1

REMOVAL

1. Removal is where the Original DeIendant Motions to Remove the case Irom State Court Fed
2. !s have Initial choice oI Federal or State court in Federal Question (1331) and Diversity (1332) cases
3. If P opts for State Court, Defendant may usually remove to federal court under 28 U.S.C. 1441
a. Usually b/c the Ds right to remove to Iederal court is not completely coextensive with the !s right to
initially choose the Iederal Iorum 1441(b) (second sentence)
i. SC 'the scales are not evenly balanced as an in-state ! may invoke Diversity J but an in-state D
may NOT
4. More Than 1 D
a. Where more than one D is 1oined in the action, ALL must 1OIN in the Removal Petition
i. Only ORIGINAL D, NOT 3
rd
Party, D`s may remove a case
5. Removal is a One Way Street: State Fed; NO Fed State
a. Appropriate cases can be removed Irom State to Fed court, But there is NO procedure Ior removal Irom
Federal to State
Burnett v. Birmingham Board of Education (No Removal to Fed Court)
1. D removed the case Irom State Court pursuant to 28 U.S.C. 1331 & 1343, upon the allegation that a Iederal
question under 42 U.S.C. 1983 is presented: so case State Fed
2. !s timely Iiled a motion to remand, invoking 28 U.S.C. 1441(c) and asserting that b/c STATE law
predominates the entire matter should be remanded
3. State Law Claim: !s Iiled a state law complaint seeking to Iorce Ds to pay them to their pay scale & !s added a
claim under state law Ior breach oI K
a. !s are employees oI D
4. Then !s invoked 42 U.S.C. 1983 as the statutory vehicle oI enIorcement Ior their claim that they were deprived
oI the due process guarantee
5. !s Failed to complain oI the Iailure oI notice oI removal that Ds did not Iile and iI !s would have claimed w/in
30 days it would have been FATAL to Ds under 1447(c).
a. A Clear procedural deIect on the part oI the Ds under 28 USC 1446(a)
6. Ds contend that 1441(c) cannot apply, and that this court has no right to exercise the discretion which would be
aIIorded iI 1441(c) did apply

Issue: Whether or Not 28 U.S.C. 1441(c) permits a remand on these procedural facts

28 U.S.C. 1441(c):
1. henever a separate and independent claim or cause oI action within the Jurisdiction conIerred by section 1331
oI this title is JOINED with ONE or More otherwise Nonremovable claims or COA,
a. The ENTIRE case may be removed and
b. The district court may determine all issues therein, or, in its discretion, may remand all matters in which
State law predominates
1331 (Fed Q)
1343(a)(3) & (4):
1. The DC shall have original J oI any civil action authorized by law to be commenced by any person
a. (3) To Redress the deprivation, under color oI any States law, statute, ordinance, regulation, custom or
usage, oI any right ...
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b. (4) To recover damages or to secure equitable or other relieI under any Act oI Congress providing Ior the
protection oI civil rights, including the right to vote
i. These are what Ds are trying to use to remove to Fed Court
Rule
1. Removal Statutes are ALAYS to be construed AGAINST REMOVAL, the language oI 1441(c) CANNOT
be interpreted to recognize an exception Ior all state cases which simply contain a claim invoking 42 USC 1983
as to which STATE courts have CONCURRENT Jurisdiction
a. Original Fed Court access may be available under 1343(a)(3) and/or (4) when 1983 is relied
upon by the P
i. Access to a Fed court is just as available under 1331, as proven by Ds reliance upon it
2. General Principal: That Remand is proper when State Law claims PREDOMINATE in actions involving
Pendent 1urisdiction
3. 1441(c) allows Ior a Remand oI the Entire Case, Fed claim included, where STATE law !redominates
a. Addresses only the removal oI 'completely unrelated state law claims that are not w/in the pendent J oI
the Court (Not sure iI this is a rule or just Ds argument)
Analysis
1. Ds Argue: That 1441(c) is ONLY available iI the removal was based solely upon 1331, and
a. ThereIore that 1441(c) is not available here b/c this removal was based on anther Jurisdictional statute,
1343 & 1331
2. Courts Answer to D: Ds did properly invoke 1331 bringing themselves w/in 1441(c)
a. However, Ds have NOT presented any authority standing Ior their argument
3. Here the court is ruling upon a motion to remand a case removed on 1343 not 1441(a)
a. 1441(c) allows Ior a remand oI the Entire Case, Fed claim included, where STATE law !redominates
4. This case is more like a Fed Claim TACKED onto a State Claim than vice versa
a. This court does NOT Iind a (CNOOF) Common Nucleus oI Operative Fact to the State and Fed claims in
the instant case
i. The STATE law claims are NOT !ENDENT to the FED claims but ARE DOMINANT

