How to remove a State court case to Federal court

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One question that pops up from time to time is the concept of FEDERAL COURT REMOVAL JURISDICTION. The federal courts are not empowered to hear just any old case. There must be both personal jurisdiction and subject matter jurisdiction.

One of the legal issues that can arise in a lawsuit filed in the State Courts (for example a California Homeowner Bill of Rights case) is that the Defendant (loan servicer, foreclosure trustee, securitized loan trustee, etc.) wants to remove the case to federal court. When this happens, the following process is triggered:

1. Plaintiff files the state court lawsuit

2. Defendant seeks to remove the case to federal court (usually because they feel they will get a better outcome here for one reason or another)

3. A notice of Removal is filed with the state court (ex. a Superior Court case in Los Angeles, San Francisco, Orange County, etc.). The state court basically puts things on hold pending any "order for remand" that sends the case back to state court.

4. The removal notice must be filed within 30 days of the summons and complaint is served, and/or within 30 days of discovering that the case is removable (ex. when a motion to amend raises a federal question such as TILA, FDCPA, RESPA, FCRA, etc. or you have a "diversity case" with citizens of different states suing each other when the "amount in controversy "EXCEEDS" $75,000 (meaning you need to allege at least $75,001.

5. The notice of removal is filed with the Federal Court (and a copy of all pleadings, summons, proof of service, and any orders rendered in the state court) get filed with the Federal Court.

6. The Plaintiff (if they believe there is improvident removal or a violation of FRCP Rule 11) may file a "motion for remand" to try to send the case back to state court.

7. In such a case, the federal court judge will be asked to decide whether there is proper federal court jurisdiction. As this video points out, there are but TWO WAYS TO GET INTO FEDERAL COURT:

a. There is a "federal question" raised in the complaint (ex. a federal rule, regulation at issue - for example, a federal copyright infringement claim is at issue). In this event, all Defendants named in the lawsuit must consent and "join" in the removal.

b. Diversity Jurisdiction exists - this means that where a Plaintiff is a California resident, let's say (no other Defendant named in the complaint is a California resident), meaning the Defendants are all "citizens" of another state besides California.

Removal motions can create hotly contested legal issues. If you need a law firm to represent you in a federal court, (business, real estate insurance, and intellectual property litigation) check us out by clicking on the link above).

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