3.B Removal (State to Federal Court) Flashcards
When is a notice of removal filed?
By a defendant (only) when a case has been filed in state court and should have been filed in federal court. It must be filed within 30 days of DISCOVERY that that case is REMOVABLE.
Who must file a notice of removal?
All defendents must remove.
When is a defendant not able to file a notice of removal?
If they are resident of the state in which the case was brought.
If a PERMISSIVE (not compulsory) counterclaim was filed, that waives the right.
When is a motion to remand filed?
After a case is removed to federal court, it can be REMANDED back down to state court if the federal court does not in fact have proper jurisdiction.
If the case is properly removed to federal court in that state, what law is applied?
Under the Erie doctrine, a court sitting in diversity applies the substantive law of the state, including choice-of-law, and federal procedural law (unless the state procedural law is outcome-determinative, in which case the state procedural law prevails).
