Pre-Service Removal in the Forum Defendant’s Arsenal
18 Pages Posted: 23 Nov 2011 Last revised: 30 Dec 2014
Date Written: November 22, 2011
This article is the first academic defense of pre-service removal in diversity cases by forum-state defendants under the “properly joined and served” language of 28 U.S.C. § 1441(b). Pre-service removal has proliferated nationally in recent years. Appellate courts, however, have been silent on the issue for two reasons: First, orders that remand a case to state court are statutorily non-reviewable on appeal. Second, cases retained in federal court and litigated to final judgment are highly unlikely, for reasons of judicial economy, to be voided for de novo readjudication in state court. After tracing the development of the removal statute and the historical concern of local prejudice, the article evaluates competing approaches of pre-service removal from U.S. District Court case law. The article concludes with a discussion of the Federal Courts Jurisdiction and Venue Clarification Act of 2011, currently being considered by Congress, and the changes it offers for removal jurisdiction.
Keywords: Federal Courts, Litigation, Civil Procedure
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