MBE Rules · Civil Procedure
Removal
28 U.S.C. §§1441, 1446
The rule
A defendant may remove from state court if the case could originally have been filed in federal court. Must be within 30 days of receipt of removable pleading. All defendants must consent. Diversity cases: cannot remove if any defendant is a citizen of the forum state (in-state-defendant rule).
In plain English
A defendant can move a case from state court to federal court if it could've started there, but they have to act quickly and all defendants must agree. If any defendant lives in the state where the case was filed, they can't move it.
Worked example
The defendant, sued in a state court in Texas, wants to move the case to federal court. However, because one defendant lives in Texas, they can't do this even though the case could be in federal court.
Memory hook
Remove to Fed, Mind the Bread! Leave state court if fed fit, but not if home hit.
The trap
Students think: Any case can be removed if diversity exists. Wrong, because in-state defendant rule blocks removal if any defendant is local. The actual test is federal original jurisdiction without local defendant.
How examiners test it
MBE loves: diversity case with local defendant. Trap: students ignore in-state-defendant rule, assuming diversity alone allows removal. Watch for local defendant blocking removal.
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