Civil Procedure Multistate Bar Practice Exam

What is the consequence of a late removal notice?

1. The case remains in state court

2. It is automatically transferred to federal court

3. The defendant cannot argue for removal later

4. The plaintiff must refile the lawsuit

The correct answer is: The case remains in state court

A late removal notice typically results in the case remaining in state court. When a defendant wishes to remove a case from state to federal court, there are specific time constraints outlined in 28 U.S.C. § 1446. A notice of removal must be filed within 30 days after the defendant receives the initial complaint or summons, whichever is shorter. If the defendant fails to meet this deadline, the right to remove the case is lost, and the case will continue to be adjudicated in state court. In terms of the other options, the notion that the case is automatically transferred to federal court is incorrect since a late notice means the removal cannot occur. The idea that the defendant cannot argue for removal later is misleading because, while they cannot remove late in the current instance, they may be able to argue for removal in future cases or under different circumstances. Finally, the requirement for the plaintiff to refile the lawsuit does not apply; the plaintiff's original case remains valid in state court without needing to be refiled.