One of the first questions defense counsel may ask when reviewing a new state court complaint, or an amended complaint, is “Can we remove to federal court?” There are many good reasons for a defendant to want to be in federal court, including having a single assigned Article III judge with top law school clerks to review motions, federal discovery rules that may limit fishing expeditions and a unanimous jury requirement. However, the process of successfully removing and avoiding remand does have its pitfalls. Here are four tips for defense practitioners to keep in mind as they pursue removal to federal court.

First, time limits are critical. If the basis for removal is evident on the face of the complaint, you have just 30 days from service of summons and the complaint to get your notice of removal on file. That time limit can be particularly challenging if your client did not move quickly in getting the complaint to counsel, as unlike filing a response, you cannot ask opposing counsel to stipulate to additional time. However, preparing your notice does not require that you spend time preparing declarations or other evidence to attach to the notice to establish underlying facts, such as the amount in controversy. In Dart Cherokee Basin Operating v. Owen, 574 U.S. ___ (2015), the Supreme Court held that a notice of removal did not need to attach evidence, as the removal statute, 28 U.S.C. Section 1446 requires only a “short and plain statement of the grounds for removal.”

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