Removal jurisdiction

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In the United States, removal jurisdiction allows a defendant to move a civil action or criminal case filed in a state court to the United States district court in the federal judicial district in which the state court is located. A federal statute governs removal.

Contents

Generally, removal jurisdiction exists only if, at the time plaintiff filed the action in state court, the federal court had a basis for exercising subject-matter jurisdiction over the action, such as diversity of citizenship of the parties or where plaintiff's action involves a claim under federal law. If removal is based solely on diversity of citizenship, removal jurisdiction does not exist if any properly joined and served defendant is a citizen of the state in which the action is pending. [1]

Where removal jurisdiction exists, the defendant may remove the action to federal court by filing a notice of removal in the federal district court within 30 days after receiving the complaint. The defendant must file a copy of the notice of removal in the state court and must notify all other parties of the removal. In a case with more than one named defendant, normally all defendants who have been served with legal process must join in the notice of removal. [2]

If the party contends that removal was improper, based on any ground other than that the federal district court lacks subject matter jurisdiction, the party may move the district court to remand the case to state court within 30 days after the defendant filed the notice of removal. [3] The district court will grant the motion if it finds that removal was improper. If the district court determines that it lacks subject matter jurisdiction at any time before entry of final judgment, the district court must remand the action to the state court. [4]

The Class Action Fairness Act of 2005 creates a separate basis for defendants to remove specified class actions filed in a state court to a federal district court.

History

The Judiciary Act of 1789 initially provided for removal jurisdiction. [5] The Jurisdiction and Removal Act of 1875 explicitly granted federal courts jurisdiction over questions arising under federal law. [6] The Judiciary Act of 1887 limited removal to defendants and established the well pleaded complaint requirement for removal. [6]

Removal and complete diversity

When there are multiple defendants in a case, if even just one is a citizen of the state where the lawsuit was filed, a plaintiff can successfully object to removal if the only basis for federal jurisdiction is based on diversity of citizenship. [7] The reason for the rule is that diversity jurisdiction was created by the Founding Fathers of the United States in the Constitution to shield defendants from possible discrimination in a foreign forum (i.e., a state not their home state). [8] When an in-state defendant is being sued in a state court, it is expected that he will not be subject to unfair prejudice. With the exception of class actions under CAFA, every defendant must agree to remove; otherwise, the plaintiff or non-removing defendants can request remand for failure to satisfy the "rule of unanimity".

Notably, there is a circuit split (and several intracircuit splits) over whether every defendant named in the complaint must join in the removal notice, or whether the rule of unanimity applies only to those defendants who have been properly served as of the date of removal. The reason this is important is that sometimes a plaintiff may not be able to (or may deliberately choose not to) formally serve all defendants on the same day, or some defendants may become aware of the existence of the complaint before it is formally served (for example, if other already-served defendants send them a "courtesy copy"). In courts that adhere to the latter rule, removal jurisdiction may be proper as long as defendants can show that all defendants who were properly served by the date of removal joined in the removal notice, even though not all named defendants joined in the notice. [9]

A plaintiff may never remove its own case, even if the defendant files counterclaims alleging violations of federal law by the plaintiff. [10] A plaintiff must seek a dismissal without prejudice and refile in federal court.

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.

Removal of cases involving federal agencies or federal officers

Removal jurisdiction in cases involving federal agencies or officers who are named as defendants in civil suits or criminally prosecuted is also governed by 28 U.S.C.   § 1442, known as the federal-officer removal statute, [11] as well as removal under 28 U.S.C.   § 1446.

In the wording of section 1442, the law provides that in the case of federal agencies or officers, the federal district court need not otherwise have subject-matter jurisdiction over the type of case presented so long as the federal officer was acting under color of office in a civil matter, or in a criminal matter, was acting under authority granted by Congress for apprehension of criminals or collection of monies. It allows removal of state criminal cases where the defendant is a federal officer who alleges that the act was committed in carrying out his federal duties. Under this, a number of state criminal cases have been removed to federal court and there summarily dismissed, thus preventing trial on the merits of whether the officer or agent was in fact carrying out his official duties, or acting outside of them. A famous example of such a removal was the case of Idaho v. Lon Horiuchi, alleged to have committed manslaughter of Vicki Weaver in the Ruby Ridge encounter. [12] A statute dating back to 1815 is the earliest analogue of this.

