Removal and Remand

Question 1

When removal permitted

Answer 1

1) if the case could have originally been filed in a federal court; and
2) for cases removed on the basis of diversity, no defendant is a citizen of the state where the action is filed

Jurisdiction measured from date of removal

Question 2

Who may remove?

Answer 2

Only defendants, must be unanimous

Question 3

Venue after removal?

Answer 3

District court embracing the place where such state action is pending

Question 4

Limits on removal of diversity cases

Answer 4

Case may not be removed more than one year after it was commenced in state court unless the district court finds the plaintiff acted in bad faith.

Notice of removal must be filed within 30 days after defendant receives notice that the case is or has become removable. Last served defendant starts the clock.

Question 5

Procedure for removal

Answer 5

Defendant must file notice of removal in district court and send a copy of notice to the other parties and the state court

Question 6

Remand

Answer 6

Plaintiff can file a motion to have the case remanded to the state court. Case will be remanded if no SMJ, or in court’s discretion, after all federal claims have been resolved.

Question 7

Must jurisdiction have been proper in the state court prior to removal?

Answer 7

No, if action is exclusively federal, can remove to federal court.