L-R Neil Hlawatsch and Shannon McClure, Reed Smith.
Removal is the process by which a defendant seeks to have a case transferred from the state court (in which the complaint was originally filed) to federal court. The policy underlying a defendant’s right to removal is to prevent any potential bias by the state court in favor of a local plaintiff. This article provides an overview of the procedure regarding removal as well as some of the grounds for removing a civil case from state to federal court.
In deciding whether to remove a case, a defendant should consider the advantages of litigating in federal rather than state court. One such advantage is that in federal court, a case is assigned to a single district judge or magistrate judge who retains the case through the end of trial. This sort of direct attention and case management may not exist in state court.
The Removal Procedure
The statutes that govern the removal of a case from state court to federal court are 28 U.S.C. Section 1441, et seq. Generally, a case may be removed if it could have originally been brought in federal court. Upon removing a case, the burden of demonstrating the propriety of the removal falls upon the removing defendant. Furthermore, the federal district court to which the case is removed is to strictly construe 28 U.S.C. Section 1441 against removal. Thus, the removing defendant must meticulously follow the rules regarding removal, as minor deficiencies may result in the federal district court remanding the case back to state court.
Per the language of 28 U.S.C. Section 1441, only a defendant to an action may remove the case to federal court. 28 U.S.C. Section 1441(a). A plaintiff may not remove on the basis of a counterclaim, nor may a cross-defendant remove on the basis of a cross-claim.
The removing defendant must remove the case within 30 days of being served with the complaint. 28 U.S.C. § 1446(b). If a case is initially not removable but, for reasons discussed below, later is rendered removable by an amended pleading, the removing defendant must remove the case within 30 days of receiving the amended pleading. However, a case may not be removed one year beyond its commencement, even if a pleading is amended that would otherwise make it removable, unless the federal district court to which the case is removed determines that the plaintiff acted in bad faith to prevent the case from being removed. It is thus recommended that the removing defendant remove the case as soon as possible, to avoid missing a deadline. In fact, if a defendant learns that they are named in an action before being served with the complaint, the defendant may remove the case before service is executed.
To remove a case, the removing defendant must file a notice of removal with the federal district court for the district and division in which the state court action is pending. The notice of removal must contain a short, plain statement of the grounds for removal. The removing defendant must attach to the notice of removal all process, pleadings and orders filed in the state court action. Upon filing the notice of removal with the federal district court, the removing defendant must provide written notice of the removal to the state court from which the case was removed, at which point the state court will cease its proceedings. The removing defendant must also provide written notice of the removal to all parties to the case.
Grounds for Removal
- Removal based upon federal question jurisdiction
The plaintiff is master of their own complaint and is thereby entitled to assert claims relying solely on state law rather than federal law, so that they may file and litigate in state court, see Caterpillar v. Williams, 482 U.S. 386, 392 (1987). A case is nevertheless removable, however, if the allegations in the plaintiff’s complaint give rise to a right created by or the adjudication of which turns on the construction of a federal statute, federal common law, or the Constitution or treaties of the United States, as in Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 808 (1986). A case is also removable if a state law claim asserted by the plaintiff has been judicially declared to be completely pre-empted by federal law. A case is not removable if a federal question is raised by a defense to a claim asserted by the plaintiff.
A reference or citation to federal law in a plaintiff’s complaint does not, alone, give rise to a federal question and render a case removable. On the other hand, a plaintiff may not circumvent a defendant’s right to removal by artfully pleading their complaint without making reference to a right created by federal law that the plaintiff is asserting, as in Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 23 (1983). Thus, in determining whether a case may be removed, a defendant must thoroughly evaluate the true nature of the claims and whether they are more appropriately considered federal or state claims.
If an initial pleading does not state a claim giving rise to a federal question, but is later amended to assert a federal claim, a defendant may remove the case within 30 days of receiving the amended pleading. To remove on federal question grounds, the removing defendant must obtain the consent to removal of each properly joined and served defendant. It is recommended that the removing defendant present the federal district court with the written consent of each properly joined and served defendant. The removing defendant may most efficiently collect and present the written consents of all properly joined and served defendants by drafting the notice of removal and including a section at the end for presentation of the consents, circulating the draft among counsel for the defendants whose consent is sought, and requesting that counsel add their signature block to the consents section.
