Venue – Removal to Federal Court

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Removal refers to the transfer of a civil action from state trial court to federal district court.

Notice of removal
A notice of removal is signed by the defendants and filed in federal court to begin the process of transferring the civil action from state court to federal court.

In certain cases, the defendant may wish the case to be heard by a federal, rather than state, tribunal. Where a defendant in a state civil action wants to have the case heard by a federal tribunal, the defendant will seek to “remove” the case to federal court.

Sometimes, the federal district courts will have original jurisdiction over a civil action filed in state court. That is not to say that the case has been improperly filed in state court – it is only to say that the federal court is also able to hear the case because it has original subject matter jurisdiction. In such a case, the defendant or defendants may remove the case to the federal district court for the district and division in which the action is pending.

To where does the case get removed? Generally, a case filed in state court will be removed to the federal court that has geographical jurisdiction encompassing the state court’s location. For example:

John brings a cause of action against Mike in New York Supreme Court in Westchester County. Assume that a federal court also has jurisdiction, both personal and subject matter, over the parties and the case. If Mike’s motion to remove the case to federal court is granted, the case will most likely be removed to United States District Court for the Southern District of New York in White Plains, New York.

Where the federal district courts have original jurisdiction over a civil action in state court that is not based on a federal claim (i.e., the court's subject matter jurisdiction is based on diversity of citizenship), the action is removable to federal district court only if none of the defendants is a citizen of the state in which the action was brought. Of course, the defendants must be properly joined and served. Where the federal district courts have original jurisdiction over a civil action in state court because the action arises under federal law (i.e., the court's subject matter jurisdiction is based on federal question jurisdiction), the case is removable, regardless of the citizenship or residence of the parties involved.

The original defendant(s) may remove the action to federal court. Whether a defendant to a counterclaim, crossclaim or third party action, etc. (who may be the plaintiff in the original action), may remove the case to federal court is another question. The majority of courts hold that such removal is not allowed. If an original defendant moves for removal, the counterclaims and crossclaims, etc., may end up being removed anyway.

Very often, plaintiffs will join multiple causes of action in one case filed in state court. In a case where the federal district court has original jurisdiction over some of the claims but not others, the entire case may be removed to federal court. This is similar to supplemental jurisdiction – the non-removable claims can go along with the removable claims. Once removed, the federal district court will either hear the entire case or, if it feels that the state court is the more appropriate forum for certain claims in which state law predominates, it will remand those claims to state court. See 28 U.S.C. § 1441(c).

An additional requirement to removal is that all of the defendants who are eligible for removal must sign the removal notice. For example:

John brings a cause of action against Mike and Mark in state court. Assume that a federal court also has jurisdiction, both personal and subject matter, over the parties and the case. Further assume that Mike and Mark qualify for removal. If Mike seeks to remove the case to federal court but Mark does not agree, the case may not be moved. If Mike qualifies for removal but Mark doesn’t qualify for removal, then Mark’s disagreement does not affect the initial decision about removal; it will be removed.

Just as fraudulently joining a party to create diversity of citizenship is not allowed, fraudulently joining a party to create a bar to removal to federal court is impermissible. If the joinder is legitimate, however, the bar to removal will stand.

Parties can agree to waive removal. If, in a contract, a clause exists that a particular claim will be litigated in state court, that claim will not be removed to federal court. For example:

Bill and Ted enter into a contract in which Bill agrees to buy 84 widgets from Ted. The last clause of the contract provides: “All claims arising under this contract must be heard by Idaho state court. No claim arising under this contract may be removed to federal court.” Bill files an action in state court against Ted. Ted files a notice of removal in federal district court. The federal district court will remand the case back to state court.

Some state civil actions are not removable. These include certain actions against a railroad or its receivers or trustees; certain actions against a carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments, unless the matter in controversy exceeds $10,000, exclusive of interest and costs; actions arising under a state’s workmen’s compensations laws; and actions arising under section 40302 of the Violence Against Women Act of 1994. See 28 U.S.C. § 1445.

The procedures through which a defendant may remove the case to federal court are detailed, but fairly simple. Generally, defendants must file a notice of removal with the appropriate federal court within 30 days of receiving the summons and complaint. In addition to filing the notice, the defendant must include “a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a). The filing of the notice creates automatic removal – the case is no longer under the jurisdiction of the state court. At this point, it is up to the appropriate federal court to determine whether the removal is proper, whether all claims are removable, etc. If need be, the court may remand either the entire case or certain claims back to state court. The case will not be dismissed for inappropriate removal; rather, the remedy is to remand it back to the state court.

As stated above, the defendant(s) has 30 days from receipt of the summons and complaint to file the notice of removal. If, however, the case is not removable at this point, but becomes removable later, because, for example, the plaintiff amends the complaint, the defendant will again have 30 days by which to file a notice of removal, beginning on the date that the amendment is filed.

After removal, a motion to remand the case based on any defect other than the lack of subject matter jurisdiction must be filed within 30 days after the filing of the notice of removal. A motion to remand based on lack of subject matter jurisdiction may be made, like in regular case procedure, at any time. The theory behind this is that once it has been determined that the court does not have the authority to hear a particular case, the case cannot continue. This is why the court may, on its own (sua sponte) remand the case (or dismiss it, in regular case situations) for lack of subject matter jurisdiction.

Sometimes, after removal, the plaintiff will want to join additional defendants. Where doing so would destroy the federal court’s subject matter jurisdiction, the court has the power to either deny joinder, or permit joinder and to remand the action to state court.

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