Notice of Removal in the United States District Courts –At A Glance

Use this At A Glance Guide to learn the Federal Rules of Civil Procedure and United States Code provisions related to filing a notice of removal in the United States District Courts. For more detailed information, including local rules, on filing a notice of removal in a specific United States District Court, please see the SmartRules Notice of Removal Guide for the court where your action is pending.

Timing:

A notice of removal shall be filed within thirty (30) days after defendant’s receipt of the complaint or within thirty (30) days after service of the summons if the initial pleading is not required to be served on defendant. If the action set forth in the initial pleading is not removable, removal is timely within thirty (30) days after receipt of any pleading showing that the case is removable. 28 USC § 1446(b). Removal on diversity grounds must be effected within one (1) year of the filing date of the action. 28 USC § 1446(b).

After removal, repleading is unnecessary unless the court orders it. A defendant who did not answer before removal must answer or present other defenses or objections within the longest of these periods:

(A) 20 days after receiving – through service or otherwise – a copy of the initial pleading stating the claim for relief;

(B) 20 days after being served with the summons for an initial pleading on file at the time of service; or

(C) 5 days after the notice of removal is filed. FRCP 81(c)(2).

A party who, before removal, expressly demanded a jury trial in accordance with state law need not renew the demand after removal. If the state law did not require an express demand for a jury trial, a party need not make one after removal unless the court orders the parties to do so within a specified time. The court must so order at a party’s request and may so order on its own. A party who fails to make a demand when so ordered waives a jury trial. FRCP 81(c)(3)(A).

If all necessary pleadings have been served at the time of removal, a party entitled to a jury trial under Rule 38 must be given one if the party serves a demand within 10 days after: (i) it files a notice of removal; or (ii) it is served with a notice of removal filed by another party. FRCP 81(c)(3)(B).

Removal Rules:

An action based on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable without regard to the citizenship or residence of the parties. 28 USC § 1441(b).

Whenever a separate and independent claim arising under federal law is joined with a non-removable claim, the case is removable, but the federal court “in its discretion, may remand all matters in which State law predominates.” 28 USC § 1441(c).

Diversity jurisdiction requires that none of the defendants be a citizen of the state in which the action was brought. 28 USC § 1441(b).

Case law authority requires that the amount in controversy must exceed $75,000 at the time of removal.

Case law authority holds that in most cases, the removing party must obtain joinder in the removal process from all defendants that have been served in the state court action, and that if joinder is not obtained, the removal papers must contain an explanation of why the non-joining defendants have not joined.

The removing party initiates the removal process by filing a notice of removal in the United States District Court for the district and division in which the action is pending. 28 USC § 1446(a).

The notice must contain a short and plain statement of the grounds for removal and a copy of all process, pleadings, and orders served on the removing party. 28 USC § 1446(a).

Case law authority holds that if removal is based on diversity jurisdiction, the citizenship of each party and the amount in controversy must be set forth in the notice of removal.

Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name – or by a party personally if the party is unrepresented. The paper must state the signer’s address, e-mail address, and telephone number. FRCP 11(a).

The removing party must provide copies of all process, pleadings, and orders served on the removing party. 28 USC § 1446(a).

The removing party initiates the removal process by filing a notice of removal in the United States District Court for the district and division in which the action is pending. 28 USC § 1446(a).

The removing party shall file the notice of removal with the clerk of the state court where the action was initiated. The state court notice must include copies of all state court pleadings and orders that were served on the removing party, as well as the federal district court removal papers. 28 USC § 1446(d).

The state court notice and proof of service thereof must be filed with the federal court within a reasonable time. FRCP 5(d).

The authorities cited in this At A Glance Guide are current as of the publication date. For authorities updated in real time, please see the SmartRules Guide for the litigation document you are drafting.

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