3.4 Removal and Remand

Removal and remand are key processes in civil procedure that allow cases to move between state and federal courts. They're crucial tools for litigants to navigate jurisdictional issues and choose their preferred forum.

Understanding removal and remand is essential for grasping how subject matter jurisdiction works in practice. These procedures directly impact where a case is heard, potentially affecting its outcome and the strategies employed by both plaintiffs and defendants.

Removal of Cases to Federal Court

Purpose and Process of Removal

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• Removal transfers cases from state to federal court when federal courts have original jurisdiction
• Protects defendants' right to litigate in federal court for federal questions or diverse citizenship
• Governed by 28 U.S.C. §§ 1441-1455 outlining requirements and procedures
• Defendant initiates removal by filing notice in federal district court within 30 days of receiving initial pleading
• Defendant must promptly serve written notice to adverse parties and file copy with state court clerk
• Case automatically removed upon filing notice, but federal court may remand if removal improper
• Removal provides forum choice for defendants (state vs federal court)
• Impacts litigation strategy and potential outcomes for both parties

Removal Process Steps

• Review complaint to determine if federal jurisdiction exists
• Assess timing requirements for filing notice of removal
• Prepare notice of removal with required information (grounds for removal, copy of all process/pleadings)
• File notice of removal in appropriate federal district court
• Serve notice on plaintiff and file copy with state court
• Respond to any motion to remand filed by plaintiff
• Continue litigation in federal court if removal upheld

Statutory Requirements for Removal

Key Statutory Provisions

• 28 U.S.C. § 1441(a) allows removal of civil actions where federal courts have original jurisdiction
• Removal based on federal question jurisdiction (28 U.S.C. § 1331) or diversity jurisdiction (28 U.S.C. § 1332)
• Forum defendant rule in 28 U.S.C. § 1441(b)(2) prohibits diversity removal if any defendant is citizen of forum state
• Rule of unanimity in 28 U.S.C. § 1446(b)(2)(A) requires all properly joined defendants to consent to removal
• Exceptions to unanimity include nominal parties, fraudulently joined parties, unserved defendants
• Removing party bears burden of establishing proper removal and meeting all statutory requirements

Procedural Requirements

• Notice of removal filed within 30 days of receiving initial pleading or summons
• All defendants must join in or consent to removal (rule of unanimity)
• Notice must contain short plain statement of grounds for removal
• Copy of all process, pleadings, and orders from state court must be included
• Notice must be signed pursuant to Rule 11 of the Federal Rules of Civil Procedure
• Promptly file copy of notice with state court clerk
• Serve written notice on all adverse parties

Federal Question vs Diversity Jurisdiction

Federal Question Jurisdiction

• Requires plaintiff's well-pleaded complaint to raise substantial federal law issue
• Federal question must be part of plaintiff's cause of action
• Determined from face of complaint; federal defense insufficient for removal
• Arises under federal constitution, laws, or treaties of the United States
• Examples: patent infringement claims, civil rights violations under 42 U.S.C. § 1983

Diversity Jurisdiction

• Amount in controversy must exceed $75,000
• Complete diversity required between all properly joined plaintiffs and defendants
• Citizenship determined at time of filing and removal; subsequent changes irrelevant
• Corporate citizenship based on state of incorporation and principal place of business
• "Nerve center" test from Hertz Corp. v. Friend determines principal place of business
• Special rules for Class Action Fairness Act (CAFA) cases with different requirements
• Examples: contract disputes between citizens of different states, tort claims between diverse parties

Determining Jurisdiction

• Analyze complaint to identify federal claims or diverse parties
• Assess amount in controversy through good faith estimate at time of removal
• Consider citizenship of all parties, including corporations and unincorporated associations
• Evaluate potential fraudulent joinder or improper joinder of non-diverse parties
• Review any special jurisdictional statutes applicable to the case (CAFA, federal officer removal)

Remand Procedure and Grounds

Remand Process

• Motion to remand for procedural defects filed within 30 days of removal notice
• Motion for lack of subject matter jurisdiction can be made any time before final judgment
• Party opposing remand bears burden of establishing proper removal and federal jurisdiction
• Court must remand if it lacks subject matter jurisdiction (28 U.S.C. § 1447(c))
• Court may remand state law claims after dismissing claims with original jurisdiction (28 U.S.C. § 1367(c))
• Remand orders generally not reviewable on appeal, with limited exceptions (CAFA cases)

Common Grounds for Remand

• Lack of federal subject matter jurisdiction (no federal question or incomplete diversity)
• Procedural defects in removal process (untimely filing, failure to obtain unanimous consent)
• Violation of forum defendant rule (diverse defendant is citizen of forum state)
• Improper joinder or fraudulent joinder of non-diverse parties
• Failure to meet amount in controversy requirement for diversity cases
• Abstention doctrines requiring federal court to decline jurisdiction
• Examples: Rooker-Feldman doctrine, Younger abstention, Colorado River abstention