Wednesday, February 16, 2011
Removal, Remand and Preemption
There are few procedural maneuvers in the practice of law so satisfying as removal. "Removal" means simply filing a notice with a state court that the matter is being removed to state court. Removal is authorized by 28 USC 1441(a).
Removal is appropriate under certain circumstances where the federal district could had original jurisdiction. If you don't like being removed, the remedy is a motion to remand.
The above video is a great introduction to the topic.
In copyright law, the complete preemption doctrine is said to apply.
Chapter 10 of Copyright Litigation Handbook: Removal From State Court and Preemption deals with these topics in the unique context of this interplay of state/federal jurisdictions and the Copyright Act.
If you want to remove, you have to act very very quickly, the usual deadlines don't apply and by the time you've thought things through, it may be too late.
More on the Law of Avatars and preemption here.
Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here
Labels: 28 USC 1441, copyright law, federal courts, federal litigation, federal practice, remand, removal jurisdiction, subject matter jurisdiction
Partner in Manhattan law firm Dunnington Bartholow & Miller LLP in New York City litigating in federal and state courts and arbitrations. Experienced trial and appellate practitioner. Author: Copyright Litigation Handbook (Thomson Reuters 2015-2016). The New York Law Journal called it "an indispensable guide". Serve on the Board of Directors of the Federal Bar Association, served as Chair of the Circuit Vice Presidents, Vice President for the Second Circuit and General Counsel. Member Board of Governors, National Arts Club. President, Network of Bar Leaders (2013-2014). Attorney advertising disclaimer - prior results do not guarantee success. The statements and opinions voiced here are my own and not of my law firm.