Chapter 5: Removal of Cases from State to Federal Court

28 USC § 1291(a)(1)

Courts of appeals have jurisdiction over appeals "from all final decisions of the district courts" Generally, parties in federal cases may only appeal from final decisions in the district courts, that is, when the case has been fully decided in the district court. That way all the parties' objections to the trial court's rulings in the case will be resolved in one appeal, if there is one. "The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. The jurisdiction of the United States Court of Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections 1292(c) and (d) and 1295 of this title."

28 USC § 1447(c)

If P thinks the case is not removable or that the D did not use the proper procedure to remove, P should move in the federal court to remand the action to state court P may move to remand for lack of SMJ at any time before the final judgment 28 USC § 1447(c) - (c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

28 USC § 1446(b)(1)

If a case is removable, the defendants must remove it within 30 days of receiving the complaint. "The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter."

28 USC 1292(a)(1)

Interlocutory Decisions: "(a) Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court"

28 USC § 1446(b)(3)

Once P amends to add a claim under federal law, the claim becomes removable. In such cases, 28 USC § 1446(b)(3) gives D 30 days to remove after receiving the amended complaint *only if D could not have removed the case as originally filed - Allows removal of cases that become removable later in the case "(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable."

28 USC § 1446(d)

When the notice of removal is filed and the state court is notified, the state court loses all power to proceed with the case. (d) Notice to Adverse Parties and State Court.—Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.

28 USC § 1441(f)

an action may be removed to federal court even though the state court where it was filed lacked jurisdiction over it (f)Derivative Removal Jurisdiction.— The court to which a civil action is removed under this section is not precluded from hearing and determining any claim in such civil action because the State court from which such civil action is removed did not have jurisdiction over that claim.

interlocutory appeal

an immediate appeal even though the case is still pending in the trial court, of the grant of a preliminary injunction. 28 USC 1292(a)(1)

Article 3, Section 2 of the Constitution

authorizes federal courts to hear cases between states, cases to which the US is a party, admiralty and maritime cases, and others

28 USC § 1442(b)(2)

in-state defendant rule: Removal statute bars removal of a diversity case if any defendant is from the forum state/ a citizen of the state in which such action is brought. "A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought"

forum shopping

refers to the choice of a court for some strategic advantage that may be important in a particular case

Remand

returned to the state court to be litigated there If P thinks the case is not removable or that the D did not use the proper procedure to remove, P should move in the federal court to remand the action to state court P may move to remand for lack of SMJ at any time before the final judgment 28 USC § 1447(c) - (c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

28 U.S. Code § 1441(a)

the D should only be entitled to remove a case if the case, as pleaded by the P, could have been filed initially in federal court by the plaintiff. "Removal of actions - (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending"

Fraudulently joined

the P cannot state a reasonable or colorable claim for relief under the applicable substantive law against the party whose presence in the action would destroy the district court's SMJ

remove

to take the case out of the state court and refile it in federal court