1L Civ Pro 144, 1446, 1447 Removal Basics

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1L Civ Pro 144, 1446, 1447 Removal Basics
2011-08-30 18:13:57
1L Civ Pro Removal Basics

Civ Pro 144, 1446, 1447 Removal Basics
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  1. 1441 define:
    • Any civil action brought in state court of which the district courts of the US have
    • original jurisdiction may be removed by the defendant or the defendants, to the
    • district court of the US
  2. 1441(a) requires:
    I) 1441(a)- WHAT can be removed

    • 1441(a): Allows a defendant
    • to remove a civil action from state court to federal court if the
    • federal district court has original jurisdiction, pursuant to §
    • 1331
    • or 1332.

    • Original claim must be
    • based on:

    • § 1331 (federal question)—well pleaded
    • complaint rule

    • § 1332 (diversity jurisdiction)—AIC
    • & Diversity met
  3. 1441(b) requires:
    • (a) 1331 claims: Federal questions ALWAYS
    • can be removed; removable regardless of diversity & AIC

    • (b) 1332 claims: D CANNOT remove case
    • under 1332, if D is a citizen of the state where the claim is filled; cannot
    • remove in his/her domicile. Also, D must be property joined-joint liability”.

    • (i) No concern for discrimination b/c P chooses court & is master of the complaint…and D
    • is in their state
  4. 1441(c)
    • (a) Applies only
    • to 1331 (federal question)—Court’s discretion

    • (i) Whenever a separate
    • and independent claim…arising under section 1331… is joined with non-removable claim… the entire case may be removed and the
    • district court may determine all issues therein.

    • 1. D may remove
    • the whole case if it contains a separate and independent claim within federal
    • question jurisdiction. The federal court may then retain the whole case or
    • sever and remand the matters not within its original jurisdiction which is the
    • state claims.

    • 1. District Court's discretion to remand under 1441(c) can pertain only to those state law
    • claims which the court could decline to hear under 1367(c). Under 1367 the
    • claims must be the same case or controversy and that’s why they would be
    • declined in 1367. Court cannot remand the claim which has original
    • jurisdiction.
  5. 1446 is what?
    how to remove
  6. 1446(a)
    (a) Notice of removal is filed in federal court in good faith. If lawyer fails to file in good faith… Rule 11 requires sanctions. I

    (i) D does not have to ask permission; D does not have to file a motion to remove

    • (ii)
    • Contains a
    • short and plain statement of grounds for removal w/ a copy of process,
    • pleadings, and orders served upon D

    • (b) If you have
    • more than one defendant, then all defendants, other than nominal parties must
    • sign the notice of removal.
  7. 1446 (b) requires:
    • Notice of removal must be filed within 30 days after receipt of original complaint OR receipt of amended complaint… but if under 1332, no longer than 1
    • year

    • 1. Ex of amended
    • complaint that can be removed: (1) add federal claim, (2) non-diverse party is
    • dismissed, (3) discovered someone acting under the color of law.
  8. 1447 is what?
    Procedure after removal.... REMAND
  9. 1447(c) requires:
    (1) 1447(c)-Time period of P’s action to remand

    • (a) P’s motion to remand the case must be made within 30 days after the filing of the notice of
    • removal.

    • (i) Exception—Case
    • can be remanded at ANY time before final judgment for SMJ

    1. Judge by sua sponte, the P, or the D can raise remand for SMJ
  10. 1447(d) requires:
    • (a) Only remands based on grounds specified in Sect. 1367(c)-supplemental jurisdiction- are reviewable; Non-federal claims based on
    • discretion are appealable.

    • (b) Remands based on 1367(a)-supplemental
    • jurisdiction- are immune from review; Determination that there is a basis of
    • being in federal court (SMJ) under 1367(a) are NOT appealable.

    • (i)
    • Bothstate and federal courts are competent to hear federal claim. Due process has
    • been served already. SMJ can not be appealed
  11. 1442
    • (1) 1442—Federal
    • officials sued in an official and individual capacity are removable… provides a
    • broader protection (including intentional torts)
  12. 1445
    • 1445—What cannot
    • be removed—non-removable claims

    (a) Cases involving railroads

    (b) Workmen compensation

    (c) Violence against Women Act 40302
  13. 12(b)(1)
    12(b)(1)- SMJ can be raised at anytime
  14. 12(b)(6)

    Can be waived?
    12(b)(6)- Failure to state a claim upon which relief can be granted

    - Not waived if not in the original complaint. Instead can be raised by motion or at trial.
  15. 12(b)(7)-
    Failure to join a party under Rule 19
  16. What Rule 12 parts can be waived... what are they?
    12(b)(2)-(5)- Party waives any defense listed in Rule 12(b)(2)-(5) by omitting it from a motion in the circumstance; right waived if not within initial response

    • 12(b)(2)-Lack
    • of personal jurisdiction

    • 12(b)(3)-Improper
    • venue

    12(b)(4)- Insufficient process

    12(b)(5)- Insufficient service of process
  17. 1443
    1443—CivilRight cases are removable(
  18. 1346
    1346-FederalTorts Claim Act
  19. 42 USC 1983
    42 USC 1983—Color of law—police officers or gov’t officials using authority to commit torts