Q: Illinois removal from federal court
I am a plaintiff in a case in which the defendant removed the case from state to federal court. It has now been remanded back to state court. Defendants filed a motion to dismiss in fed court which wasnt resolved. Defendants are now seeking to dismiss case in state court based upon the motion to dismiss in Fed court. Do defendants have to file a new MTD in state court, or does the previous one filed in fed court still stand? I ask because after the case was remanded back to state court, that 5 months have gone bye and state court has not ruled on the MTD filed in Fed court. Is the fed MTD null and void or does it still carry weight in state court?
A: I believe that once the federal court is divested of jurisdiction and thus any authority over the pending case, that the motion to dismiss filed in federal court would have to be filed in the state proceeding to heard. That seems to be the case where although the motion to dismiss was filed in the federal court, I am assuming from what information you provided that there was no briefing schedule order entered in federal court and no order was entered as to the motion. If I were the movant, I would refile the motion in the state court proceeding once it has been accepted and docketed in the state court. During those 5 months I would want to know (in the state cases now) whether the plaintiff filed a response brief and whether defendant filed a reply. If so, that would indicate at least that a briefing schedule order was entered either in the federal case, before remanded, or in the state case. But if no countering briefing was done by either side, I think the defendant would need to refile the motion.
Tim Akpinar agrees with this answer
You obviously are represented by counsel and as Plaintiff, your attorney is working on a contingency fee so it costs you NOTHING to get an answer from the person who knows most about your case. Ask your attorney.
In general, pleadings are court-specific. If you file a Motion in one State court and venue is changed to another State court, you MUST replead the Motion. The same is true on removal or remand. You are in a new court and the Motion is NOT before the new court.
The case was probably remanded for lack of jurisdiction. Either there was no Federal question or the amount in controversy was not sufficient (less than $75,000). This is an old defense tactic to waste time and cause the Plaintiff to spend money, needlessly, while less than scrupulous defense attorneys are billing the file.
As Plaintiff, YOU should be more interested in moving forward with litigation. Is written Discovery complete? Have the Plaintiff and Defendant been deposed? Courts take a dim view of cases that pend, indefinitely, with no progress. 5 months is a long time for nothing to happen and an invitation for a Motion to Dismiss for lack of prosecution. You need to discuss with your attorney being more proactive in the litigation.
Tim Akpinar agrees with this answer
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