Removal Jurisdiction

Question 1

what is removal?

Answer 1

moves case from state to federal court

Question 2

what is transfer?

Answer 2

moves the case from one federal court to another federal court

Question 3

when is removal proper?

Answer 3

Only when the case could have been brought originally in federal court (would the federal court have had smj)

Question 4

who may remove?

Answer 4

only the defendant

Question 5

what if there are multiple defendants?

Answer 5

then all defendants must consent to removal within 30 days of service

Question 6

how is a federal question removed?

Answer 6

if the well pleaded complaint discloses that the plaintiff’s claim is based on federal law, then the defendant may remove to federal court

Question 7

what if the plaintiff’s case is based on state law, can it be removed?

Answer 7

no, even if the defendant has raised a federal defense

Question 8

what are the requirements to remove a case based on diversity jurisdiction? (3)

Answer 8

-there is complete diversity
-the amount in controversy exceeds $75,000, and
-the action is brought in a state of which no defendant is a citizen

Question 9

what is the one year limit on removal for diversity?

Answer 9

must remove within one year of the commencement of the action in state court, unless the plaintiff acted in bad faith to make the case non-removable

Question 10

how do you remove a case? (2)

Answer 10

-Defendant files a notice of removal in federal court stating the grounds of removal AND attaches all documents that were served on her in the state action
-Defendant serves a copy of the notice of removal on adverse parties AND files a copy of the notice in state court

Question 11

when must a “notice of removal” be filed?

Answer 11

must be filed within 30 days of service of complaint

Question 12

what happens when the removal notice is filed?

Answer 12

the state court’s jurisdiction ends instantly and automatically

Question 13

what can the plaintiff do in response to a removal proceeding?

Answer 13

can file a motion to have the case remanded to state court, and it is on that petition that the federal court will hold a hearing (such will be granted if there is no proper basis for jurisdiction in fed court)

Question 14

what happens if the removal is found to be proper?

Answer 14

remand is denied, case stays in federal court

Question 15

what happens if the removal is found to be improper?

Answer 15

remand is granted, case goes back to state court

Question 16

who makes the decision about whether removal is proper?

Answer 16

the decision is made by the federal court. removal is automatic, and then the decision about whether it was proper is done on petition for remand by the federal court

Question 17

May the fed court keep Fed claims and remand state claims

Answer 17

yes if removal is properly made. however, if defect in removal, entire case should be remanded