Exam 6: Defending and Testing the Lawsuit: Motions, Answers, and Other Responsive Pleadings

Correct Answer:

Verified

The objective of removal is to have the case transferred from state court to federal court jurisdiction. The defendant is given this privilege under 28 U.S.C. § 1441 et seq. It affords the defendant the same opportunity that the plaintiff has to choose either the state or federal court when their respective jurisdictions are concurrent. A case may not be removed unless the federal district court has original jurisdiction over the subject matter of the lawsuit. The procedure for removing a case to federal court is governed by 28 U.S.C. § 1446. This statute requires the following procedure:
1. File a "notice of removal" in the federal district court encompassing the area where the state action is pending. The notice must be signed in compliance with Rule 11 of the Federal Rules of Civil Procedure, and a copy of all "process, pleadings, and orders served on . . . defendants" must be attached to the notice [28 U.S.C. § 1446(a)].
2. The notice is a "short plain statement of the grounds for removal" [§ 1446(a)]. It should state:
3. The notice of removal must be served on all parties and filed within thirty days after commencement of the state action or, if the original action is not removable but becomes removable, thirty days after amendment or service of papers from which it can be determined that the action has become removable.
4. A copy of the notice must be "promptly" filed with the state court; the state court must proceed no further.
5. If the time limit for responding to the initial pleading has expired, the defendant has five days from the date the notice is filed to file any motion, objection, or answer to the plaintiff's complaint [Rule 81(c)].