Removal jurisdiction: Difference between revisions
Correction of incorrect statements of federal jurisdictional law; reflect changes to removal jurisdiction created by 28 USC 1453; remand appellate jurisdiction. |
"not possible" and "prohibited" imprecise because removal defects are not jurisdictional and can be waived if federal jurisdiction otherwise exists; add ref to Federalist No. 80 |
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Removal is governed by [[statute]], 28 [[United States Code|U.S.C.]] [[Section|§]]1441 ''[[et seq]]''. Generally, a case may be removed if the original case could have been filed in federal court, but was not. Thus, removal requires an independent ground for [[jurisdiction]] such as [[diversity jurisdiction]], [[federal question jurisdiction]], or any other grant of federal jurisdiction. If removal is granted, the case will be removed to the federal district court which corresponds geographically to where the state action was initiated. |
Removal is governed by [[statute]], 28 [[United States Code|U.S.C.]] [[Section|§]]1441 ''[[et seq]]''. Generally, a case may be removed if the original case could have been filed in federal court, but was not. Thus, removal requires an independent ground for [[jurisdiction]] such as [[diversity jurisdiction]], [[federal question jurisdiction]], or any other grant of federal jurisdiction. If removal is granted, the case will be removed to the federal district court which corresponds geographically to where the state action was initiated. |
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Except in class actions, |
Except in class actions, a plaintiff can successfully object to removal in diversity actions if any defendant is a citizen of the forum state where the suit is taking place.<ref>28 U.S.C. §§1441(b), 1453.</ref> If the defendants chose to remove when the original action was brought under federal law, or if the plaintiff [[waiver|waives]] the objection, and there is federal jurisdiction, then removal is proper even if the defendants are citizens of the state in which the action was filed. The policy for this rule is that diversity jurisdiction is granted to prevent the defending party from being discriminated against in a foreign forum.<ref>[[Federalist No. 80]]</ref> However, when a defendant is already in a local court, it is expected that they will not be prejudiced against. Even if there are multiple defendants, even if one lives in the state where the lawsuit is taking place, a plaintiff can successfully object to a removal action under diversity jurisdiction. When defendants want to remove, they must do so within 30 days of receiving service of notice under 28 U.S.C. §1446(b) (first paragraph). With the exception of class actions, every defendant has to agree to remove or the plaintiff or non-removing defendants can request [[remand]]. |
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Finally, in most cases where diversity-jurisdiction removal was not available based upon the initial pleading, but became available over the course of litigation, removal is only available one year after the suit was initiated under 28 U.S.C. §1446(b) (second paragraph). Thus, for example, in a suit between a [[Texas]] citizen against a Texas citizen and [[New York]] citizen will not be eligible for diversity. However, should the Texas defendant drop out of the claim, the New York citizen can remove as long as one year has not passed since the initiation of the suit. This is to prevent proceedings from being interrupted by removal to federal court (and thus starting over from scratch) after successfully completing a year of litigation. However, some courts permit equitable tolling of the one-year limitation of §1446(b) if the original complaint was a bad-faith attempt to evade federal jurisdiction.<ref>''Tedford v. Warner-Lambert Co.'', 327 F.3d 423 (5th Cir. 2003)</ref> |
Finally, in most cases where diversity-jurisdiction removal was not available based upon the initial pleading, but became available over the course of litigation, removal is only available one year after the suit was initiated under 28 U.S.C. §1446(b) (second paragraph). Thus, for example, in a suit between a [[Texas]] citizen against a Texas citizen and [[New York]] citizen will not be eligible for diversity. However, should the Texas defendant drop out of the claim, the New York citizen can remove as long as one year has not passed since the initiation of the suit. This is to prevent proceedings from being interrupted by removal to federal court (and thus starting over from scratch) after successfully completing a year of litigation. However, some courts permit equitable tolling of the one-year limitation of §1446(b) if the original complaint was a bad-faith attempt to evade federal jurisdiction.<ref>''Tedford v. Warner-Lambert Co.'', 327 F.3d 423 (5th Cir. 2003)</ref> |
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Revision as of 12:48, 24 February 2007
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In the United States, removal jurisdiction refers to the power of a defendant to move a lawsuit filed in state court to the Federal district court of the original court's district. This is a general exception to the traditional American rule giving the plaintiff the authority to make the decision on the proper forum.
Removal is governed by statute, 28 U.S.C. §1441 et seq. Generally, a case may be removed if the original case could have been filed in federal court, but was not. Thus, removal requires an independent ground for jurisdiction such as diversity jurisdiction, federal question jurisdiction, or any other grant of federal jurisdiction. If removal is granted, the case will be removed to the federal district court which corresponds geographically to where the state action was initiated.
Except in class actions, a plaintiff can successfully object to removal in diversity actions if any defendant is a citizen of the forum state where the suit is taking place.[1] If the defendants chose to remove when the original action was brought under federal law, or if the plaintiff waives the objection, and there is federal jurisdiction, then removal is proper even if the defendants are citizens of the state in which the action was filed. The policy for this rule is that diversity jurisdiction is granted to prevent the defending party from being discriminated against in a foreign forum.[2] However, when a defendant is already in a local court, it is expected that they will not be prejudiced against. Even if there are multiple defendants, even if one lives in the state where the lawsuit is taking place, a plaintiff can successfully object to a removal action under diversity jurisdiction. When defendants want to remove, they must do so within 30 days of receiving service of notice under 28 U.S.C. §1446(b) (first paragraph). With the exception of class actions, every defendant has to agree to remove or the plaintiff or non-removing defendants can request remand.
Finally, in most cases where diversity-jurisdiction removal was not available based upon the initial pleading, but became available over the course of litigation, removal is only available one year after the suit was initiated under 28 U.S.C. §1446(b) (second paragraph). Thus, for example, in a suit between a Texas citizen against a Texas citizen and New York citizen will not be eligible for diversity. However, should the Texas defendant drop out of the claim, the New York citizen can remove as long as one year has not passed since the initiation of the suit. This is to prevent proceedings from being interrupted by removal to federal court (and thus starting over from scratch) after successfully completing a year of litigation. However, some courts permit equitable tolling of the one-year limitation of §1446(b) if the original complaint was a bad-faith attempt to evade federal jurisdiction.[3]
A case having non-federal separate and independent claims may also be removed. By themselves, these issues would not be removable because they usually involve questions of state law. A court has the discretion to accept the case as a whole or remand those issues of state law.
State courts do not entertain questions of removal. Once a defendant has filed a motion to remove a case, any objection to removal is handled by the federal court. If a federal court finds that the motion was in fact defective or that the federal court does not have jurisdiction, the case is remanded to the state court.
There is no reverse "removal." That is, there is no ability for a defendant to remove a case from federal court into state court.
When a federal court rejects removal, it remands the case back to state court. Remand orders are not appealable except for removals brought under the Class Action Fairness Act of 2005.
External links
References
- ^ 28 U.S.C. §§1441(b), 1453.
- ^ Federalist No. 80
- ^ Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003)