Remove a case to Federal Court - Very Important!?

Question

How does one remove a restraining order to federal court. Basically, a restraining order was filed in a state that has no jurisdiction over the defendant. The Defendant notified them of that and they proceeded to have a hearing at a time when the Defendant count not appear. The Defendant never had the right to be heard. Defendant would like to remove to federal court in his own state, citing failure to be heard/violations of his Constitutional rights. Thank you.

OK, this WAS in two different states. They may as well NOT have had the hearing because it was pointless. Defendant couldn't attend and they wouldn't reschedule. Don't defendants have a U.S. Constitutional right to be heard? Yes. What do you do if that right is ignored and trampled on?

Answer 1

Removal to federal court generally occurs in the same district in which the civil case was filed. So, removal to federal court will likely not change the jurisdictional questions based on location.

Also, removal to federal court still requires subject matter jurisdiction. That basically limits it to federal questions, where a right or remedy is granted pursuant to federal law, or where there is both diversity of citizenship (two different states) and an amount in controversy (damages) over $75,000. It doesn't sound like damages are an issue here, from the facts you've given.

Equitable remedies require personal jurisdiction to enforce. Whether in state or federal court. If the defendant is not in the jurisdiction of the court issuing the order, then how is the court going to enforce the order? They would have no personal jurisdiction (by definition).

If the defendant comes within the jurisdiction of the ordering court for the first time, then your lawyer should be able to explain the procedures for contesting the order at that point.

Even if the order was challenged in federal court, there is still the subject matter jurisdiction problem. And the only federal question I can think of would be a general Due Process violation. Which probably can't be raised until the order is being enforced anyway.

Answer 2

Restraining orders are matters of the state and not the federal courts. One way to have tort moved to federal court is if one of the parties lives out of state, in other words, both parties live in two different states. Otherwise, the very fact that there was a hearing is perfectly legal even if the defendant was not able and did not appear in court. This is the way the system works. It is not always fair.

Answer 3

A restraining order case does not fall under the jurisidiction of the federal courts, so you can remove it. You should have retained an attorney in the forum state and filed a motion to quash the service.

Answer 4

particularly this problems me better than the experience difficulty count did. If a citizen would not have criminal status to declare a candidate would not qualify to run, who does? and how is the shape ever enforced?