Emergency Motion to Remand Cause
Description
Key Concepts & Definitions
An emergency motion to remand cause is a legal request made in U.S. federal court seeking to transfer a case back to state court. It's typically filed in situations where a case was initially filed in state court but was moved ('removed') to federal court, and one party believes it should be returned to state court due to jurisdictional issues or other legal reasons. This motion is considered 'emergency' due to the necessity of a swift resolution to maintain proper legal jurisdiction and procedural correctness.
Step-by-Step Guide
- Determine Eligibility: Verify if the case meets the criteria for remand, such as lack of federal jurisdiction or a procedural error during removal.
- Gather Evidence: Compile necessary documents and evidence supporting the argument for remand.
- Draft the Motion: Write the motion clearly stating the reasons for remand, backed by legal precedents and statutes.
- File the Motion: Submit the motion to the federal court where the removal was initially filed. Ensure adherence to any local court rules and deadlines.
- Serve the Motion: Legally serve all involved parties with the motion to provide them the opportunity to respond.
- Attend Hearing: Participate in the hearing if required, presenting arguments and responding to any opposition.
Risk Analysis
Filing an emergency motion to remand cause carries several risks, including potential delays in the case progression, additional legal costs, and the possibility of the motion being denied. Incorrectly filed motions can weaken the filer's position or result in sanctions. It's crucial to ensure the motion is well-founded legally and factually to mitigate these risks.
Pros & Cons
- Pros:
- Potentially corrects jurisdictional errors, ensuring the case is handled appropriately.
- May lead to a more favorable legal environment depending on state laws and procedures.
- Cons:
- Can cause delays in the legal process.
- Increases legal expenses due to additional filings and possible hearings.
Common Mistakes & How to Avoid Them
- Delay in Filing: Avoid unnecessary delays by promptly deciding on the necessity of a remand motion after the case's removal to federal court.
- Inadequate Documentation: Ensure all relevant evidence and legal citations are accurately gathered and presented within the motion.
- Lack of Legal Precision: Work with a legal professional to draft the motion to adhere strictly to legal standards and requirements.
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FAQ
To remand something is to send it back. Remand implies a return.When an appellate court reverses the decision of a lower court, the written decision often contains an instruction to remand the case to the lower court to be reconsidered in light of the appellate court's ruling.
When a person is remanded in custody it means that they will be detained in a prison until a later date when a trial or sentencing hearing will take place. The majority of prisoners on remand have not been convicted of a criminal offence and are awaiting trial following a not guilty plea.
Remand means that a higher court sends back, or returns a case to the lower court. Our law firm will frequently file a motion to remand a case back to state court. If the federal court decides that the case was not one in which removal was appropriate, it will remand the case back to the state court.
The current provisions are: 56 days between the first appearance and trial for summary offence; 70 days between the first appearance and summary trial for an offence which is triable either way (the period is reduced to 56 days if the decision for summary trial is taken within 56 days);
Remand is when higher courts send cases back to lower courts for further action. In the law of the United States, appellate courts remand cases to district courts for actions such as a new trial. Federal appellate courts, including the Supreme Court, have the power to "remand a cause and
The federal court cannot even remand the case to state court, but must dismiss it in its entirety. C. WRIGHT, THE LAW OF FEDERAL COURTS § 38, at 212 (1983). In this instance, however, the state court has lost jurisdiction of the case just as if the federal court had assumed jurisdiction over the matter.
Remanded Appeals A remanded appeal simply means that the case is sent back to the lower courts.Improper rulings, errors in procedure, or the exclusion of admissible evidence may result in a lower court's decision being overturned and sent back for further action.
A remand under rule 8.528(c) is not a decision final on filing because it is not a separately filed order; rather, as part of its appellate judgment at the end of its opinion in such cases the Supreme Court simply orders the cause remanded to the Court of Appeal for disposition of the remaining issues in the appeal.
Instead, the appellate court will remand, or send, the case back to the trial court for the trial court to actually fix or re-decide the issue. This means that the issue or issues wrongly decided will be re-tried or re-heard by the trial judge based on and within the instructions given by the appellate court.