Removal Jurisdiction Flashcards
What does removal do?
Transfers the case from a STATE trial court to a federal trial court
Removal Requirements (2, but really 3)
1) D must establish that P could have brought case in federal court (div / FQ)
2) Meet Other requirements
a. D must not be a citizen of state where P brought actions (In-state D Rule)
b. D must remove within 30 days of service
What happens if D incorrectly moves based on Div/FQ?
P MUST move to remand back to state court; No time limit because court has no power
What happens if D incorrectly moves based on in-state court rule or after the 30 day limit?
P must move to remand within 30 days
Who must join in the removal?
A Ds that were served
New 30 Day rule
If P serves D1 and later serves D2, the 30 day clock resets for ALL Ds when last D is served
Can a P ever remove?
Fuck no, even if D files a counterclaim against P, so P is a D on the counterclaim that bitch ass P still can’t remove
When do the removal exceptions apply?
ONLY if removing on the basis of diversity
Removal Exceptions (2)
1) In-state D Rule
2) No removal MORE THAN ONE YEAR after the case was filed in state court
What is the Exception to the In-state D rule?
Becomes removable if P voluntarily dismisses the claim against a second defendant in a case
D1 has 30 days to remove
What if P voluntarily removes a D2 after a year and one day?
Not removable UNLESS D1 shows that P acted in bad faith by originally joining D2 to prevent removal
Where is the case removed?
D removes to the federal court “embracing the state court where case was filed”
How does a D remove a case?
Don’t need permission from the federal or state courts
D files a “notice of removal” in FEDERAL court, stating the ground for removal i.e. federal SMJ (Div / FQ). D attaches all docs served on D in state action. D promptly serves a copy of the notice to adverse parties and then files in STATE court.
If P thinks removal was improper from some other reason than lack of SMJ, how long does P have to remand?
30 Days of notice of filing over notice of removal ; failing to do so is a waiver and case stays in federal court
If P thinks removal was improper because the federal court lacks SMJ, when can P remand?
Anytime before the case is over
