Saturday, January 21, 2017

MBE Fast Fact: Remand

There are a few posts here on the blog focusing on the ability of a defendant to remove a case to federal court if the plaintiff has chosen to bring the case in state court. And no doubt, knowing the details of removal is very important for the MBE.  There are also times when after the defendant has removed the case to federal court, the plaintiff will have the opportunity to remand the case back to state court.

In general it's important to note that the first step to get the case remanded back to state court is for the plaintiff to make a motion to have the case remanded.  A case will be remanded if there is no federal jurisdiction.  But even if there is federal jurisdiction and even if the prior removal to federal court by the defendant was entirely proper, the federal court has discretion to remand a case to state court if federal jurisdiction was based on the fact that there were federal claims at the time of removal and the only claims that remain are state claims over which there is no diversity jurisdiction.

And if the case is remanded,  the order remanding the case may require payments of costs and expenses including attorney fees incurred as a result of the removal of the case to federal court.

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