Removal (28 U.S.C. § 1441)
“Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.”
Requirements for Removal
- Original jurisdiction — the action must be one the federal court could have heard originally (federal question or diversity)
- Defendant’s right only — only defendants may remove; plaintiffs who chose state court may not
- All defendants must consent — the “rule of unanimity” (§ 1446(b)(2)(A))
- Timely notice — notice of removal must be filed within 30 days of receiving the initial pleading (or within 30 days of receiving an amended pleading that first makes the case removable)
- One-year limit in diversity cases — a diversity case may not be removed more than one year after commencement of the action (§ 1446(c)) unless plaintiff acted in bad faith
Forum-Defendant Rule (§ 1441(b)(2))
A case removable solely on diversity may not be removed if any defendant is a citizen of the state in which the action was brought. Rationale: diversity jurisdiction was designed to protect out-of-state defendants from local bias; in-state defendants need no such protection.
Federal Question Cases (§ 1441(a))
No forum-defendant rule applies. Any defendant may remove to the federal district embracing the state court if the claim arises under federal law.
Procedure
- File notice of removal in federal district court (§ 1446)
- Give written notice to adverse parties and state court
- Case is immediately removed — state court loses jurisdiction
- Plaintiff may move to remand for defects (28 U.S.C. § 1447)
- Jurisdictional defects (lack of subject matter jurisdiction): may be raised at any time
- Procedural defects: must be raised within 30 days of notice of removal
Remand (28 U.S.C. § 1447)
District court shall remand if it lacks subject matter jurisdiction. Orders remanding for lack of subject matter jurisdiction are not reviewable on appeal; orders remanding on procedural grounds are reviewable (Thermtron Products v. Hermansdorfer).