Removal Flashcards
What do federal removal statutes empower defendants to do?
They empower defendants sued in state court to remove certain cases to federal court.
This right of removal provides defendants with an opportunity to choose a federal forum if specific jurisdictional requirements are met.
What is the general standard for removal outlined in 28 U.S.C. § 1441(a)?
It permits removal of any civil action brought in state court over which the U.S. district courts have original jurisdiction.
This means the case must fall within either federal question jurisdiction or diversity jurisdiction.
What is the ‘In-State Defendant Rule’?
Codified in 28 U.S.C. § 1441(b)(2), it prohibits removal in diversity cases if any properly joined and served defendant is a citizen of the state where the action was filed.
This rule seeks to prevent in-state defendants from strategically removing cases to a federal court.
What strategies can plaintiffs use to avoid removal?
Plaintiffs can avoid asserting federal claims, join an in-state defendant, join a non-diverse defendant, limit damages, or engage in fraudulent joinder.
Courts scrutinize fraudulent joinders closely.
What are some specialized removal statutes?
Congress has enacted statutes such as 28 U.S.C. § 1442 for federal officers, § 1443 for civil rights cases, § 1441(d) for foreign states, and § 1441(e) for multi-party accident cases.
Some statutes expressly bar removal of cases that would otherwise be removable under § 1441.
Who has the right to remove a case?
Only defendants have the right to remove a case, and all properly joined and served defendants must consent to the removal.
What is the time limit for defendants to file a notice of removal?
Defendants must file a notice of removal in federal court within 30 days of receiving the initial pleading or being served with process.
What is the exception to the 30-day rule for removal?
Under 28 U.S.C. § 1446(b)(3), removal is allowed later if the plaintiff amends their complaint to introduce federal claims after the initial 30-day period.
What must the notice of removal specify?
The notice of removal must specify the grounds for removal, such as federal question or diversity jurisdiction.
How can plaintiffs challenge a removal?
Plaintiffs can challenge the removal by filing a motion to remand in federal court, demonstrating that the case was not removable or was improperly removed.
What is derivative jurisdiction?
28 U.S.C. § 1441(f) allows removal to federal court even if the state court lacked jurisdiction, recognizing that federal courts can exercise jurisdiction over cases that belong in federal court.
What does the case Avitts v. Amoco Production Co. illustrate?
It highlights the importance of establishing federal subject matter jurisdiction for removal, showing that mere references to federal law are insufficient for federal question jurisdiction.
