Monday, September 1, 2014

Removal Jurisdiction

Removal jurisdiction refers to removing a case that was originally filed in state court, and transferring that case to federal court. Under the federal rules, this will be allowed only if the case could have originally been filed in federal court and for cases removed on the basis of diversity, no defendant is a citizen of the state in which the action was filed.

Only defendants have the right to remove the case to federal court, but note that a defendant cannot remove a case only on the basis that he has a defense grounded in federal law. This follows from the fact that federal question jurisdiction in federal court would not have been conferred on that fact alone, so defendant will not be able to use that fact to remove the case to federal court. If there are multiple defendants, then all defendants must join in the removal. In short, before allowing for removal, ensure that either there is a federal question involved, or that there is complete diversity among the parties to the lawsuit. Watch also for situations where at first diversity does not exist, but later the non-diverse parties are dismissed from the lawsuit. If after removal of the non-diverse parties there is complete diversity, removal by defendant will be allowed.

The procedure for removal is straight-forward. A defendant seeking removal must file a notice of removal 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. The notice must be filed within 30 days after defendant receives notice that the case is removable, and in cases of diversity, no more than one year after the action was commenced.

Then, the plaintiff has the opportunity to file a motion to have the case remanded to the state court. The question as to whether the case should be remanded directly relates to the above; namely, the case should be remanded to state court if there was no jurisdictional basis for removing the case to federal court.

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