Login

Login

To access this feature, please Log In or Register for your Casebriefs Account.

Add to Library

Add

Search

Login
Register

Removal

    Read 28 U.S.C. §1441

    § 1441. Actions removable generally

    (a) Except as otherwise expressly provided by 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. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

    (b) Any civil action of which the district courts have original jurisdiction founded 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. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

    (c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. The specific procedure governing the removal process is codified at 28 U.S.C. §1446. Pursuant to its terms, removal is a self-executing act. Instead of requesting permission from either the state or federal district court to grant removal, the defendant simply files a notice of removal with the federal district court, and then gives written notice of the removal to all adverse parties and to the clerk of the state court from whence the case is removed. Once this is accomplished, the case is considered removed and the state court cannot undertake further proceedings in the matter. If the plaintiff wishes to challenge the removal, on either jurisdictional or procedural grounds, the mechanism for doing so is the filing of a motion to remand with the federal district court pursuant to 28 U.S.C. §1447. And even though the plaintiff is the moving party on the motion to remand, it is the defendant—the party seeking to invoke federal jurisdiction—that shoulders the burden of persuading the court of those facts supporting removal.

    Create New Group

      Casebriefs is concerned with your security, please complete the following