In the United States, removal jurisdiction refers to the right of a defendant to move a lawsuit filed in state court to the federal district court of the original court's district. This is a general exception to the usual American rule giving the plaintiff the right to make the decision on the proper forum.
Removal is governed by a federal statute — 28 U.S.C. §1441 et seq. With rare exceptions, a case may be removed only if, at the time of removal, the case could have been filed in federal court. Removal requires an independent ground for subject matter jurisdiction, such as diversity jurisdiction or federal question jurisdiction. If removal is granted, the case will be moved 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 jurisdiction, is more restricted. Except in certain class actions governed by the Class Action Fairness Act of 2005 (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.
There exists a small set of cases (e.g., workers' compensation actions and actions under the Federal Employers Liability Act) that are barred from removal under all circumstances.
A plaintiff may never remove its case. A plaintiff must seek a dismissal without prejudice and refile in federal court.
Timeliness of removal
When defendants want to remove, they ordinarily must do so within 30 days of receiving service of notice under 28 U.S.C. §1446(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, if they share a common nucleus of operative fact with claims based on federal law. The federal court has the discretion to accept the case as a whole or remand the issues of state law.
State courts do not adjudicate whether an action could be properly removed. Once a defendant has filed a notice to remove a case, any objection 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 will be 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 will be dismissed.
Remand orders are not generally appealable.
- 28 U.S.C. §§1441(b), 1453.
- Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003)(full-text).
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