Removal Jurisdiction §1441

1441(c)

(1) If a civil action includes - (A) a claim arising under the constitution, laws or treaties of the US (within meaning of 1331) and (B) a claim not within the original or supplemental jurisdiction of the federal court or claim that has been made non removable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B)

Section 1441(c)

(1) If a civil action includes - (A) a claim arising under the Constitution, laws or treaties of the United States (within the meaning of section 1331) and (B) A claim not within the original or supplemental jurisdiction of the federal court or a claim that has been made nonremovable by statue, The entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B)

Procedure for removal (1446):

- File to the place of removal - File the grounds for removal and all papers (subject to Rule 11) - 30 days after receipt of the initial pleading or 30 days after service of summons on defendant - All defendants must join in or consent - If defendants are served at different times and a later-served defendant files for removal, any earlier-served defendant may consent even if that party did not initiate or consent before

1441(a)

-Except as otherwise provided by Act of Congress, any civil action brought in a state court of which the district courts have original jurisdiction may be removed by D or the D's to the district court for the district and division embracing the place where such action is pending.

1441(b)

-FQ Cases: Any D can remove -Diversity Cases: If D is citizen of the state in which the action is brought there can be no removal

§1446

1. A case can become removable later- if P has amended his pleading to change the nature of the claim or if a party has been dropped whose presence prevented diversity 2. P cannot take action to defeat federal jurisdiction and force remand after the case has been properly removed 3. The 30 day removal period would start to run upon formal receipt of the complaint.

Elements

1. D can only remove an action that could have been brought in federal court originally a. This means court must have SMJ (diversity or FQ) b. Case that P could have brought in federal court 2. Who can remove a case? a. Only original defendants -Plaintiffs are the forum shoppers and already picked the forum so they are stuck with it -P facing a counterclaim is not a defendant b. Counterclaim defendants and third-party defendants can't remove c. All defendants must agree to remove 3. Where is it removed? a. Must be removed to the federal court that embraces the district where the state court sits

Federal Question Cases

1. In-state and out-of-state defendants may remove to federal court -Don't care about diversity for FQ case, any D can remove 2. If there are multiple defendants, all must agree to remove 3. Supplemental jurisdiction: a. If there is a FQ that shares a common nucleus of operative fact with the non-removable state law claims, the whole case may be removed to federal court b. The federal court may then hear all the claims or remand the state law claims back to state court -Creates two trials, one in state court and one in federal 4. If a case is not removable upon the initial pleading but becomes removable due to an amended pleading, motion or order, the Ds receive 30 days to remove

Basics

1. Occurs when P files in a state court and D wants the case removed to federal court 2. Can only remove from state to federal, not the other way around -A federal court is allowed to remand a case down to state court 3. Once a case has been removed to federal court, a party can seek a venue transfer 4. Why do we allow removal? -Allows D to counter P's choice of forum -Defendants on removal usually do better

Diversity Cases

1. Only out-of-state defendants may remove -In-state defendant rule: Can't remove a diversity case if any D is a citizen of the state where the action is brought 2. If there are multiple defendants, all must agree to remove and be out-of-state 3. Diversity is determined at the time the action is commenced and at the time of removal

Removal jurisdiction Section 1441(a)

Elements of the statute: - Except as otherwise provided by Act of Congress - Any civil action brought in a State court of which the district courts have original jurisdiction - May be removed by defendant or the defendants - To the district court for the district and division embracing the place where such action is pending

Why allow removal?

It allows a defendant to counter the plaintiff's choice of forum. In FQ cases - this gives the defendant a chance to access a federal court to interpret the federal issue. In cases where there is diversity of citizenship it gives the out-of-state defendant protection from bias. The same would be true for aliens and xenophobia.

Aspects of 1441(a)

Note that a case can be removed only if the case could have been brought in federal court originally Consequently you would still have to: 1) satisfy diversity of citizenship or alienage (and amt. in controversy for either) or 2) establish jurisdiction under a federal question statute (the case would have to "arise under" the Constitution, laws or treaties of the U.S.- using the tests that we have identified) Only defendants may remove. A plaintiff facing a counterclaim is not considered to be a defendant. Generally all defendants who have been properly joined and served must join in or consent to removal.

Aspects of 1441(b)

Statute treats federal question and diversity cases differently: In FQ cases, any defendant can remove. By contrast, in diversity cases - if any defendant trying to remove is a citizen of the state where the case has been filed - then no removal (Section 1441(b))

Why if any defendant trying to remove is a citizen of the state where the case has been filed- then no removal?

The defendant in that situation would not face the out-of-state bias problem. The defendant is being sued in its home state.

Relationship between Removal and Supplemental Jurisdiction

There can be supplemental jurisdiction in a case removed to federal court. In other words, you would use the test for whether there was original SMJ to determine removal but you could take along claims covered by supplemental jurisdiction.

Interpretation of 1441(c)

This provision is new as of 2011 and was added to serve a purpose which got lost due to court interpretation. Goal was to allow a what would be a federal question case if you looked only at the federal claims removable even if there were unrelated state claims According to the legislative history "The amendment to section 1441(c) would permit the removal of the case but require that a district court remand unrelated state law matters. This sever-and-remand approach is intended to cure any constitutional problems while preserving the defendant's right to remove claims arising under Federal Law."

In the modern era defendants choose removal for strategic reasons:

[jury verdicts, trial rules and procedures and the availability, caseload and personality of federal judges] and case rather than to protect against bias. Empirical evidence shows that defendants prevail more often if they remove the case.

Procedure for removal

a. File to the place of removal (federal court) b. File the grounds for removal and all papers (subject to Rule 11) c. When? 30 days after receipt of the initial pleading or 30 days after service of summons on D. d. All D's must join in or consent e. If Ds are served at different times and a later-served D files for removal, any earlier-served D may consent even if that party did not initiate or consent before f. Outside the time limit for removal on a diversity basis- one year -If it hasn't been heard in one year, it is remanded to state court g. Give notice to the state court- it loses control unless the federal court grants remand -Case is automatically removed to federal court

Plaintiff cannot take action to defeat federal jurisdiction and force remand:

after the case has been properly removed.

A case can become removable later:

if the plaintiff has amended the pleading to change the nature of the claim or if a party has been dropped whose presence prevented diversity

Give notice to the state court:

it loses control unless the federal court grants remand

In diversity cases there is an outside time limit for removal on a diversity basis:

one year

Right of removal is often decided by the:

pleadings but the propriety is judged as of the time the petition for removal is filed

In federal question cases, if a case is not removable upon the initial pleading but becomes removable due to an amended pleading, motion or order:

the defendant(s) receive 30 days to remove

If the federal claim upon which removal jurisdiction is based is dismissed before trial:

the district court has discretion to remand the state claims (the ones coming in through supplemental jurisdiction) to state court.