Removal

Removal is the term used when a defendant moves a case from a state court to a federal court. Removal is available to the defendant if the federal court can exercise either federal question or diversity jurisdiction over the case.

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

– 28 USC § 1441(a)

That is, subject to certain limitations, when a lawsuit is initially filed in a state court, the defendant has the option to move it to a federal court.

Principles of Removal

Defendants Only

Only the defendant has the option to remove. The purpose of this rule is to provide fairness to both the plaintiff and the defendant in determining where the case is litigated. The plaintiffs have the choice to determine where the lawsuit should be initiated, so the defendants should also have an opportunity to litigate the case in a potentially favorable forum.

Forum Defendant Rule

However, removal is not always an option. One of the limitations on removal is called the “forum defendant rule.” Under the forum defendant rule,

If any defendant is sued in their home state, none of the defendants may remove to federal court if the sole basis of the court’s jurisdiction is diversity.

– Forum Defendant Rule

This rule has two overarching principles. First, the rule applies to multiple defendants in addition to a sole defendant. Picture the following examples:

Example 1:
Plaintiff A sues Defendant B from State C for a state law claim. The lawsuit was initiated in the state courts of State C. In this situation, Defendant B is not permitted to remove because the defendant was sued in the home state.

Example 2:
Plaintiff A sued Defendant B (from State B) and Defendant C (from State C) for a state law claim. The lawsuit was initiated in the state courts of State B. The forum defendant rule prevents both Defendant B and Defendant C from removing, even though the litigation was not filed in the Defendant C’s home state.

Second, the rule only applies if the basis of the litigation is diversity jurisdiction. So, if the basis of the litigation is through a federal question, then the forum defendant rule does not apply. A defendant is free to remove, even if the lawsuit was initiated in the defendant’s home state.

Timing

If the defendant has an opportunity to remove, they must do so within 30 days after they have been served with notice that the removable lawsuit has been initiated. Failure to timely remove will waive the defendant’s right to remove and the case will proceed in the state court. 28 USC § 1446(b).

Additionally, after a successful removal, the plaintiff then has 30 days to move for a remand for any defect (other than subject matter jurisdiction, which would be remanded at any point of the litigation). The result of a remand would send the case back to the state courts. 28 USC § 1447(c).

Remand v. Dismissal

As alluded to, the case can only be removed to federal court if it could have previously been filed in federal court. That is, one of the claims must satisfy federal question or diversity jurisdiction.

A result of removal is that all claims within the case will be removed. This includes any claims that do not meet the requirements of federal question or diversity jurisdiction. The federal district court will then consider if any of the ineligible claims needs to be remanded or if they could be retained by supplemental jurisdiction.

Remanding a case or claim is not the same as a dismissal, and the distinction between “remand” and “dismissal” is important.  If a case is initially filed in a state court and then removed to a federal court, any defect results is a remand. However, if the case was initially filed in federal court but there was some defect, then the result is a dismissal; a plaintiff would then be required to “start over” by refiling the case in a state court.

Case Brief

Avitts v. Amoco Production Co.

53 F.3d 690 (5th Cir. 1995).

Started in state court, defendants (Amoco) removed to federal court where defendants lost and appealed, saying it should not have been removed.

Question

Should this case have been removed to federal court.

Rule

§ 1441(a) The defendant has the right to remove to federal court as long as it could have been heard in federal court. In other words, a case can be removed to federal court if there is subject matter jurisdiction.

Right to removal can be waived, even if subject matter jurisdictional arguments are not waived.

Holding

Vacated and Remanded.

Facts

The plaintiffs alleged that there were injuries to their property that was caused by the defendants’ oil and gas operations. In their complaint they said that their claims were based in state and federal law. Because this was ambiguous, and the defendants did not want to waive their right to remove, they chose to do so.

Once in the trial court, things started going badly for the defendants. The plaintiffs amended their complaint to discuss only state issues, and an order was given against the defendants. The defendants then appealed, asking for a motion to dismiss because the claim lacked subject matter jurisdiction.

Analysis

The claim stated by the plaintiffs is a state claim. There are no federal claims in issue here so there is no access to federal question jurisdiction under 1331. Likewise, these parties are not diverse (Texas parties) and therefore there is no diversity jurisdiction. Finally, there can be no supplemental jurisdiction because there were no federal claims for state claims to pend onto. Therefore, this case should be remanded back to the state courts.

Takeaway

Removal must happen within 30 days after receiving the complaint to avoid waiving the right to remove.