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Removal - 1441
- D may remove an action to federal court where the state court is located as long as the case could have been filed there originally.
- o If multiple defendants not from the forum state, then all must consent to removal
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Removal (Federal question)
Always remove if all defendant’s agree
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Removal (Diversity)
- 1. Can’t be removed if filed in any defendant’s home state to avoid prejudice to out of state D
- 2. must be removed within 1 year (1446)
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Removal (Venue)
When a case is removed from state court to federal court venue is appropriate in the district court servicing the area where the state court is located.
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Removal (Procedure)
- To remove must certify under rule 11 that complaint arises under federal law or has diversity
- - Must file within 30 days after service of defendant
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Remand – 1441 (c)
- Federal may remand portions back to state where state Q predominates
- - Case can be remanded if:
- 1. cause of action was improperly removed
- 2. lack of subject matter jurisdiction
- 3. at the court’s discretion if state law predominates
- 4. must file for remand within 30 days of removal
- - (Brought by the plaintiff only)
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Venue – 1391
- As the appropriate place for trial, venue is generally good where
- 1) any D resides, if all Ds reside in the same state;
- 2) or where a substantial number of events giving rise to the claim occurred.
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Venue (Diversity)
- 1) Where any defendant resides if all from the same state,
- 2) where a substantial part of the events or omissions giving rise to the claim occurred or where the party is situated,
- 3) where any defendant is subject to personal jurisdiction
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Venue (Federal Question)
- 1) Where any defendant resides if all from the same state,
- 2) where a substantial part of the events or omissions giving rise to the claim occurred or where the party is situated,
- 3) where any defendant can be found
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Venue (Corporations)
- 1) Where a corporation is subject to personal jurisdiction (principle place of business, state of incorporation),
- 2) if state has multiple districts, choose where there is the most significant contacts
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Venue (Aliens and Foreign Corp.)
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- Anywhere in U.S.
o There is only one kind of alien (unlike diversity jurisdiction)
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Venue (Related or Unrelated Claims)
If venue is appropriate in the original suit, venue will be appropriate for any transactionally related third party claims.
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Venue (Removal – 1441)
When a case is removed from state court to federal court venue is appropriate in the district court servicing the area where the state court is located
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Venue (Defect)
If a defendant fails to object to a defect in venue in the first motion or pleading, any such defect is waived
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