Removal Flashcards
When can a case that was originally brought in state court be removed to federal court?
If the plaintiff could have brought the case in federal court.
T or F? Removal is an option for both plaintiffs and defendants.
False. Removal is only an option for defendants, plaintiffs cannot remove a suit to federal court after having chosen state court.
Fraudulent Joinder Rule
The right to removal will not be defeated if a defendant was fraudulently joined for the purpose of defeating diversity jurisdiction and preventing removal to federal court.
A party who claims fraudulent joinder has the burden of proving: (2).
(1) That there is no possibility that the plaintiff would be able to establish a cause of action in state court agains the in-state defendant; or
(2) That there was outright fraud in the plaintiff’s pleading of jurisdictional facts.
If removal is based on diversity, diversity is needed at the time the original claim is filed and ___?
When the notice of removal is filed.
T or F? The fraudulent joinder rule applies to both defendants named in the original complaint, and those joined as parties any time prior to removal.
True.
When can a defendant have the case removed without a showing of diversity?
If the plaintiff’s suit is based on federal law.
If the plaintiff is suing the defendant in state court located in the defendant’s home state, and the plaintiff is from a different state - can the case be removed to federal case on the basis of diversity?
No.
Is removal allowed when none of the plaintiff’s claims fall within the subject-matter jurisdiction of the federal court?
No. at least one of the claims must call within the subject-matter jurisdiction of the court.
A files suit against B in New York, where they are both residents. A’s complaint seeks $80,000 in damages. Two weeks later B moves to Arizona for a new job, establishing residency with the intention of staying indefinitely. Can either A or B have the suit removed to federal court on the basis of diversity?
No. A cannot have the suit removed because plaintiffs cannot have cases removed to federal court after electing to file in state court. B cannot remove because diversity must exists both at the time of filing and at the time of removal.
In a case involving multiple defendants, can a case be removed with the consent of only one of the defendants?
No, all defendants must consent to or join in removal for removal to be proper.
How long does a defendant have to file notice of removal?
30 days. of service of the initial pleading.
If a case is not removed when the initial pleading is filed, and the complaint is amended in a way that now makes the case eligible removal, how long does a defendant have to make a notice of removal?
30 days.
If a defendant is joined to a lawsuit after the case is originally filed, can the defendant remove the case?
Yes. Within 30 days, assuming that the other defendants join the request for removal.
How long after a case removable on the basis of diversity may not be removed after how long?
After one year of the commencement of the action (filed not served) when there is an amended pleading.
Exception: If the plaintiff acted in bad faith so as to prevent the defendant from removing, that one-year time period can be relaxed.