Under section 1446, on the other hand, there must be federal subject-matter jurisdiction to justify removal. The Supreme Court case BP P.L.C. v. Mayor and City Council of Baltimore (2021) resolved a circuit split on how appellate sources may review challenges to federal-officer removal orders. [13]

Timeliness of removal

When defendants want to remove, they ordinarily must do so within 30 days of receiving the complaint, "through service or otherwise", under 28 U.S.C.   § 1446(b). An exception applies if diversity jurisdiction, and thus removal jurisdiction, is lacking at the time of the initial pleading in state court, but becomes available within a year after initiation of the suit. In such case, defendants may remove under 28 U.S.C. §1446(b) (second paragraph). For example, a federal court would not initially have removal jurisdiction over claims under state law brought by a Texas citizen against another Texas citizen and a 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 an attempt in bad faith to evade federal jurisdiction. [14]

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, however the court must apply state substantive law to state law claims, as opposed to federal law—a practice which is in-line to actions brought under 42 U.S.C. 1983.

Other issues

State courts do not adjudicate whether an action could be properly removed. As soon as a defendant completes the removal process by filing a notice of removal in the state court, jurisdiction is transferred automatically and immediately by operation of law from the state court to the federal court. Any objection to removal must be presented to the federal court by way of a timely-filed motion. Apart from motions brought by the parties, many federal district courts screen notices of removal for facially obvious defects and when they catch one will issue a sua sponte order to show cause directed to the moving defendant. If a federal court finds that the notice of removal was in fact defective, or that the federal court does not have jurisdiction, the case is remanded to the state court.

A defendant used to have to formally petition the federal court for the right to remove, and jurisdiction was not transferred until the federal court entered a formal order to that effect. The petition procedure was abolished around 1980 by Congress and replaced with the simple filing-of-notice removal procedure, although federal courts still see the occasional petition for removal or a motion for remand due to the lack of such a petition.[ citation needed ]

There is no reverse "removal". That is, if a case originates in a federal court, 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. Only cases that originate in a state court and are improperly removed to a federal court may be sent back to the state court where they started.

A defendant can waive the right to remove by contract, although courts take different positions about what language is necessary to create a waiver. [15]

Remand orders are not generally appealable [ citation needed ], 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). An alleged waiver of removal rights is also appealable, since the issue is not jurisdiction but the legal effect of the defendant's actions and agreements.

See also

Related Research Articles

In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a claim against the party or parties against whom the claim is brought that entitles the plaintiff(s) to a remedy. For example, the Federal Rules of Civil Procedure (FRCP) that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading.

<span class="mw-page-title-main">Federal jurisdiction (United States)</span> Legal scope of the powers of the U.S. federal government

Federal jurisdiction refers to the legal scope of the government's powers in the United States of America.

<span class="mw-page-title-main">United States district court</span> Trial court of the U.S. federal judiciary

The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district. Each district covers one U.S. state or a portion of a state. There is at least one federal courthouse in each district, and many districts have more than one. District court decisions are appealed to the U.S. court of appeals for the circuit in which they reside, except for certain specialized cases that are appealed to the U.S. Court of Appeals for the Federal Circuit or directly to the U.S. Supreme Court.

A summons is a legal document issued by a court or by an administrative agency of government for various purposes.

Interpleader is a civil procedure device that allows a plaintiff or a defendant to initiate a lawsuit in order to compel two or more other parties to litigate a dispute. An interpleader action originates when the plaintiff holds property on behalf of another, but does not know to whom the property should be transferred. It is often used to resolve disputes arising under insurance contracts, such as when a Plaintiff with a personal injury claim has a dispute with medical providers over the payment out of a settlement for medical services provided to treat the Plaintiff's injuries.

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<span class="mw-page-title-main">Subject-matter jurisdiction</span> Type of jurisdictional court authority

Subject-matter jurisdiction, also called jurisdiction ratione materiae, is a legal doctrine holding that a court can only hear and decide cases of a particular type. The subject matter jurisdiction of a court may be described as either limited jurisdiction, meaning it is able to hear only certain types of cases, or general jurisdiction, meaning it is presumed able to hear and decide all types of cases. For instance, a bankruptcy court only has the authority to hear bankruptcy cases.

The Federal Rules of Civil Procedure govern civil procedure in United States district courts. They are the companion to the Federal Rules of Criminal Procedure. Rules promulgated by the United States Supreme Court pursuant to the Rules Enabling Act become part of the FRCP unless, within seven months, the United States Congress acts to veto them. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body.

<span class="mw-page-title-main">Diversity jurisdiction</span> U.S. court jurisdiction over persons of different states or nationalities

In the law of the United States, diversity jurisdiction is a form of subject-matter jurisdiction that gives United States federal courts the power to hear lawsuits that do not involve a federal question. For a federal court to have diversity jurisdiction over a lawsuit, two conditions must be met. First, there must be "diversity of citizenship" between the parties, meaning the plaintiffs must be citizens of different U.S. states than the defendants. Second, the lawsuit's "amount in controversy" must be more than $75,000. If a lawsuit does not meet these two conditions, federal courts will normally lack the jurisdiction to hear it unless it involves a federal question, and the lawsuit would need to be heard in state court instead.

