191.4 Time For Filing Notice of Removal

Time For Filing Notice of Removal

With respect to removals pursuant to 28 U.S.C. §1452, Bankruptcy Rules 9027(a)(2) and (3) govern the time in which a notice of removal must be filed in order to be timely. The rules distinguish between the time for seeking removal if the underlying court action sought to be removed is already pending when the bankruptcy case is thereafter commenced (Bankruptcy Rule 9027(a)(2)) and when the underlying court action sought to be removed is filed after the bankruptcy case has already been commenced (Bankruptcy Rule 9027(a)(3)).

Bankruptcy Rule 9027(a) provides, in pertinent part, as:

    (2)Time for Filing; Civil Action -Tnitiated For Commencement of the Case Under The Code. If the claim or cause of action in a civil action is pending when a case under the Code is commenced, a notice of removal may be filed only within the longest of (A) 90 days after the order for relief

in the case under the Code, (B) 30 days after entry of an order terminating a stay, if the claim or cause of action in a civil action has been stayed under §362 of the Code, or (C) 30 days after a trustee qualifies in a Chapter 11 reorganization case but not later than 180 days after the order for relief.

(3) Time for Filing; Civil Action -Tnitiated After Commencement of the Case Under the Code. If a case under the Code is pending when a claim or

cause of action is asserted in another court, a notice of removal may be filed with the clerk only within the shorter of (A) 30 days after receipt, through service or otherwise, of a copy of the initial pleading setting forth the claim or cause of action sought to be removed or (B) 30 days after receipt of the summons if the initial pleading has been filed with the court but not served with the summons.

With respect to removals pursuant to 28 U.S.C. §1441(a), the time in which a notice of removal must be filed in order to be timely is set forth in 28 U.S.C. §1446(b).

    28 U.S.C. §1446(b) provides as follows:

    (b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.