Subject Matter Jurisdiction - Removal

Question 1

Defendant’s Right to Remove

28 U.S.C. § 1441(a)

Answer 1

If a civil case brought in state court could have been brought in federal district court, the defendant or defendants may remove it to federal court.

Question 2

Removal

Avitts v. Amoco Production Co

5th Circuit 1995

Answer 2

A defendant can only remove a case to federal court if the federal courts has jurisdiction over the matter. Just because there are remedies in both state and federal court doesn’t give federal court jurisdiction.

Question 3

Same State Defendant

28 U.S.C. § 1441(b)

Answer 3

If a civil case is brought in state court, the removal is based on diversity jurisdiction, and the defendant or defendants are from the state in which the suit was brought, they may not remove to federal court.

Question 4

Time From Receiving the Intial Pleading or Being Served

28 U.S.C. § 1446(b)(1)

Answer 4

A defendant must remove to federal court within 30 days of receiving the initial pleading or being served. If there are more than one defendant, all must agree to the removal. If a defendant who got served later than his co-defendants, the other defendants may consent even those it’s past their deadline to remove.

Question 5

Time From an Amended Pleading

28 U.S.C. § 1446(b)(3)

Answer 5

A defendant must remove to federal court within 30 days of receiving an amended pleading.

Question 6

One Year Deadline

28 U.S.C. § 1446(c)(1)

Answer 6

A defendant may not remove based on jurisdiction after one year after the original complaint was filed, unless the court finds the plaintiff acted in bad faith.

Question 7

Plaintiff’s Remand

28 U.S.C § 1447(c)

Answer 7

If a plaintiff thinks the case isn’t removable or that the defendant didn’t use proper procedure, she may make a motion to remand within 30 days of the removal.