In the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
,
removal jurisdiction refers to the right of a
defendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute....
to move a
lawsuitA lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant's actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
filed in
state courtIn the United States, a state court has jurisdiction over disputes with some connection to a U.S. state. Cases are heard before and evidence is presented in a trial court, which is usually located in a courthouse in the county seat...
to the
federal district courtThe 94 United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
of the original court's district. This is a general exception to the usual American rule giving the
plaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
the right to make the decision on the proper forum.
Removal is governed by
statuteA statute is a formal written enactment of a legislative authority that governs a country, state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law and the regulations issued by...
,
et seqEt seq. or sqq. An abbreviation of the Latin phrase et sequens meaning "and the following one or ones". It is used to identify a page citation that continues on the pages that follow, or a statutory section or subsection and the sections or subsections that follow it.-References:* *...
. With rare exceptions, a case may be removed only if, at the time of removal, the case could be filed in federal court.
In the
United StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
,
removal jurisdiction refers to the right of a
defendantA defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute....
to move a
lawsuitA lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant's actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
filed in
state courtIn the United States, a state court has jurisdiction over disputes with some connection to a U.S. state. Cases are heard before and evidence is presented in a trial court, which is usually located in a courthouse in the county seat...
to the
federal district courtThe 94 United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
of the original court's district. This is a general exception to the usual American rule giving the
plaintiffA plaintiff , also known as a claimant or complainant, is the party who initiates a lawsuit before a court...
the right to make the decision on the proper forum.
Removal jurisdiction
Removal is governed by
statuteA statute is a formal written enactment of a legislative authority that governs a country, state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law and the regulations issued by...
,
et seqEt seq. or sqq. An abbreviation of the Latin phrase et sequens meaning "and the following one or ones". It is used to identify a page citation that continues on the pages that follow, or a statutory section or subsection and the sections or subsections that follow it.-References:* *...
. With rare exceptions, a case may be removed only if, at the time of removal, the case could be filed in federal court. Removal requires an independent ground for
subject-matter jurisdictionSubject-matter jurisdiction 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 has the authority to only hear bankruptcy cases....
such as
diversity jurisdictionIn the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has to hear a civil case because the persons that are parties are "diverse" in citizenship, which generally indicates that they are citizens...
or
federal question jurisdictionFederal question jurisdiction is a term used in the United States law of civil procedure to refer to the situation in which a United States federal court has subject-matter jurisdiction to hear a civil case because the plaintiff has alleged a violation of the Constitution or law of the United...
. If removal is granted, the case will be removed to the federal district court located in the state where the action was initiated.
Once removed, the case can be transferred to, or consolidated in, another federal court, despite the plaintiff's original intended venue.
Ordinarily, defendants face no difficulty removing claims based on federal law if every defendant desires removal. Removal of claims under state law, even when a federal court indisputably has
diversity jurisdictionIn the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction in civil procedure in which a United States district court has to hear a civil case because the persons that are parties are "diverse" in citizenship, which generally indicates that they are citizens...
, is more restricted. Except in certain
class actionIn law, a class action or a representative action is a form of lawsuit where a large group of people collectively bring a claim to court. This form of collective lawsuit originated in the United States and is still predominantly a U.S. phenomenon, at least the U.S. variant of it...
s governed by the
Class Action Fairness Act of 2005The U.S. Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332, 1453, and 1711-1715, expanded federal jurisdiction over many large class-action lawsuits and mass actions taken in the United States....
(CAFA), a plaintiff can successfully object to removal in diversity actions if any defendant is a citizen of the forum state where the suit is taking place.
Removal and complete diversity
When there are multiple defendants in a case, if just one is a citizen of the state where the lawsuit was filed, a plaintiff can successfully object to removal. The reason for the rule is that diversity jurisdiction is granted to shield the defendants from possible discrimination in a foreign forum. 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, and the plaintiff or non-removing defendants can request remand.
A plaintiff may never remove its own case, even if the defendant files
counterclaimA counterclaim is made by the defendant to a civil proceeding, in a main action against the plaintiff or against the plaintiff and other people. This claim may be an attempt to offset or reduce the amount/implications of the plaintiff's original claim against the defendant, or it may be a different...
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' compensationWorkers compensation is a form of insurance that provides compensation medical care for employees who are injured in the course of employment, in exchange for mandatory relinquishment of the employee's right to sue his or her employer for the tort of negligence...
actions and actions under the
Federal Employers Liability ActThe Federal Employers Liability Act , 5645 U.S.C. § 51 et seq. is a United States federal law that protects and compensates railroaders injured on the job.-Background:...
) that are barred from removal under all circumstances.
Timeliness of removal
When defendants want to remove, they ordinarily must do so within 30 days of receiving service of notice 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 jurisdictionSupplemental jurisdiction is the authority of United States federal courts to hear additional claims substantially related to the original claim even though the court would lack the subject-matter jurisdiction to hear the additional claims independently. is a codification of the Supreme Court's...
, if they share a common nucleus of operative fact with claims based on federal law. The federal court has the
discretionDiscretion is a noun in the English language.-Meanings:The word has two main meanings:# to determine guilt or innocence# to determine sentencing."The Art of suiting action to particular circumstances"Lord ScarmanAlso# The quality of being discreet...
to accept the case as a whole or remand the issues of state law.
Other issues
State courts do not adjudicate whether an action could be properly removed. Once a defendant has filed a notice to remove a case, any
objectionIn the law of the United States of America, an objection is a formal protest raised in court during a trial to disallow a witness's testimony or other evidence which would be in violation of the rules of evidence or other procedural law...
to removal is handled by the federal court. If a federal court finds that the petition of removal was in fact defective or that the federal court does not have jurisdiction, the case is remanded to the state court.
There is no reverse "removal." That is, 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.
Remand orders are not generally appealable, but may be appealed in the case of removals brought under the
Class Action Fairness Act of 2005The U.S. Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332, 1453, and 1711-1715, expanded federal jurisdiction over many large class-action lawsuits and mass actions taken in the United States....
or where the Federal Deposit Insurance Corporation appeals a remand order under 12 U.S.C. § 1819(b)(2)(C).
External links