Motion for Remand

What is the basis for removal to federal court?

Civil litigation attorneys and their clients need to understand the basis for removing a case to federal court since most plaintiffs seek to keep their case in state court. However, when the original jurisdiction of a case rests in federal district courts, the case can be removed.

However, some cases cannot be removed, even when they could have been first brought in federal courts. These unique exemptions to jurisdiction originated with the Class Action Fairness Act (CAFA), which creates more options for removing a case to federal court than traditional means.

Below is a brief list of these special exemptions:

Diversity jurisdiction

Complaints between diverse parties who assert claims for over $75,000 within title 28 of the US Code sec. 1332 are usually removable.

The forum-defendant rule is the one vital exception to the rule, and it states that cases cannot be removed when at least one of the defendants is a resident of the state where the action was filed.

Federal question jurisdiction

Federal question jurisdiction provides US federal courts the right to hear cases in which the plaintiff claims a violation of the US Constitution, a treaty the US is part of or federal law.

Therefore, complaints stating claims that raise a federal question under US Civil Code 1331 can be removed. The action is also still removable if the claims include the following:

• Both nonremovable claims and federal question claims
• Claims over which the court cannot state supplemental or original authority

However, in both cases, the non-federal claims must be separated and remanded.

Nonremovable actions

Multiple types of claims are unconditionally nonremovable and are established in US Code section 1445. These civil claims include:

• Claims against railroads
• Suits under specific rules of the Violence Against Women Act
• Suits under workers’ compensation laws

Class Action Fairness Act diversity jurisdiction

The CAFA established federal jurisdiction in nominally diverse class action suits. The CAFA’s authority includes:

• Class-action cases with over 100 members
• Class-action cases where the amount under debate is over $5 million
• Domestic cases in which all members of the class are a citizen of a state unique from the defendant

When a defendant is a resident of the state where the action is initiated, most class actions are removable. However, class action removals also consider the debate’s parochial nature. In addition, home state exceptions, as well as local controversy exemptions, exist under CAFA jurisdiction.

A home state exception states that a district court cannot assume authority over a case where two-thirds or a greater number of members of the plaintiff classes and the primary defendants are citizens of the state where the action was filed originally.

What is the Local Controversy Exception?

The local-controversy exception states that district courts cannot assume authority over a case where:

• A minimum of one defendant whose conduct creates a “significant basis” for a claim and who seeks “significant relief” is a resident of the state where the motion is filed.
• The main injuries occurred in the state where the action was first filed.
• Two-thirds or more of the class are citizens of the state where the suit was first filed.

Lastly, a district court can opt to refuse jurisdiction over cases where:

• Less than 2/3 of the primary defendants and the class are residents of the state where the action is filed.

• More than one 1/3 of the primary defendants and the class are residents of the state where the action is filed.

How does a defendant initiate removal, and what are the deadlines for these motions and notices?

Defendants may begin the removal process by filing a notice in federal court. The filing must be made no later than 30 days after the defendant receives the initial motion, order, or additional document that makes it clear the case is removable.

The plaintiff cannot request removal grounded in diversity jurisdiction if a year has passed since the action’s commencement unless the plaintiff moved to prevent the removal in bad faith. However, limiting this diversity removal to one year is not available for most class action suits.

For the defendant, the 30-day time limit begins with the pleading. The one exception is that the defendant may participate in a notice of removal that the co-defendant records. This notice can be filed after the initial defendant’s thirty-day time frame ends.

Based on this, the motion for remand needs to be entered within 30 days of the filing of the notice for removal. However, a motion to remand based on a lack of jurisdiction over the subject matter can be filed at any time.

Is a motion to remand appealable?

In the majority of class action cases, a motion for remand can be appealed. However, a remand focusing on a lack of substance, authority, or flaws in the removal process cannot be reassessed.

The order can be appealed if the motion to remand originates with abstention doctrines or the court’s decision to refuse to hear claims through US Code section 1367.

Waiving removal and waiving remand

A defendant can surrender the right to remove an action of state court after the case is removable and after it becomes clear that:

• The defendant intends to have the case arbitrated in state court
• The defendant intends to abandon the right to a federal trial

The courts have created doctrines of waiver, or the intentional or voluntary relinquishment of a known right, that apply to the ability to remove and remand. However, it is difficult, through litigation, to attain the right to remove, and the waiver needs to be clear.

What are the presumptions and burden of proof?

In most cases, a presumption places the burden of proof on the party against whom the presumption is operable. However, sometimes a presumption creates a burden of proof that cannot be surmounted.

The phrase’ presumption of innocence’ denotes the defendant’s constitutional right to have the government prove them guilty rather than the need to prove themselves innocent. The burden of proof in a criminal case falls on the government, and the accused is seen as “innocent until proven guilty.”

There is a presumption against removal jurisdiction because federal courts have limited authority. Therefore, this central belief against removal jurisdiction implies that the defendant has the perpetual burden of illustrating that removal is the proper choice.

What fees and costs can be granted to the plaintiff based on a motion for remand?

A plaintiff can pursue legal fees and additional costs in relation to the motion for remand. However, fees may not be awarded if the removal consists of novel or reasonable arguments.

Plaintiffs should exercise caution when seeking monetary awards because they are appealable and will make it possible to review the motion, even when it was not reviewable in the first place.

What approaches help litigation to remain in state court?

