4.1 Motions to Remand

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

4.1 MOTIONS TO REMAND

4.101 Jurisdictional and Procedural Defects in Removal.

A. Federal Question Jurisdiction.

The presence or absence of federal question jurisdiction depends solely on the face of plaintiff's properly pleaded complaint. ⁹¹² As a result, a case may not be removed to federal court on the basis of a defense arising under federal law, even if such defense is anticipated in the complaint. ⁹¹³ Likewise, an anticipated counterclaim is not a basis for establishing federal question jurisdiction. ⁹¹⁴

B. Diversity Jurisdiction.

Similarly, the presence or absence of diversity jurisdiction depends solely on the fact of plaintiff's pleadings; and the district court may not look to a defendant's counterclaim to establish the jurisdictional amount for removal. ⁹¹⁵ However, with regard to the amount in controversy requirement, courts apply the "good faith" rule, which states that the amount in controversy will be determined by the complaint itself, "unless it appears or is in some way shown that the amount stated in the complaint is not claimed in 'good faith.'" ⁹¹⁶

C. Standard of Review for Jurisdictional Defects in Removal.

"Federal courts are courts of limited jurisdiction," which "possess only that power authorized by Constitution and statute." ⁹¹⁷ Accordingly, federal courts must "presume that a cause lies outside this limited jurisdiction, . . . and the burden of establishing the contrary rests upon the party asserting jurisdiction." ⁹¹⁸ The statues governing removal, "in particular, must be strictly construed" due to "significant federalism concerns." ⁹¹⁹ Motions to remand invoke jurisdictional issues and take precedence over other preliminary motions such as motions to dismiss or motions to stay. ⁹²⁰

D. Amendment of Notice of Removal.

By leave of court, a defendant may amend a notice of removal to cure "[d]efective allegations of jurisdiction." ⁹²¹ Leave is liberally granted within the 30-day removal period, but thereafter leave is determined by whether the amendments would merely expand and amplify previously articulated grounds, such that they are technical but not substantive changes. ⁹²² If a proposed amendment is material and substantive, rather than a minor technical correction, courts may deny leave to amend and remand the proceeding. ⁹²³

E. Remand on Nonjurisdictional Grounds.

1. Deadline for Filing Motion to Remand.

Motions to remand an action on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days of the filing of the notice of removal. ⁹²⁴

2. Rule of Unanimity.

Under the rule of unanimity, when a civil action is removed, "all defendants who have been properly joined and served must join in or consent to the removal of the action." ⁹²⁵ Although the applicable removal statute does not address the form of...