Removal Prior to Service Still Viable Under the New Removal Statutes

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The recent enactment of the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (Act) will require form removal petitions be dusted off and updated. The Act became effective on January 6, 2012, and in addition to renumbering and adding subsections to 28 U.S.C. Sections 1441 and 1446 (among others), it contains important new additions. The one-year time limit on removing cases now contains an exception where the "plaintiff has acted in bad faith preventing the defendant from removing." 28 U.S.C. Section 1446(c)(1). What constitutes such circumstances is sure to be ripe for litigation. Additionally, new provisions concerning proof of the amount in controversy, including the removing party's burden of proof, have been added. See 28 U.S.C. Section 1446(c)(2).

While the Act has brought some clarification, an important provision for litigators representing corporate defendants was left intact, especially in less than favorable jurisdictions. The provision concerning a defendant's ability to remove an action, which otherwise would not be removable due to the presence of a local resident defendant remains as previously drafted in Section 1441(b)(2).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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