Attorneys must also be attentive to every stage of the process, beginning with the pleading and the service and through the amendment phase of the trial. Notably, attorneys for the plaintiff should not immediately plead or attempt to try a federal case and then file the case in state court while hoping the case remains there. Instead, more understated litigation tactics exist that lawyers can use to return the case to state court or keep it there.

In diversity cases, include a legitimate in-state defendant

Typically, the forum defendant rule prevents a case from being removed to federal court when at least one named defendant is a resident of the state where the action was filed.

If a forum defendant is involved in the suit, removing the case based on diversity grounds is inappropriate. Additionally, the claims made against the defendant should be authentic and not made against a false or “sham” defendant.

At the same time, if the claims made are plausible legal claims, the plaintiff does not need to plan to recover from the defendant because, normally, the courts do not make penetrating inquiries into the intentions of the plaintiff involved in the case.

How can plaintiffs and their lawyers beat snap removal?

Based on an oddity in the legal language intended to prevent plaintiffs’ use of false in-state defendants, many defendants have been victorious in removing cases where a true in-state defendant is found using a process called “Snap Removal.”

The “Snap Removal” strategy means that the defendant must conquer the clock and remove the case from state to federal court before any forum defendants are served.

To prevent snap removal, defendants have begun acting immediately after being served or using monitoring services to determine if file notices or suits have been served.

Procedural failures are another chance through which plaintiffs can avoid snap removal. For example: let’s say the defendant tries a snap removal, yet the plaintiff can establish service before when the defendants met the required terms of section 1446. When a plaintiff tries to overcome removal jurisdiction for a diversity suit centered on a forum plaintiff, the service must be effected on the defendant promptly so that the service can be finished before the defendants can construct the best argument for remand.

How can attorneys avoid pleading an unwarranted federal question?

Usually, courts examine the specific allegations of a well-argued complaint but choose to overlook the consequences of the complaint, for example, the idea of using a federal defense.

In cases of removal, the strength of the theory that counsel uses is the main factor to focus on.

Avoid complaint uncertainty and vagueness

Limiting a complaint’s information might be appealing, but uncertainty is not useful for a plaintiff when considering a motion for remand.

Typically, when a diversity action takes place, demanded good-faith damages are the amount being debated. If the plaintiff fails to identify the amount of the damages, and the rationale for jurisdiction is unclear in the complaint, then the thirty-day removal period is not actuated. Plus, if the action is liable to the CAFA, then the ensuing controversy might be uncertain and only clear once the litigation has been underway for a long time.

Consequently, if the plaintiff fails to note the amount they seek when filing the lawsuit or the parties’ citizenship in the formal complaint, their actions could prompt removal. Arguments for a waiver also typically fail if the defendant is unaware that removal could occur.

If possible, use an exception under the CAFA

When attorneys work on class-action complaints, they may be compelled to include a national class claim. However, if nationwide certification is debatable, they may be better off using a more restricted class argument within their home state or exceptions under the CFA that allow claims to be contested in their preferred setting.

Be careful when amending a complaint

Amending a complaint can create a chance for removal. New facts or claims can also produce a new chance to remove the case. Therefore, plaintiffs who want to evade removal should take care when filing an amendment and ensure that the amendment does not create diversity jurisdiction or adds federal claims during the proceedings.

How can a party attack a defendant’s removal notice?

Sometimes, a motion for remand focuses on the presence of unremovable claims, center on the absence of legal jurisdiction, or point out the defense’s procedural problems.

Plaintiffs should try to determine if the removal is in accordance with a particular time frame and if there exists unanimity for the defendant if the case requires it.

What jurisdiction is shared by both federal and state?

The federal and state courts in the US have “concurrent jurisdiction” to hear many cases. Sometimes, state courts have concurrent jurisdiction with specific courts in the same state, for example, small claims courts.

A defendant can motion to remand the case in totality where state-law claims join federal claims, and the court, in this case, can retain the federal claim and reject the state-law claim.

When a district court considers keeping authority over state claims after federal claims have been dismissed, the court considers:

• Fairness
• Comity
• Judicial economy
• Convenience

When removal centers on federal-question authority, plaintiffs can attempt to stop the court from using supplemental jurisdiction regarding the other claims.

Alternatively, when cases feature state-law claims, remand of the case is applicable if one applicable cause of non-diverse action exists.

Take into account post-removal amendments to eradicate jurisdiction

Amendments made after removal may still lead to a remand of the case, even if removal jurisdiction exists when the notice of removal is recorded.

If the removal is centered on a federal inquiry, the question’s elimination allows the court to decide whether to dismiss, retain, or remand the state’s claims.

However, courts may judge whether the amendment’s goal is the defeat of jurisdiction or if practical reasons exist as to why the revision was not made earlier.

To a certain extent, counsel should propound discovery

Jurisdictional discovery may prove effective for counsel before the determination on the motion to remand is made. Jurisdictional discovery may help counsel prove that total diversity doesn’t exist, that the controversial amount does not go over $5 million, or that a CAFA exception is relevant. Plaintiffs, therefore, should request that the court provide them the chance to take discovery.

Why is a motion for a remand so important to understand?

First, removal jurisdiction is complicated and involves several complex matters, such as the abstention doctrine—a doctrine that stops federal courts from hearing legal cases in its jurisdiction and instead gives that power to state courts—as well as subject matter jurisdiction.

Many attorneys for the defendant would rather remove cases to federal court, while many lawyers for the plaintiff would like to see their cases tried in state court.

When counsel understands the main theories behind motioning for remand and devise careful strategies, they have a much better chance of successfully litigating on behalf of their client in their chosen forum.