Removal 28 USC 1441 REMOVAL GENERALLY:

often have a choice in bringing in either state or federal court Must have concurrent jurisdiction FRCP permit who has been sued in state court to remove case to federal court NOTE: s sued on a federal issue counterclaim may not remove. They already made choice to proceed in state court Removal is only to the federal court in the district where the state court action is pending Only effects s choice of state vs federal court If there are multiple s, all must join removal petition has thirty days from the receipt of the complaint or other paper that would indicate the possibility of federal jurisdiction Form time of copy of service of receipt of summons on once one year has lapsed from the filing of the complaint, removal is not available s file a removal petition in federal district court continuing

Removal 1441 (a) 1441(a) Allows to have case heard in federal court (b) Diversity Restriction 1441(b)
when subject matter would have been based on diversity, removal is not permitted if any is a resident of the state where the action was filed (Hometown Rule) theory behind restriction on removal is that a resident is unlikely to suffer the local prejudice that in large part underpins the federal diversity jurisdiction

(c) State & Fed claim 1441(c)

where a separate and independent federal question claim is joined with a state claim, removal is permitted of the entire case gives discretion to the court to remand those issues in which state law predominates this prevents a from precluding removal simply by adding a nonremovable state law claim to the complaint

that could have originally been heard in federal court, including supplemental jurisdiction claims No one can remove a case from federal to state court, nor from one state to another state Removal allowable only where the action originally could have been brought in federal court (ie federal question, diversity, or supplemental subject matter jurisdiction + territorial jurisdiction (NOTE FROM PROF BARTON: it is possible to remove so as to cure a SMJ error in which a fed exclusive matter was mistakenly brought in state court. In such a case there is not concurrent jx, but nonetheless the removal is possible. (ex if brings fed civ right question in state court, can be removed to federal court

*must pass well pleaded complaint rule in order to be removed under federal question jx.

PAGE 212 1. Which of the following cases would be removable? a. P sues D for defamation in state court; D believes the statement she published is protected under the first amendment NO REMOVAL defamation is a state court claim, didnt arise under federal question (well pleaded complaint) Mottley case b. P sues D in state court, alleging violation of Ps rights under the equal protection clause of the US constitution. YES REMOVAL could have originally been brought in federal court c. P, a cit of Florida sues D, a citizen of NJ, on a personal injury claim, in a Flordia state court, seeking 100,000 in damage YES REMOVAL, under diversity jurisdiction d. P, a citizen of Florida, sues D a citizen of NJ, on a personal injury claim in NJ state court, seeking 100,000 dollars in damages no, is a citizen of the state where the action was originally brought (HOMETOWN rule) f. P, a citizen of Florida, sues D, a citizen of NJ and E a citizen of NY on personal injury cliam in NY state court. Can the remove? NO REMOVAL one is a citizen of the state it originated in g. P, a cit of Calif, sues D a cit of Calif, for infringement of copyright. P brings the suit Calif state courts. D seeks to remove. YES REMOVAL. federal question issue, hometown rule applies to diversity only 2. The procedure for removal is in 28 USC 1446; that for challenging removal in 1447. a. P a citizen of Penn, files a complaint in Penn state court daming D as and seeking 100,000 in damages. D is a citizen of Georgia. If Danielle wishes to remove, what must her notice of removal say? She must set out why each claim has federal jurisdiction in the b. . rule 11 sanctions and c. D files her notice of removal two moths after being served with the state court conplaint, can she remove? NO REMOVAL, statute of limitations is 30 days d. If complaint was initially for 10,000, then P amends complaint to 85,000 can D now remove?. YES, 30 days after paper filing in court for amount f. P amends his complaint a year after the original complaint. No removal is possible, why? 1446 (b) one year limit