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I have a question about removing a case to federal court and

Resolved Question:

I have a question about removing a case to federal court and then remanding it back to state court.

I have a case where diversity jurisdiction applies and the dollar amount exceeds $75,000.
I want to remove the case to federal court. However, I also want to retain the option to remand this back to state court when I want to.

Would the federal court judge allow us to remand if all parties agree? For example, a stipulation of all parties agreeing to remand? Or are we stuck in federal court once we get there?
Submitted: 10 months ago.
Category: Business Law
Expert:  John replied 10 months ago.
Hi, thanks for submitting your question today. My name is XXXXX XXXXX I’m happy to assist you with your question today.

Once you’ve removed the case to federal court it would be in the complete discretion of the federal judge (and the judge’s decision is not appealable) to remand the case back to state court; even if the parties agreed/stipulated to a remand. My experience tells me that the further along in the case you get…if you have hearings, motions, trial date set etc., the judge is going to be less likely to rule that remand is appropriate. If you do it right away, he/she would probably allow it to be remanded.


I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

Customer: replied 10 months ago.

I do have two follow up questions.


 


1. the case was brought in Utah's district court. I have since become an Idaho resident. Can I move the case to federal court in Idaho or do I have to remove it to Utah's federal court since it was brought in Utah's district court?


 


2. Next issue is the lawsuit was only served today. It took 13 days from the date it was filed to get it to me. A hearing is scheduled for a prejudgment writ of replevin in only 4 days. This is absurd. I can't get ready for a hearing in 4 days. Do I have any rights to demand at least a 10 day notice for the hearing?

Expert:  John replied 10 months ago.
Peter,

Answering your questions:


1. the case was brought in Utah's district court. I have since become an Idaho resident. Can I move the case to federal court in Idaho or do I have to remove it to Utah's federal court since it was brought in Utah's district court? -- ANSWER -- The case has to be brought in the defendant's jurisdiction. I think you are stating that you are the defendant, thus the case must be brought in your jurisdiction - either an Idaho state court or a federal court in Idaho.

2. Next issue is the lawsuit was only served today. It took 13 days from the date it was filed to get it to me. A hearing is scheduled for a prejudgment writ of replevin in only 4 days. This is absurd. I can't get ready for a hearing in 4 days. Do I have any rights to demand at least a 10 day notice for the hearing? -- ANSWER -- Yes, but because your hearing is so close in time, you're going to need to call the court and inform them of this to try to have the hearing pushed back. Perhaps you can file by fax an a objection to the hearing based on a) faulty service and b) lack of personal jurisdiction. But if you do this by mail, it's not going to get there and filed before the hearing date. So, my best thought for you is to call the court now and see how they want you to file such an objection given such a short time frame.
Customer: replied 10 months ago.

1. Because the case must be brought in my jurisdiction do I have legal grounds to remove it to an Idaho federal court then? yes, I am the defendant.


 


2. What is the rule in Utah? How many days notice after service do I get before the hearing?

Expert:  John replied 10 months ago.

1. Because the case must be brought in my jurisdiction do I have legal grounds to remove it to an Idaho federal court then? yes, I am the defendant. -- ANSWER -- Yes.

 

2. What is the rule in Utah? How many days notice after service do I get before the hearing? -- The court rule states that there is no minimum time but

(f) Method of service. but it must be reasonably calculated to expeditiously give actual notice of the hearing.

Your argument then being that mailing from Utah to Idaho was not reasonably calculated for notice given the distance...and again the court has no personal jurisdiction over you. You must tell a court that it has no personal jurisdiction over a matter int he first responsive pleading.

John, Attorney
Category: Business Law
Satisfied Customers: 2797
Experience: Licensed and practicing attorney helping businesses achieve their legal and practical goals.
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