Holding: A separate order granting !s motion to remand will be entered
Notes:
1. The Device oI Removal lies literally at the intersection oI Fed and State !ower
2. KEY: A case between Diverse parties (1332) or Raising a Fed Claim is Removed from State Fed
a. The Fed court UNDENIABLY has CONCURRENT constitutional authority to hear the case
i. hich could have originally been brought there by the !
3. ALSO the FED court will have authority with regard to State Law claims Arising from the Same Nucleus
of Operative Facts (CNOOF) as the Fed Claim and,
a. Thus, w/in the Fed Courts SU!!LEMENTAL JURISDICTION ( 1367 I THINK)
4. ? The Constitutional Authority Ior the provision oI 1441(c) authorizing the Iederal court in a 1331 Action to
'determine all issues therein Including 'otherwise nonremovable claims which are presumably outside the
scope oI Both Original and Supplemental J?


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5. PURPOSE OF 1441(c):
a. Is designed (in part) to !rotect Ds access to Fed court by permitting Removal of ~the ENTIRE CASE
and giving the Fed 1udge discretion to ~determine all issues therein
6. Both 1441(c) and 1367 have similar language:
a. 1367(c)(2): !ermitting the Fed court to DECLINE Supplemental J when:
i. 'The STATE LA claim SUBSTANTIALLY !REDOMINATES
b. 1441(c): !ermits a REMAND in the same circumstance

REMOVAL
1. Doctrine that gives Ds almost all the options that it gives to !laintiIIs
a. To hat extent can the D take the case out oI State Court Fed
b. To what extent can the D trump !s Court Choice
i. 1441
2. !s have the option oI choosing the Iorum Ior the law suit
3. Fed Courts & State Courts are courts oI Concurrent J
4. State Courts are courts oI General J
a. Can hear all claims
i. Unless its that rare type oI COA that is under EXCLUSIVE Fed J
5. Fed Courts are courts oI Limited J

Analysis for Fed Court (hypo w/ CA court)
1. SMJ
2. !J
a. Is there !J in State oI CA FED court
3. Venue
a. Statute 1391
i. here does the D reside
1. Does the D reside in the same district where the substantial part oI the incident that gives rise
to the claims occurred
b. District SpeciIic Analysis
i. hich District w/in the state oI CA could the ! Iile in
1. CA has multiple Districts
4. S: Service
Note: The ! could sue D in any Fed Court oI a State in which he attains all oI the above (Ex: MN; it really hinges on !J)
1. SMJ
a. II J in one Fed court there is SMJ in all Fed Courts
i. II CA Fed court then so does MN
2. !J
3. V
4. S
Think about the reasons a ! would want to Iile an action in State court over Fed court or vise versa
REMOVAL is Highly Likely to be on the Exam

Hypo
! CA v. D CA
O CT I: FQ
O CT II: State Law (Related)

Removal Analysis
(Based oII CA v. CA w/ two counts CT I- FQ; CT II State Law (Related) Iiled in State CT (CA)
Can The D Remove From State Court FED Court
1. 1441(a)
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a. Could the ! have Iiled in Fed Court
i. II the ! Could have Iiled the claim in Fed Court BUT DID NOT
1. II ! can point to 1331; 1332; 1367
a. Here Yes b/c CT I 1331 FQ & CT II (related) 1367
2. 1441(b)
a. Exception to Removal (Cant remove iI you are an instate D)
i. Any Civil action where DC has Original J Iounded under 1331 ! may Iile (doesnt tell us anything
new not an exception)
ii. II the Action could have been Iounded only on 1332 (Diversity) iI D is a citizen oI the Forum State D
CANNOT Remove to Fed Court
1. II D is an instate DeIendant then D cannot Remove
2. II the ! could have Iiled his case in FED court but didnt and would have been based on
Diversity but instead ! Iiles in Ds own home state court then the action is not removable
a. II ANY oI the Ds are instate Ds the Exception applies
iii. Note: The exception does not apply to a D to a case that is NOT based on Diversity; rather is based on
Fed Q (1331 or 1367) D in this instance may remove even though the case is Iiled in his own home
state court
3. If the Removal is denied then the Court will ~Remand the case
a. Term used to send it back
i. The Case will pick up where it leIt oII beIore the Ds invoked Removal
ii. Cannot be a Remand unless there was a Removal
1. Cant be remanded unless the D previously removed the case to Ied court and did so
incorrectly or (iI the Fed Q Ialls out later as goes through the trial process or in appeals etc.)
4. When does D have to File Removal
a. D has 30 days Irom the day he receives notice that the claim could have been Iiled in Fed Court or 30 days
Irom the day the case becomes removable (it originally was not removable and later becomes removable)
i. 30 days Irom the Day D realizes that ! could have Iiled in Fed Court
1. I.e. ! had a Fed Q or Diversity (and D is not instate D)

