January 01, 2019 Advance Sheet

Removal, Statutory Construction, and Constitutional Interpretation

Removal seems simple on the surface, but it is governed by a number of different statutory provisions and rules.

Robert E. Shapiro

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At first blush, the removal statute seems simplicity itself. We all know the rule. If a case in which there would be original federal jurisdiction is filed in state court, you may remove the case to federal court so long as you do so within 30 days. The idea is that a plaintiff, particularly one in its home state, should not be able to force into a state forum a defendant that would qualify to have a case heard in federal court. Cases based on federal question jurisdiction and diversity jurisdiction both qualify for removal. But because the theory behind diversity jurisdiction is that an out-of-state defendant may need the protection of federal court to deflect any bias arising from the plaintiff’s choice of forum, an exception applies. A defendant that is a resident of the state in which the lawsuit was filed ordinarily may not remove. In-state defendants are presumed to have nothing to worry about from the home forum.

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