LAW 521-002 – Civil Procedure I

Remove


Removal allows defendants to move the entire case from a state court to a federal court. 28 U.S.C. § 1441.

Removal is only allowed if the district court would have had jurisdiction if the plaintiff chose district court. 28 U.S.C. § 1441.

Removal is to the district court in the location where the state action was filed. 28 U.S.C. § 1441.

Hometown Rule

If based solely upon diversity, defendant cannot remove if he is a citizen of the state where action is brought. 28 U.S.C. § 1441(b)(2).

If based upon federal question and state law claims are also present, state claims which do not have subject matter jurisdiction are remanded back to state court. 28 U.S.C. § 1441(c).

All defendants must agree to removal. 28 U.S.C. § 1446(b)(2).

Each defendant has 30 days from their service of complaint to remove. 28 U.S.C. § 1446(b).

The amount is controversy for diversity after removal is the amount pled in the complaint unless it seeks non-monetary relief, the state court does not allow the inclusion of a dollar amount, or the state allows recovery beyond what is demanded in the complaint. 28 U.S.C. § 1446(c).

Venue is automatic for the district court sitting in the locale of the state court action. 28 U.S.C. § 1441(f). But any party can file a motion to transfer the venue of the case to another district court. 28 U.S.C. § 1404.