joinder or (2) permit joinder and remand the case.
If a case includes claims that arise under federal law and claims that are not within a federal court’s original or supplemental jurisdiction, may the defendant remove the case? (Q)
Yes. If a claim based on federal-question jurisdiction is joined with any claims that do not fall within original or supplemental jurisdiction, the entire case may nonetheless be removed. The court will then sever and remand all nonremovable claims, which may then be heard in state court. This process does not apply in diversity cases.
What is the forum-defendant rule regarding removal? (Q)
The forum-defendant rule provides that a case is not removable if: (1) removal would be based on federal diversity jurisdiction, and (2) any defendant is a citizen of the state in which the case was initially filed.
