28 U.S. Code § 1441, 1446, and 1447: Removal

Question 1

Can a case be removed based on diversity or amount in controversy if one of the defendants is a resident of the state in which the case was brought? (GG)

Answer 1

No. 1441b2

Question 2

Can a defendant remove a case to where the case could have been filed? (GG)

Answer 2

No. The case will be removed to the district court of the United States for the district and division embracing the place where such action is pending. 1441a

Question 3

Does filing for removal waive the objection to personal jurisdiction? (GG)

Answer 3

No. A person may remove the case and then respond to it, raising their objections to PJ in federal court.

Question 4

What is removal in federal civil procedure? (Q)

Answer 4

In federal civil procedure, removal is the process by which a defendant in a state-court case can move the case to federal court. The defendant may do so only if the case falls within the federal court’s original jurisdiction.

Question 5

Does a defendant need a court’s permission to remove a case from state court to federal court? (Q)

Answer 5

No. A defendant may remove a case from state court to federal court without seeking permission from either court. However, the federal court may remand the case to the state court if the procedural or jurisdictional requirements for removal are not met.

Question 6

What are the jurisdictional requirements to remove a case from state court to federal court? (Q)

Answer 6

A state-court case may be removed to federal court if it falls within the original jurisdiction of the U.S. district courts.

Question 7

May a case with multiple defendants be removed from state court to federal court if fewer than all defendants agree to removal? (Q)

Answer 7

No. In a case with multiple defendants, all defendants who have been properly joined and served must agree to removal, or the case may not be removed.

Federal law makes a rare exception to this rule for certain kinds of class actions, in which a single defendant can remove the case even if all other defendants do not agree.

Question 8

If a defendant removes a case based on federal-question jurisdiction, does the well-pleaded complaint rule apply for purposes of determining whether jurisdiction exists? (Q)

Answer 8

Yes. The well-pleaded complaint rule applies to removal cases just as it does to cases filed originally in federal court. The rule provides that the federal issue on which federal-question jurisdiction is based must appear on the face of the plaintiff’s well-pleaded complaint.

The Supreme Court has recognized an exception to this rule to allow removal if federal law preempts, or displaces, the state law pleaded in the complaint.

Question 9

If a defendant removes a case based on diversity jurisdiction, is the amount demanded in the complaint used to evaluate whether the statutory amount in controversy is met? (Q)

Answer 9

Yes. The amount demanded in the complaint is used as the basis for the amount in controversy in a removal case, just as it is in a case filed originally in federal court.

Question 10

If a defendant removes a case based on federal diversity jurisdiction, under what circumstances can the notice of removal state the amount in controversy? (Q)

Answer 10

If a defendant removes a case based on federal diversity jurisdiction, the defendant’s notice of removal can state the amount in controversy if:

the plaintiff seeks nonmonetary relief,
state law does not allow the plaintiff to demand a specific amount, or
state law allows a plaintiff to recover more than the plaintiff has demanded in the complaint.

Question 11

If multiple defendants are served at different times, and a later-served defendant seeks to remove the case to federal court, can the previously served defendants consent to removal? (Q)

Answer 11

Yes. The defendants who were previously served may consent to removal of the case to federal court. This is true even if the previously served defendants did not seek to remove earlier.

Question 12

Are any cases made categorically nonremovable by federal law? (Q)

Answer 12

Yes. By federal law, a few categories of cases are not removable. These include some cases against railroads and carriers, workers’-compensation cases, and some statutory tort claims based on gender-motivated violence.

Question 13

If the state court lacks jurisdiction over a claim, does this lack of jurisdiction prevent removal of that claim to federal court? (Q)

Answer 13

No. A state court’s lack of jurisdiction over a claim does not preclude removal of that claim to federal court.

Question 14

Can a plaintiff remove a case to federal court if the plaintiff is defending against a defendant’s counterclaim? (Q)

Answer 14

No. A plaintiff may not remove a case to federal court, even if the plaintiff is defending a counterclaim. Only defendants can remove cases to federal court.

Question 15

What documents must a defendant file to remove a case to federal court? (Q)

Answer 15

To remove a case, a defendant must file in the federal court a signed notice of removal. The notice of removal must indicate the grounds for removal and include all documents and court orders served on the defendant.

Question 16

After a defendant removes a case to federal court, may the state court take further action in the case? (Q)

Answer 16

No. Once a case is removed to federal court, the state court may not proceed further, unless the federal court remands the case by sending it back to the state court.

Question 17

If a state-court case is removable when it is filed, how long does the defendant have to remove the case to federal court? (Q)

Answer 17

If the state-court case is removable when it is filed, then the defendant must remove within 30 days of receipt of the initial pleading, or within 30 days of service of the summons, whichever is sooner.

