- Removal jurisdiction
United States, removal jurisdiction refers to the right of a defendantto move a lawsuitfiled in state courtto the Federal district courtof the original court's district. This is a general exception to the usual American rule giving the plaintiffthe right to make the decision on the proper forum.
Removal Jurisdiction Generally
Removal is governed by
statute, UnitedStatesCode|28|1441 " et seq". With rare exceptions, a case may only be removed if, at the time of removal, the case could be filed in federal court. Thus, removal requires an independent ground for subject matter jurisdictionsuch as diversity jurisdictionor federal question jurisdiction. If removal is granted, the case will be removed to the federal district court which corresponds geographically to where the state action was initiated.
Once removed, the case may be transferred or consolidated in another federal court, despite the plaintiff's original intent as to venue.
Ordinarily, defendants face no difficulty removing claims based on federal law if every defendant desires removal. Removal of state-law claims, 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. [28 U.S.C. §§1441(b), 1453.]
Rationale of Removal and Requirement of 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 policy underlying the anti-removal rule is that diversity jurisdiction is granted to prevent the defendant(s) from being discriminated against in a foreign forum. [
Federalist No. 80] When an in-state defendant is being sued in a state court, it is expected that it will not be subject to unfair prejudice.
There exists a small set of cases (e.g.,
workers' compensationactions and actions under the Federal Employers Liability Act) that are barred from removal under all circumstances.
A plaintiffs may never remove its case. (Plaintiffs must seek a dismissal without prejudice and refile in federal court.)
With the exception of class actions under CAFA, every defendant must agree to remove or the plaintiff or non-removing defendants can successfully request
Timeliness of Removal
When defendants want to remove, they ordinarily must do so within 30 days of receiving service of notice under UnitedStatesCode|28|1446(b). There is an important exception to the 30-day removal rule. If diversity jurisdiction, and thus removal jurisdiction, is lacking based upon the initial pleading in state court, but becomes available within a year after initiation of the suit, defendants may remove under 28 U.S.C. §1446(b) (second paragraph). For example, a federal court would not initially have removal jurisdiction over state-law claims brought by a Texas citizen against a Texas citizen and 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 a bad-faith attempt to evade federal jurisdiction. ["Tedford v. Warner-Lambert Co.", 327 F.3d 423 (5th Cir. 2003)]
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 discretionto accept the case as a whole or remand the issues of state law.
Other Removal Issues
State courts do not adjudicate the removability of an action. 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 removal petition 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 2005or where the Federal Deposit Insurance Corporation appeals a remand order under 12 U.S.C. § 1819(b)(2)(C).
* [http://straylight.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001441----000-.html 28 U.S.C § 1441 - Actions removable generally]
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