Here’s 10 things things you need to know about removal! Enjoy.
1. It’s not a basis for original jurisdiction.
You have to find the OJ somewhere else, such as diversity or federal question jurisdiction.
2. “Removal” and “remand” in this context are vertical acts.
Removal means snatching the case from state court to federal court. Remand is sending it back to state court.
3. “Transfer” is not part of the removal process.
Transfer is horizontal, and concerns where a case is moved within a court system, such as transferring a case from the U.S. District Court for the Southern District of Florida to the U.S. District Court for the Central District of California. Such questions are not of removal or remand, but of change of venue.
4. However, a case can involve removal and transfer.
For example, in one famous Supreme Court case, a lawsuit was filed in California state court. It was removed to federal court in California and then transferred to another federal court in Pennsylvania.
5. Normally only defendants can remove.
One exception to that rule is section 1454, which permits any party (P or D) to remove a case that includes a patent or copyright (or plant variety) claim.
6. All defendants have to agree to removal.
If one D wants to stay in state court, then removal is improper.
7. Removal is automatic.
You don’t have to ask any judge for permission to remove. Like Nike, you “just do it.” But if you want remand, you should ask (i.e., make a motion).
8. Removal in diversity-only cases is limited.
In some diversity cases where the removed case could be originally filed in federal court, the case cannot be removed to federal court. This is due to the in-state (forum) defendant rule, 1441(b)(2). There are further limitations as well. See section 1446(c)(1), (c)(3)(B). Thus, removal of diversity cases is harder to do than original filing of diversity cases.
9. Removal is subject to time limitations, but there are plenty of qualifications.
Normally removal must be done by the defendant(s) within 30 days after a defendant is served. But there are plenty of qualifications to this rule. First, what if there are multiple defendants served at different times? (Measure from the time of the latest-served D.) What if the case is not initially removable but becomes removable later? Possibly removable.
10. Remand is also subject to time limitations, unless the defect was in SMJ.
Remand for a procedural defect in removal must be sought within 30 days of removal, but remand can also be sought much later, any time prior to final judgment, if the defect in removal was a lack of subject-matter jurisdiction.
Image source: U.S. Navy on Flickr; Image used as public domain work 17 USC 105.
Note: formatting revised Sept. 11, 2019