Removal of Cases from State to Federal Court

How long does a D have to file a notice of removal?

30 days after D receives notice she is a defendant in a state court case that could have been filed in federal court.

§1446(b)

A diversity case cannot be removed more than one year after is was originally commenced, even if the amendment or order making it removable does not occur until after that date. However, the one year bar doesn't apply if p has acted in bad faith to prevent D from removing the action.

Who is a defendant?

All those who are actually parties to the suit and are directly adverse to the plaintiff.

Home-state removal bar of §1441(b)

Allows removal based on diversity only "if non of the...Ds is a citizen of the State in which [the state] action is brought." If any Dis a citizen of the state in which the state court action is pending, removal is impossible.

Exceptions to well-pleaded complaint rule

Apple where P has filed a compliant purportedly relying on state law. 1. Complete preemption-Federal law overrides contrary state law. Ex. Federal National Bank Act preempts state law usury claims against federal chartered baks, so that any usury claims are federal rather than state claims and may accordingly be removed. 2. "Artful pleading" doctrine-P may desire to keep her case out of federal court even though it involves a federal right. If the comp;int is couched purely in terms of state law but in fact contains a disguised federal claim, the case can be removed as a federal question.

When is it determined that a case presents a federal question?

At the time of removal, not when the case is filed. Therefore, if p amends a complaint by substituting a federal claim for the original state law claim, the case can be removed as a federal question.

When must a D move for removal based on diversity?

Both when the case was filed and at the time of the removal. So, if P adds a non diverse party after the comp;paint was filed but before removal, removal is impossible. Also, a D cannot remove merely bucks the court dismisses the claims of all non diverse Ps.

§1441(c)

Broadens a federal court's jurisdiction on removal to include certain state claims that could not have been heard in federal court had the action been originally filed there.

Removal based on supplemental jurisdiction

Determination works exactly as it would had the case been filed originally in federal court.

Removal

Different from transfer. Transfers are discretionary while removals are a matter of right, which moves the case form state to federal court.

How does D start removal process?

Filing a notice of removal with the appropriate district court. Notice must contain a brief state of the grounds for removal and D must also attach copies of all state court pleadings. Removal is never requested from either state or feral court. If requirements for removal aren't met then the federal court will remand the case to the previous court.

28 U.S.C. §1445

Forbids removal in certain categories of cases, even if the requirements of §1441 are met. Ex. A case arising under the workers' compensation laws of a state cannot be moved.

28 U.S. §1441

General federal removal statute, proving that D in a state law case may remove a case "of which the district courts of the U.S. have original jurisdiction."

Post-filing acts by P that create diversity

General time rule doesn't apply to post-filing acts by a plaintiff that create diversity. Ex. If P voluntarily dismisses his claims against all non diverse defendants in the state court action, the case can be removed if it meets the other requirements for removal.

When is a case removable?

IF the original case filed by P is removable, the notice must be fired within 30 days of the earlier of: 1. The date defendant receives a copy of the complaint; or 2. IF state law does not require the complaint to be served on D, the date D is served a summons.

Improper removal

If a case in which the parties are not diverse is improperly removed but the district court fails to remand, any judgment rendered by the district court is valid provided that diversity did exist at the time judgment was entered.

Cases of amendment

If case becomes removable because of an amendment to the pleadings or p's dismissal of one or more parties, the noticed must be filed within 30 days of the date D receives the order or amended pleading.

Remand

If removal is found to be improper, federal court will remand the case to the state court.

§1441(b) home-state removal bar

May be a factor in supplemental jurisdiction cases where jurisdiction over the original plaintiff-defendant claim is based on diversity.

Objections to removal

Objections must be filed within 30 days of D's filing of the notice of removal. However, objections to subject matter jurisdiction of the federal court can be made at any time.

Jurisdiction of state court

Once the state court receives its copy of the removal notice, §1446(d) directs it to proceed no further with the case. Proper removal strips state court of its jurisdiction over the matter. Also, any orders it issues are ineffective.

Who may remove?

Only defendants, never plaintiffs.

When does separate and independent claims rule apply?

Only in cases where one of the claims is a federal question

§1446(d)

Removal is effective when the copy of the notice is filed with the state court and given to all diverse parties

§1441(a)

Specifies that D removes to the federal district court "for the district and division embracing the place where such action is pending." Venue is automatically proper int eh designated district, therefore, §1391 need not apply.

What jurisdiction does federal district court need to have?

The state court action must be one that could have been filed in federal court, thus the court must have federal question, diversity, or supplemental jurisdiction over all claims in the case.

Removal in cases involving multiple Ds

Under §1446(b)(2)(A), 30-day period begins to run for each D when that D is served. Should a particular D's 30-day period expire that D may consent to a notice of removal field by a later-served D, in which case the case may be removed.

What happens in cases involving multiple Ds?

Under §1446(b)(2)(A), all Ds who have been served must join the notice of removal. If one D doesn't want to remove, the case may just stay in state court.

Removal based on federal question

Well-pleaded complaint rule applies to determine if complaint states a federal question.

Separate and independent claims

When P's case involves state law claims that are "separate and independent" from the federal claims, §1441(c) may allow removal of the federal claims in the case.

Does a copy of the notice need to go to state court?

Yes, after filing with the federal court.

May a party wavier the home-state removal requirement?

Yes. If P doesn't file a timely objection to removal by a D sued in her home state, these courts will hear the case despite §1441(b).