Removal to Federal Court

2012-08-23 21:50:50

‘‘Removal’’ is a federal statutory procedure that allows the defendant to transfer a case from state court to federal district court against the plaintiff’s wishes, even if she is a civil rights claimant who prefers to remain in state court. Certain specialized kinds of cases cannot be removed (28 U.S.C., Section 1445); nor is removal available if jurisdiction is based solely on diversity of Citizenship and at least one defendant is a citizen of the forum state (Section 1441[b]). The defendant (or all co-defendants) in any other state civil action ‘‘of which the district courts of the United States have original jurisdiction’’ can, within thirty days of receiving the complaint, file a ‘‘notice of removal’’ with the federal district court embracing the place where the action was filed (Section 1441[a]). The notice automatically effects removal and deprives the state court of jurisdiction over the case. The plaintiff can move to ‘‘remand’’ to state court under Section 1447(c) if the notice of removal was untimely (Section 1446) or if the case lies beyond the district court’s jurisdiction. Federal officials sued or prosecuted in state court for acts committed under color of office are also allowed to remove (Section 1442); otherwise, the presence of federal defenses to state law claims or prosecutions is insufficient for removal. Finally, defendants sued or prosecuted in state court without being able to enforce their rights under federal laws providing for racial equality can remove, as can those who are sued or prosecuted in state court for enforcing or following such laws (Section 1443).


References and Further Reading

  • Fallon, Richard H., Daniel J. Meltzer, and David Shapiro. Hart and Wechsler’s The Federal Courts and the Federal System. 5th ed. New York: Foundation Press, 2003.
  • Irmas, Sydney, and Erwin Chemerinsky. Federal Jurisdiction. 4th ed. Boulder, CO: Aspen Publishing, 2003.
  • Wright, Charles A., and Mary Kay Kane. Law of Federal Courts. 6th ed. St. Paul, MN: West Group, 2002.

Cases and Statutes Cited

  • 28 U.S.C. Sections 1441, 1442, 1443, 1445, 1446, 1447.

See also Due Process; Jurisdiction of the Federal Courts; State Courts