Removal jurisdiction
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In the United States, removal jurisdiction refers to the power of a defendant to move a lawsuit filed in state court to the Federal district court of the original court's district. This is a general exception to the traditional American rule giving the plaintiff the authority to make the decision on the proper forum.
Removal is governed by statute, 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 jurisdiction such as diversity jurisdiction or 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, in full contravention of the plaintiff's original intent.
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.[1] When there are multiple defendants, if just one lives in the state where the lawsuit is taking place, a plaintiff can successfully object to removal. The policy underlying the anti-removal rule is that diversity jurisdiction is granted to prevent the defending party from being discriminated against in a foreign forum.[2] When defendants are being sued in a local court, it is expected that they will not be subject to unfair prejudice. For completeness, it should be noted that 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. Plaintiffs may never remove their 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 remand. When defendants want to remove, they ordinarily must do so within 30 days of receiving service of notice under (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.[3]
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.
State courts do not entertain questions of removal. Once a defendant has filed a motion to remove a case, any objection to removal is handled by the federal court. If a federal court finds that the motion 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 2005 or where the Federal Deposit Insurance Corporation appeals a remand order under 12 U.S.C. § 1819(b)(2)(C).
[edit] References
- ^ 28 U.S.C. §§1441(b), 1453.
- ^ Federalist No. 80
- ^ Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003)
