Removal

Question 1

Removal basics

Answer 1

• D can remove to fed ct from state ct
• Removal transfers case from state trial ct to fed trial ct
• If removal was improper, fed ct can remand back to state ct
• FSMJ is necessary: An action originally filed in state ct can be removed by D to fed ct when case could have been filed in fed ct (FQ/DJ exists)

Question 2

How a case is removed

Answer 2

• D files notice of removal w/ fed ct, stating grounds for removal (FQ/DJ)
• Permission from state/fed ct is not needed
• D attaches all docs that were served on her in state action
• D promptly serves copy of notice of removal on adverse parties
• And files a notice of removal w/ state ct

Question 3

Timing of removal

Answer 3

• D must remove no later than 30 days after service (not filing) of the first paper that shows the case is removable
• Usually this means no later than 30 days after SOP

Question 4

Who must join removal

Answer 4

• All Ds who have been served w/ process
• They need not join in same doc, they can file separate notices of removal
• If Ds are served at different times, & a later served D initiates timely removal, earlier served D may join removal even though 30 days have passed

Question 5

Ps CANNOT remove

Answer 5

• Ps can never, never, ever remove even if D files a CC against P that, by itself, could be heard in fed ct

Question 6

Cases that can be removed

Answer 6

• Starting point: D can remove a case that meets the requirements for DCJ/FQJ
• 2 limit to removing a case based solely on DOC:
  (1) case should not be removed if any D is a citizen of FS (in-state D rule); and
  (2) case should not be removed more than one year after case was file in state ct

Question 7

One year limitation

Answer 7

A diversity case with an instate D (or a non-diverse D) can become removable later when the claim against the in-state D (or non-diverse D) is voluntarily dismissed from the case

Question 8

Removal venue

Answer 8

• D removes to the FDC “embracing” the state ct where the case was filed
• It does not matter if this venue would have been proper under the venue statutes

Question 9

Remand to state court

Answer 9

• If P thinks the case should not have been removed, she can move to remand the case to state ct
• If motion to remand is based on a reason other than SMJ (ex. one year limit on removal of a div case), she must move to remand no later than 30 days after filing of the notice of removal
• If P fails to do so, she waives the right to have the case remanded and it will stay in fed ct
• But, if removal was improper b/c fed ct lacked SMJ, there is no time limit on ordering remand
• Objection to SMJ is never waived