Mkm Removal

Front 1

Removal

Back 1

Removal allows a defendant to shift a case from state court to federal court when the plaintiff has chosen to sue in state court

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Federal Question

Back 2

If the plaintiff’s state court complaint raises a federal question, the defendant may remove.

Front 3

Federal defenses not considered

Back 3

The well-pleaded complaint rule applies in the removal situation. Thus, the fact that the defendant has raised a federal defense to the plaintiff’s state law claim is not sufficient to support removal

Front 4

Federal counterclaim not considered

Back 4

The fact that the defendant has interposed a counterclaim asserting a federal claim does not provide a basis for removal on federal question grounds.

Front 5

Plaintiff omits federal claim

Back 5

If the plaintiff chooses not to assert a possible federal claim, the defendant may not remove the case by citing the unasserted claim.

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Amendment to assert federal claim

Back 6

If after filing in state court, the plaintiff amends the complaint to assert a federal claim, the defendant can then remove the case

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Exception—complete preemption

Back 7

If federal law completely preempts state law on the matter and converts the plaintiff’s claim into one of federal law, that satisfies the well-pleaded complaint requirement and makes the case removable

Front 8

Effect of supplemental jurisdiction statute

Back 8

The Supreme Court has stated that the supplemental jurisdiction statute [28 U.S.C. §1367] “applies with equal force to cases removed to federal court as to cases initially filed there.”

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Diversity of citizenship

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If the plaintiff could have filed the action in federal court using diversity of citizenship jurisdiction, the defendant may remove the case to federal court.

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Local defendant

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Removal is not permitted if any defendant is a citizen of
the state in which the action is brought. Exception made for class action suits

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Separate and independent federal claim

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A defendant sued on a “separate and independent claim or cause of action” within federal question jurisdiction may remove, even if the plaintiff has joined nonremovable claims.

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Special removal statute

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when a state court defendant in a civil or criminal case cannot adequately protect her federal civil rights regarding racial equality in state court, she may remove to federal court

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Removal forbidden in employment injury cases

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Suits brought in state court against a railroad under the Federal Employers’ Liability Act (“FELA”) or under state workers’ compensation laws are not removable.

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Procedure for Removal

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A defendant seeking removal must file a notice setting forth the facts supporting removal in the federal district court 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.

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Only defendant can remove

Back 15

Only the defendant has the power to seek removal. Even if the defendant asserts a federal claim as a counterclaim, the plaintiff may not remove.

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All defendants must join

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All defendants who have been served with process must join in the notice of removal. Exception is a class action suit.

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Timing

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The notice of removal must be filed within 30 days after the time the case becomes removable. If the action is removable as filed, the 30 days begin running from the time process is served on the defendant. If the action becomes removable only due to some later development (e.g., amendment to add a federal claim to the complaint, or dismissal of nondiverse defendants), the 30 days begin running from that point. However, removal on grounds of diversity is not allowed more than one year after the commencement of the action.

Exceptions: class actions filed under class action fairness law

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Effect of removal

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The case is considered to be removed as soon as the notice of removal is filed and served. After that, the state court may take no further action on the case.The remedy for improper removal is to seek a remand to state court.

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State court lack of subject matter jurisdiction

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The federal court has jurisdiction over an otherwise properly removed action even if the state court lacked jurisdiction over the claim.

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Remand- improper removal

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If the case was improperly removed, the federal court should remand it to state court. [28 U.S.C. §1447(c)] Remand is required whenever the court determines that removal was improper, unless final judgment has been entered.

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Time limit for motion to remand on ground other than lack of subject matter jurisdiction

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If the ground for the motion to remand is something other than lack of subject matter jurisdiction (e.g., a defect in removal procedure), the motion must be made within 30 days after the notice of removal is filed.

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Appellate Review

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An order remanding a case to state court on grounds of lack of subject matter jurisdiction or a defect in removal procedure is “not reviewable on appeal or otherwise.”

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No “Reverse” Removal

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There is presently no method by which a defendant can remove a case originally filed in federal court to state court.