Subject Matter Jurisdiction: Removal

Question 1

What is the general rule w/ regards to removal of an action from STATE court to FEDERAL court?

Answer 1

An action originally filed in state court may be removed by D to federal court IF:

(i) case could have originally been filed in fed court; OR
(ii) for cases removed on basis of diversity, NO D may be citizen of state where case is originally brought

NOTE –> above are as of date of removal

Question 2

Can D remove from state to federal court on the basis of a federal defense?

Answer 2

No.

Reasoning –> existence of fed defense is insufficient to give rise to F question jdxn

Question 3

With regards to removal, what is the rule if there is more than one D?

Answer 3

• All D’s must agree to remove

BUT SEE –> exception if F q is joined w state claims that don’t invoke diversity or supp jdxn

Question 4

If case is removed, where is proper venue?

Answer 4

Venue lies in district containing the state court where it was pending

Question 5

What is the rule with regards to removal if case filed in state court contains a FEDERAL Q claim, and is joined by state claims that DO NOT create diversity or supplemental JDXN?

Answer 5

• D can remove ENTIRE case to federal court
• Federal court must then SEVER and REMAND the state claims back to state court

NOTE –> in this case, only D’s affected by federal claim need petition for removal

Question 6

What is the rule re: removal if there is NO fed question and diversity did not exist bc a party is a co-citizen, but then that party is dismissed?

Answer 6

• if dismissal of party created diversity, it can be removed on this basis

HOWEVER –>

1. Not if ANY D is a citizen of state where claim is brought
2. cannot be removed on basis of diversity more than 1 year after it was commenced UNLESS court finds that P acted in bad faith (example –> purposely covered up amount in controversy)

Question 7

What is the rule w/ regards to timing of removal?

Answer 7

• notice of removal must be filed within 30 days of date D receives copy of the initial pleading

EXCEPTION –> if grounds for removal later arises due to diversity, then 30 days from when it becomes removable, but not more than 1 year after filed in state court

Question 8

What is the rule w/ regards to P’s right to remand (from Fed court to state court)?

Answer 8

• P may file motion to have case remanded to state court.
• A case WILL be remanded if there is no federal jurisdiction.

Federal court –> has DISCRETION to remand case to state court once all federal claims have been resolved, leaving only state claims over which there is no diversity jdxn