Removal of Cases from State to Federal Court Flashcards
28 U.S.C 1441a
any civil action that has been filed in the state court, by which the federal court can have original jurisdiction, can be removed by the defendant or the defendants, to the district court or court embracing the place where such action is pending
28 U.S.C. 1446 (b)(1): time given to defendant to remove a case from state to federal court.
The defendants must remove a case within 30 days of receiving the complaint (initial pleading or being served with process in the action)
28 U.S.C 1441 (b)(2) : in-state defedant rule
When the plaintiff files a diversity case that is removable solely on the basis of jurisdiction, in state court, where the defendant is a citizen of state, the defendant cannot remove the case to federal court.
What are ways to forum shop?
- careful pleading –> don’t refer to federal law in your complaint. Only refer to state claims.
- Joining in-state defendant –> based on 1441(b)(2)
- joining non-diverse defendant
- limiting the amount requested in diversity jx
- fraudulent joinder –> no reasonable reason to join the defendant.
If a plaintiff brings suit in a place under federal law claim, in the state court where the defendant is a citizen, can the case be removed to federal court?
Yes, as it is a case that can be removed solely on jurisdictional bases (diversity).
If the case is filed in state court on a federal claim, and the state is where the defendant is a resident, the case is removable. This is not a case that is removable solely on diversity jx, so 1441 (b)(1) doesn’t apply.
28 U.S.C. 1446 (b)(2)(A): defendants in removing a case
all defendants must consent to a case being removed to federal court.
28 U.S.C. 1446 (b)(3): plaintiff amending complaint to have federal claim
if the plaintiff amends their initial complaint (which could not be removed) to include a federal claim, the case becomes removable and defendant has 30 days to remove the case to federal courts.
28 U.S.C 1441 : proper federal court
The defendant must remove the case to the district court embracing the place where such action is pending.
Explain process of removal:
To remove a case from a state court to a federal court –> defendant files files a notice of removal in federal court and notifies the plaintiff and state court she has done so.
Notice should specify the grounds for removal –> include a copy of state court summons and removal.
When notice is filed and state court receives notice, the state loses all power to proceed with the case.
28 U.S.C 1447 (c)
A plaintiff may remove a case for lack of subject matter jurisdiction at any time.
BUT, other problems for removal other than subject matter jx (not all defendants consented to the removal) , must be raised within 30 days, or objection is waived.
28 U.S.C. 1446 (d)
When the notice of removal is filed and the state court is notified by defendant that the case is removed to federal court, the state court loses all power to see the case.
