Saturday, December 22, 2012

4L: What to do When. . . You Get Removed to Federal Court for the First Time

You triumphantly walk out of the county courthouse. Although you've been an attorney for three months, and you've been out of law school for eight months, you just completed your first REAL act as an attorney -- you've filed your very first case. A person has trusted you to represent them in their time of pain and injury. A person has trusted you to fight for them against the mega car company that poorly designed a breaking system on their new car.

Defendants are served and now you wait . . . And you wait some more . . . You'll be waiting for 30 days wondering what big-firm will be hired. What Super Lawyer will be filing a response . . . And the waiting seems longer when you're filling your time with playing NHL 2005 on PlayStation 2, perusing "People You May Know" on, and reading "Speaker for the Dead." After all you've already finished your projects on your other five cases. Well that's what it was like for me.

And it happens. The bombshell. You're hit with a dizzying notice of removal. Even though you got a "B" in Federal Civil Procedure, you have no idea how to handle this. After all, your professor didn't teach anything about 28 U.S.C. § 1446. You just know when removal is proper jurisdictionally speaking. And add the fact that you're not even admitted to practice in the federal court in which the notice was filed in!

Ok, first things first. Calm down. Take a deep breath. The first thing you need to do is get admitted in federal court. And fast. Especially if the notice is deficient and you have a fighting chance of remand.

1. Call the federal court and speak to someone that can tell you what steps to take to get admitted. About 15 days passed from removal to my admittance in the proper court. Once I got the forms that were needed, my sponsors to fill out sponsorship statements, and paid the admissions fee, I attended a local swearing in ceremony with about 5 other attorneys.

2. Determine if the notice was procedurally sufficient. Read and re-read 28 U.S.C. §§ 1441, 1445-48. The notice must be filed in federal court within 30 days of service on the defendant. It must be filed with the state court docket sheet and legal file of record from the state court. In some circuits, including the 8th, the notice of removal to the state court must also be filed within 30 days or the removal is not effected. A remand is proper for procedurally deficient removals on that basis.

3. If you have grounds, procedurally or otherwise, file a motion for remand. A motion for remand for any reason besides subject matter jurisdiction must be filed within 30 days from the date of filing of the notice of removal. 28 U.S.C. § 1447(c).

Side note: how to file through ECF/CM system will be the next post.

4. If you don't have grounds for removal and there are federal claims that can be brought (or state claims if the original complaint stated only federal claims), file a motion for leave to file an amended complaint. Add the appropriate claims and file your amended complaint.

5. Learn the Federal Rules of Civil Procedure and enjoy the prestige of federal practice.

Congratulations, you're in federal court! At least you didn't have to pay the $350.00 filing fee . . .

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