Removal ?

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Removal ?

Postby RR320 » Fri Dec 02, 2011 5:36 pm

Lets say Plaintiff (CA resident) sues D ( NY resident) in NY state court on either a diversity claim or federal question claim. I am under the impression that Defendant cannot remove to federal court for diversity, but if it was based on federal question, could they then have it removed to federal court?

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Re: Removal ?

Postby homestyle28 » Fri Dec 02, 2011 5:42 pm

1441 (b): (b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

I'm going to say yeah, home state bar rule doesn't apply to fed question claims

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Re: Removal ?

Postby beachbum » Fri Dec 02, 2011 5:53 pm

Yep. The justification behind the home state D rule is that, if D is already in his home state, the state courts are not going to be biased against D (which is the policy behind diversity jurisdiction). In federal question jurisdiction, no such bias rationale exists.

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