A removal is when the defendant moves a case from a state court to a federal court (can’t work the other way around). Only the defendant has this option. The purpose is so that the defendant has just as much a say as the plaintiff in where the case should be heard.

However, the case can only be removed to federal court if it could have been filed in federal court previously (i.e. plaintiff could have filed in federal or state, but chose to file in state court). The result being that if either party wants this case heard in a federal court, it can be heard in a federal court.

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.


Should this case have been removed to federal court.


§ 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.


Vacated and Remanded.


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.


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.


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

Additional Notes

Removal statutes: §§ 1441, 1446-48

State court complaints are filed in county courts. If a plaintiff has a claim that can be filed in both the state courts and the federal courts, then the defendant has the option to remove to a federal court. However, removal to the federal court must be where the county is located.

So, once there is a complaint, do not answer it if you want to remove. Instead, file a notice of removal. This is filed in the federal court with the state court clerk cc’d on the notice. We have 30 days to remove. However, if the answer is due within 20 days, there is really only 20 days to file the removal.

All claims made on the complaint will be removed. Any claims that are not eligible for removal will be remanded by the federal court. However, the plaintiff has 30 days to move for a remand.

What is the forum defendant rule? If any defendant who is sued in their home state may not remove to federal court if the sole basis of the court’s jurisdiction is diversity. For example, if a defendant is sued in a state court in Iowa, then the defendant cannot remove to a federal court. The reason for removal is to take out “hometown bias”. If a defendant is already sued in their hometown, there is no need to remove for the sake of hometown bias. This does not apply for federal question jurisdiction (only applies to 1332, not 1331).

Case Notes

Here, there was no actual federal claim. Therefore, this case should have been remanded right away.

It is important to get these terms right. A claim is filed in a state court and if it can be filed in a federal court, the defendant has the opportunity to “remove”. If it is a mistaken removal, then either party can “remand” the case back to state court. If a claim is initially filed in federal court and doesn’t belong because of lack of subject matter jurisdiction, then the case is “dismissed”.

After a notice for removal has occurred, the plaintiff has 30 days to make a motion to remand.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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