Question 18

If a state-court case is not removable when it is filed, but later becomes removable, how long does the defendant have to remove the case to federal court? (Q)

Answer 18

If the case is not initially removable, but later becomes removable (for example, if a non-diverse party is dismissed, leaving complete diversity of citizenship), then the defendant must remove the case within 30 days of receipt of the pleading, order, or other paper indicating that the case has become removable.

If removal is based on diversity jurisdiction, the defendant may not remove more than one year after the case was brought in state court, regardless of when the case becomes removable. This rule is waived if the plaintiff has acted in bad faith to prevent removal.

Question 19

In the context of removal, what is a remand? (Q)

Answer 19

Remand occurs when a federal court sends a removed case back to the state court from which it came. Remand can be based on lack of federal subject-matter jurisdiction or on the defendant’s failure to comply with the procedural requirements for removal.

Question 20

After a case is removed to federal court, how long does the plaintiff have to file a motion to remand? (Q)

Answer 20

Generally, a plaintiff who seeks remand must file a motion to remand in the federal court within 30 days after the defendant files the notice of removal. However, a plaintiff may seek remand for lack of subject-matter jurisdiction at any time.

Question 21

In general, if a federal court remands a case to state court, may the defendant appeal the decision to remand? (Q)

Answer 21

No. With limited exceptions, a federal court’s decision to remand is not appealable. The exceptions are for certain civil rights cases and some cases against United States officers or agencies.

Question 22

If after removal a plaintiff seeks to join additional defendants whose joinder would destroy subject-matter jurisdiction, what two options does the court have? (Q)

Answer 22

If a plaintiff seeks to join additional defendants after removal, and their joinder would destroy subject-matter jurisdiction, then the court may either: (1) deny joinder or (2) permit joinder and remand the case.

Question 23

If a case includes claims that arise under federal law and claims that are not within a federal court’s original or supplemental jurisdiction, may the defendant remove the case? (Q)

Answer 23

Yes. If a claim based on federal-question jurisdiction is joined with any claims that do not fall within original or supplemental jurisdiction, the entire case may nonetheless be removed. The court will then sever and remand all nonremovable claims, which may then be heard in state court. This process does not apply in diversity cases.

Question 24

What is the forum-defendant rule regarding removal? (Q)

Answer 24

The forum-defendant rule provides that a case is not removable if: (1) removal would be based on federal diversity jurisdiction, and (2) any defendant is a citizen of the state in which the case was initially filed.

Question 25

A plaintiff sued two defendants, seeking $1,000,000 in damages from each defendant on a state-law tort claim. The plaintiff was a citizen of State A, the first defendant was a citizen of State B, and the second defendant was a citizen of State C. The plaintiff filed the suit in a state court in State C. Both defendants wished to remove the case to federal court based on federal diversity jurisdiction. Assume that diversity jurisdiction is the only possible source of federal subject-matter jurisdiction in this case. Assume further that the case falls within federal diversity jurisdiction based on the citizenship of the parties and the amount in controversy.

Is the case removable? (Q)

Answer 25

No. The case is not removable, because the second defendant was a citizen of State C, where the case was filed. A case is normally removable if it falls within the federal courts’ original subject-matter jurisdiction, and all defendants agree to removal. However, a case is not removable if diversity is the sole basis for federal subject-matter jurisdiction, and any defendant is a citizen of the state in which the case was filed. This rule is called the forum-defendant rule.

Here, diversity is the only possible source of federal subject-matter jurisdiction in this case. The facts state that this case fells within federal diversity jurisdiction and that both defendants agreed to removal. The case would therefore be removable, except that the second defendant was a citizen of State C, where the case was filed. Thus, the case is not removable.

Question 26

After a case is removed from state court to federal court, which motion can the plaintiff file to have the case returned to state court? (Q)

Answer 26

After a case is removed from state court to federal court, the plaintiff can file a motion to remand the case to state court. If a case is improperly removed, the federal court can remand it, which means return the case to the state court from which it came. Remanding usually requires a motion by the plaintiff.

If the plaintiff seeks to remand for any reason other than lack of subject-matter jurisdiction, then the plaintiff must bring the motion within 30 days from the date on which the defendant filed the notice of removal. A motion to remand for lack of subject-matter jurisdiction may be brought at any time before final judgment.

Question 27

Can a defendant remove a case to federal court when it alleges federal law in its defense? (GG)

Answer 27

No. Only cases that could have been filed in federal court are able to be removed to federal court.

Question 28

When must notice of removal be filed? (GG)

Answer 28

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. 1446b1

Question 29

If a case becomes removable, how long does a defendant have to remove the case? (GG)

Answer 29

Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 1446b3

Question 30

Does 28 USC 1391 (venue) apply to removal cases?

Answer 30

No. 1390c

Question 31

How long does a person have to remand a case back to the state courts? (GG)

Answer 31

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). 1447c

Question 32

When may a federal court remand a case for lack of subject matter jurisdiction? (GG)

Answer 32

If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. 1447c