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Removal by Mind Map: Removal

1. Defendant can remove from state trial court to federal trial court in limited applications

1.1. Diversity

1.1.1. Dismissal of non diverse party

1.1.2. Case cannot be removed based solely on diversity if any defendant is a citizen in fhe forum state

1.1.3. Case cannot be removed based solely on diversity more than one year after case was filed unless defendant can show plaintiff acted in bad faith to prevent removal

1.2. Federal question

1.2.1. Having a federal defense is insufficient

1.2.2. Entire case is removed, and state law claim may be severed and remanded to state court.

1.3. Only defendant may remove

2. Must show procedural rules for removal, but show case has federal SMJ

3. 28 USC § 1441 Removal

3.1. Unless expressly provided by congress, any civil action brought in a state court where the district court has original jurisdiction

3.1.1. Defendant may remove, to district court of the US, for the district and division embracing the place where the action is pending

3.1.1.1. Venue may only be removed to the area federally embraced.

3.2. Diversity Citizenship

3.2.1. Citizenship of defendant under fictioous names disregarded

3.2.2. Home State exception- case may not be removed if the defendant is sued in home state by plaintiff and only basis to remove is diversity.

3.3. Joinder of State and Federal Law Claims

3.3.1. If claim includes a federal claim not w/in original jurisdiction or supplemental jurisdiction of the district court OR claim non removable by statute

3.3.1.1. If removed, district court will sever claims and remand to state court those it doesn't have the authority to keep (§1441 (c)(1) (B))

3.3.2. All defendants must agree to the Removal

4. 28 USC § 1446 Removal Procedure

4.1. 1. Generally, 30 days to remove (if removable) by defendant.

4.1.1. a. Defendant desiring removal will file in district court w/ grounds for removal and w/ copy of process, pleadings, and orders served upon them

4.1.2. b. Notice will be filed in 30 days after service of summons or initial pleading setting for the claim which the action or proceeding is based

4.2. 2. Defendants joined must consent

4.2.1. a. 30 days to file notice of removal after the last served defendant (last served defendant rule)

4.2.2. b. later served defendant can file as long as prior served defendant consents

4.3. 3. Later removable case original complaint not removable has been amended to make removable. Defendant gets 30 days from the event occurring

4.3.1. Case may not be removed under (b)(3) on the basis of jurisdiction more than 1 year after filing, no removal

5. 28 USC § 1447 After Removal

5.1. Once removed, the plaintiff gets 30 days for motion to remand back to state court.