A Brief Guide to Removal

Every practitioner has anecdotes about the difficulty of removing cases from state to federal court—from the little errors that can result in outright dismissal or remand, to judges who will sua sponte identify issues that the parties must brief on subject-matter jurisdiction. An example of this is Heinen v. Northrop Grumman Corp., where at oral argument, the Seventh Circuit apparently surprised counsel with questions about subject-matter jurisdiction, corrected counsel’s mistaken understanding of the citizenship rules, and directed the removing party to file an amended notice of removal properly alleging the individual party’s domicile. 671 F.3d 669, 670 (7th Cir. 2012). The court wrote:

Jurisdiction should be ascertained before filing suit in federal court (or, as here, removing a suit to federal court). Counsel have wasted the court’s time, and their clients’ money, by postponing essential inquiries until after the case reached the court of appeals. That strategy often leads to a jurisdictional dismissal and the need to start over in state court. Why take that risk? Lawyers have a professional obligation to analyze subject-matter jurisdiction before judges need to question the allegations.

Id. (Earlier in my career, I received a remand order similarly sua sponte raising issues about an individual’s citizenship. While that order was not the genesis for this article, it was an important learning experience about the need for extreme care in this area.)

Consequently, you should bear in mind that courts take these issues very seriously, and so should you as well. If there is a requirement to demonstrate something for which you would have the burden of proof, caution suggests that you should do so, and—if Dart Cherokee’s experience is any guide—you should not wait for a subsequent opportunity to submit your evidence with it, even if you do not think it’s required at the time. (This is a reference to Dart Cherokee Operating Co., LLC v. Owens, a case where the defendant removed and did not submit, with its notice of removal, evidence supporting its removal. The district court remanded, the Tenth Circuit denied appeal, and the U.S. Supreme Court granted certiorari on April 7, 2014. Whether or not Dart Cherokee was required to submit the evidence with its notice of removal—and there is nothing in the statutory framework that would appear to require it—Dart Cherokee would have avoided a significant amount of costs in appellate briefing if it had.) And similarly, if you are required to confer with codefendants before acting, you should do so—not relying on the belief that they won’t object, as occurred in In re Pharmaceutical Industry Average Wholesale Price Litigation, 431 F. Supp. 2d 109 (D. Mass. 2006).

Chart: A Brief Guide to Removal

Keywords: litigation, corporate counsel, removal, federal court

Matthew M.K. Stein is an associate in the Boston office of Skadden, Arps, Slate, Meagher & Flom LLP and an editor of the ABA Section of Litigation's Class Actions & Derivative Suits newsletter. The opinions expressed in this article are his, and not necessarily those of Skadden Arps or any one or more of its clients. The author would like to thank David Clancy and Abra Bron, colleagues in Skadden Arps' Boston office, for their thoughts and advice (and in Ms. Bron's case, help with the prior version of this article).