Actions that originally were not removable become removable
SH Analysis
1. Could the Action have been Iiled in Fed Court
a. II so then I can be Removed
i. Unless 1441(b) applies
Hypo
CA v. IL; CA; CA

CT I: FQ
CT II: State Law (related)

MECHANICS OF REMOVAL
1. All D`s have to agree to the Removal
a. II ALL oI the Ds Do Not agree then the case will remain in Fed Court
i. Only way around this the Ds who want to remove would have to try to sever this case under Rule 42
but this is not likely
2. How To File a Removal
a. D has to File the Notice/!etition Ior Removal in the Federal Court
3. The Action can only be removed STRIAGHT UP
a. From the State Court to the FED District Court in which the State Court Sits
i. Once up in Fed DC then the Fed Court may
4. When Removal is Improper
a. Remand Court reIuses to Remove the Case to Fed Court
i. FED court will remand back to state court
b. hen you do the analysis and the case could not have originally been Filed in Fed Court

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SMJ Analysis in State Court Hypos
1. State Courts have General Sub Matter J so the D cannot complain Same Argument
a. Count 1 the D has no Argument b/c
2. No there is not discretion involved they either have J or they dont
3. (1) 1441(a) there is no way CT 2 could have originally been Iiled in Fed Court (2) CT 1 could have been (3) Case
cannot be removed Irom a CA state court to a TX Fed court b/c cases can only be removed Straight up to go to
TX it would have to be transIerred Irom CA FED aIter being removed up to CA FED court
a. Goes to 1441(c)
a. Goes to 1441(c)
2. 1441(a)
a. ! could have Iiled the action in Fed Court
3. 1441(b)
a. Do not have an instate D trying to remove so no problem
4. Goes Straight Up
a. 1441 (b) Does A!!LY Cant Remove
i. This is a Diversity Case and we have an instate D and the D would then be not permitted to remove to
Fed Court

