NOTICE TO ADVERSE PARTY OF REMOVAL TO FEDERAL COURT and NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C. SECTIONS 144l(b) AND 1367 (FEDERAL QUESTION AND SUPPLEMENTAL),
NOTICE OF REMOVAL TO FEDERAL COURT UNDER 28 U.S.C.
SECTIONS 144l(b) AND 1367 (FEDERAL QUESTION AND SUPPLEMENTAL)
28 U.S.
Code § 1441 - Removal of civil actions
(b) Removal
Based on Diversity of Citizenship.—
(1) In determining whether a civil action is removable on
the basis of the jurisdiction under section 1332 (a) of this title, the
citizenship of defendants sued under fictitious names shall be disregarded.
(2) A civil action otherwise removable solely on the basis
of the jurisdiction under section 1332 (a) of this title may not be
removed if any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is brought.
28 U.S.
Code § 1332 - Diversity of citizenship; amount in controversy; costs
(a) The district
courts shall have original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between—
(2) citizens of a State and citizens or subjects of a
foreign state, except that the district courts shall not have original
jurisdiction under this subsection of an action between citizens of a State and
citizens or subjects of a foreign state who are lawfully admitted for permanent
residence in the United States and are domiciled in the same State;
(3) citizens of different States and in which citizens or
subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603 (a) of this title, as
plaintiff and citizens of a State or of different States.
28 U.S.
Code § 1367 - Supplemental jurisdiction
(a) Except as
provided in subsections (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article
III of the United States Constitution. Such supplemental jurisdiction shall
include claims that involve the joinder or intervention of additional parties.
(b) In any civil action of which the district courts have
original jurisdiction founded solely on section 1332 of this title, the district courts shall
not have supplemental jurisdiction under subsection (a) over claims by
plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the
Federal Rules of Civil Procedure, or over claims by persons proposed to be
joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as
plaintiffs under Rule 24 of such rules, when exercising supplemental
jurisdiction over such claims would be inconsistent with the jurisdictional
requirements of section 1332.
(c) The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if—
(2) the claim substantially predominates over the claim or
claims over which the district court has original jurisdiction,
(d) The period of limitations for any claim asserted under
subsection (a), and for any other claim in the same action that is voluntarily
dismissed at the same time as or after the dismissal of the claim under
subsection (a), shall be tolled while the claim is pending and for a period of
30 days after it is dismissed unless State law provides for a longer tolling
period.
(e) As used in this section, the term “State” includes the
District of Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
28 U.S.
Code § 1331 - Federal question
The district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or treaties of the
United States.
28 U.S.
Code § 1441 - Removal of civil actions
(a) Generally.—
Except as otherwise expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant or the defendants, to
the district court of the United States for the district and division embracing
the place where such action is pending.
(b) Removal
Based on Diversity of Citizenship.—
(1) In determining
whether a civil action is removable on the basis of the jurisdiction under
section 1332 (a) of this title, the
citizenship of defendants sued under fictitious names shall be disregarded.
(2) A civil action
otherwise removable solely on the basis of the jurisdiction under section 1332 (a) of this title may not
be removed if any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is brought.
(c) Joinder of
Federal Law Claims and State Law Claims.—
(1) If a civil action
includes—
(A) a claim arising under the Constitution, laws, or
treaties of the United States (within the meaning of section 1331
of this title), and
(B) a claim not within the original or supplemental
jurisdiction of the district court or a claim that has been made nonremovable
by statute,
the entire
action may be removed if the action would be removable without the inclusion of
the claim described in subparagraph (B).
(2) Upon removal
of an action described in paragraph (1), the district court shall sever from
the action all claims described in paragraph (1)(B) and shall remand the
severed claims to the State court from which the action was removed. Only
defendants against whom a claim described in paragraph (1)(A) has been asserted
are required to join in or consent to the removal under paragraph (1).
(d) Actions
Against Foreign States.— Any civil action brought in a State court against
a foreign state as defined in section 1603 (a) of this title may be
removed by the foreign state to the district court of the United States for the
district and division embracing the place where such action is pending. Upon
removal the action shall be tried by the court without jury. Where removal is
based upon this subsection, the time limitations of section 1446 (b) of this chapter may
be enlarged at any time for cause shown.
(e) Multiparty,
Multiforum Jurisdiction.—
(1) Notwithstanding the provisions of subsection (b) of this
section, a defendant in a civil action in a State court may remove the action
to the district court of the United States for the district and division
embracing the place where the action is pending if—
(A) the action could have been brought in a United States
district court under section 1369
of this title; or
(B) the defendant is a party to an action which is or could
have been brought, in whole or in part, under section 1369
in a United States district court and arises from the same accident as the
action in State court, even if the action to be removed could not have been
brought in a district court as an original matter.
The removal of
an action under this subsection shall be made in accordance with section 1446 of this title, except that a notice of
removal may also be filed before trial of the action in State court within 30
days after the date on which the defendant first becomes a party to an action
under section 1369
in a United States district court that arises from the same accident as the
action in State court, or at a later time with leave of the district court.
