Removal to Federal Court the Practitioner's Tightrope
| Publication year | 1994 |
| Pages | 22 |
63 J. Kan. Bar Assn. November, 22 (1994). REMOVAL TO FEDERAL COURT THE PRACTITIONER'S TIGHTROPE
November, 1994
Copyright (c) 1994 by the Kansas Bar Association; Charles J. Hyland
When a new lawsuit comes across defense counsel's desk, one of the first issues that needs to be addressed is whether a state court case can be removed to federal court. For both real and imagined reasons, many defendants prefer federal court. This article will address the procedure for removal once the practitioner has decided to remove to federal court and discuss some of the procedural difficulties encountered along the way.
*23 I. RELEVANT STATUTES.
The first step for any practitioner who is considering removal is a review of the relevant statutes. These are 28 U.S.C. § 1446 and 28 U.S.C. § 1447.
28 U.S.C. § 1446 states:
(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action. (b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, or a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action. (c)(1) A notice of removal of a criminal prosecution shall be filed not later than thirty days after the arraignment in the State court, or at any time before trial, whichever is earlier, except that for good cause shown the United States district court may enter an order granting the petitioner leave to file the notice at a later time. (2) A notice of removal of a criminal prosecution shall include all grounds for such removal. A failure to state grounds which exist at the time of the filing of the notice shall constitute a waiver of such grounds, and a second notice may be filed only on grounds not existing at the time of the original notice. For good cause shown, the United States district court may grant relief from the limitations of this paragraph. (3) The filing of a notice of removal of a criminal prosecution shall not prevent the State court in which such prosecution is pending from proceeding further, except that a judgment of conviction shall not be entered unless the prosecution is first remanded. (4) The United States district court in which such notice is filed shall examine the notice promptly. If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand. (5) If the United States district court does not order the summary remand of such prosecution, it shall order an evidentiary hearing to be held promptly and after such hearing shall make such disposition of the prosecution as justice shall require. If the United States district court determines that removal shall be permitted, it shall so notify the State court in which prosecution is pending, which shall proceed no further. (d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded. (e) If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into his custody and deliver a copy of the writ to the clerk of such State court. 28 U.S.C. § 1447 states:
(a) In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise. (b) It may require the removing party to file with its clerk copies of all records and proceedings in such State court or may cause the same to be brought before it by writ of certiorari issued to such state court. (c) A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case. (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise. (e) If after removal the plaintiff seeks to join additional defendants whose joinder would destroy
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subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.II. WHEN TO REMOVE?
28 U.S.C. § 1446(b) gives the timetable for filing a notice of removal. The statute requires that the notice be filed within 30 days "after the receipt by the defendant, through service or otherwise" of an initial pleading. If the case stated by the initial pleading is not removable a notice of removal may be filed within 30 days of receipt by the defendant of a copy of an amended pleading, motion, or order from which it may first be ascertained that the case is removable. [FN1] However, a case may not be removed more than one year after commencement. [FN2]
In all potential removal cases, [FN3] counsel must heed the time deadlines. Failure to timely file a notice of removal is a defect requiring remand to state court. [FN4] The time limitations, although not jurisdictional, are strictly enforced and are not subject to extension by consent of the parties or order of the court. [FN5] The Supreme Court has held that the removal statutes are to be strictly construed to limit the federal court's authority to those matters expressly provided by Congress and to protect the state's judicial powers. [FN6]
A. When should you remove if your client obtains notice of an action other than by service?
Your client has just received a file-stamped state court petition with a cover letter from the plaintiff's attorney which states:
I supply a copy of this...
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