Plaintiff served all defendants with a copy of the complaint 20 minutes later—at p. See Brown v. Teva Pharmaceuticals, Inc. The second case was even more compressed.
Although the defendant beat the service clock, it did not file and serve notice in state court until a. A plaintiff can move the federal court to remand the case to state court, but the state court otherwise has no further involvement. Before removing a case, a defendant should consider the potential advantages of federal court and review the jurisdictional requirements and local rules for removal. Why Remove a Case to Federal Court?
If a defendant decides that federal court would offer enough advantages, they should begin looking at the procedure for removal. Deadline to Remove a Case. A case that is not removable when it is first filed can become removable later if the plaintiff adds new claims, joins more defendants, or increases the amount in controversy. A defendant can remove a case within 30 days of receiving an amended petition or complaint.
In many situations, however, the defendant cannot remove the case if more than one year has elapsed since the lawsuit was first filed. Federal Subject Matter Jurisdiction. A case is removable to federal court only if the federal court would have had subject matter jurisdiction in the first place.
The two most well-known bases for federal court subject-matter jurisdiction are:. Federal courts can exercise supplemental jurisdiction over state-law claims that are closely related to the other claims in the lawsuit. I remember the triage order back when I was clerking in the Eastern District of Pennsylvania: criminal first to comply with Speedy Trial , habeas corpus petitions second because, if not dealt with, the volume quickly became overwhelming , and, third, civil cases when you could get to them.
Second, thanks to de facto rules in some federal courts, civil cases are routinely held up awaiting a judicial ruling. In many districts, including some of the busiest districts, no discovery is permitted while a motion to dismiss is pending.
Thus, civil plaintiffs in federal court get used to watching a defendant file a motion or pleading — perhaps a motion to dismiss, or removal to the federal court, or a motion for a protective order — and then sitting and waiting. And waiting. A civil action brought in state court over which a federal district court would have jurisdiction may generally be removed by a defendant to the district court where the state action is pending. Although diversity jurisdiction is commonly understood to protect out-of-state parties from local bias of state courts, home-state defendants may prefer to litigate in a federal forum for any number of reasons, including familiarity with federal judges or federal rules, favorable federal precedent, geographic convenience, or simply gamesmanship.
Lacking guidance from the circuit courts, federal district courts have split on this question for years—even within individual districts. Although the forum defendant rule has been on the books since , until relatively recently no federal appellate court had definitively ruled on whether removal to federal court is permissible if the forum defendant has not been served.
However, in the last two years, the Second, Third and Fifth Circuit Courts of Appeal have reached this issue and all three have adopted the literal interpretation of the statute, allowing removal if the forum defendant has not yet been served. This procedural quirk also now has garnered Congressional attention. The question of whether an unserved forum defendant may remove to federal court has been the subject of numerous federal district court decisions across the country and resulted in deep divisions both between and within individual districts.
Courts holding that unserved forum defendants may not remove to federal court see the situation quite differently. Further, they conclude that the literal interpretation of the statute creates the absurd result of encouraging a race to the courthouse to remove before service—and that this age of electronic filing and court docket monitoring only encourages such forum shopping. These courts also are persuaded that permitting removal by a forum defendant is inconsistent with the purpose of the removal statute and diversity jurisdiction, namely, protecting out-of-state defendants from bias.
Finally, these courts reason that states have inconsistent service requirements, so allowing removal before service creates inconsistencies in the application of a statute that is intended to be uniform in application. While Congress enacted the forum defendant rule more than 70 years ago, no federal appellate court had definitively weighed in on this split until recently.
In Encompass Insurance Co. Stone Mansion Restaurant Inc. Bristol-Myers Squibb Co. Both courts held that the forum defendant rule is unambiguous and prohibits removal only in situations in which the home-state defendant has been served in accordance with state law.
The Second Circuit also rejected concerns about the non-uniform application of the statute due to differences in state service laws, noting that state-by-state variation is not unusual in federal courts. In that case, there were three defendants, two forum defendants and one citizen of another state. As an added twist, unlike the Second and Third Circuit cases, in Texas Brine the non-forum defendant not the forum defendants removed the case to federal court two days after the case was filed, during a period when, under state law, service could be accomplished only by the sheriff and before the forum defendants were served.
In the wake of recent court decisions upholding the practice of snap removal, Congress also now is paying attention.
On Nov.
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