Law School Discussion

Question on Removal Jurisdiction

Question on Removal Jurisdiction
« on: December 09, 2006, 07:34:05 PM »
Does the 30 day limit rule (1446(b)) for removal apply to removal for federal question as well as diversity?  If P amends the complaint so it becomes removable for diversity, D can only remove within one year of original filing, but amendment of the complaint to add a federal question allows D to remove past a year from the original filing.

Does the 30 day limit apply to FQ jurisdiction as well?

Am I totally screwed?

Re: Question on Removal Jurisdiction
« Reply #1 on: December 09, 2006, 08:34:47 PM »
boy. i may be screwed too.

remove within 30 days of service. remove if allowed in federal court, which means diversity or federal question jurisdiction. There is an exception that applies ONLY to diversity cases: no removal if any D is a citizen of the same forum. If P dismisses some claim making it removable, D has 30 days of service of the document to remove so long as it has not been more than one year after filed in state court. Seems P could tag a D along for a year and then dismiss claim.

Re: Question on Removal Jurisdiction
« Reply #2 on: December 10, 2006, 08:12:58 AM »
Removal applies to both federal question and diversity jurisdiction.

You have to remove within 30 days of service or the basis for removal presenting itself, but an action can never be removed after a year.  After removal any party can file for remand, but if the reason for remand is NOT lack of subject matter jurisdiction, the party must file for remand within 30 days of removal.


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Re: Question on Removal Jurisdiction
« Reply #3 on: December 10, 2006, 08:55:21 AM »
Yes, the 30 day time limit applies to both FQ and diversity cases.  But, the one year bookend only applies to diversity.  So if a case based solely upon state law hangs out in state court for 13 months and then the complaint is amended to add a federal cause of action, the defendant could still remove provided that the case satisfies the requirements for federal question and supplemental jurisdiction, but the 30 day clock would start running from the date of amendment.  But, it is hard to imagine a situation in which a state court complaint could be amended so late to add a drastically new, jurisdiction creating claim.  This would be pretty prejudicial, since discovery would have been proceeding under state rules and now federal rules might apply. 

You are correct that the one-year bar in diversity cases makes it possible for plaintiffs to keep a diversity destroying defendant in the case for a year and then drop them just to make sure they stay in state court.  Some courts have said this is BS and should not be allowed.  (See 327 F3d 423 and the accompanying law review pieces found when shepardizing up).  I think this would make a great "what do you think" exam question.