1441(c) (HE wants to De-emphasis this rule b/c it is rare and strange)
1. The Court can hear things on removal J that it wouldnt normally be able to hear otherwise
2. HY!O:
a. CA v. CA
i. CT I: Fed
ii. CT II: State Law Claim (Unrelated)
1. Case was Iiled originally in Fed Court
a. CT I: The Court MUST hear this count
b. CT II: The Court CANNOT hear this count
i. No 1331; No 1332; and b/c unrelated 1367 cannot apply
2. Case was Filed originally in State Court then Removed to Fed court
a. CT I: Yes b/c Fed Q
b. CT II: No
iii. 1441(c)
1. henever there is a removable action that is heard under a Fed Q claim (1331) and is joined
w/ another non-removable claim the court in that instance can hear the non-removable count
(ex: an unrelated State Law)
a. B/c the Action is removable in part the Court has three options
i. 1441(a) and the 1441(b) exception
ii. More Inclusive b/c Court may hear the usually non-removable claim
iii. Less Inclusive b/c Court may reject the entire case including the Fed Claim
Note: How does a D gain a TransIer Irom one states Fed Court to another States Fed Court? Removal then TransIer to
another Fed District court
NM v. CO
O 300,000
O State Law
4 ! Iiles in FED CT oI NM b/c oI Diversity
D cannot remove to another Fed Court can only TransIer and cannot remove down to state
court
NY v. MN
State Law Tort
Forum NY State
#13
1. 1441(a)
a. 1332 Diversity
i. CD
ii. AIC ~ 75,000
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2. 1441(b)
a. D is not an instate D so no problem w/ 1441(b)
i. This Action is Removable Irom NY State
#14
1. Doesnt matter that it should have been Iiled under Min law
a. 1441(a) makes this claim is not removable b/c could not have been originally Iiled in Fed Court
Note:
O hats a way ! can try to keep case in state court
4 ! Does not insert a Fed Q claim or in case oI Diversity Removes the party that is in breach oI 1332 iI
there is another party he can sue that satisIies Diversity (iI wanted to keep in Fed)
4 Could name a non-diverse D (D that is oI same state) to kill Complete Diversity
4 Make the AIC 75,000 or under
But ! could possibly be precluded Irom getting an award in excess oI that amount
#15
1. ! is a liIe long resident oI NY and apparent on the Iace oI the complaint and the D has known since 3/5/2008
a. B/c was removable and the D knew that then D would have 30 days Irom the Iiling oI the complaint
i. Rule 6: 3/6 is the 1
st
day
1. Note the diIIerences between iI a Saturday is counted
a. Here iI 3/6 was a Sat it would count
i. 30 Days 4/4 iI it was a Sat then it would have to go until the upcoming
Monday
#16
1. ould have to go Straight U! and be Iiled in Fed Court oI that State Courts District
KS v. KS; CA
200,000
1/3/2007 Filed Served Same Day
Kansas State
3/8/2007
#17
1. hen does the Removability indow expire Ior this D?
a. 1446(b)
i. B/c once the KS D was dismissed on 3/8/2007 Irom the case the case subsequently became available to
Fed court under diversity
1. And that creates a new 30 day window that opens when an action that was originally not
removable then becomes removable
a. E.g. Diversity is subsequently created
b. D could remove iI Iiles w/in 30 days aIter 3/8/2007
#18
1. For New Found Diversity
a. The development of Fed 1 based on diversity much take place w/in 1 year of the filing of the complaint
i. The opportunity Ior a New indow closes 1 year aIter the Iiling oI the complaint
1. Regardless oI whether Diversity is created aIter that 1 year cap expires
#19
1. 1441
a. Removable b/c ! could Iile in Fed Court b/c there is a Ied Q
b. No problem w/ removablility b/c it is not an action based on Diversity
2. 1446
a. 30 day window opens when there is a new development on 3/31/2008
i. This is a NE Iound Fed J based on a FED Q not Diversity and the 1 year cap does not apply to Fed Q
#20
1. There is a J split here
a. II an action is removable and you dont remove it and once the window closes then you cant open it again
even iI a New Iound Fed Q diversity develops
i. There is going to be a great place Ior analyizing on an exam about how clear the notice was that New
Found Diversity was created (did the D really know that new diversity was created)
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Class Note s:
Subject Matter J Recap
O Supplemental J
4 Cannot not be waived including on appeal
4 Its a ticking time bomb
Unlike These:
O !J
4 Can have waiver
O Venue
4 Has a Iailure to
O Service
For Every Single COA Ior Every Single D you must point to either
O 1331 (FED COA ONLY NOT STATE)
4 FED COA
O 1332
4 CD
Complete Diversity on both sides oI the v.
For Corps. They can have two State Domiciles (Incorporation & !!B)
O !!B &
O State oI Incorporation
4 If a State is on both sides then it cannot apply
4 AIC ~ 75,000
Aggregating Claims to satisfy the AIC is permitted (even if unrelated)
CANNOT Aggregate !arties to satisIy the AIC
O 1367
4 For a COA or you will not have Supp J
This includes ALL CLAIMS
Cross claims; counter claims etc
hats your statutory basis Ior Count I; Count II...
Count I w/D1 is $100,000 Claims
Count II w/ D2 is $50,000 For all Claims must keep Complete Diversity but once satisIied w/ C I OK
1367
1. Supplement
a. Use 1367 to SU!!LEMENT Original J
i. J has already been established under either 1331 or 1332 Ior a diIIerent claim Ior example where there
is a FED Q
2. Case Controversy
a. Related Claim
b. Same T/O
i. Same Cluster oI Iacts; CNOOF Common Nucleus of Operative Fact
1. !ull them apart and make a suIIicient Analysis
a. !lay with the Facts
3. NO Diversity !laintiIIs 1367(b)
a. !rohibits in cases where Original J is Iounded solely on Diversity Irom using 1367 to circumvent the
Requirements oI 1332 Oringinal ! must maintain CD and AIC iI tying to bring claim against Impleded
party or Joining another !
4. Discretion To Decline Claim 1367(c)
a. Court may still decline that particular claim even though it satisIies 1367
i. Ex: Resent Statute; The Claim being added to 1367 is the MAIN claim oI the case court may/could
decline the claim
Note:
Rule 20 for joinder and look to see if improper joinder could apply and you could toss it out on Rule 20 w/o going
all the way to 1367 or applying Exxon