1L Civ Pro 144, 1446, 1447 Removal Basics

• 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

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

• (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

• (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.

how to remove

(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.

• 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.

Procedure after removal.... REMAND

(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

• (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

• (1) 1442—Federal
• officials sued in an official and individual capacity are removable… provides a
• broader protection (including intentional torts)

• 1445—What cannot
• be removed—non-removable claims

(a) Cases involving railroads

(b) Workmen compensation

(c) Violence against Women Act 40302

12(b)(1)- SMJ can be raised at anytime

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.

Failure to join a party under Rule 19

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

1443—CivilRight cases are removable(

1346-FederalTorts Claim Act

42 USC 1983—Color of law—police officers or gov’t officials using authority to commit torts