Removal in Fed. Q
Re. SMJ Removal Jurisdiction:
Removal moves a case from _________ to _________ court.
State court to federal court!
*Do NOT confuse this with TRANSFER which means transferring among different federal courts.
What are the (3) Requirements for removal to be proper in DIVERSITY cases?
1.) COMPLETE diversity;
2.) amount in controversy exceeds $75,000.01; AND
3.) the plaintiff did not originally bring the action in the Defendant's (home state).
*there is a worry out of state defendants have a disadvantage in a different state SO if the Plaintiff bring an action in the Defendants state, they CANNOT remove.
If removal is IMPROPER remand is...
- GRANTED, and the case GOES BACK to STATE court.
When is removal proper?
- a DEFENDANT can remove ONLY if the case could have originally been brought in federal court.
*ONLY Defendants can REMOVE!
A Defendant MUST remove a case within ONE year of the commencement of the action in state court!
- REMEMBER: Yes, you must request to remove within 30 days, BUT this action concerns the idea that someone may AMEND their complaint. (You will have 30 days from the Amended Complaint Service)
*This does not count if the Plaintiff acts in bad faith and makes the case UN-removable
REMEMBER: IT IS THE FEDERAL COURTS DECISION to decide if removal was proper. Removal is automatic, and the decision about whether it is proper is done on a petition for remand by the...
FEDERAL court!
ALL DEFENDANTS must ________ to removal if there are multiple.
- ALL defendants MUST consent!
*and it must be done within 30 days at time of service!
A notice of removal is filed in the federal court with a...
- NOTICE OF REMOVAL to the state court!
*When the removal notice is filed, the state court's jurisdiction ENDS instantly and AUTOMATICALLY.
KEEP IN MIND: Bar exam might test SMJ without actually using the term. For example, "Was the motion to remove properly granted?"
KEEP IN MIND: Bar exam might test SMJ without actually using the term. For example, "Was the motion to remove properly granted?"
What if the removal is improper? A plaintiff can file in FEDERAL court a petition for...
- REMAND, and it is on that petition that the federal court will hold a hearing to determine if removal was proper or improper!
Removal of FEDERAL QUESTION cases is pretty straight forward. As long as the Plaintiff's claim is based on _________ (well-pleaded complaint), then the defendant may REMOVE to federal court.
- federal law!
*If the Plaintiff's claim is based on STATE law, the defendant CANNOT remove to federal court , EVEN IF the defendant has raised a federal defense!
If removal is PROPER, remand is...
- DENIED and the case stays in FEDERAL court.