Removal

Question 1

Statutes

Answer 1

1441, 1446, 1447

Question 2

Who can remove?

Answer 2

Only defendants

Question 3

Action originally filed in state court can be removed if:

Answer 3

• case could have originally been filed in federal court

- for cases removed on basis of diversity, no defendant is a citizen of the state where the action was filed

Question 4

Basic removal rules

Answer 4

1. def can remove if case would have been brought in fed court EXCEPT: cannot remove diversity case if any defendant is a citizen of the forum
2. must remove within 30 days of service of process
3. all defs served with process must join in the removal
4. 30 days starts fresh w every def served
5. removal only to fed dis court where the case was filed

Question 5

Timing

Answer 5

in a diveristy action, removal must occur within 1 year unless P acted in bad faith

• if diverse action is not initially removable but becomes removable (dismissal of non diverse D) it must be removed within 30 days
• over all, all cases removed 30 days from service of process

Question 6

If a case has fed and state claims

Answer 6

A claim that has original 1331 jurisdiction + state claim that doesnt, entire action can bbe removed if it would have been removable without inclusion of nonremovable. This only requires consent from those defs against whom a fed claim is made. Court will remove and sever non removable and remand.

Question 7

Remand rule

Answer 7

1447

Question 8

Basis of motion to remand

Answer 8

• P can file MTR for lack of SMJ, but for any other reason the motion must be made within 30 days
• At any time before final judgement, if SMJ is lacking court shall remand
• Orders to remand based on lack of SMJ not reviewable on appeal unless removed under 1447d or 1443