Chapter 27-5 Removal Procedure

• Jurisdiction: United States

27-5 Removal Procedure

27-5:1 Removal Venue

A case must be removed to the federal court for the district and division embracing the location of the state court.⁷⁸ This requirement is a venue provision, and venue is proper in the federal court even if the court would not have been a proper venue had the case been first filed there rather than removed.⁷⁹

A case may be transferred to another district court following removal, but the transfer must be pursuant to Section 1404(a) for the convenience of the parties and witnesses—rather than under Section 1406 for improper venue.⁸⁰

The defendant's failure to remove the case to the proper district and division is a procedural defect, meaning that it is waived if not raised in a timely motion to remand.

27-5:2 The Contents of the Notice of Removal

Federal statutes set forth what amount to pleading requirements for the notice of removal. The notice must:⁸¹

• Be signed pursuant to Federal Rule of Civil Procedure 11, which can subject the defendant and his attorney to sanctions for unsubstantiated allegations in the notice;
• Must be accompanied by all process, pleadings and orders served upon the defendant at the time of the removal; and
• Contain a short and plain statement of the grounds for removal.

Generally, the amount alleged by the plaintiff in his initial pleading determines the amount in controversy,⁸² but the notice of removal may allege the amount in controversy if the plaintiff seeks non-monetary relief or the state rules do not permit the pleader to allege a specific sum or permits recovery in excess of the amount alleged.⁸³If the notice alleges the amount in controversy, the district court will determine whether or not the amount in controversy requirement is met by a preponderance of the evidence.⁸⁴

27-5:3 Deadline to Remove

If the original petition in Texas state court shows an action that is removable, the defendant has 30 days from service to remove the case to federal court.⁸⁵

If the original petition does not show that the action is removable, the action may later become removable due to a change in parties (e.g., dropping from the action a diversity spoiling or forum state defendant), a change in the theories of recovery (e.g., the addition of a federal cause of action constituting a federal question), or a change in the allegations regarding amount in controversy.

The defendant will have 30 days from receipt of a copy of an amended pleading, motion, order or other paper from which it may first...