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Thursday, June 13, 2019

Removal Jurisdiction

There are many fine details to know about the right that a defendant has to remove a case to federal court. The difficulty is that the MBE tests all of them.

Not all cases brought in state court can be removed to federal court. The case must be one that could have originally been brought in federal court. Only defendants can remove and if there is more than one defendant, all defendants who have been properly joined and served must join in the petition to remove. If the case is removed to federal court, venue will lie in the federal district court embracing the place where the state action is pending.

Situations will arise when a case filed in state court contains a claim that arises under federal law, and that claim is joined with state law. Assuming there is no diversity among the parties and further assuming that supplemental jurisdiction does not apply to allow the federal court to hear the state claim, the entire case can be removed to federal court but the state law claim must be remanded back to state court. In another circumstance, there might be no federal question involved and no diversity of citizenship among the parties. Removal to federal court will still be permitted if the non-diverse parties are thereafter dismissed from the action so that diversity then exists. After the dismissal of the non-diverse parties, removal is proper provided the time limits for doing so have not expired.

An important point to note is that if the only basis for removing a case to federal court is diversity of citizenship, the case will not be removable if any of the defendants is a citizen of the state in which the state action was brought. Further, if diversity is the basis for removal, the case may not be removed more than one year after it was commenced in state court unless the district court finds that the plaintiff has acted in bad faith by acting in a way that was intended to prevent the defendant from acquiring the knowledge that the case was removable.

A defendant seeking to remove 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 in which the case was brought. This notice of intent to remove must be filed within 30 days after defendant receives notice that the case has become removable. If there are multiple defendants and if a later-served defendant files a notice to remove, the earlier-served defendants may join in the removal even if the 30-day period has expired for those earlier-served defendants.

The plaintiff can always file a motion to have a removed case remanded back to state court. A case will be remanded if there is no federal jurisdiction. In addition, the federal court has the discretion to remand a case to state court once all federal claims have been resolved.




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