Removal to Federal Court


As a general exception to the usual rule giving a plaintiff the right to make the decision on the proper forum, the defendant may be given the right to move a lawsuit filed in state court to the federal court of the original court’s district.  The right to remove actions from state to federal court is governed by Section 1441 of Title 28 of the U.S. Code, the general removal statute.  According to the statute, a lawsuit can be removed to a federal court only when the federal court would have had original jurisdiction of the action if the matter was brought to federal rather than state court.  Cases raising federal questions and cases involving diversity of citizenship can be removed to federal court.  A case that does not raise a federal question or involves diversity of citizenship can be removed if an amended pleading or other filing subsequently provides grounds for removal.  Defendants may remove state law claims for which a federal court has only supplemental jurisdiction, if they share a common nucleus of operative fact with claims based on federal law.  Federal court has the discretion to accept the case as a whole or remand the issues of state law.

A written “notice of removal” must be filed in the federal court and signed by the attorney for the removing party or by the party himself.  The removing defendant must also file a copy of all process, pleadings, and orders served on the defendant in the state court action.  The notice must be filed within 30 days of service of the initial pleading.  Once the notice of removal is filed in the federal court, the removing defendant has to give notice to all adverse parties and must file its copy with the state court.

After removing an action and the district court to which it is removed has made a liability determination requiring further proceedings as to damages, the district court shall remand the action to the State court from which it had been removed for the determination of damages.  However, remand may be halted if the court finds that the action should be retained for the determination of damages for the convenience of parties and witnesses and in the interest of justice.