This article has been written by Narendra Jain, pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Zigishu Singh (Associate, LawSikho).
Removal of jurisdiction is the process of transferring a case from the state court to the federal court. It is provided under federal statute. A Defendant can choose to remove a case if the case could have been filed in federal court in the first place. A federal statute governs removal. Only a defendant can remove a case to federal court, since, if a Plaintiff files a case in the state court then it is by choice and the same cannot be changed subsequently.
As soon as a case has been removed from state to federal court, the state court ceases to have jurisdiction over the matter, though a federal court can remand a case to state court. A federal judge has the discretion to remand a case on its own if the judge comes to the conclusion that federal jurisdiction has not been properly invoked by the Defendant. However, once a case has been removed to federal court, it stays there until it is fully resolved.
Section 1441 of Title 28 of the U.S. Code authorizes a Defendant to remove the civil case from a state court to a federal court if the federal court originally had authority over the case. For example, diversity of citizenship of the parties or where Plaintiff’s action involved a claim under federal law.
If removal is based only on diversity of citizenship then the principle of removal of jurisdiction will not be attracted, if out of many Defendants any properly joined and served Defendant is a citizen of the state in which the action is pending.
Section 1442 of Title 28 of the U.S. Code authorizes the United States, any federal agencies, and any officer of the United States to request for the removal of a case from a state court to a federal court. A Defendant can request the removal if their act in question was done in relation to their employment or the federal government.
Right of the defendant
It provides a Defendant with the right to have the case heard in a federal court, rather than in the state where the Plaintiff resides. It helps by providing a more equitable playing field between the Plaintiff and Defendant.
In order for a case to be removed to a federal court, the Defendant is required to file a plea within 30 days of receipt of the complaint/summons, and the amount claimed by way of damages must exceed $75,000. Also, Defendant and Plaintiff must reside in different states.
A Defendant must file a copy of the notice of removal in the state court and must notify all other parties of the removal. In a case with more than one Defendant, normally all Defendants who have been served with the legal process must be joined in the notice of removal.
Remedy against improper invoking of removal
If a party contends on any ground other than the Federal District Court not having jurisdiction to remove the case, the party can move to the district court to remand the case to state court within 30 days from the date of Defendant’s filing the notice of removal. The District Court will grant the application/motion if it finds that removal was improper.
The reason behind a Defendant choosing the Case to be heard in a Federal Court and not a State Court
One reason that is typical behind considering removal, is that there may be prejudice against the non-resident Defendant. A Defendant may apprehend that in court, this prejudice could come from the jury and/or the judge, who may favour the in-state resident.
There are, however, other factors that are looked at by Defendant and their defence when considering if removal is necessary:
The judge- It is important to consider the judge who will be on the case. Determining the background, political views, and experience of the judge will help to determine whether the judge is more likely to favour the Plaintiff. If that is the case, then the defence would choose to remove to a federal court for a neutral judge. It may happen that a defendant may represent a company that promotes oil companies, while the judge is an environmentalist. The judge could be biased against Defendant.
The counsel- Knowing more about the Plaintiff’s Counsel can help to determine the defence’s next move. Knowing if the Counsel is well known in state courts and if they practice a lot in court can be a deciding factor for removal to federal court. If the counsel rarely practices in federal courts, it would be beneficial for the defence to remove to federal court to have the advantage. The Counsel is well-known in the state court and has won many cases because of his experience and name. The defence would consider removal because of this.
Removal in case of multiple Defendants
When there are multiple Defendants involved in a case and even if just one Defendant out of others is a citizen of the state where the lawsuit was filed, a Plaintiff can successfully object to removal, if the only ground for invoking federal jurisdiction is based on diversity of citizenship.
A Plaintiff can never remove his/her own case, even if the Defendant files counterclaims alleging violations of federal law by the Plaintiff. In such an event, a Plaintiff must seek a dismissal order without prejudice and refile the case in federal court.
Cases that are barred from removal
The cases filed under Workers’ Compensation Action and Actions under the Federal Employers Liability are barred from removal in all the circumstances.
Removal of criminal cases
Removal of state criminal cases are allowed under 28 U.S.C. Section 1442, where Defendant is a federal officer and who alleges that the act was committed while carrying out his federal duties.
Removal of cases involving federal agencies or federal officers
Removal jurisdiction in cases that involve federal agencies or officers, who are named as defendants in civil suits or criminally prosecuted, is governed by 28 U.S.C. § 1442, known as the federal-officer removal statute., as opposed to removal under 28 U.S.C. § 1446.
The primary difference between the two statutes is that in section 1442, it is provided that in the case of federal agencies or officers, the federal district court need not otherwise have subject-matter jurisdiction over the type of case presented as long as the federal officer was acting under colour of office in a civil matter, or in a criminal matter whereas under Section 1446, criteria are that there must be federal subject-matter jurisdiction to justify removal.
The time limit for removal
A Defendant must make an application to remove within 30 days of receiving summons and complaint as required under 28 U.S.C. § 1446(b).
If a case cannot be removed immediately but becomes removable later, Defendant has 30 days from the receipt of the amended complaint or pleading that makes the case removable. In any event, a case cannot be removed more than one year after filing.
The deadlines stipulated for removal cannot be extended by agreement of the parties or even by order of the court as the same are jurisdictional which means if the same is not followed and satisfied, the court does not have jurisdiction to hear the case.
Steps to be taken for removal
- Removal documents which are to be filed in the Federal Court would include the payment of requisite filing fees, Civil action sheet, Federal notice of removal and copies of all pleadings, processes and orders filed in the State court.
- Notification to be filed in the State Court from which the case is being removed which will include the formal notification of removal and copies of some or all documents from the removal packet filed in Federal court are to be attached thereto.
- The materials filed in Federal court and State court are also served to other parties to the litigation which will include copies of the removal documents filed in State court and new federal pleadings associated with the removal.
- After removing the case to Federal court it is to be ensured that the deadline for filing an answer or other responsive pleading in that forum, is adhered to.
State courts are not empowered to adjudicate whether an action can be properly removed. As soon as a Defendant completes the removal process by filing a notice of removal in the state court, jurisdiction is transferred automatically and immediately by operation of law from the state court to the federal court.
Any objection to removal must be presented to the federal court by way of a timely-filed motion. If a federal court comes to the conclusion that the notice of removal was defective or that it does not have jurisdiction, the case is remanded to the state court.
There is no reverse “removal”. That is, if a case originates in a federal court, a Defendant is not entitled to remove a case from federal court into state court. If the federal court lacks jurisdiction, the case is dismissed. Only cases that originate in a state court and are improperly removed to a federal court may be sent back to the state court where they started.
A Defendant can waive the right to remove by contract, although courts take different views while interpreting the terms that are necessary to create a waiver.
In most cases, one will prefer to have his/her cases proceed in the federal court rather than the state court. Even on the ground level, removal of a case from State court to Federal court may sound easy but there are many outlines and forms to federal jurisdiction. It involves many issues that may not be quite obvious but need to be considered as the same can significantly impact the litigation. Removal application should not be taken lightly and it should be carefully considered, properly planned, and executed.
- https://www.law.cornell.edu/uscode/text/28/1442#:~:text=The%20United%20States%20or%20any,under%20any%20Act%20of%20 Congress
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