Removal and Erie Flashcards
Can a party remove a case from federal court to state court?
No - removal only works from state to federal. If the federal court think it should go back to state court it will “remand.”
Who can remove a case to federal court?
Only a defendant, and if multiple, all defendants must agree.
When must a defendant move for removal?
Within 30 days after service of the first paper that makes the case removable.
If the 30 day clock has expired for a defendant to remove, and then another defendant is served, can the defendants move for removal?
Yes - the 30 day clock resets every time a new defendant is served.
Can a plaintiff EVER remove a case?
No, never, no exceptions. Plaintiffs cannot remove.
If the party successfully removes, where will the case go (which district court)?
To the district court that “embraces” the state court where the case was filed.
(E.g. a kings county case would go to EDNY, a new york county case would go to SDNY)
What is the proper procedure for removal?
- file notice of removal in federal court,
- state the grounds for removal,
- sign under Rule 11,
- attach all documents served on D in the state action,
- copy all adverse parties,
- file a copy of notice in state court.
What is P’s remedy if D improperly files for removal?
P can move to remand to state court within 30 days of removal.
If the case actually lacks subject matter jurisdiction, what is P’s remedy?
P can move to remand at any time - and the court can move sua sponte.
What action by D would waive the right to remand?
If D files a permissive counterclaim, it’s likely that he has waived removal.
If D files a compulsory counterclaim, it is not likely that he has waived removal.
What is the basic idea behind Erie doctrine?
In a diversity case, the federal court must apply state substantive law.
If there is a federal law on point that directly conflicts with state law, what law will apply?
A valid federal law will apply if it conflicts directly with state law.
What makes a federal law valid?
If it is arguably procedural. Note: the FRCP will always be valid.
If there is no federal procedural law on point, what will the court do?
Some are easy answers and otherwise the court will apply a balancing test.
What are the easy cases where the court will certainly apply state law in the absence of a federal law on point?
Elements of a claim or defense, statute of limitations, rules for tolling statutes of limitations, conflict/choice of law rules.
