-
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
-
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
-
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
-
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.
-
1446 is what?
how to remove
-
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.
-
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.
-
1447 is what?
Procedure after removal.... REMAND
-
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
-
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
-
1442
- (1) 1442—Federal
- officials sued in an official and individual capacity are removable… provides a
- broader protection (including intentional torts)
-
1445
- 1445—What cannot
- be removed—non-removable claims
(a) Cases involving railroads
(b) Workmen compensation
(c) Violence against Women Act 40302
-
12(b)(1)
12(b)(1)- SMJ can be raised at anytime
-
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.
-
12(b)(7)-
Failure to join a party under Rule 19
-
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)(4)- Insufficient process
12(b)(5)- Insufficient service of process
-
1443
1443—CivilRight cases are removable(
-
1346
1346-FederalTorts Claim Act
-
42 USC 1983
42 USC 1983—Color of law—police officers or gov’t officials using authority to commit torts
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