Removal Jurisdiction Flashcards
When can an action be removed?
when originally filed in state court, the D may remove to federal court if
1. case could have originally been filed there (FQ or DCJ)
and
2. for cases removed on basis of diversity, no D is a citizen of teh state where the action is filed
When is jurisdiction tested for removal?
the date of removal
Can D remove on the basis that he has a defense grounded in federal law?
no
Can PLs exercise right of removal?
no, only Ds
If there is more than one D, how can they remove?
all Ds who have been properly joined adn served must join in the petition to remove
What is the proper venue when removal is initiated?
fed district ct embracing the place where the state action is pending (the fed ct whose territory encompasses the state ct)
Can the entire case be removed when there is a federal law claim and state law claim (not w/in ct jurisdiction or SJ)?
Yes - the court must then, however, sever and remand the state law claims back to state court & only those Ds against whom a fed claim is asserted must join in removal
If there is no FQ or DCJ (bc party is co-citizen of opposing party), when is removal permitted?
if the nondiverse parties are thereafter dismissed from the action and there is complete diversity between the remaining parties, subj to limitations:
- when juris in fed ct is based on diversity and one of Ds is a citizen of state in which state action was brought, not removable (D does not have concerns about being in ct that favors PL as own citizen) = a case based on diversity cannot be removed if any D is a citizen of the forum state
- a case may not be removed on the basis of DCJ more than one year after it was commenced in state court unless ct finds the PL acted in bad faith (to prevent D from removing)
How does a D initiate removal?
file notice of removal in fed dist ct and send copy to other parties and state court - once this is done, state court no longer can deal with the case
When must a D file notice of removal?
within 30 days after D receives notice of summons/pleading or amended pleading
if Ds are served at different times, and later D served initiates timely removal, earlier served Ds may join
Can PL file motion to remand case back to state court
yes - if based on defect in SMJ, must be brought w/in 30 days of removal
case will be remanded if no fed juris
thereafter, fed ct has discretion to remand the case to state court once all fed claims are resolved, leaving only state claims over which there is no DCJ
To remove, does jurisdiction need to be proper in the state court?
no, just needs to be proper in fed court
If a case later becomes removable (dismissal of a nondiverse D), can it still be removed?
yes - if w/in 30 days of date it becomes removable; but for diversity cases, not more than 1 year after it was brought in state court (this rule can be disregarded if PL acted in bad faith to defeat removal)
