Appendix A
| Jurisdiction | Washington |
APPENDIX A
REMOVAL
Stellman Keehnel
Andrew R. Escobar
Chapter Details
Summary| §A.l | Introduction | ||||||||||||||||||||||||||
| §A.2 | Text of Rule
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| §A.3 | Historical Development
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| §A.4 | Comparison With Federal Rule | ||||||||||||||||||||||||||
| §A.5 | Purpose and Procedure | ||||||||||||||||||||||||||
| §A.6 | Analysis
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| §A.7 | Significant Authorities | ||||||||||||||||||||||||||
| §A.8 | Strategic and Practical Considerations | ||||||||||||||||||||||||||
| §A.9 | Forms and Checklists (included on the CD accompanying this deskbook) |
See Chapter 38. for Stellman Keehnel's biographical information.
Andrew R. Escobar graduated from Yale Law School in 2004 and from University of Southern California in 2001. His practice focuses on defense of securities class actions and shareholder derivative suits, financial services litigation, and other complex litigation, particularly defense of class actions. Mr. Escobar is an associate in the Seattle office of DLA Piper LLP (US).
The prior contributions of Brian D. Buckley, Anthony Todaro, and Jonathan B. Noll to earlier versions of the this chapter are gratefully acknowledged.
§A.1 INTRODUCTION
This chapter addresses removal: the transfer of a lawsuit from state court to federal court by a defendant. The right to remove, the procedures for removal, and the right to seek remand of a removed case to state court are based solely on federal statutes. This chapter therefore focuses on federal law. Because removal to federal court in Washington is governed by the Ninth Circuit's precedential case law, this chapter focuses primarily on the Ninth Circuit's application of the removal statutes. Nonetheless, this chapter highlights important splits or discrepancies between Ninth Circuit law and the law of other federal circuits, as well as the impact the 2011 amendments to the removal statutes have on the Ninth Circuit's authority in this area.
This chapter discusses the legal prerequisites for removal, the process to follow, the impact of removing a case, and various strategic and practical considerations.
§A.2 TEXT OF RULE
This section sets out pertinent statutes governing removal.
(1) Statutes that permit or bar removal
The general requirements and procedures for removal are set forth in 28 U.S.C. §§1441-1455. The core provisions establishing the classes of cases that may be removed are set forth in 28 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=1441&title=28&ci=14#1441(a)&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">1441(a) and (b), which provide for removal of cases in which the federal court would have had original diversity jurisdiction or federal question jurisdiction:
(a)Generally. Except as otherwise expressly providedby Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
(b)Removal based on diversity of citizenship.
(1)In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.
(2)A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
28 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=1441&title=28&ci=14#1441(a)-(b)&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">1441(a)-(b).
The statutes also provide for removal in certain other circumstances, including actions against foreign states, 28 U.S.C. ?1441(d); actions against officers or agencies of the United States acting under color of office, 28 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=1442&title=28&ci=14&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">1442; actions against members of the armed forces acting under color of office, 28 U.S.C. ?1442a; civil rights actions, 28 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=1443&title=28&ci=14&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">1443; foreclosure actions against the United States, 28 U.S.C. ?1444; claims related to bankruptcy cases, 28 U.S.C. ?1452; and certain class actions that have over $5 million at stake, 28 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=1453&title=28&ci=14&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">1453.
A number of other federal statutes also provide for removal. See, e.g., 9 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=205&title=9&ci=14&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">205 (enforcement of arbitration awards and agreements); 12 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=632&title=12&ci=14&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">632 (certain actions involving banks insured by the FDIC and claims against the Federal Reserve Bank); 28 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=2679&title=28&ci=14#2679(d)&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">2679(d) (federal tort claim actions); 42 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=2210&title=42&ci=14#2210(n)(2)&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">2210(n)(2) (extraordinary nuclear occurrences); and 15 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=77p&title=15&ci=14#77p(c)&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">77p(c) (securities fraud class actions involving "covered" securities).
28 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=1445&title=28&ci=14&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">1445 prohibits removal of certain types of actions: 28 U.S.C. ?1445(a) prohibits removal of actions against railroads; 28 U.S.C. ?1445(b) prohibits removal of certain actions against carriers; 28 U.S.C. ?1445(c) prohibits removal of workers' compensation claims; and 28 U.S.C. ?1445(d) prohibits removal of actions arising under the Violence Against Women Act of 1994, Pub. L. No. 103-322, tit. IV, 108 Stat. 1902 (1994).
Other federal statutes also preclude removal of certain types of actions. For example, 15 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=77v&title=15&ci=14#77v(a)&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">77v(a) prohibits removal of certain limited types of claims arising under the Securities Act of 1933, 15 U.S.C. §§77a-77aa. The Jones Act, 46 U.S.C. app. ?88, the Death on the High Seas Act, 46 U.S.C. §§30301-30308, ERISA, 29 U.S.C. §§1001-1191c, and the admiralty statutes also contain special rules relating to removal.
(2) Statutes governing the removal process
The principal procedures governing the removal process are set forth in 28 U.S.C. ?a href="http://links.casemakerlegal.com/federal/US/books/United_States_Code/browse?codesec=1446&title=28&ci=14#1446(a)-(c)&fn=Washington%20Civil%20Procedure%20Deskbook" target="_new">1446(a)-(c):
(a)Generally. A defendant or defendants desiring to remove any civil action 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)Requirements; generally.
(1) The notice of removal of a civil action or proceeding shall be filed within 30 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 30 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.
(2)(A) When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.
(B)Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
(C)If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.
(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days...
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