Removal Flashcards
Removal
The D (and only the D) removes the case from state court to federal court (not from state to federal) if the case could have been filed in federal court (FQ / DJ)
Define “Remand”
If removal was improper, the federal court can remand the case to state court.
Fed –> State (remand)
Fed –> Fed (transfer)
In removal, does the state court need to have had jurisdiction?
No. Even when the state court has no jurisdiction because the action is exclusively federal, the federal court may hear and decide the case under its removal jurisdiction.
How is a case removed?
(A)
D files “notice of removal” in federal court: (1) states grounds for removal (federal SMJ); (2) attaches all documents that they were served in the state action.
(B)
(1) D “promptly” serves a copy of the “notice of removal” on adverse parties and (2) files a copy of the “notice of removal” in the state court.
*Permission from the state or federal court is not required.
What are the timing restraints of removal?
D must file notice of removal no later than 30 days after service (not filing) of the first paper that shows the case is removable.
If defendants are served at different times, and a later served defendant initiates timely removal, the earlier served defendant may join in the removal even though her 30-day period for initiating removal may have expired.
Who must join the removal if there are multiple D’s?
**All defendants **who have been served with process must join in removal. They need not join in the same document; they can file separate notices of removal.
If defendants are served at different times, and a later served defendant initiates timely removal, the earlier served defendant may join in the removal even though her 30-day period for initiating removal may have expired.
What are the requirement for a case to be removed?
Must meet federal SMJ (FQ and Diversity)
2 Limitations if BASED SOLELY ON DIVERSITY:
- (1) The case cannot be removed if any D is a citizen of the forum state;
- (2) Can cannot be removed more than 1 year after the case was filed in the state court.
What is the 1 year limitations for removal?
A diversity case, and the in-state defendant is voluntarily dismissed from the case = triggers 30 day limitation. BUT, cannot be later than 1 year after removal.
Ex: P (Wisc) v. D 1 (NC) & D 2 (Wisc) for 250k. 6 months later, the P dismisses the claim against D2. D1 now has 30 days of service of dismissal).
What is the proper venue for removal?
The federal district court “embracing” the state court where the case was filed. (can only remove here)
It does not matter if this venue would have been proper under the venue statutes.
How is a removed cased remanded to state court?
P moves to remand to state court.
If motion to remand is based on any reason OTHER THAN lack of SMJ (which has no limitation and can be brought at any time) then she must move to remand no later than 30 days after the filing of the notice of removal. (waived in doesn’t).
