Removal Flashcards
Venue in removed cases?
District court must have had original jurisdiction over P’s claims.
Time Limit
Must remove before 30 days have passed since D received service of initial pleading OR notice of change of removability (1446(b)). But D can’t manipulate diversity by moving.
1446(c): After 1 year from filing, no removal on diversity unless P acted in bad faith to prevent removal.
Defendant Unanimity
All Ds must agree to removal (i.e. not object).
Ability to consent does not expire after 30 days.
Federal Question Basis
If claim could have been brought under FQJ, then removal proper if all Ds agree and time limit hasn’t expired
1447
Removing party must pay attorney’s fees if removal is not successful.
Well-Pleaded Complaint Rule
D’s cross claims don’t work for removal
D’s federal defenses don’t work for removal
Only original Ds can remove (not Ps or TPDs)
Reasons to ask for removal
Avoid local prejudice
Different judge
Expertise with federal questions
Delay the trial
Favorable procedural rules
Different voir dire procedures
Different juries
Smaller verdicts and judgments likely
Settlement advantages
Arbitration clauses easier to enforce
Multiple claims, some removable, some not
FQJ + NR = NR severed, FQJ removed
DJ + NR = no removal
Can remove if there’s SJ, but not if the DJ and Sj aren’t together in state court in the first place. No removal based solely on SJ.
Forum State D Rule
For DJ-based removals, no removal if any of the Ds are citizens of the state in which the action is brought.
Does filing notice of removal waive PJ claims?
Is it an appearance for default judgment purposes?
No.
Yes.
Process for achieving removal
(1) File notice of removal. Don’t need permission.
(2) Serve notice of removal
(3) File with state court
Timing of filings after removal
If D did not originally respond, they must answer within (1) 21 days after receiving copy of original pleading OR (2) 21 days after service of summons, OR (3) 7 days after notice of removal is filed, whichever is LONGER.
