Removing an action from state court to federal court

How a defendant waives his right to remove a case to federal court?

1. by litigating extensively in the state court prior to removing the case. However, courts are reluctant to find a waiver. 2. The parties can stipulate that the defendant not remove the case. 3. Where the defendant does not file the notice of removal with the federal court: -within 30 days from receipt of a document setting forth facts sufficient to permit removal. -within 30 days after all non-diverse parties have been dismissed by the state. - within 12 months from after the commencement of the state court action.

Who can't seek the removal?

A third party defendant who are impleaded into the action or additional parties joined in the counterclaim against the plaintiff, or cross claim cannot seek removal.

What is the discretion of the federal court after the case is removed from state court to federal court?

After the case is removed from state court to federal court, it has a broad discretion out its own initiative or on a motion by a party (usually the plaintiff to amend the complaint) 1. to add, to drop parties or claims at any stage in the action even after trial to preserve or define diversity jurisdiction; 2. To ignore the citizenship of a nominal party or consider the citizenship of indispensable party who is not named int he lawsuit; 3. Dismiss a non-diverse defendant who has no real connection with the litigation but was named by the plaintiff to prevent removal into the federal court.

Which cases can be subject to removal?

Any civil action that could be commenced in a federal court can be removed from state court to the federal court if a suit is: 1. filled in state court, but the parties are complete diverse; 2. the subject matter revolves around a federal question; and 3. in a special and small groups of state-law claims containing embedded important federal question issues.

Why removal is not available when the defendant is from the state in which the state action was originally filed?

Because in this cases the purpose of protecting the defendant is not an issue since it would not be bias against the defendant.

When the federal court has discretion to remand the case back to state court when a case is based on federal question?

If all federal claims has been dismissed, leaving only state claims.

When the federal court has discretion to hear the case?

If the basis of the removal is the existence of federal claim and the plaintiff has asserted state claim in the same complaint under supplemental jurisdiction.

When the plaintiff can seek attorney's fee if the case is remanded back to state court?

If the case is remanded back to state court, the plaintiff can seek attorney's fees from the defendant but only if the defendant's petition was made without any objective reasonable basis for doing so.

Are remand orders denying the remand appealable?

If the remand motion is denied there is not immediate appeal of that order. It is reviewable only on an appeal of the final judgment.

When the federal court must remand the case back to the state court?

If there was an unrelated state claim with the federal claim, then the federal court must remand the case back to the state court. The purpose is that a plaintiff may not defeat a defendant's right to remove by joining a non-removable claim.

When in diversity cases, removal is not available?

In diversity cases, removal is not available if any defendant is a citizen of the state in which the state action was originally filed.

What is removal?

It is the procedure by which state court defendant petitions a federal court to assume federal subject matter jurisdiction over an action that is pending in state court.

Are remand orders appealable?

Most remand orders in the federal court sending the case back to the state court are not appealable except in civil right cases or remand of a class action to state court and the class action fairness act.

If the defendant was late in filing the petition removal can the federal court award attorney's fee to the plaintiff?

No, if the defendant was simply late in filing the petition for removal with the federal court this does not allow the federal court to award attorney's fees because originally there was an objectively reasonable basis for the removal petition.

When removal is complete?

Once the removal documents are filed with the federal district court, and the defendant has served the notice on all parties and filed a copy of the petition with the state court, removal is complete and subsequent action by the state court is void.

Who can seek the removal?

Only an originally named defendant can seek removal.

when removability is determined?

Removability is determined at the time the petition is filed. However, in diversity cases, diversity of citizenship must have existed when the action was filed in state court, as well as when the application to remove is made.

When removal from the state court to federal court based on diversity jurisdiction is available?

Removal from the state court to federal court based on diversity jurisdiction is available only: 1. All of the properly served multiple defendant must consent to removal (rule of unanimity) otherwise the case remains in state court. 2. None of the named defendants are citizens of the state where the state court action is pending. 3. within 30 days from the defendant receive of documents in which the defendant can ascertain that the action is removable. (a document containing the amount and addresses of the parties.)

To remove a non-federal claim from state to federal court based on diversity jurisdiction, defendant must be show to be STUDD

S - The claim exceeds $75K. T - the petition and attachments are filed with the federal court within 30 days of receiving a document indicating the claim is removable. U - under the rule of UNANIMITY, all the defendants must sign the removal petition. D - no defendant can be domiciled in the removal state, and D - there is a complete diversity of citizen between the plaintiff and defendants.

When the removal must be done in any event?

The removal from state to federal court must be done in any event within 1 year of service of process in state court unless the district court finds that the plaintiff acted in bad faith by preventing or delaying the removal from state of federal court.

Why Congress imposed this 1-year limitation?

To prevent removal after it has been a substantial progress in limitation in state court.

How is the removal procedure?

Via a certified petition a defendant must: - file a short and plain statement of facts supporting the removal. - copies of all prior pleadings and orders; - proof of service on all parties; and - A bond to cover costs in the event that the suit is improperly removed.

when a jury demand must be done when a case is removed from state to federal court?

When a case is removed from state to federal court in a jury demand in federal court should be made: 1. by the plaintiff within 14 days from being served with the removal petition; or 2. by the defendant within 14 days from when the defendant files a removal petition with the clerk of the federal court where is filed. 3. However, the federal court have the discretion to grant a late jury demand in removal cases.

What is the last serve rule?

When multiple defendants are served simultaneously the removal is timely if all the defendants consent within 30 days after the last defendant was served.

When this 1-year limitation does not apply?

When remaining a case from federal court back to state court.

When a plaintiff can remand the case back to state court?

Within 30 days from when the plaintiff received notice of removal, if the removal is substantively defective.

X a resident of state A was injured in state A accident caused by a detectable manufactured product that X purchased in State A. It was manufactured by Y who was incorporated in state B and its corporate nerve center was in state C. If X sues just Y for $250K; could quickly remove the claim (30 days) to federal court base on diversity jurisdiction?

Yes, however, if X also named state A retailer who sold the defective good to X then Y court could not remove the claim into the federal court because the existence of a defendant who is a citizen of a state where the state action is pending.

X a resident of state A was injured in state A accident caused by a detectably manufactured product that X purchased in state A. It was manufactured by Y who was incorporated in state B and its corporate nerve center was in state C. If X sues just Y for $250K; could quickly remove the claim (30 days) to federal court base on diversity jurisdiction?

Yes, however, if X also named state A retailer who sold the defective good to X then Y court could not remove the claim into the federal court because the existence of a defendant who is a citizen of a state where the state action is pending.

which actions are specifically removable?

statutes permit removal: - of state court actions against or prosecutions of federal officials in state court for acting under color of title; - some actions concerning international banking; and - tort claims against federal employees for operating a motor vehicle within the scope of employment.