Removal under 28 U.S.C. § 1441
Overview
Removal allows defendants to transfer a case filed in state court to federal court when the federal court has original jurisdiction. Only defendants may remove cases, and removal is governed by 28 U.S.C. § 1441.
Requirements for Removal
Federal Subject-Matter Jurisdiction
- The federal court must have original jurisdiction over the case, typically through:
- Federal question jurisdiction (28 U.S.C. § 1331), or
- Diversity jurisdiction (28 U.S.C. § 1332).
Example:
A plaintiff sues a defendant in state court alleging breach of contract (state law claim). The case does not involve federal question or diversity jurisdiction, so removal is not proper.
Removal Based on Federal Question Jurisdiction
- Applies when the plaintiff’s claim arises under federal law.
- Federal question jurisdiction exists if the plaintiff’s well-pleaded complaint raises a federal issue.
- No amount-in-controversy requirement.
- The forum defendant rule does not apply.
- Defendants must comply with the 30-day removal window and unanimity rule.
Example:
A plaintiff sues a company in state court alleging violation of the Americans with Disabilities Act (a federal statute). The defendant may remove the case to federal court because the claim arises under federal law.
Removal Based on Diversity Jurisdiction
- Complete diversity between all plaintiffs and all defendants.
- Amount in controversy exceeds $75,000.
- Forum Defendant Rule: Removal is prohibited if any defendant is a citizen of the state where the case was filed.
Example:
A plaintiff from New York sues two defendants: one from Texas and one from New York, seeking $100,000. Removal is not allowed because one defendant is a citizen of the forum state (New York).
Consent and Timing
- Unanimity Rule: All properly joined and served defendants must consent to removal.
- 30-Day Rule: Notice of removal must be filed within 30 days after each defendant is served.
- Each defendant served at different times has a separate 30-day window.
- One-Year Bar: In diversity cases, removal is barred if more than one year has passed since the case began, unless plaintiff acted in bad faith.
Example:
Two defendants are sued in state court. Defendant A is served on January 1 and Defendant B on February 1. Defendant A files for removal on January 20 (within 30 days). Defendant B must consent and file removal by March 3 (30 days after service). Failure of Defendant B to consent timely invalidates removal.
Removal Procedures
- Defendants file a notice of removal in the federal district court where the state case is pending.
- The notice must state the grounds for removal and include all relevant pleadings from the state case.
- Defendants must promptly notify all adverse parties and file a copy with the state court.
Example:
Defendant files a notice of removal citing federal question jurisdiction, attaches copies of the state court complaint and summons, and serves all parties and the state court within the required time.
Remand to State Court
- Plaintiff may move to remand the case back to state court if removal was improper.
- Motions to remand for procedural defects must be made within 30 days of removal.
- Lack of subject-matter jurisdiction can be challenged at any time.
Example:
Plaintiff moves to remand the case because the defendant failed to obtain consent from all defendants. The court grants remand due to procedural defect.
Key Terms & Definitions
- Removal: The process by which a defendant moves a case from state court to federal court.
- Forum Defendant Rule: Prohibits removal based on diversity if any defendant is a citizen of the state where the case was filed.
- Remand: The return of a removed case to state court if removal was improper.
- Original Jurisdiction: A court’s power to hear a case for the first time.
Case Highlight: Hays v. Bryan Cave LLP
- Citation: 312 F.3d 1212 (10th Cir. 2002)
- Facts: Multiple defendants, including Bryan Cave LLP, were sued in state court. Defendants sought removal based on diversity jurisdiction.
- Issue: Whether removal was proper when one defendant failed to timely consent.
- Holding: Removal requires unanimous consent of all properly joined and served defendants within the 30-day removal period. Failure of any defendant to timely consent invalidates removal.
- Significance: Reinforces the “rule of unanimity” in removal cases, emphasizing strict procedural compliance to protect plaintiffs’ choice of forum.
- Practical Takeaway: Defendants must coordinate to obtain all consents promptly. Late-served defendants may consent within their own 30-day window, but initial removal must comply with unanimity.
Example:
In Hays v. Bryan Cave LLP, one defendant failed to timely consent to removal. The court held removal was improper and remanded the case to state court.
Examples Summary
Removal Based on Diversity Jurisdiction
- Plaintiff from California sues two defendants: one from Texas and one from California, seeking $100,000.
- Forum defendant rule prohibits removal.
- Result: Case cannot be removed.
Removal Based on Federal Question Jurisdiction
- Plaintiff sues for violation of federal Civil Rights Act.
- Defendant removes case based on federal question jurisdiction.
- Result: Removal proper regardless of parties’ citizenship.
Consent and Timing
- Two defendants served on different dates.
- Both must consent within their 30-day windows.
- Failure to consent timely invalidates removal.
Action Items / Next Steps
- Review 28 U.S.C. §§ 1331, 1332, and 1441.
- Practice identifying removal scenarios and applying the forum defendant rule.
- Study Hays v. Bryan Cave LLP to understand the unanimity and timing requirements for removal.
- Understand the 30-day removal window and exceptions, including the one-year bar in diversity cases.
- Differentiate removal rules for federal question and diversity jurisdiction.
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