In the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
, removal jurisdiction allows a
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
to move a
civil action
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
filed in a
state court to the
United States district court
The United States district courts are the trial courts of the United States federal judiciary, U.S. federal judiciary. There is one district court for each United States federal judicial district, federal judicial district, which each cover o ...
in the
federal judicial district in which the state court is located. A federal
statute
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
governs removal.
Generally, removal jurisdiction exists only if, at the time plaintiff filed the action in state court, the federal court had a basis for exercising
subject-matter jurisdiction
Subject-matter jurisdiction (also called jurisdiction ''ratione materiae')'' is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority ...
over the action, such as
diversity of citizenship of the parties or where plaintiff's action involves a
claim under federal law. If removal is based solely on diversity of citizenship, removal jurisdiction does not exist if any properly joined and served defendant is a citizen of the state in which the action is pending.
Where removal jurisdiction exists, the defendant may remove the action to federal court by filing a notice of removal in the federal district court within 30 days after receiving the complaint. The defendant must file a copy of the notice of removal in the state court and must notify all other parties of the removal. In a case with more than one named defendant, normally all defendants who have been served with
legal process
Legal process (sometimes simply process) is any formal notice or writ by a court obtaining jurisdiction over a person or property. Common forms of process include a summons, subpoena, mandate, and warrant. Process normally takes effect by ...
must join in the notice of removal.
If the party contends that removal was improper, based on any ground other than that the federal district court lacks subject matter jurisdiction, the party may move the district court to remand the case to state court within 30 days after the defendant filed the notice of removal. The district court will grant the motion if it finds that removal was improper. If the district court determines that it lacks subject matter jurisdiction at any time before entry of final judgment, the district court must remand the action to the state court.
The
Class Action Fairness Act of 2005
The U.S. Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453, 1711–15, expanded federal subject-matter jurisdiction over many large class action lawsuits and mass actions in the United States.
The bill was the first major piece of ...
creates a separate basis for defendants to remove specified
class action
A class action, also known as a class-action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class actio ...
s filed in a state court to a federal district court.
History
The
Judiciary Act of 1789
The Judiciary Act of 1789 (ch. 20, ) was a United States federal statute enacted on September 24, 1789, during the first session of the First United States Congress. It established the federal judiciary of the United States. Article III, Secti ...
initially provided for removal jurisdiction. The
Jurisdiction and Removal Act of 1875 explicitly granted federal courts jurisdiction over questions arising under federal law.
[Michael G. Collins, ]
The Unhappy History of Federal Question Removal
', 71 IOWA L. REV. 717 (1986). The
Judiciary Act of 1887 limited removal to defendants and established the
well pleaded complaint requirement for removal.
[
]
Removal and complete diversity
When there are multiple defendants in a case, if even just one is a citizen of the state where the lawsuit was filed, a plaintiff can successfully object to removal if the only basis for federal jurisdiction is based on diversity of citizenship. The reason for the rule is that diversity jurisdiction was created by the Founding Fathers of the United States
The Founding Fathers of the United States, known simply as the Founding Fathers or Founders, were a group of late-18th-century American Revolution, American revolutionary leaders who United Colonies, united the Thirteen Colonies, oversaw the Am ...
in the Constitution to shield defendants from possible discrimination in a foreign forum (i.e., a state not their home state). When an in-state defendant is being sued in a state court, it is expected that he will not be subject to unfair prejudice. With the exception of class actions under CAFA, every defendant must agree to remove; otherwise, the plaintiff or non-removing defendants can request remand for failure to satisfy the "rule of unanimity".
Notably, there is a circuit split
In United States federal courts, a circuit split occurs when two or more different circuit courts of appeals provide conflicting rulings on the same legal issue. The existence of a circuit split is one of the factors that the Supreme Court of ...
(and several intracircuit splits) over whether every defendant ''named'' in the complaint must join in the removal notice, or whether the rule of unanimity applies only to those defendants who have been properly served as of the date of removal. The reason this is important is that sometimes a plaintiff may not be able to (or may deliberately choose not to) formally serve ''all'' defendants on the same day, or some defendants may become aware of the existence of the complaint before it is formally served (for example, if other already-served defendants send them a "courtesy copy"). In courts that adhere to the latter rule, removal jurisdiction may be proper as long as defendants can show that all defendants who were properly served by the date of removal joined in the removal notice, even though not all named defendants joined in the notice.
A plaintiff may never remove its own case, even if the defendant files counterclaim
In a court of law, a party's claim is a counterclaim if one party asserts claims in response to the claims of another. In other words, if a plaintiff initiates a lawsuit and a defendant responds to the lawsuit with claims of their own against th ...
s alleging violations of federal law by the plaintiff. A plaintiff must seek a dismissal without prejudice and refile in federal court.
There exists a small set of cases (e.g., workers' compensation
Workers' compensation or workers' comp is a form of insurance providing wage replacement and medical benefits to employees injured in the course of employment in exchange for mandatory relinquishment of the employee's right to sue his or her emp ...
actions and actions under the Federal Employers Liability Act
The Federal Employers' Liability Act (FELA), 45 U.S.C. § 51 et seq. (1908), is a United States federal law that protects and compensates railroaders injured on the job.
Background
In the years between 1889 and 1920, railroad use in the U.S. exp ...
) that are barred from removal under all circumstances.
