191.3 Removal Procedure


	191. NOTICE OF REMOVAL 28USC 1452 191.1 INTRODUCTION 191.2 Removal Of Cases From State Court 191.3 Removal Procedure 191.4 Time For Filing Notice of Removal 191.5 Motion to Remand 191.6 Motion to Transfer Venue 191.7 Procedure After Removal 191.8 Case Number and Captions

REMOVAL PROCEDURE

As set forth in both Bankruptcy Rule 9027(a) and 28 U.S.C. §1446(a), the basic pleading to remove a case is a Notice of Removal. Neither a motion nor a court order is required to effect removal of a court action; removal is accomplished by filing a notice of removal with the clerk of the bankruptcy court and a copy of such notice with the clerk of the court from which the case is being removed.

With respect to removal pursuant to 28 U.S.C. §1452, Bankruptcy Rule 9027(a)(1) provides as follows:

(I) Where filed; form and content. A notice of removal shall be filed with the clerk for the district and division within which is located the state or federal court where the civil action is pending. The notice shall be signed pursuant to Rule 9011 and contain a short and plain statement of the facts which entitle the party filing the notice to remove, contain a statement that upon removal of the claim or cause of action the proceeding is core or non-core and, if non-core, that the party filing the notice does or does not consent to entry of final orders or judgment by the bankruptcy judge, and be accompanied by a copy of all process and pleadings.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.

As set forth in the foregoing Rule, the notice of removal must contain a statement of the facts which entitle the party filing the notice to remove the matter. Those facts should include sufficient facts to establish a jurisdictional basis for removal, with reference to the statutes conferring jurisdiction (e.g., 28 U.S.C. §1452 and 28 U.S.C. §1334.) Also included in

the facts should be a reference to the underlying bankruptcy case to which the removed action relates, including the case name and number and the court in which such bankruptcy case is pending. As further set forth in Bankruptcy Rule 9027(a)(1), the notice must state whether the removed matter is core or non-core and, if it is non-core, whether the party removing the matter consents to entry of final orders or judgment by the bankruptcy judge.

Another requirement set forth in Bankruptcy Rule 9027(a)(1) is that the notice of removal be accompanied by a copy of all process and pleadings in the removed action. The bankruptcy court will enter an order after the filing of the notice of removal directing that copies of all process and pleadings not already filed with the bankruptcy court be filed within 20 days, and the order will set a status conference before the court at which a pretrial schedule and trial date will be discussed.

Promptly after filing the notice of removal, a copy of the notice must be served by the party filing the notice on all other parties to the removed claim or cause of action. Bankruptcy Rule 9027(b). All other pleadings filed in the removed action should also be served on all other parties. In addition, promptly after filing the notice of removal, a copy of the notice must be filed by the removing party with the clerk of the court from which the claim or cause of action was removed. Bankruptcy Rule 9027(c).

The Rule further states that removal is effected on filing of a copy of the notice of removal with the clerk of the court from which the claim or cause of action is removed, and that parties to the removed action shall proceed no further in that court unless and until the claim or cause of action is remanded. Bankruptcy Rule 9027(c).

With respect to removal pursuant to 28 U.S.C. §1441(a), 28 U.S.C. §1446 sets forth procedures very similar to those contained in Bankruptcy Rule 9027.

28 U.S.C. §§1446(a) and (d) provide as follows:

(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.

(d) Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further

unless and until the case is remanded.

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