4.1 MOTIONS TO REMAND
4.101 Jurisdictional and Procedural Defects in Removal.
A. Federal Question Jurisdiction. The presence or absence of federal question jurisdiction depends solely on the face of plaintiff's properly pleaded complaint. 1 As a result, a case may not be removed to federal court on the basis of a defense arising under federal law, even if such defense is anticipated in the complaint. 2 Likewise, an anticipated counterclaim is not a basis for establishing federal question jurisdiction. 3
B. Diversity Jurisdiction. Similarly, the presence or absence of diversity jurisdiction depends solely on the fact of plaintiff's pleadings; and the district court may not look to a defendant's counterclaim to establish the jurisdictional amount for removal. 4 However, with regard to the amount-in-controversy requirement, courts apply the "good faith" rule, which states that the amount-in-controversy will be determined by the complaint itself, "unless it appears or is in some way shown that the amount stated in the complaint is not claimed in 'good faith.'" 5
C. Standard of Review for Jurisdictional Defects in Removal. "Federal courts are courts of limited jurisdiction," which "possess only that power authorized by Constitution and statute." 6 Accordingly,
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federal courts must "presume that a cause lies outside this limited jurisdiction, . . . and the burden of establishing the contrary rests upon the party asserting jurisdiction." 7 The statues governing removal, "in particular, must be strictly construed" due to "significant federalism concerns." 8
D. Amendment of Notice of Removal. By leave of court, a defendant may amend a notice of removal to cure "[d]efective allegations of jurisdiction." 9 Leave is liberally granted within the 30-day removal period, but thereafter leave is determined by whether the amendments would merely expand and amplify previously articulated grounds, such that they are technical but not substantive changes. 10 If a proposed amendment is material and substantive, rather than a minor technical correction, courts may deny leave to amend and remand the proceeding. 11
E. Remand on Nonjurisdictional Grounds. Motions to remand an action on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days of the filing of the notice of removal. 12
1. Rule of Unanimity. Under the rule of unanimity, when a civil action is removed, "all defendants who have been properly joined and served must join in or consent to the removal of the action." 13 Although the applicable removal...