Amount in controversy is a term used in civil procedure to denote the amount at stake in a lawsuit, in particular in connection with a requirement that persons seeking to bring a lawsuit in a particular court must be suing for a certain minimum amount before that court may hear the case.

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<span class="mw-page-title-main">2005 term per curiam opinions of the Supreme Court of the United States</span>

The Supreme Court of the United States handed down sixteen per curiam opinions during its 2005 term, which lasted from October 3, 2005, until October 1, 2006.

In law, the venue is the location where a case is heard.

Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996), held that federal jurisdiction predicated on diversity of citizenship can be sustained even if there did not exist complete diversity at the time of removal to federal court, so long as complete diversity exists at the time the district court enters judgment.

The Virginia Circuit Courts are the state trial courts of general jurisdiction in the Commonwealth of Virginia. The Circuit Courts have jurisdiction to hear civil and criminal cases. For civil cases, the courts have authority to try cases with an amount in controversy of more than $4,500 and have exclusive original jurisdiction over claims for more than $25,000. In criminal matters, the Circuit Courts are the trial courts for all felony charges and for misdemeanors originally charged there. The Circuit Courts also have appellate jurisdiction for any case from the Virginia General District Courts claiming more than $50, which are tried de novo in the Circuit Courts.

<i>Rogers v. Wal-Mart Stores, Inc.</i>

Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, was a case decided by the 6th Circuit that held that remand to a state court cannot be achieved after removal to a federal court by lowering the damages sought to fall below the amount in controversy requirement.

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), was a case in which the United States Supreme Court held that a United States District Court may not decline jurisdiction over a case that has properly been removed to it from state court on the ground that the court is backlogged with other cases, and that a District Court's refusal to hear a case on this ground may be reviewed by a writ of mandamus.

Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81 (2015), was a case in which the Supreme Court of the United States clarified procedures for removing a class action lawsuit from state court to federal court. The case involved a dispute about revenue from oil and gas leases in which the defendant filed a motion to remove the case from a state court in Kansas to the United States District Court for the District of Kansas. However, the plaintiff argued that the defendant's motion was defective because the defendant's notice of removal did not include evidence demonstrating that the amount in controversy satisfied the jurisdictional threshold. The United States District Court for the District of Kansas ultimately ruled the case should be returned to the state court, and the United States Court of Appeals for the Tenth Circuit declined to review the district court's decision.

Home Depot U. S. A., Inc. v. Jackson, 587 U.S. ___ (2019), was a United States Supreme Court case which determined that a third-party defendant to a counterclaim submitted in a state-court civil action cannot remove their case to federal court. The Court explained, in a 5–4 decision, that although a third-party counterclaim defendant is a "defendant to a claim," removal can only be performed by the defendant to a "civil action." And this holds true even when the counterclaim is in the form of a class action. The Class Action Fairness Act of 2005 permits removal by "any defendant to a class action" but this does not extend removal rights to a third-party counterclaim defendant because they are not a defendant to the original case.

BP P.L.C. v. Mayor and City Council of Baltimore, 593 U.S. ___ (2021), was a case in the United States Supreme Court dealing with matters of jurisdiction of various climate change lawsuits in the United States judicial system.

References

  1. ↑ 28 U.S.C. § 1441(b)(2).
  2. ↑ 28 U.S.C.   § 1446.
  3. ↑ 28 U.S.C.   § 1447.
  4. ↑ 28 U.S.C.   § 1447.
  5. ↑ Walter M. Evans, The Removal of Causes: Federal Removal Jurisdiction in Diversity of Citizenship Cases , 33 VA. L. REV. 445 (1947).
  6. 1 2 Michael G. Collins, The Unhappy History of Federal Question Removal , 71 IOWA L. REV. 717 (1986).
  7. ↑ Caterpillar, Inc. v. Lewis , 519 U.S. 61 (1996).
  8. ↑ Federalist No. 80
  9. ↑ Destfino v. Reiswig, 630 F.3d 952 (9th Cir. 2011).
  10. ↑ In re. Crystal Power Co. , 641 F.3d 78 (5th Cir. 2011)
  11. ↑ https://www.law.cornell.edu/uscode/text/28/1442 RET. April 09, 2018
  12. ↑ Samuel S. Wilson, Criminal Power , History of the Sixth Circuit
  13. ↑ Hurley, Lawrence (October 3, 2020). "Supreme Court takes up energy companies' appeal over Baltimore climate suit". Reuters . Retrieved January 15, 2021.
  14. ↑ Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003)
  15. ↑ Coale, Visosky & Cochrane, Contractual Waiver of the Right to Remove to Federal Court,” 29 Rev. Litig. 327 (2010).
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