Subject Matter Jurisdiction- Removal Flashcards
What does removal do?
Removal transfers the case from a state trial court to a federal trial court.
When does removal occur?
When the plaintiff sues in state court but the defendant wants to litigate in federal court.
If removal was improper, the federal court can…
“remand” the case back to state court.
D must remove no later than…
30 days of service (not filing) of the first paper that shows the case is removable.
Usually, that means no later than 30 days of service of process.
Who must join in a removal action?
All defendants who have been served with process.
Defendants need not all join in…
the same document; they can
file separate notices of removal—just so all of them
remove in a timely fashion.
Can plaintiffs remove a case to federal court?
Plaintiffs can never, never, never remove.
Even if D files a counterclaim against P, so P is a defendant on the counterclaim.
What kinds of cases can be removed?
The defendant can always remove a case that meets the requirements for diversity citizenship or federal question.
What are the exceptions to removal based on diversity?
- No removal if any D is a citizen of the forum (in-state D rule) AND
- No removal more than one year after the case was filed in state court.
These exceptions ONLY apply to removal based on diversity jurisdiction!
A diversity case with an in-state D can become removable. How?
It becomes removable if P voluntarily dismisses the claim against the in-state defendant. But removal can’t happen if the dismissal is a over a year after filing in state court. Unless the defendant can show that the plaintiff acted in bad faith by originally joining the in-state defendant to prevent removal.
To what federal court does D remove?
To the federal district where the state court case was filed.
How does a defendant remove a case?
- D files “notice of removal” in federal court, stating grounds of removal, which means federal SMJ (diversity or FQ).
- D attaches all documents that were served on her instate action.
- She “promptly” serves a copy of the “notice of removal” on adverse parties.
- Then she files a copy of the “notice of removal” in state court.
If the plaintiff thinks the case should not have been removed, what does she do?
She moves to remand to state court.
The plaintiff must move to remand no later than…
30 days after filing of the notice of removal.
If the defendant does not move to remand within 30 days after filing of the notice of removal….
she waives the right to have the case remanded to state court; in other words, the case will stay in federal court.
