California litigators who have never practiced in federal court, and who may not even be admitted in any federal court, can be caught off guard when unscrupulous opposing counsel removes a case to federal court on tenuous or frivolous grounds. Here are some of the steps needed to get the case remanded back to state court:
1. Apply for admission to the U.S. District Court where the case has been removed. Concurrently, you will need to register to electronically file through the District Court’s CM/ECF system. While admission in most courts is quick, you should call the Clerk to make sure you will be admitted before any deadline to file your motion to remand.
2. Always read the Local Rules for the District Court where your case is now pending. Make sure you comply with any rules relating to motion calendaring, e-filing, formatting, etc.
3. Prepare your motion to remand and electronically file it by the applicable deadline. If your motion to remand makes any argument based on defects in removal procedure, it must be filed within 30 days of the date the notice of removal was filed. (28 USC § 1447(c).)
4. If your motion to remand is based only on lack of subject matter jurisdiction, it can be filed at any time before final judgment. (28 USC § 1447(c).) For any parties who did not join in the removal, you will need to serve them conventionally.
5. If you believe that there is any merit to the removal, or to simply be cautious, you should preserve your right to a jury trial by filing a demand for jury trial in federal court as soon as possible. You do not need to re-file your complaint in federal court to do this.
6. If there were no objectively reasonable grounds for the removal and you win your motion to remand, you can recover your attorneys’ fees and costs in bringing the motion. You can also, under Rule 11, ask that opposing counsel be sanctioned.