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Chapter 6 Removal Jurisdiction

  1. Original Jurisdiction Necessary

Under section 1441 (a) , a defendant can only remove an action that could have originally been brought by the plaintiff in the federal courts.

  1. When

 

The prevailing rule is that removal is tested only as of the date of removal. Some courts held under the statute as it existed before 1989 that original jurisdiction must have existed both at the time the suit was instituted in the state court and at the time of removal.

 

  1. Federal Defense Insufficient

A defendant cannot remove on the ground that she has a defense grounded in federal law, since the existence of a federal defense is insufficient to confer original federal question juris­diction under section 1331.

  1. State Court Need Not Have Had Jurisdiction

By statute, the federal court may hear and decide a claim in a removed civil action even where the state court had no jurisdiction because the action is exclusively federal. Formerly,the federal court was required to dismiss.

  1. Only Defendant May Remove; AH Must Seek Removal

Only defendants can exercise the right of removal. Thus, a plaintiff cannot remove on the ground that a counterclaim against him could have been brought independently in a federal court.

If there is more than one defendant, all defendants must join in the removal. Thus, if some defendants are precluded under section 1446(b) from removing because of delay,or refuse to join in the removal, removal is not authorized.

III. Venue

Venue for an action removed under section 1441 (a) lies in the federal district court" em­bracing the place where such [state] action is pending.." Note that in removal cases Section 1441 (a) determines proper venue, not Section 1391 ( a). Thus, in a properly removed case, ven­ue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state.                              

  1. Dismissal of Nondiverse Party Allows Removal

If no federal question is involved and diversity does not exist because a party is a co - citi­zen of an opposing party, removal will be permitted if the nondiverse parties are thereafter dis­missed from the action and there is complete diversity between the remaining parties.

  1. Limitations on Removal in Diversity of Citizenship Cases
  1. Defendant Citizen of Forum State

When the jurisdiction of the federal court is based on diversity and one of the defendants is a citizen of the state in which the state action was brought,the action is not removable.

  1. One Year Rule

A case may not be removed on the basis of diversity of citizenship jurisdiction more than one year after it was commenced in state court. Note,however,that a case must be removed no later than 30 days after the defendant discovers,through service of an amended pleading,order, etc. ,that the case has become removable. Because most cases will be removable,if at all,at com­mencement of the action,the one - year deadline generally will not be difficult to meet. The pro- vision may be important,however,if the case is not removable at the outset,but becomes remova­ble later. The one - year rule does not apply to removals based upon federal question jurisdiction.

  1. Defendant May Remove Separate and Independent Federal Question Claim

If there are multiple claims or multiple parties,under 28 U. S. C. Section 1441(c) ,a de­fendant may remove a whole case if it contains" a separate and independent claim or cause of action" within federal question jurisdiction. The federal district court may then retain the whole case, or sever and remand the matters not within its original jurisdiction.

  1. Procedure for Removal
  1. Notice of Removal

A defendant seeking removal must file a notice of removal—containing a short and plain statement of the grounds for removal and signed under Rule 11—in the federal district court in the district and division within which the action is pending. A copy of the notice should be sent to the other parties and to the state court. Once this is done, the state court can no longer deal with the case. If the state court attempts to do so-, the federal court can enjoin the state court’s action.

  1. Time

A defendant must file a notice of removal within 30 days" after receipt by the defendant, through service or otherwise,of a copy of the initial pleading. "The"through service or other­wise" language is intended to address different state approaches to the order of filing a case and serving process. For instance,in some states,the defendant is served with a summons but not a copy of the complaint. For such defendant, the 30 - day removal period would start to run upon formal receipt of the complaint.

  1. Procedure After Removal

After removal, the case proceeds according to the federal rules of procedure. Repleading is not necessary unless the court so orders. If the defendant has not answered,he must answer or present the other defenses or objections available to him under the Federal Rules within 20 days

 

after being served, or within five days after filing the petition for removal, whichever period is longer. Amendments may be made to pleadings filed before removal.

  1. Right to Jury Trial
  1. Demand for jury trial

The right to a jury trial in a case removed to a federal court may be waived unless a timely demand for a jury trial is filed. If,at the time of removal,all the necessary pleadings have been served,a trial by jury will be granted to a party so entitled. The removing party must file a de­mand for jury trial within 10 days after the notice of removal is filed. The nonremoving party must file for jury trial within 10 days after service on him of the notice of filing for removal.

  1. Demand Not Required

A party who,prior to removal,has made an express demand for trial by jury in accordance with state law, need not make a demand after removal. In addition, if state law applicable in the court from which the case is removed does not require the parties to make an express demand in order to claim trial by jury, they need not make such demand after removal unless the court di­rects they do so.

  1. Remand

A plaintiff can file a motion to have the case remanded to the state court. If the plaintiff bases this motion on a defect other than subject matter jurisdiction, it must be brought within 30 days of removal. The court must remand, however, whenever it is shown that there was no feder­al subject matter jurisdiction. If the court erroneously fails to remand,but the subject matter de­fect is cured before trial begins, failure to remand does not require that the federal judgment be vacated.

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