Motion to Remand (Litigation Checklist)

This motion to remand checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.
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Checklist:
- State basis for remand (procedural, jurisdictional, abstention).
- A motion to remand based on a procedural defect in the removal process must be filed within 30 days of the filing of the notice of removal.  28 U.S.C. 1447(c).
- A motion to remand based on lack of jurisdiction may be filed any time prior to entry of final judgment by the federal court.
- There is a presumption against removal jurisdiction, and the court must strictly construe the removal statute.  Fajen v. Foundation Reserve Ins. Co., 683 F.2d 331, 333 (10th Cir.1982).
- The party seeking removal has the burden of proving the jurisdictional and procedural requirements for removal.  Laughlin v. Prudential Ins. Co., 882 F.2d. 187 (5th Cir. 1989).
- If, after removal, the plaintiff seeks to join parties that would destroy the diversity jurisdiction basis for removal, the court may deny joinder or permit joinder and remand the case.  28 U.S.C. 1447(e).
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Thoughts & Best Practices:
- Even if federal court has jurisdiction on removal related to a bankruptcy proceeding, consider asking court to abstain from exercising jurisdiction pursuant to 28 U.S.C. 1334(c)(1) and remand.
- Consider seeking costs associated with removal and remand.  “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal.” 28 U.S.C. §1447(c).  “[T]he district court does not have to find that the state court action has been removed in bad faith as a prerequisite to awarding attorney’s fees.” Excell, Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d 318, 322 (10th Cir. 1997).
- If remand is granted, follow up with federal court regarding notification to state court--various courts apply different procedures, but the Clerk for the District of Colorado has previously sent a letter to the applicable state court notifying it of remand and enclosing the docket, usually as .pdf files on CD.  Courts may be flexible in adopting varying procedures when warranted.
- If remand is granted, consider filing a status report with the state court to update the court on proceedings during removal.  If necessary, request status conference to determine the effect of proceedings while removed on proceedings at the state court.
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Example Forms:
- Motion To Remand (asking Bankruptcy Court to abstain from exercising jurisdiction underly Finley)
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This motion to remand checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.