191. NOTICE OF REMOVAL 28USC 1452
A LESSON ON BANKRUPTCY REMOVALS
FROM AL MCZEAL:
GET READY FOR THE BEST LESSON IN BANKRUPTCY REMOVAL - A SECRET POWER!
JUDGE KEIR PREPARED THE KNOWLEDGEABLE REPORT, AND WE DESIGNED A COMPUTER
SOFTWARE MODULE TO IMPLEMENT. THE RESULT IS ONE OF THE MOST POWERFUL PROGRAMS
EVER BECAUSE BANKRUPTCY REMOVALS ARE NOT WELL KNOWN BY EVEN THE EXPERIENCED BANKRUPTCY LAWYER OR JUDGE.
BUT JUDGE KEIR IS VERY KNOWLEABLE! USE THIS INFORMATION IN YOUR BEHALF TO REMOVE ALL CLAIMS TO BANKRUPTCY OR THE DISTRICT COURT AND YOU CAN KICK SOME REAL BUTT WITH THIS INFO.
THE REPORT IS FREE! THE SOFTWARE LICENSE IS NOT FREE, BUT YOU CAN PURCHASE A LICENSE ANYTIME IF YOU ARE NOT ALREADY A MATRIX USER.
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BANKRUPTCY REMOVALS UNDER 28 USC 1452
Memorandum Summarizing Procedures With Respect
To Removal of Bankruptcy-Related Cases And Claims
To The United States District Court/United States Bankruptcy
Court for the District of Maryland
Prepared by:
Hon. Duncan W. Keir, U.S. Bankruptcy
Judge for the District of Maryland
and
Richard L. Wasserman, Esq., VENABLE LLP
MEMORANDUM
SUBJECT: Handling of Matters Involving Removal of
Bankruptcy-Related State Court Actions to the United
States District Court/United States Bankruptcy Court.
This Memorandum is intended to be a useful guide to the procedures and practice involved in the removal of bankruptcy- related claims and actions to the United States District Court and United States Bankruptcy Court in Maryland. It is, however, not intended to be an exhaustive treatment of the subject and should not be used as a substitute for attorneys doing their own research and reviewing carefully all applicable statutes, rules and case law.
Congress vested all original jurisdiction over bankruptcy cases in the United States District Court. 28 U.S.C. §1334(a). Congress further provided that the District Court could refer all cases in bankruptcy and any and all related proceedings arising under, in, or related to cases in bankruptcy, to the Bankruptcy Court. 28 U.S.C. §157(a). The United States District Court for the District of Maryland has referred all cases under the Bankruptcy Code and all proceedings arising under the Bankruptcy Code or arising in or related to cases under the Bankruptcy Code to the United States Bankruptcy Court. Rule 402, Rules of the United States District Court (Maryland) (hereinafter referred to as ''District Court Local Rule Accordingly, until and unless the reference of jurisdiction to the Bankruptcy Court is withdrawn by an Order of the District Court, all jurisdiction over bankruptcy matters resides with the Bankruptcy Court.
District Court Local Rule 404(l) provides that until and unless reference to the Bankruptcy Court is withdrawn by an Order of the District Court, all papers and pleadings in or related to a bankruptcy case or proceeding shall be filed with the Clerk in the Bankruptcy Court.
1 28 U.S.C. § 156(e) provides: (e) In a judicial district where a bankruptcy clerk has been appointed pursuant to subsection (b), the bankruptcy clerk shall be the official custodian of the records and dockets of the bankruptcy court.
Removal Of Cases From State Court
28 U.S.C. §1452(a) provides as follows:
(a) A party may remove any claim or cause of action in a civil action other than a proceeding before the United States Tax Court or a civil action by a governmental unit to enforce such governmental unit's police or regulatory power, to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title.
As the title to 28 U.S.C. §1452 itself indicates (''Removal of Claims related to bankruptcy cases matters that can be removed removed include claims ''related to'' a bankruptcy case within the meaning of 28 U.S.C. §1334(b).
In addition to 28 U.S.C. §1452(a), any civil action brought in a state court may also be subject to removal pursuant to 28 U.S.C. §1441(a), if applicable. 2 See Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995). 28 U.S.C. §1441(a) provides as follows:
(a) Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State
court of which the district courts of the United
States have original jurisdiction, may be removed
by the defendant or the defendants, to the
district court of the United States for the
district and division embracing the place where
such action is pending. For purposes of removal
under this chapter, the citizenship of defendants
sued under fictitious names shall be disregarded.
Where the basis for removal includes claims related to bankruptcy cases, or federal questions concerning title 11 of the United States Code (the ''Bankruptcy Code''), if the underlying court case sought to be removed (the ''Bankruptcy Related Removed Case") is pending in Maryland, the removal pleading should be filed in the United States Bankruptcy Court for the District of Maryland, whether the bankruptcy case is pending in the United States Bankruptcy Court for the District of Maryland or in a bankruptcy court located in another state.
2 It should be noted that, as a practical matter, 28 U.S.C. §1441(a) may be of more limited applicability because of, inter alia, §1446(b)'s potentially more stringent time period for effecting removal and the limitation that only defendants can seek removal under §1441(a) and the general rule that all defendants must join in the request for removal.
Whether the underlying bankruptcy case is pending in Maryland or a bankruptcy court in another state, the removal papers should be filed in the division (Baltimore or Greenbelt) of the United States Bankruptcy Court for the District of Maryland covering the county in Maryland where the Bankruptcy Related Removed Case is pending. See Rule 9027(a)(1), Federal Rules of Bankruptcy Procedure (hereinafter referred to as ''Bankruptcy Rule" and 28 U.S.C. §1446(a). 3.
3 If the underlying bankruptcy case is pending in Maryland before a Bankruptcy Judge in a division other than the division in which the notice of removal and other initial removal pleadings are filed, the removed case and any motions related thereto may be assigned or transferred to the Bankruptcy Judge handling the underlying bankruptcy case in Maryland. The cover sheet filed with the clerk's office at the time of filing the notice of removal should
indicate the underlying Maryland bankruptcy case as a related case.