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Civil Procedure Fall 2014

Notes on Removal

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Although the plaintiff is typically the master of her complaint, removal allows a defendant to transfer an action that has been brought against her in state court to federal court.

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History and Justifications

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Although not specifically authorized by Article III, removal has been recognized since the Judiciary Act of 1789.  Various justifications for this practice have emerged, including that it “provides a significant counterbalance” to the plaintiff's ability to choose the forum, Debra Lyn Bassett & Rex R. Perschbacher, The Roots of Removal, 77 Brook. L. Rev. 1, 3 (2011), and “protect[s] non-resident litigants from local prejudice.”  Grassi v. Ciba-Geigy, Ltd., 894 F.2d 181, 185 (5th Cir. 1990).

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General Rules (§ 1441)

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Jurisdiction.  Removal is a one-way street: actions may only be transferred from state court to federal court.  Furthermore, a defendant can remove a case only if it originally could have been filed in federal court (i.e., the court must have subject-matter jurisdiction).  Unlike an action that was originally filed in federal court, if § 1332 (diversity) is the only basis for federal jurisdiction, complete diversity is required.  In other words, no defendant can be a citizen of the state in which the action was brought.  Under § 1441(f), a defendant may remove a case even if the state court did not have jurisdiction to begin with.  Otherwise, the typical jurisdictional requirement apply.

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Parties.  Only an original defendant may initiate removal.  For example, a plaintiff may not remove an action on the basis of counterclaims brought by the original defendant.  See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107–09 (1941).  The Supreme Court has not yet considered removal by third-party defendants, but the circuit courts generally agree that they cannot initiate removal.  In a case with multiple defendants, all of them must join the removal petition, see Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 393 (1998) (Kennedy, J., concurring), with two exceptions.  First, nominal parties need not consent to removal.  See, e.g.Thorn v. Amalgamated Transit Union, 305 F.3d 826, 833 (8th Cir. 2002).  Second, when a case involves both federal question claims and claims that fall outside the original or supplemental jurisdiction of the federal courts, § 1441(c) instructs the district court to remand the latter claims to state court.  In such a situation, only the defendants facing the federal question claims need to consent to removal.

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Venue.  Defendants must remove cases to the district court that governs the geographical region of the state court where the action was originally filed.  This displaces the normal venue rule, meaning that actions are sometimes removed to districts in which venue would not originally have been proper.

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Procedure for Removal (§ 1446)

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Mechanics.  To remove a case, a defendant must file a notice of removal in the district court, signed pursuant to Rule 11, that includes a statement of the grounds for removal and a copy of all process, pleadings, and orders served upon the defendant in state court.  The defendant must also provide written notice to adverse parties and the clerk of the state court.  No further proceedings may take place in in state court unless and until the case is remanded.  Once in federal court, the proceedings continue based on what has already happened in state court.

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Timing.  Generally, a defendant must remove the case within 30 days of receiving the initial pleading or the summons, whichever is earlier.  Exception: If the case was not originally removable, but becomes removable (e.g., because of an amended pleading), the defendant has 30 days from whenever the case became removable.  Exception to the exception:  For diversity cases, there is an absolute one-year limit on removal from the date on which the action was commenced.

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Objections to Removal (§ 1447)

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Parties have 30 days to object to removal, unless the objection concerns subject-matter jurisdiction, which may be challenged at any time.  If it turns out that removal was improper, the case is simply remanded to the state court.

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Specific Statutes and Nonremovability

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In addition to § 1441, the general removal provision, a number of statutes cover removal of particular types of cases, including § 1442 (suits against federal agencies or officers), § 1443 (civil rights cases), § 1453 (class actions).  On the other hand, in § 1445 Congress has listed particular claims not subject to removal.