Removal Jurisdiction

Notice of removal

1) Generally Under 28 U.S.C. § 1446, a defendant who wants to remove a state court action to federal district court must file a notice of removal with the district court within 30 days after receipt by or service on that defendant of the initial pleading or summons. The notice must be: i) Signed pursuant to Rule 11 (see § V.I. Rule 11, infra) and contain a short and plain statement of the grounds for removal; ii) Filed in the district court for the district and division in which the state action is pending; and iii) Accompanied by copies of all process, pleadings, and orders served on the defendants seeking removal. In general, all defendants who have been properly joined and served are required to join in or consent to the removal. If the defendants are served at different times and a later-served defendant files a notice of removal, then any earlier-served defendant may join in the removal even though that defendant did not previously initiate or consent to removal. § 1446(b).

Diversity Jurisdiction

4. Limitation on Removal in Diversity Cases In diversity cases, diversity must exist at the time of filing the original action as well as at the time the notice of removal is filed, unless the plaintiff dismisses a party who would have destroyed diversity jurisdiction. In other words, removal is permitted when a party who prevents diversity jurisdiction is dismissed from an action. If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. §1441(b). There is no similar requirement for removal based on federal question jurisdiction.

Procedure for remand

A certified copy of the remand order must be mailed by the district court clerk to the clerk of the state court. The state court may thereafter proceed with the case. § 1447(c).

Notice - Diversity

A matter cannot be removed based on diversity of citizenship more than one year after the action is commenced. This one-year rule does not apply, however, if the district court finds that the plaintiff has acted in bad faith (such as by deliberately failing to disclose the actual amount in controversy) to prevent a defendant from removing the action. § 1446(c). If removal is based on diversity and the plaintiff (i) seeks nonmonetary relief, (ii) is not required under state law to demand a specific sum, or (iii) is permitted by state law to recover more than the amount demanded, then the notice of removal may assert that the amount in controversy exceeds $75,000, and the district court will have jurisdiction if it finds, by a preponderance of the evidence, that the amount does exceed $75,000. A defendant's notice of removal need include only a plausible allegation that the amount in controversy exceeds $75,000; it does not need to contain evidentiary submissions. Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. ____, 135 S. Ct. 547 (2014).

Removal

Any civil action commenced in a state court that is within the original jurisdiction of a U.S. district court may generally be removed by the defendant to the district court for the district in which the state court action was commenced. § 1441(a).

Appealability of deny motion to remand

Final judgment rule applies. See final judgment rule

Federal Jurisdiction

If removal is sought on the basis of federal question jurisdiction, and the federal question claims in the state action are joined with claims that are not independently removable, then the entire case may be removed. The district court must then sever and remand to the state court any claims in which state law predominates. §1441(c). If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. §1441(b). There is no similar requirement for removal based on federal question jurisdiction.

Burden of proof for remand

If the propriety of the removal is challenged, then the burden of establishing proper removal is on the party who removed the case.

Notice - Federal Question

In cases of removal based on federal question jurisdiction, only those defendants against whom the federal claim is asserted must join in or consent to the removal. § 1441(c)(2). In addition, a class action based on the Class Action Fairness act (CAFA) may be removed by any defendant without the consent of all defendants. §1453(b).

Determination

In general, the right of removal is determined by the pleadings filed as of the time of the filing of the petition of removal. The federal court to which the action is removed is not precluded from hearing and determining any claim in the action because the state court from which the action was removed did not have jurisdiction over that claim. § 1441(f).

Procedure in district court following removal

Once the action is removed, procedure follows the Federal Rules of Civil Procedure. New pleadings are not required unless the court orders otherwise. Rule 81(c)(2). Pleadings filed before removal can be amended pursuant to the federal rules. The district court may issue all necessary orders and processes to bring before it all proper parties, regardless of whether those parties had been served by process issued by the state court. § 1447(a). If the action was removed before each defendant had been served with process, or if service of process was defective, then service of process can be completed or new process issued in the same manner as in cases originally filed in district court. § 1448. State court orders issued before removal to district court remain in effect but are subject to district court modification when necessary. § 1450.

Additional Procedural requirements besides notice

Promptly after the notice of removal is filed with the district court, the defendants must give written notice of the filing to all adverse parties and file a copy of the notice of removal with the clerk of the state court from which the action is sought to be removed. § 1446(d). Once a copy of the removal notice is filed with the state court, the removal acts as a stay of the state court proceedings. The state court is not allowed to take any further action with regard to the case and can be enjoined by the federal court if it does take any action.

Remand for lack of SMJ

a. For lack of subject matter jurisdiction If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, then the case must be remanded to the state court from which it came. § 1447(c). For the purposes of § 1447(c) and (d), however, when a case is remanded to a state court because the federal district court declines to exercise supplemental jurisdiction, the remand is not based on a lack of subject matter jurisdiction. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009).

Remand for other reasons

b. For other reasons A party must make any motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction within 30 days after the filing of the notice of removal. § 1447(c).

Appealability of grant of remand

f. Not generally appealable A grant of a motion to remand is generally not reviewable on appeal or otherwise, with the following exceptions: i) There is statutory exception for an order remanding a civil rights case removed pursuant to § 1443; or ii) A remand order is also appealable in a class action, if the application for review is made to the court of appeals not more than ten days after the entry of the order. §§ 1447(d), 1453(c)(1).

Discretionary remand

g. Discretion to remand when proposed joinder would destroy diversity jurisdiction Under § 1447(e), if, after removal, the plaintiff seeks to join a defendant who would destroy the federal court's diversity jurisdiction, then the court has discretion to deny the joinder and proceed with the action in federal court, or to permit the joinder and remand the action to state court.