Removal to Federal Court
This article provides a brief overview of removing actions to Federal Court. Sometimes a lawsuit can be filed in either State Court or in Federal Court. However, some lawyers are afraid of Federal Court because it means a lot more work with stricter deadlines and filing requirements than those imposed in State Court.
As a result, even in situations where a client’s action can be filed in either court, some lawyers choose to file their lawsuits in State Court. In these instances, defendants can remove (i.e., transfer) the case from State Court to Federal Court.
The right of removal of causes from a State Court to a Federal Court is provided for and governed by Federal law. See 28 U.S.C. §§ 1441–1455. Sections 1441–1445 state when the right of removal exists and the limitations on that right. Sections 1446–1455 provide for the procedure on removal to federal court.
What Cases can be Removed?
Most cases which originally could have been filed in Federal Court on federal question grounds can be removed from State Court. 28 U.S.C. § 1441(a). Federal questions are those arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Under the so-called, well-pleaded complaint doctrine, “federal jurisdiction exists only when a federal question is presented on the face of plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
“Furthermore, the plaintiff is master of his complaint and can determine whether he will bring suit ‘arising under’ state or federal law.” Chandler v. Cheesecake Factory Rests., Inc., 239 F.R.D. 432, 436 (M.D. N.C. 2006) (quotation omitted). Under the well-pleaded complaint rule, then, federal courts do not have jurisdiction over state law claims simply because the defendant may or does assert a federal defense. Caterpillar Inc., 482 U.S. at 393. Therefore, in determining whether the claims “arise under” the Constitution or the laws of the United States, the court must examine the allegations in the complaint and ignore potential defenses. Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 (2003).
Additionally, any action brought in State Court which satisfies the requirements for diversity jurisdiction is subject to removal to Federal Court. 28 U.S.C. § 1441(b). Diversity jurisdiction exists where the matter in controversy exceeds $75,000, exclusive of interest and costs, and the action is between citizens of different States or between citizens of a State and citizens of a foreign nation. 28 U.S.C. § 1332(a). It should be noted there are special rules for determining the citizenship of corporations or other business entities. Id. at (c).
If a case includes a claim involving a federal question and a claim that is not within the jurisdiction of Federal Courts, the claim involving the federal question is served from the other claim, which is then remanded (sent back) to the State Court. 28 U.S.C. § 1441(c).
Who Can Remove and Who has the Burden of Proof?
Only the defendant may remove an action and the burden to establish the right to do so is on the defendants. 28 U.S.C. § 1441(a). “As the party seeking removal, Defendant bears the burden of proving the existence of subject matter jurisdiction.” Chandler, 239 F.R.D. at 436. “If jurisdiction is doubtful, a remand is necessary.” Id. “To scrupulously confine removal jurisdiction, federal courts have fashioned a presumption in favor of remand to state court.” Harris Corp. v. Kollsman, Inc., 97 F. Supp. 2d 1148, 1151 (M.D. Fla. 2000) (citations omitted). “Additionally, the burden of persuasion rests upon the removing party, and all doubts as to the propriety of removal are resolved in favor of remand.” Id.
It should be noted, a plaintiff who does not wish to litigate in Federal Court may avoid the possibility of removal by (1) refraining from asserting claims arising under the Constitution, laws, or treaties of the United States, and (2) not naming any defendant whose residence creates diversity of citizenship with the plaintiff or expressly alleging in the complaint a specific amount of damages that falls below the federal jurisdictional minimum of $75,000.
What if the Basis for Removal Ceases to Exist?
In any action removed from state court, “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1441(c). “Thus Congress mandated that the district court remand the action if at any time before final judgment the basis for federal jurisdiction ceases to exist, irrespective of whether removal was proper at the time it was made.” Villano v. Kohl’s Dep’t Stores, Inc., 362 F. Supp. 2d 418, 420 (S.D.N.Y. 2005).
At the time the petition is filed, the entire case is transferred to federal district court. Remova Pool Fence Co. v. Roth, 647 So. 2d 1022, 1024 (Fla. 4th DCA 1994). Removal, therefore, occurs as soon as the defendant files the notice of renewal with the federal district court. 28 U.S.C. § 1446(d). Once the action has been properly removed, the jurisdiction of the state court ceases until the case is remanded, and any state court proceedings after removal but prior to remand are void ab initio. 28 U.S.C. § 1446(d); Preston v. Allstate Ins. Co., 627 So. 2d 1322, 1324 (Fla. 3d DCA 1993). The actions of the state court, however, are not void when removal of the case to the federal court is shown to be improper. Wilson v. Sandstrom, 317 So. 2d 732, 740 (Fla. 1975).
What is the Procedure for Removal?
“A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal … containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” 28 U.S.C. § 1446(a). Notices of removal are subject to the provisions of Fed. R. Civ. P. 11, which allows the court to impose sanctions for inappropriate pleadings and motions. Id.
The right to remove an action is subject to strict deadlines and is waived if not timely asserted. Specifically, the notice of removal must be filed within thirty days after the receipt by the defendant of the initial pleading, or within thirty days after service of the summons if such pleading has been filed and is not required to be served, whichever period is shorter. 28 U.S.C. § 1446(b); Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1262 (5th Cir. 1988) (thirty days begins to run upon service on first defendant). If the action involves multiple defendants, the removal deadline is measured for each defendant individually.
The federal district court may require a removing party to file copies of records and proceedings in the state court, or to bring the record before it by writ of certiorari issued to the state court. 28 U.S.C. § 1447(b). After removal, the federal district court may issue all orders and process necessary to bring before it the proper parties, whether or not they have been served by process issued by the state court. 28 U.S.C. § 1447(a); Maseda v. Honda Motor Co., 861 F.2d 1248, 1252 (11th Cir. 1988).