Removal Jurisdiction
What is the Removal Jurisdiction?
Under 28 U.S.C. section 1441, a defendant may remove a civil action from state court to federal court if the federal court would have had original jurisdiction over the case, subject to procedural requirements and limitations.
Definition
Removal jurisdiction, governed by 28 U.S.C. sections 1441-1455, allows a defendant sued in state court to transfer the case to the federal district court embracing the place where the state action is pending, provided the federal court would have had original jurisdiction. The right to remove is exclusively the defendant's; plaintiffs, who chose the forum, cannot remove. The removal statute is strictly construed against removal and in favor of remand, reflecting the limited nature of federal jurisdiction.
The general removal statute, section 1441(a), permits removal of any civil action over which the federal district courts have original jurisdiction. For cases based solely on diversity jurisdiction, section 1441(b)(2) contains the forum defendant rule: a case may not be removed on diversity grounds if any properly joined and served defendant is a citizen of the state in which the action was originally filed. This prevents defendants from using removal to escape their home courts in diversity cases.
Procedurally, a defendant must file a notice of removal within 30 days of receiving the initial pleading or summons, or within 30 days of receiving an amended pleading or other document from which removability is first ascertainable. In diversity cases, removal is barred if more than one year has passed since the action was commenced, unless the court finds that the plaintiff acted in bad faith to prevent removal. All defendants who have been properly joined and served must consent to removal (the unanimity requirement). If removal was improper, the plaintiff may move to remand under section 1447(c), and the court must remand if it determines subject matter jurisdiction is lacking.
Key Elements
- 1The case must be one over which the federal court has original jurisdiction
- 2Only defendants may remove; the plaintiff cannot remove
- 3Notice of removal must be filed within 30 days of receiving the initial pleading or document revealing removability
- 4All properly joined and served defendants must consent to removal (unanimity rule)
- 5The forum defendant rule bars removal on diversity grounds if any defendant is a citizen of the forum state
- 6In diversity cases, removal is generally barred after one year from commencement of the action
Landmark Cases
Caterpillar Inc. v. Williams
482 U.S. 386 (1987)
Applied the well-pleaded complaint rule to removal, holding that a case is removable only if the plaintiff's complaint establishes federal question jurisdiction on its face.
Shamrock Oil & Gas Corp. v. Sheets
313 U.S. 100 (1941)
Established that only defendants, not plaintiffs asserting counterclaims, may exercise the right of removal.
Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc.
526 U.S. 344 (1999)
Held that the 30-day removal period begins upon formal service of process, not upon mere receipt or notice of the complaint.
Dart Cherokee Basin Operating Co. v. Owens
574 U.S. 81 (2014)
Held that a defendant's notice of removal need only include a plausible allegation that the amount in controversy exceeds $75,000; evidence is required only if the plaintiff contests the amount.
Exam Tips
- Check three things: (1) federal original jurisdiction exists, (2) procedural requirements are met (timing, unanimity), and (3) no statutory bar applies (forum defendant rule, one-year limit in diversity).
- Remember the forum defendant rule only applies to diversity cases, not federal question cases. A defendant sued at home can still remove a federal question case.
- If removal is improper for any reason, the remedy is a motion to remand under section 1447(c), and the court must remand if it lacks subject matter jurisdiction.
Common Mistakes to Avoid
- Allowing a plaintiff to remove a case; only defendants have the right to remove from state to federal court.
- Forgetting the forum defendant rule in diversity cases, which bars removal when any properly joined and served defendant is a citizen of the forum state.
- Missing the unanimity requirement: all properly joined and served defendants must consent to removal.
Memory Aid
Removal = Defendant's escape hatch from state court to federal court. 30 days, all Ds consent, no home-state D in diversity.