加州民诉时间点总结_田律师整理

民诉时间点总结

1.One Year Rule: A case may not be removed on the basis of diversity of citizenship jurisdiction

more thanone year after it was commenced in state court. [28 U.S.C. § 1446(b)]Note also that acase must be removed no later than 30 days after the defendant discovers, through serviceof an amended pleading, order, etc., that the case has become removable.

2.Generally, a defendant must file a notice of removal within 30 days "after receipt by orservice

on that defendant of the initial pleading or summons. In some states, the defendant is served with summons and copy of complaint not at the same time, so the 30 days start to run from the moment of the receipt of the copy of complaint. If the defendants receives at different time, then the later served defendant initiates timely removal, the earlier served defendant may join in theremoval even though his 30 day period for initiating removal may have expired.

3.Section 1446(b)(3) also allows a defendant to file a notice of removal within 30 days of

receiptof an amended pleading, motion, order, or other court paper (such as discovery or other statecourt pleadings) that shows that a nonremovable case (or an apparently nonremovable case) isin fact removable.

4.After the removal petition, If the defendant has not answered, she must answeror present

the other defenses or objections available to her under the Federal Rules within 21days after being served, or within seven days after filing the petition for removal, whicheverperiod is longer. Amendments may be made to pleadings filed before removal.

5.Demand for Jury Trial:The right to a jury trial in a case removed to a federal court may be

waived unless atimely demand for a jury trial is filed. If, at the time of removal, all necessary pleadingshave been served, a trial by jury will be granted to a party so entitled. The removingparty must file a demand for jury trial within 14 days after the notice of removal is filed.The nonremoving party must file for jury trial within 14 days after service on her of thenotice of filing for removal.

6.Remand:A plaintiff can file a motion to have the case remanded (sent back) to the state

court. If theplaintiff bases this motion on a defect other than subject matter jurisdiction (e.g.,

a defect inremoval procedures), it must be brought within 30 days of removal.If thecourt

erroneously fails to remand, but the subject matter defect is cured before trial begins,failure to remand does not require that the federal judgment be vacated.

7.Waiver of Service: In federal court, The defendant generally has 30 days (60 days if outside

the UnitedStates) from the date that the request was sent to return the waiver.A defendant who waives formal service of process has 60 days, instead ofthe usual 21 days, to answer the complaint. The waiver ofservice does not waive the defendant's right to object to venue and jurisdiction.

8.In California, If defendantdoes not return the acknowledgment of receipt of summons within

20 days from the date of mailing, heor she is liable for plaintiff's expenses in serving

defendant by another method.[Cal. Code of Civ. P. §415.30] The return of the acknowledgment does not waivedefendant's right to challenge the court's exercise of personal jurisdiction.Incontrast to federal procedure, the return of the acknowledgment does not extend aCalifornia defendant's time to respond to the complaint.

9.The following motions must be filed, with no extensions, within 28 days after entry

ofjudgment: renewed motion for judgment as a matter of law, motion to amend