Removal

Question 1

U.S.C. Title 28, Ch. 89 - § 1441(a): Removal of Civil Actions

Answer 1

a. Any civil action brought in a State court of which the district courts of the US have original jurisdiction may be removed by the defendant or the defendants, to the district court of the US… where such action is pending.

Question 2

U.S.C. Title 28, Ch. 89 - § 1441(a): Breakdown

Answer 2

Who can remove?
-The defendant(s)

What cases can be removed?

• Cases over which there is federal jurisdiction
  
  • 1331, 1332
• This includes supplemental jurisdiction
  
  • 1367

Where can they be removed to?
-The district court where the action is pending

Question 3

U.S.C. Title 28, Ch. 89 - § 1441(b): Breakdown

Answer 3

What limitation does section (b) place on removal of diversity cases?

• If JD is est. through Div.JD, the Case cannot be removed to a JD where any of the Ds are a citizen of the Forum State.

Question 4

U.S.C. Title 28, Ch. 89 - § 1446: How the Process Works

Answer 4

Defendant files a notice of removal signed pursuant to Rule 11 in the proper district court containing statement of grounds for removal, along with all pleadings, etc.

• Action removed under 1441(a): all Defendants must join in or consent to removal
• Action removed under 1441(a): Defendants whose claims are not other removable are not required to consent (those claims will be remanded anyway)
• After this filing, defendant must notify other parties and the state court, “which shall effect removal and the State court shall proceed no further unless and until the case is remanded”. 1446(d).

Question 5

U.S.C. Title 28, Ch. 89 - § 1441(a-f) - Time Limit for Removal

Answer 5

• W/i 30 days of D’s receipt of initial pleading or service of summons (whichever is shorter), if the case stated by the initial pleading is removable; OR
• W/i 30 days of amended pleading or other paper from which grounds for removal first become apparent.
• 30-day limit applies separately to each D, but if a later-served D files a notice of removal, an earlier-served D may consent even though its time has run.
• Overall time limit of 1 year for diversity cases.

Question 6

U.S.C. Title 28, Ch. 89 - § 1447(a): Procedure After Removal Generally

Answer 6

(a) If Removed from State Court, the Federal Court may issue all orders and process to bring before it all proper parties whether served by process issued by the State Court or otherwise
- Aka: All parties come with the suit or Court will compel you
- Order of remand may include order of costs and expenses incurred by plaintiffs as result of wrongful removal

***Overall time limit to make Motion to Remove is one year from the filing date.

Question 7

U.S.C. Title 28, Ch. 89 - § 1441(b): Removal of Civil Actions

Answer 7

(b) A civil action removable solely on the basis of diversity may not be removed if any of the defendants is a citizen of the State in which such action is brought.

Question 8

§ 1441(c): Removal - Breakdown

Answer 8

What does section (c) mean?

• If a civil action includes a federal claim and a claim not within the original or supplemental jurisdiction of the court, the entire action may be removed if the action would be removable without the non-removable claim.
• Upon removal of such an action, the district court shall sever from the action all claims not removable and remand the severed claims to the State court.

Question 9

U.S.C. Title 28, Ch. 89 - § 1447(b): Procedure After Removal Generally

Answer 9

(b) Fed. Ct. can require the removing party to file with its clerk copies of all records and proceedings or may cause the same by writ of certiorari issued to the State Court.
- The party that Motioned to Remove is required to file all Pleadings w/ the Fed. Ct. or the Court can directly request the record from the State Court.

Question 10

U.S.C. Title 28, Ch. 89 - § 1447(c): Procedure After Removal Generally

Answer 10

(c) Motion to remand must be made within 30 days after filing of notice of removal
- Motion based on lack of subject matter jurisdiction may be made at any time before final judgment

Question 11

U.S.C. Title 28, Ch. 89 - § 1447(d): Procedure After Removal Generally

Answer 11

(d) An order remanding a case to the State Court from which it was removed is not reviewable on appeal or otherwise, unless removed pursuant to §1442 or §1443.
- If a suit has been Removed from State Court to Federal Court, then remanded back to the same State Court from which it came, there will be no reviewable appeal .

Question 12

U.S.C. Title 28, Ch. 89 - § 1441(c): Breakdown

Answer 12

What does section (c) mean?

• If a civil action includes a federal claim and a claim that isn’t w/i original or Supp.JD of the Court, the entire action may be removed if the action would be removable WITHOUT the non-removable claim

> > > If such removal occurs, the Dist. Ct. shall SEVER from the action ALL claims not removable and remand the severed claim(s) to St. Ct.