Removal

Question 1

Removal - Basic Concept

Answer 1

• transfer the case from state court to fed court
• if removal was improper, the federal court can “remand” the case back to state court

Question 2

Requirement for Removal

Answer 2

• generally, action originally filed in state court may be removed by def to fed court if case could’ve been filed in a fed ct (i.e. fed q or div jur exists)
• state ct need not have had jur (even if exclusive fed jur, fed ct can eval under its removal jur)

Question 3

How A Case is Removed

Answer 3

• def files “notice of removal” in fed ct, stating grounds of removal, which means fed SMJ
• permission of state or fed ct not required
• def attaches all docs that were served on her in the state action
• def “promptly” serves a copy of the notice of removal on adverse parties + files a copy of the notice of removal in state court

Question 4

Timing of Removal

Answer 4

• 30 DAYS
• def must remove no later than 30 days after service (not filing) of the first paper that shows the case is removable
  -> usually means no later than 30 days after service of process

Question 5

Who Must Join the Removal?

Answer 5

• all defs who have been served w/ process must join in removal
• need not join in the same doc -> can file separate notices of removal
• if defs are served at different times, + a later def files a timely removal, the earlier served def can join the removal even though own 30-day period expired

Question 6

Removal - Plaintiffs

Answer 6

• pls can NEVER remove
• true even if def files a counterclaim against pl that could, by itself, have been heard in fed ct

Question 7

What Cases May Be Removed?

Answer 7

• starting point always def can remove case that meets reqs for div jur or FQ jur

BUT 2 limits re div jur:
- case should not be removed if any def is a citizen of the forum state (“in-state defendant rule”) AND
- case should not be removed more than one year after the case was filed in state ct

Question 8

One-Year Limitation on Removal - When Would This Matter?

Answer 8

• case can become removable late in the game if the claim against the in-state def is voluntarily dismissed
  -> in this instance, the case shouldn’t be removed even if you now have div jur if it’s more than one year after the case was field in state ct

Question 9

Exception to the One-Year Limitation

Answer 9

• can remove if you can show that pl originally joined the in-state def to prevent removal

Question 10

Removal Venue

Answer 10

• def removes to the fed ct “embracing” the state ct where the case was filed
• doesn’t matter if this venue would’ve been proper under the venue statutes

Question 11

Remand to State Court

Answer 11

• if pl thinks the case shouldn’t have been removed, she moves to remand to state ct
• if motion based on reason OTHER than lack of SMJ (ex: one-yr limit), need to do so w/in 30 days after filing of notice of removal
  -> if pl fails to do so, waives right to have case remanded to state ct + case will stay in fed ct
• BUT if removal improper b/c fed ct lacks SMJ, there’s NO time limit on ordering remand