- Removal based upon diversity jurisdiction
A defendant may remove on the basis of diversity jurisdiction if the requirements set by 28 U.S.C. Section 1332(a) are met: that is, there is complete diversity of citizenship between all plaintiffs and all defendants and the amount in controversy exceeds $75,000. In determining whether complete diversity of citizenship exists between plaintiffs and defendants, the citizenship of fictitious “John Doe” defendants is disregarded.
The doctrine of fraudulent joinder is an exception to the requirement of complete diversity of citizenship for purposes of removal based upon diversity jurisdiction. A case in which complete diversity of citizenship does not exist may nevertheless be removed if the plaintiff named the nondiverse defendants for the sole purpose of defeating diversity jurisdiction, see Brown v. Jevic, 575 F.3d 322, 326 (3d Cir. 2009). Nondiverse defendants have been fraudulently joined if there is no reasonable factual basis supporting the plaintiff’s claims against the non-diverse defendants, or if the plaintiff does not earnestly intend to seek judgment against the non-diverse defendants.
As with removal based on federal question jurisdiction, to remove on diversity jurisdiction grounds, the removing defendant must obtain the consents of all properly joined and served defendants.
- Removal based upon the Class Action Fairness Act
Another basis for removal is pursuant to the Class Action Fairness Act (CAFA), which allows for removal of certain class action lawsuits. To remove pursuant to CAFA, the following requirements must be met: the plaintiff class members must number at least 100; there must be minimal diversity between plaintiff class members and defendants, meaning that the citizenship of at least one plaintiff class member must be different than that of at least one defendant; and the aggregate amount in controversy must exceed $5 million. Unlike removal based upon federal question and diversity jurisdiction, removal pursuant to CAFA need not occur within one year of the commencement of the case. Additionally, the removing defendant does not need the consents of other defendants. However, if considering removal on CAFA grounds, one should be aware of the home state exception: a federal district court may decline to exercise jurisdiction over a case removed pursuant to CAFA if more than one-third but less than two-thirds of plaintiff class members and the primary defendants are citizens of the state in which the action was filed. Moreover, cases removed solely under CAFA cannot later be transferred into a multidistrict litigation proceeding unless a majority of the plaintiffs request transfer.
- Removal by a federal employee or defendant acting under the direction of a federal employee
The final basis for removal contemplated by this article is set forth in 28 U.S.C. Section 1442, which permits the removal of a case brought against a federal employee acting within the scope of their employment or a defendant acting under the direction of a federal employee. A private corporation sued in its capacity as a government contractor may be able to remove their case pursuant to 28 U.S.C. Section 1442, see Boyle v. United Technologies, 487 U.S. 500 (1988). A removing defendant must demonstrate three criteria in order to remove pursuant to 28 U.S.C. Section 1442: the removing defendant has a colorable federal defense; the removing defendant is a federal employee or acting under the direction of a federal employee; and there is a causal connection between the acts by the removing defendant taken under color of office and the conduct for which the removing defendant has been sued, as in Holdren v. Buffalo Pumps, 614 F.Supp.2d 129, 139-40 (D. Mass. 2009) (citing Mesa v. California, 489 U.S. 121, 131-32 (1989)).
In sum, there are numerous avenues by which a defendant may remove their state court case to federal court, provided that the defendant strictly abides by the rules regarding removal. By removing their case, a defendant can even the playing field by having the case heard in a federal forum. Thus, if named in a lawsuit filed in state court, a defendant should always consider at the outset whether their case is removable to federal court.
Shannon McClure is a partner in the Reed Smith's global commercial disputes group, focusing her practice on complex civil litigation on behalf of national and multinational companies. She can be reached at firstname.lastname@example.org.
Neil Hlawatsch is an associate in the firm’s global commercial disputes group. He can be reached at email@example.com.