Removal and Remand

Removal a nd remand can be a mong the most hotly-
contested aspects of litiga tion involving business tort claims. A
plaintiff who perceives as more advantageous state court rules
governing such factors as plea ding requirements, numerosity,
discovery, summary judgment, jur y selection, or time-to-trial,
will seek to ensure the litigation proceeds in state court.
Conversely, a defendant who sees advantage in ha ving these or
other matters governed by federal rules will sea rch for a way
to remove the case to federal court. Because this contest
usually comes a t the inception of the litigation, its outcome
affects much that follows.Eds.
A. Statutory Overview
Removal of actions from state court is governed generally by
Chapter 89 of Title 28 of the U.S. Code.
Chapter 89 consists of sixteen
Seven sections address what types of civil cases can be
removedin the context of business tort litigation the most
important of these is section 1441 (removal of civil actions).
Five sections spell out the procedure for and after removalthe
key section is section 1446 (procedure for remova l of civil
actions), which must be read in conjunction with section 1441(c)
and Rule 81(c) of the Federal Rules of Civil Procedure.
One sectionsection 1453 (removal of class actions)sets forth
specific provisions governing removal of class actions.
. The other six sections are 28 U.S.C. §§ 1442 (federal officers or
agencies), 1442a (armed forces members), 1443 (civil rights), 1444
(foreclosure against the United States), 1452 (bankruptcy), and 1454
(patent, plant variety protection, and copyright).
. The four other sections are 28 U.S.C. §§ 1447 (post-removal procedure),
1448 (process), 1449 (state court records), and 1450 (attachment, etc.).
358 Business Torts and Unfair Competition Hand book
The remaining three sections explain what types of cases cannot
be removed,
provide definitions allowing for removal from the
Superior Court of the District of Columbia,
and address removal
of criminal prosecutions.
B. Removal under Section 1441
Section 1441 was extensively revised by the Federal Courts
Jurisdiction and Venue Clarification Act of 2011 (FCJ-VC Act).
revised, the section provides in pertinent part:
(a) GENERALLY.Except as otherwise expressly p rovided by Act
of Congress, any ci vil 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.
determining whether a civil action is removable on t he basis of the
jurisdiction under section 1332( a) of this title, the citizenship o f
defendants sued under fictitious names shall be disregarded.
(2) A civil action other wise 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 jo ined and served as defendants is
a citizen of the State in which such action is brought.
. 28 U.S.C. § 1445. Other statutes outside of Chapter 89 may make a
specific action nonremovable. See, e.g., 15 U.S.C. § 77v(a).
. Pub. L. No. 112-63, 125 Stat. 758. The FCJ-VC Act also made two
changes to 28 U.S.C. § 1332 affecting removal. Subsectio n (a)(2) now
expressly bars district courts from treating resident aliens as citizens of
the state in which they are domiciled, and subsection (c)(1) provides a
more detailed description of when a corporation or insurer is deemed to
be a citizen of a State or foreign state.
. 28 U.S.C. § 1441(a)-(b). Title 28 U. S.C. § 1441(c) addresses joinder
of federal law claims with either state law or nonremo vable claims.
See infra text at note 63. Title 28 U.S.C. § 1441(d)-(e) respectively
address actions a gainst foreign state s, and actions invo lving certain
sudden fatal accid ents or natural events culminating in fatal accidents.
Title 28 U.S.C. § 1441(f) abrogates the doctrine of derivative removal
jurisdiction for cases removed pursuant to Section 1441. See infra text at
notes 15-16.

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