The thirty day period is not jurisdictional, but is rather a strictly applied rule of procedure that may not be extended by the court. Where the propriety of removal is in question, the burden of showing removal is proper is on the removing party. The removal statute should be strictly construed against removal, in favor of remand. of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable.Ģ8 U.S.C. 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. § 1446(b), which provides, in pertinent part, that: he 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. Remaining for the Court is the determination whether defendant's notice of removal was timely under 28 U.S.C. Accordingly, defendant's removal, insofar as it pertains to this Court's subject matter jurisdiction, is proper. § 1447(d) and held that the action was properly removed under § 1443. On appeal, the Eleventh Circuit reviewed the propriety of the order of remand pursuant to 28 U.S.C. 1991), the defendant removed a state court action based on his counterclaim that plaintiffs' efforts to stop him from moving his house were racially motivated and violated his rights under, inter alia, the Fair Housing Act.
commenced in a State court may be removed by the defendant to the district court of the United States for the district and the division embracing the place wherein it is pending: (1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof (2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.Ģ8 U.S.C. Section 1443 of Title 28, United States Code, provides: Any of the following civil actions. § 1443, as the counterclaim alleges that plaintiff, through its eviction action, is using the state court processes to discriminate against defendant on the basis of race, in violation of the Fair Housing Act of 1968, as amended, 42 U.S.C. Defendant seeks to remove this action based on 28 U.S.C. Defendant filed a second amended answer with a counterclaim on Februand filed her notice of removal on March 17, 1997, 103 days after service of the complaint but less than 30 days after filing the second amended complaint with the counterclaim. Plaintiff served defendant with a state court complaint for eviction on December 4, 1996. For the reasons that follow, the Motion to Remand is GRANTED. The Court has carefully considered the Motion, response, the pertinent portions of the record, and is otherwise fully advised in the premises. Plaintiff moves to remand the action, which motion defendant opposes. Plaintiff argues that defendant cannot remove the action based on its counterclaim and that even if the counter-claim provides a federal jurisdictional basis, the notice of removal is untimely. THIS CAUSE came before the court upon Plaintiff's Motion to Remand Action to State Court (D.E.5). Webster, Legal Services of Greater Miami, Miami, FL, for Defendant. Berg, Jr., Florida Justice Institute, Inc., Mary A. *1441 Steven Elliott Brooks, Sakowitz & Brooks, Bay Harbor Islands, FL, Harvey Reisenman, Miami, Fl, for Plaintiff. Lena BROWNING, Defendant/Counter-Plaintiff. BCC APARTMENTS, LTD., Plaintiff/Counter-Defendant,
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