(2) Whenever an action is removed under this subsection and
the district court to which it is removed or transferred under section 1407
(j) [1] has
made a liability determination requiring further proceedings as to damages, the
district court shall remand the action to the State court from which it had
been removed for the determination of damages, unless the court finds that, for
the convenience of parties and witnesses and in the interest of justice, the
action should be retained for the determination of damages.
(3) Any remand under paragraph (2) shall not be effective
until 60 days after the district court has issued an order determining
liability and has certified its intention to remand the removed action for the
determination of damages. An appeal with respect to the liability determination
of the district court may be taken during that 60-day period to the court of
appeals with appellate jurisdiction over the district court. In the event a
party files such an appeal, the remand shall not be effective until the appeal
has been finally disposed of. Once the remand has become effective, the
liability determination shall not be subject to further review by appeal or otherwise.
(4) Any decision under this subsection concerning remand for
the determination of damages shall not be reviewable by appeal or otherwise.
(5) An action removed under this subsection shall be deemed
to be an action under section 1369
and an action in which jurisdiction is based on section 1369
of this title for purposes of this section and sections 1407,
1697, and 1785 of this title.
(6) Nothing in this subsection shall restrict the authority
of the district court to transfer or dismiss an action on the ground of
inconvenient forum.
(f) Derivative Removal Jurisdiction.— The court to
which a civil action is removed under this section is not precluded from
hearing and determining any claim in such civil action because the State court
from which such civil action is removed did not have jurisdiction over that
claim.
28 U.S Code
§ 1446 - Procedure for removal of civil actions
(a) Generally.— A defendant or
defendants desiring to remove any civil action from a State court shall file in
the district court of the United States for the district and division within
which such action is pending a notice of removal signed pursuant to Rule 11 of
the Federal Rules of Civil Procedure and containing a short and plain statement
of the grounds for removal, together with a copy of all process, pleadings, and
orders served upon such defendant or defendants in such action.
(b) Requirements;
Generally.—
(1) The notice of
removal of a civil action or proceeding shall be filed within 30 days after the
receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or
proceeding is based, or within 30 days after the service of summons upon the
defendant if such initial pleading has then been filed in court and is not
required to be served on the defendant, whichever period is shorter.
(2)
(A) When a civil action is removed solely under section 1441
(a), all defendants who
have been properly joined and served must join in or consent to the removal of
the action.
(B) Each defendant shall have 30 days after receipt by or
service on that defendant of the initial pleading or summons described in
paragraph (1) to file the notice of removal.
(C) If defendants are served at different times, and a
later-served defendant files a notice of removal, any earlier-served defendant
may consent to the removal even though that earlier-served defendant did not
previously initiate or consent to removal.
(3) Except as provided in subsection (c), if the case stated
by the initial pleading is not removable, a notice of removal may be filed
within thirty days after receipt by the defendant, through service or
otherwise, of a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is or has become
removable.
(c) Requirements;
Removal Based on Diversity of Citizenship.—
(1) A case may not
be removed under subsection (b)(3) on the basis of jurisdiction conferred by
section 1332 more than 1 year after commencement of
the action, unless the district court finds that the plaintiff has acted in bad
faith in order to prevent a defendant from removing the action.
(2) If removal of
a civil action is sought on the basis of the jurisdiction conferred by section 1332 (a), the sum demanded in
good faith in the initial pleading shall be deemed to be the amount in
controversy, except that—
(ii) a money judgment, but the State practice either does not
permit demand for a specific sum or permits recovery of damages in excess of
the amount demanded; and
(B) removal of the action is proper on the basis of an
amount in controversy asserted under subparagraph (A) if the district court
finds, by the preponderance of the evidence, that the amount in controversy
exceeds the amount specified in section 1332 (a).
(3)
(A) If the case stated by the initial pleading is not
removable solely because the amount in controversy does not exceed the amount
specified in section 1332 (a), information relating
to the amount in controversy in the record of the State proceeding, or in
responses to discovery, shall be treated as an “other paper” under subsection
(b)(3).
(B) If the notice of removal is filed more than 1 year after
commencement of the action and the district court finds that the plaintiff
deliberately failed to disclose the actual amount in controversy to prevent
removal, that finding shall be deemed bad faith under paragraph (1).
(d) Notice to
Adverse Parties and State Court.— Promptly after the filing of such notice
of removal of a civil action the defendant or defendants shall give written
notice thereof to all adverse parties and shall file a copy of the notice with
the clerk of such State court, which shall effect the removal and the State
court shall proceed no further unless and until the case is remanded.
(e) Counterclaim
in 337 Proceeding.— With respect to any counterclaim removed to a district
court pursuant to section 337(c) of the Tariff Act of 1930, the district court
shall resolve such counterclaim in the same manner as an original complaint
under the Federal Rules of Civil Procedure, except that the payment of a filing
fee shall not be required in such cases and the counterclaim shall relate back
to the date of the original complaint in the proceeding before the
International Trade Commission under section 337 of that Act.
(g) [1] Where the civil action or
criminal prosecution that is removable under section 1442 (a) is a proceeding in
which a judicial order for testimony or documents is sought or issued or sought
to be enforced, the 30-day requirement of subsection (b) of this section and
paragraph (1) of section 1455 (b) is satisfied if the
person or entity desiring to remove the proceeding files the notice of removal
not later than 30 days after receiving, through service, notice of any such
proceeding.
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