Removal

Question 1

Concurrent Jurisdiction

Answer 1

State and Federal courts have concurrent jurisdiction over diversity cases and most federal question cases

Question 2

28 USC §1441 (a)

Answer 2

D can remove a case to federal court if P’s claim could have been filed initially in a federal court
– if the district courts have original jurisdiction

Question 3

Avitts v. Amoco

Answer 3

P’s claim only mentioned federal statute as analogy - not as a claim

** No Diversity Jurisdiction; FQJ - not satisfied**

Question 4

28 USC §1446(b)

Answer 4

D must file to remove within 30 days of receiving the complaint OR receiving the amended complaint

Question 5

28 USC §1441(b) (2)

Answer 5

Case cannot be removed a DIVERSITY CASE if ANY D is a citizen of the state in which the action is brought
– b/c there is not a risk of prejudice in your home state

Question 6

P’s strategy in forum shopping

Answer 6

Ways P may avoid removal by structuring their cases

1) Careful pleading - avoiding references to federal law in their complaint OR omitting federal claims from the case (will lose chance to get federal relief/recovery)
2) Joining an in-state defendant (can’t remove §1441(b)(2))
3) Join a non-diverse defendant (w/o diversity, cannot remove)
4) Limit AIC

Question 7

Fraudulent Joinder

Answer 7

Asserting claim against an in-state D/non-diverse D even if the claim is weak or frivolous
**D can claim fraudulence and remove

Question 8

Who may Remove?

Answer 8

Defendant or Defendants (all D must agree to remove) (28 USC §1446 b-2-A)

Question 9

When must removal happen?

Answer 9

within 30 days of receiving initial pleasing or being served process

• • if D doesn’t remove in that period, waives right to remove
• *P’s amendment or additional/drop of a D – gives 30 days from change

Question 10

What must a removal require?

Answer 10

** §1331 (Federal Question) &/or §1332A (Diversity)

1) filed in Fed court
2) Filed within 30 days
3) There is complete diversity
4) The AIC is met
5) Fed court has original jurisdiction and removal jurisdiction based on diversity
6) All documents filed in the state court are provided with the notice of removal
7) P and state court are notified of removal
8) ALL D’s consent to removal

Question 11

Where will the case be removed to?

Answer 11

The US district court for the district and division where the action is pending
– Normal venue rules DO NOT APPLY

Question 12

Motion to Remand to State Court

Answer 12

P can motion to remand 30 days after removal!