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​Requirements for Removing a Case From State Court to Federal Court

July 15, 2020

State and federal courts have overlapping jurisdiction over many legal claims. Plaintiffs are responsible for choosing where to file their lawsuits, but defendants can have their say in some situations. “Removal” is the process of transferring a lawsuit filed in state court to the United States District Court with jurisdiction over the same area.

A defendant can remove a case from state to federal court by filing a notice of removal in federal court and then notifying the state court and the other parties. They might need the agreement or joinder of any other defendants, or they might be able to remove a case on their own. After removal, the state court no longer has jurisdiction over the lawsuit. A plaintiff can move the federal court to remand the case to state court, but the state court otherwise has no further involvement. Before removing a case, a defendant should consider the potential advantages of federal court and review the jurisdictional requirements and local rules for removal.

Why Remove a Case to Federal Court?

Federal courts may present certain advantages for defendants. For example:

  • Since federal judges have lifetime appointments, their courts often offer more consistency in terms of matters like docketing.
  • Federal courts tend to have more experience with certain types of lawsuits, so removal could mean that the case makes it through the court more efficiently.
  • Rules of procedure and caselaw are often more consistent in federal court. The Federal Rules of Civil Procedure are the same throughout the nation, and all district courts in a circuit are bound by the same precedents.
  • Jury pools in federal courts usually come from a wider geographic area.

If a defendant decides that federal court would offer enough advantages, they should begin looking at the procedure for removal.

Deadline to Remove a Case

A defendant has 30 days from the date when they receive the plaintiff’s petition or complaint to remove the case to federal court. A case that is not removable when it is first filed can become removable later if the plaintiff adds new claims, joins more defendants, or increases the amount in controversy. A defendant can remove a case within 30 days of receiving an amended petition or complaint. In many situations, however, the defendant cannot remove the case if more than one year has elapsed since the lawsuit was first filed.

Federal Subject Matter Jurisdiction

A case is removable to federal court only if the federal court would have had subject matter jurisdiction in the first place. The two most well-known bases for federal court subject-matter jurisdiction are:

Federal courts can exercise supplemental jurisdiction over state-law claims that are closely related to the other claims in the lawsuit.

If a plaintiff who is a citizen of California files suit in a California state court against a defendant who is a citizen of Minnesota, for example, they could file in federal court if the amount of their claims is $75,000 or more. If a plaintiff is asserting causes of action under both federal and state laws, a federal court could have jurisdiction over all the claims under federal question and supplemental jurisdiction.

A lawsuit that is removable based solely on diversity jurisdiction is subject to an additional restriction. It cannot be removed if any defendant is a citizen of the state in which it is filed.

Venue for Removal

Once a defendant has determined that a federal court can exercise subject matter jurisdiction over the lawsuit, they must identify the court where they can file a notice of removal. Federal law states that removal must be to the district court in “the district and division within which such action is pending.” If a plaintiff files a lawsuit in a New York state court in Manhattan, for example, the court to which the case should be removed would be in the Southern District of New York.

Filing the Notice of Removal

The procedure and timing for filing a notice of removal partly depend on the basis for federal subject matter jurisdiction. The notice of removal must include “a short and plain statement of the grounds for removal.” The defendant must attach copies of all the documents served in the state case.

When a defendant seeks to remove a case based on general federal jurisdiction, all of the defendants who have been served in the state case must either consent or join the removal. If a defendant wants to remove the case more than 30 days after a different defendant was served, that defendant can still consent to removal.

If a lawsuit is not initially removable, a plaintiff can render it removable later, such as by adding a claim that falls under federal question jurisdiction. A defendant can remove the case within 30 days of receiving the amended complaint or petition, as long as the original pleading was filed no more than one year earlier. A court can waive the one-year limit if it finds that the plaintiff “acted in bad faith in order to prevent a defendant from removing the action.” For example, a plaintiff who misrepresented the amount in controversy to avoid diversity jurisdiction may be considered to have acted in bad faith.

Notice to State Court and Other Parties

The defendant must notify the other parties and the state court “promptly” after filing the notice of removal in federal court. It must provide written notice to the other parties and file a copy of the notice with the clerk of the state court.

Severing State-Law Claims

The federal court will review its jurisdiction over the causes of action in the lawsuit. It can exercise supplemental jurisdiction over state-law claims. If it finds that it does not have supplemental jurisdiction, the court may sever those claims from the lawsuit and remand them to state court.

Cases That Are Not Removable

Federal law states that certain claims may not be removed to federal court. These include claims against railroads and motor carriers for $10,000 or less, workers’ compensation claims, and civil lawsuits brought under the Violence Against Women Act.