Removal of criminal cases
A statute dating back to 1815, the latest analogue of which is codified at , allows removal of state criminal cases where the defendant is a federal officer who alleges that the act was committed in carrying out his federal duties. Under this, a number of state criminal cases have been removed to federal court and there summarily dismissed, thus preventing trial on the merits of whether the officer or agent was in fact carrying out his official duties, or acting outside of them. A famous example of such a removal was the case of ''Idaho v. Lon Horiuchi'', alleged to have committed manslaughter of Vicki Weaver in the Ruby Ridge
Ruby Ridge was the site of an eleven-day siege in 1992 in Boundary County, Idaho, near Naples. It began on August 21, when deputies of the United States Marshals Service (USMS) initiated action to apprehend and arrest Randy Weaver under a bench ...
encounter.
Removal of cases involving federal agencies or federal officers
Removal jurisdiction in cases involving federal agencies or officers who are named as defendants in civil suits or criminally prosecuted is also governed by , known as the federal-officer removal statute, as opposed to removal under . The primary difference between the two statutes is that in the wording of section 1442, the law provides that in the case of federal agencies or officers, the federal district court need not otherwise have subject-matter jurisdiction over the type of case presented so long as the federal officer was acting under color of office in a civil matter, or in a criminal matter, was acting under authority granted by Congress for apprehension of criminals or collection of monies. Under section 1446, on the other hand, there must be federal subject-matter jurisdiction to justify removal. The Supreme Court case ''BP P.L.C. v. Mayor and City Council of Baltimore
''BP P.L.C. v. Mayor and City Council of Baltimore'', 593 U.S. ___ (2021), was a case in the United States Supreme Court dealing with matters of jurisdiction of various climate change lawsuits in the United States judicial system.
Background
Aro ...
'' (2021) resolved a circuit split on how appellette sources may review challenges to federal-officer removal orders.
Timeliness of removal
When defendants want to remove, they ordinarily must do so within 30 days of receiving the complaint, "through service or otherwise", under (b). An exception applies if diversity jurisdiction, and thus removal jurisdiction, is lacking at the time of the initial pleading in state court, but becomes available within a year after initiation of the suit. In such case, defendants may remove under 28 U.S.C. §1446(b) (second paragraph). For example, a federal court would not initially have removal jurisdiction over claims under state law brought by a Texas citizen against another Texas citizen and a New York citizen. However, should the Texas defendant be dropped from the claim, the New York citizen can remove if one year has not passed since the initiation of the suit. Some courts permit equitable tolling of the one-year limitation of §1446(b) if the original complaint was an attempt in bad faith to evade federal jurisdiction.
Defendants may remove state law claims for which a federal court has only supplemental jurisdiction
Supplemental jurisdiction, also sometimes known as ancillary jurisdiction or pendent jurisdiction, is the authority of United States federal courts to hear additional claims substantially related to the original claim even though the court would la ...
, if they share a common nucleus of operative fact with claims based on federal law. The federal court has the discretion
Discretion has the meaning of acting on one's own authority and judgment. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge. Some view discretion negatively, while some view it ...
to accept the case as a whole or remand the issues of state law, however the court must apply state substantive law to state law claims, as opposed to federal law- a practice which is inline to actions brought under 42 U.S.C. 1983.
Other issues
State courts do not adjudicate whether an action could be properly removed. As soon as a defendant completes the removal process by filing a notice of removal in the state court, jurisdiction is transferred automatically and ''immediately'' by operation of law from the state court to the federal court. Any objection to removal must be presented to the federal court by way of a timely-filed motion. Apart from motions brought by the parties, many federal district courts screen notices of removal for facially obvious defects and when they catch one will issue a ''sua sponte
In law, ''sua sponte'' (Latin: "of his, her, its or their own accord") or ''suo motu'' ("on its own motion") describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken wi ...
'' order to show cause
An order to show cause is a type of court order that requires one or more of the parties to a case to justify, explain, or prove something to the court. Courts commonly use orders to show cause when the judge needs more information before deciding ...
directed to the moving defendant. If a federal court finds that the notice of removal was in fact defective, or that the federal court does not have jurisdiction, the case is remanded to the state court.
A defendant used to have to formally petition the federal court for the right to remove, and jurisdiction was not transferred until the federal court entered a formal order to that effect. The petition procedure was abolished around 1980 by Congress and replaced with the simple filing-of-notice removal procedure, although federal courts still see the occasional petition for removal or a motion for remand due to the lack of such a petition.
There is no reverse "removal". That is, if a case originates in a federal court, there is no ability for a defendant to remove a case from federal court into state court. If the federal court lacks jurisdiction, the case is dismissed. Only cases that originate in a state court and are improperly removed to a federal court may be sent back to the state court where they started.
A defendant can waive the right to remove by contract, although courts take different positions about what language is necessary to create a waiver.[Coale, Visosky & Cochrane]
''Contractual Waiver of the Right to Remove to Federal Court''
” 29 Rev. Litig. 327 (2010).
Remand orders are not generally appealable , but may be appealed in the case of removals brought under the Class Action Fairness Act of 2005
The U.S. Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453, 1711–15, expanded federal subject-matter jurisdiction over many large class action lawsuits and mass actions in the United States.
The bill was the first major piece of ...
or where the Federal Deposit Insurance Corporation appeals a remand order under 12 U.S.C. § 1819(b)(2)(C). An alleged waiver of removal rights is also appealable, since the issue is not jurisdiction but the legal effect of the defendant's actions and agreements.
See also
*'' International Insurance Co. v. Duryee'' (1996)
References
{{Reflist
External links
28 U.S.C § 1441 - Actions removable generally
Civil procedure
Jurisdiction