Removal

Question 1

What is removal?

Answer 1

Plaintiff filed in state court and Defendant wants to move to state court case to federal court.

Question 2

Can a plaintiff file for removal?

Answer 2

No, only D can

Question 3

Which direction does removal go?

Answer 3

Unidirectional –> from state court to federal court

Question 4

When is removal proper?

Answer 4

1) case originally filed in state court
2) federal court would have subject matter jdx

Question 5

When can you NOT do removal?

Answer 5

• Forum Defendant Rule

Question 6

What is forum defendant rule?

Answer 6

WHEN: the basis for removal is ONLY diversity JDX (and any defendant is a citizen of the forum state)

THEN: the case is not removable (even if there were diversity jurisdiction if originally filed in federal court)

Question 7

What is severance?

Answer 7

WHEN: parts of the case have federal jurisdiction, and others don’t

THEN: Federal courts will keep the federal law claim but will remand the unrelated state law claim back to state court.

Question 8

What is the procedure for removal? (Notice of Removal)

Answer 8

• filed with fed court
• filed within 30 days of being served
• file with the State court (State court has to stop proceedings because it won’t have subject matter jurisdiction)
• includes basis for removal
• same papers given to state and federal courts

Question 9

Removal - Rule 11

Answer 9

sanction parties for misconduct, when a party filed paper with federal court in which the party has made a misrepresentation in the notice of removal, then under Rule 11, parties who made misrepresentation can get sanctioned/punished

Question 10

What is the rule of unanimity?

Answer 10

all defendants must join and consent to removal