Removal Jurisdiction Flashcards
Removal Jurisdiction
if a p files in state court but d wants to move to federal court
28 USC section 1441 a (removal of civil actions)
Any civil action Brought in a state court of which the district courts of the US have original jdx may be removed by the d or the ds to the district courts
28 USC section 1441 b (removal based on diversity of citizenship)
a civil action otherwise removable solely on the basis of the jdx under section 1332 a of this title may not be removed if any of the parties in interest properly joined and served as d is a citizen of the state in which such action is brought (forum state d rule)
28 USC 1446 (procedure for removal of civil actions - a)
a d or d desiring to remove any civil action from a state court shall file in the district court of the US for the district and division within such action is pending a notice of removal pursuant to rule 11 of the FRCP and containing a short and plain statement of the grounds for removal together with a copy of all process and pleadings and orders served upon such d or ds in such action
28 USC 1446 (procedure for removal of civil actions - b)
requirements generally
1. the notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the d through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based or within 30 days after the service of summons upon the d if such initial pleading has there been filed in court and is not required to be served on the d whichever period is shorter
2.
a. when a civil action is removed solely under section 1441a all d who have been properly joined and served must join in or consent to the removal of the action
b. each d shall have 30 days after receipt by or service on that d of the initial pleading or summons described in paragraph 1 to file the notice of removal
c. if d are served at different times and a later served d files a notice of removal any earlier served ds may consent to the removal even though the earlier served d did not previously initiate consent to removal
3. except as provided in subsection c if the case stated by the initial pleading is not removable a notice of removal may be filed within 30 days after receipt by the d through service or otherwise of a copy of an amended pleading motion order or other paper from which it may first be ascertained that the case is one which is or has become removable
28 USC 1446 (procedure for removal of civil actions - c)
requirements for the removal based on diversity of citizenship
1. a case may not be removed under subsection b3 on the basis of jdx conferred by section 1332 more than 1 year after commencement of the action unless the district court finds that the p has acted in bad faith in order to prevent a d from removing the action
28 USC 1446 (procedure for removal of civil actions - d)
notice to adverse parties and state court
promptly after the filing of such notice of removal of a civil action the d or ds shall give written notice thereof to all adverse parties shall fail a copy of the notice with the clerk of such state court which shall expect the removal and the state court shall proceed no further unless and until the case is remanded
28 USC 1447 C Procedure after removal generally
A motion to remand the case on the basis of any defect other than lack of subject matter jdx must be made within 30 days after filing of the notice of removal under section 1446 a. If at any time before final judgment it appears that the district court lack subject matter jdx the case shall be remanded. An order remanding the case may required payment of just costs and any actual expenses including attorneys fees incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the state court
