Removing and remanding a case to and fro state court is a rather straightforward process. Yet, there still exists a variety of procedural quirks and often unused processes that can make this a daunting task. In this blog I would like to present a very basic outline of that process.
When the time comes to file a lawsuit choosing where to file is a decision of pivotal importance. Where the case is filed can substantially influence the outcome of case. Depending on the nature of the claims involved it maybe to one’s advantage to keep a case in state court if possible. This is because many of the procedural mechanisms that would allow a defendant to seek dismissal of a case are not as readily available in state court. Yet, keeping a case in state court can be a challenge in an of itself. In this blog I would like to discuss a bit about the process of removing a case from state court to federal court, and how to try and get it back to state court.
First, in federal court there are two main ways in which a court can have the jurisdiction to hear a case. The first is if the case presents a question of federal law. In other words, does it involve a federal law or claim. The second is if the court has diversity jurisdiction. For this to exists the amount in controversy needs to exceed over $75,000 and each of the plaintiff’s citizenship must be diverse from each of the defendant’s citizenship. If either of these scenarios exists, then a case may be removed from state court to federal court provided that the motion seeking such relief is brought within 30 days of when the defendants were served.
Once a defendant has sought to remove a case from state court to federal court, then the case is automatically transferred for further proceedings in the federal court. At that point, if the plaintiff wants to move for the case to be remanded back to state court, they must do so within 30 days if they are arguing that the removal contained a procedural deficiency. A failure to do so will most likely result in the court holding that the procedural deficiency was waived by the plaintiff. But, if the plaintiff is arguing that the court did not have subject matter jurisdiction to hear the case, then it may file the motion so long as a final judgment has not been rendered.
For example, let’s say that a plaintiff sued three separate defendants. Two of the defendants and the plaintiff were citizens of Texas, and the third defendant was a citizen of another state. If the third defendant were to remove the case on the basis of diversity jurisdiction it would ultimately fail because complete diversity is not present among the parties. Nonetheless, the plaintiff would need to draft and file a motion to remand with the court outlining that the court lacks the jurisdiction to hear the matter. Since the motion to remand would not be based on a procedural ground it would not necessarily be subject to the 30-day time limit, but it would still be advisable to file the motion as soon as possible.
This, though, is a very clear-cut example. Often times determining the citizenship of companies and dealing with procedural quirks can make this a unique experience for most lawyers. That is why a thorough analysis of the statutory language, case law, and the facts at hand are a necessity.
While the above is a very basic outline of the removal procedure, this is an area of the law that can times present unique issues that require thoughtful and precise action. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. We can provide you with the legal experience that your case deserves.