Removal jurisdiction
Encyclopedia
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
for the federal judicial district in which the state court sits. This is a general exception to the usual American rule giving the plaintiff
the right to make the decision on the proper forum. Removal occurs when a defendant files a "notice of removal" in the state court where the lawsuit is presently filed and the federal court which the defendant would like to remove the case to.
, et seq. 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 jurisdiction
such as diversity jurisdiction
or federal question jurisdiction
. A case must be removed to the federal district court that encompasses the state court 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 (the unanimity rule). Removal of claims under state law, even when a federal court indisputably has diversity jurisdiction
, is more restricted. Except in certain class action
s 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.
Notably, there is a circuit split
(and several intracircuit splits) over whether every defendant named in the complaint must join in the removal notice, or whether the unanimity rule 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 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. 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
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
actions and actions under the Federal Employers Liability Act
) that are barred from removal under all circumstances.
encounter.
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.
to removal must be presented to the federal court. 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.
Previously, a defendant had 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. These are usually filed by solo practitioners, typically elderly, who are unaware of the current rule.
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.
Remand orders are not generally appealable, but may be appealed in the case of removals brought under the Class Action Fairness Act of 2005
or where the Federal Deposit Insurance Corporation appeals a remand order under 12 U.S.C. § 1819(b)(2)(C).
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, removal jurisdiction refers to the right of a defendant
Defendant
A 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 lawsuit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
filed in state court to the federal district court
United States district court
The 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...
for the federal judicial district in which the state court sits. This is a general exception to the usual American rule giving the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
the right to make the decision on the proper forum. Removal occurs when a defendant files a "notice of removal" in the state court where the lawsuit is presently filed and the federal court which the defendant would like to remove the case to.
Removal jurisdiction
Removal is governed by statuteStatute
A statute is a formal written enactment of a legislative authority that governs a 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, decided by courts, and regulations...
, et seq. 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 jurisdiction
Subject-matter jurisdiction
Subject-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 only has the authority to hear bankruptcy cases....
such as diversity jurisdiction
Diversity jurisdiction
In 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 the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are...
or federal question jurisdiction
Federal question jurisdiction
Federal 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...
. A case must be removed to the federal district court that encompasses the state court 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 (the unanimity rule). Removal of claims under state law, even when a federal court indisputably has diversity jurisdiction
Diversity jurisdiction
In 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 the power to hear a civil case where the persons that are parties are "diverse" in citizenship, which generally indicates that they are...
, is more restricted. Except in certain class action
Class action
In law, a class action, a class suit, or a representative action is a form of lawsuit in which a large group of people collectively bring a claim to court and/or in which a class of defendants is being sued...
s governed by the Class Action Fairness Act of 2005
Class Action Fairness Act of 2005
The 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 even 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.Notably, there is a circuit split
Circuit split
In the context of United States federal courts, a circuit split exists when two or more circuits in the United States court of appeals system have different interpretations of federal law....
(and several intracircuit splits) over whether every defendant named in the complaint must join in the removal notice, or whether the unanimity rule 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 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. 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
Counterclaim
In civil procedure, a party's claim is a counterclaim if the defending party has previously made a claim against the claiming party.Examples of counterclaims include:...
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
Workers' compensation 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 employer for the tort of negligence...
actions and actions under the Federal Employers Liability Act
Federal Employers Liability Act
The Federal Employers Liability Act , 45 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.
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 RidgeRuby Ridge
Ruby Ridge was the site of a violent confrontation and siege in northern Idaho in 1992. It involved Randy Weaver, his family, Weaver's friend Kevin Harris, and agents of the United States Marshals Service and Federal Bureau of Investigation...
encounter.
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
Supplemental 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 discretion
Discretion
Discretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic.-Meanings:*"The Art of suiting action to particular circumstances"...
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, jurisdiction is transferred automatically and immediately by operation of law from the state court to the federal court. Any objectionObjection (law)
In 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 must be presented to the federal court. 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.
Previously, a defendant had 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. These are usually filed by solo practitioners, typically elderly, who are unaware of the current rule.
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.
Remand orders are not generally appealable, but may be appealed in the case of removals brought under the Class Action Fairness Act of 2005
Class Action Fairness Act of 2005
The 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).