Removal

Question 1

What is removal?

Answer 1

removal allows a defendant to transfer a case ONLY from a state trial court to a federal trial court.

Question 2

What if a removal is improper?

Answer 2

If removal was improper, the federal court can “remand” to state court.

Question 3

In what time period can a defendant remove a case to federal court?

Answer 3

Within 30 days after service of the first paper that makes the case removable.

Question 4

Who can remove?

Answer 4

Only the Defendant

Question 5

What if there are multiple defendants?

Answer 5

There must be a unanimous decision to remove the case by all defendants in the case.

Question 6

P sues D-1 and D-2. Can D-1 remove? Why or why not?

Answer 6

No. All defendants who have been served with process must join. It must be unanimous.

Question 7

P sues D-1 and D-2 on June 1. D-1 is served with process on June 1. She does
not remove within 30 days. D-2 is served with process on August 1. Can she and
D-1 now remove?

Answer 7

Yes, you get a new 30 days when D-2 was served.

Question 8

P sues D in state court. D files a claim against P in that case. Can P remove?

Answer 8

Never. A plaintiff can never remove.

Question 9

What is the general rule for the kind of case that can be removed?

Answer 9

one that would meet the requirements for diversity of citizenship or federal question.

Question 10

What are the two big exceptions to the general rule for the kind of case that can be removed?

Answer 10

1. No removal if any D is a citizen of the forum (instate D rule) AND
2. No removal more than one year after the case was filed in state court.

Question 11

P (Georgia) sues D-1 (NY) and D-2 (Alabama) in an Alabama state court for $500,000. Can D-1 and D-2 remove?

Answer 11

No, because D-2 is an in state defendant and this is a diversity case.

Question 12

P (Georgia) sues D-1 (NY) and D-2 (Alabama) in an Alabama state court for $500,000. A year and a day later, P dismisses the claim against D-2. Can D-1 now remove? Why or why not?

Answer 12

No, we cannot remove a diversity case more than a year after it was filed in state court

Question 13

P (Georgia) sues D-1 (NY) and D-2 (Alabama) in an Alabama state court for $500,000. A year and a day later, P dismisses the claim against D-2. The federal judge finds that P acted in bad faith to prevent removal. Can D-1 remove?

Answer 13

Yes, if the federal judge finds that P acted

in bad faith to prevent removal the case can be removed.

Question 14

Where can the case be removed to?

Answer 14

Remove ONLY to the federal district embracing the state court.

Question 15

What does D need to do procedurally for removal?

Answer 15

D files notice of removal in federal court, stating grounds of removal; signed under Rule 11; attach all documents served on D in state action; copy to all adverse parties. Then file copy of notice in state court.

Question 16

What if the removal was procedurally improper?

Answer 16

P moves to remand to state court

Question 17

Under what time period must P move to remand?

Answer 17

30 days

Question 18

What is the exception for the 30 day rule for P to move to remand?

Answer 18

If there is no federal subject matter jurisdiction, P can move to remand anytime (or the federal court can remand anytime).

Question 19

What is there no time limit on?

Answer 19

there is no time limit on raising lack of subject matter jurisdiction

Question 20

What happens if a case is originally filed in federal court but there is not subject matter jurisdiction?

Answer 20

the court must dismiss if there is no federal subject matter jurisdiction

Question 21

What if the defendant files a permissive counterclaim in state court?

Answer 21

D probably waive the right to remove.

Question 22

What happens if D files a compulsory counter claim in state court?

Answer 22

D probably does not waive the right to remove.