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Invariably, every litigator will find him or herself with a state court case which - either for purposes of strategy or convenience - they would prefer to litigate in federal court. The process of terminating a state court litigation and re-filing in federal court is called Removal.
Successfully removing a case requires an analysis of the relevant parties and allegations and an adherence to a myriad of procedural rules. Although an in-depth analysis of every potential issue is not possible here, this article will provide you with a step-by-step guide for navigating the removal process.
Federal Law allows a defendant - and only a defendant 1 - to remove a case to federal court. Generally, removal will be permitted if the lawsuit at issue could have originally been filed in federal court. Thus, a defendant must demonstrate (1) federal jurisdiction, (2) venue, and (3) the timeliness of the removal.
Federal removal jurisdiction is generally established in one of two ways. First, a defendant can demonstrate the existence of a federal question by establishing that the lawsuit arises "under the Constitution, laws, or treaties of the United States." See 28 U.S.C. § 1331 (2009). Even if a claim based upon federal law is joined with a non-removable state law claim, the entire case may still be removable pursuant to the doctrine of supplemental jurisdiction, see 28 U.S.C. § 1367 (2009), or the federal courts' statutory authority to hear separate and independent federal claims, see 28 U.S.C. § 1441(c) (2009).
Second, even if no question of federal law is involved, federal removal jurisdiction may still exist if a defendant can establish the existence of complete diversity and an amount in controversy exceeding $75,000. See 28 U.S.C. § 1332 (2009). Complete diversity exists when the citizenship of each plaintiff differs from the citizenship of each defendant. Additionally, an important limitation in diversity cases is that no defendant may be a citizen of the state from which removal is sought. 28 U.S.C. § 1441(b). Thus, if a Montana plaintiff brings an action against a Colorado defendant in Colorado state court, the Colorado defendant cannot remove the case despite the existence of complete diversity.
To ensure that venue is appropriate, a removing defendant should remove the state court action to the federal court encompassing the same jurisdiction.
Once a defendant receives a pleading or other document clearly indicating the lawsuit is removable, the defendant has 30 days to file a notice of removal in district court. 28 U.S.C. § 1446(b) (2009). In cases where federal removal jurisdiction is premised upon diversity, a defendant may not remove the case to federal court if more than one year has passed since the case was filed. Id.
Once a defendant establishes that a case is subject to removal, various documents must be filed to effectuate the re-filing of the complaint in federal court, the termination of the state court case, and the service of notice to the affected parties. Please ensure you supplement this guide by checking the local rules of the district court you are removing to as additional procedures are often required.
This article outlines the basic requirements of removing a case to federal court. As you may encounter a range of complex, case-specific issues during this process, ensure that you leave yourself sufficient time to conduct a review of case law specific to your jurisdiction. Moreover, as each district court is likely to supplement or otherwise modify the requirements listed above, be sure to check the appropriate district court's local rules as well as those of the judge handling your case.
1 A plaintiff may never remove its own case, even if the defendant files counterclaims alleging violations of federal law. See, e.g., Progressive West Ins. Co. v. Preciado, 479 F.3d 1014, 1017 (9th Cir. 2007). Instead, a plaintiff must seek dismissal of the case and then re-file in federal court. Id.