The Removal Premise

Removal to Federal Court

The Removal Premise

Every removal case starts with a question about a lawsuit the plaintiff filed in state court: could the plaintiff have filed it in federal court at the outset? Section 1441(a) writes that question into the statute. Unless an Act of Congress expressly provides otherwise, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction" may be removed by the defendant or defendants to the federal district court for the district and division embracing the place where the action is pending.¹ Original jurisdiction is the power to hear a case filed in federal court in the first instance. The sentence therefore identifies the removable case (one the plaintiff could have filed federally), the party who may remove it (the defendant), and the court that receives it (the federal district covering the place where the state action sits).

Congress, not the Constitution, created this right. Removal is purely statutory and depends on the will of Congress. The common law did not know it, and the Constitution does not mention it. Provision for removal has nonetheless run from the First Judiciary Act of 1789 to the present, and its constitutionality is entirely settled.² The device remains anomalous, because it lets a defendant who was sued in a court of competent jurisdiction elect a forum of its own choosing.

The justification is equal access. A plaintiff whose case falls within federal subject matter jurisdiction may choose a federal court by filing there, and if she does, the defendant cannot "remove" the case to state court. If she files in state court instead, the removal statute lets the defendant choose the federal forum by removing.³ Federal jurisdiction is meant to protect both parties, so both should have access to it. If a federal court is especially qualified to decide federal law, a defendant should be able to ask it to do so, just as a plaintiff may. If an out-of-state defendant may suffer prejudice in a state court, the defendant should have the same right as an out-of-state plaintiff to avoid that prejudice by invoking diversity jurisdiction.⁴

The same rationale fixes the limit. Removal is not meant to expand federal jurisdiction but merely to make it available to defendants, so a defendant may remove only a case the plaintiff could have commenced in federal court.⁵ The tests for original jurisdiction therefore carry over unchanged: the case must present a federal question, or it must satisfy diversity of citizenship and the jurisdictional amount.⁶ Those tests are applied to the case the plaintiff pleaded, and the hypothetical asks only about jurisdiction. If venue would have been improper in the federal court, removal is still available.⁷

Two Kansas hypotheticals show how the test works. Oakley sues Cody, a fellow Kansan, on a state-law contract claim. She could not sue in federal court, since the case has neither diversity nor a federal question, so if she sues Cody in state court he has nothing to remove. Had she sued under a federal age discrimination statute, Cody could remove, because Oakley could have chosen to sue him on that claim in federal court.⁸ A federal issue that appears only as a defense does not change the result. A New York plaintiff sues a New York defendant in a New York state court for state-law libel, and the defendant raises the First Amendment as an affirmative defense. The defendant may not remove, because the plaintiff could not have filed in federal court. Section 1331 offers no basis for jurisdiction, since the well-pleaded complaint rule excludes a case whose only federal issue is a defense.⁹ The next section develops that rule.

In diversity cases the amount in controversy decides which side of the line a case falls on. An Iowa plaintiff who sues an Illinois defendant in an Iowa state court on a state-law contract claim for $80,000 presents complete diversity and an amount above $75,000. The plaintiff could have filed in federal court, so the defendant may remove. A Texas plaintiff who sues an Alabama defendant in a Texas state court on a state-law contract claim for $60,000 also has diverse parties, but the claim is too small, and without a federal question the plaintiff could not have filed under § 1331 either. The case stays where it was filed.¹⁰ Because removability follows the plaintiff's pleading, a state-court plaintiff may name an amount below $75,000 to defeat removal even if her real loss is greater, provided she names it before the defendant removes.¹¹

The defendant bears the burden of proving that the case belongs in federal court. On removal the defendant, not the plaintiff, invokes federal jurisdiction, so the defendant must establish that the plaintiff could have filed there originally, even though the burden would normally fall on the plaintiff.¹² That burden explains what a notice of removal contains. In one example, the removing defendant alleges complete diversity, damages above $75,000, the citizenship of the plaintiffs, and the date it first received the complaint, which shows that the notice was filed within thirty days.¹³ A defendant who cannot match the complaint to the jurisdictional statutes loses the removal. In Avitts, the complaint made several general references to federal law, but the plaintiffs sued under no federal statute and the parties were not diverse. The court of appeals concluded that the case could not have been filed originally in federal court, so it had been improperly removed under § 1441(a).¹⁴

Equating removal with original jurisdiction is the starting premise, not the whole law. Removal jurisdiction is broader than original jurisdiction in some respects and narrower in others.¹⁵ Supplemental jurisdiction applies to removed actions and lets the federal court hear related state-law claims, a topic the sections on mixed claims address.¹⁶ In the other direction, some cases are not removable even though the plaintiff could have filed them in federal court. Under § 1441(b)(2), a diversity case may not be removed if any properly joined and served defendant is a citizen of the forum state. If Pike, from Nevada, sues Cody, from Kansas, on a state-law claim in a Kansas state court, Cody cannot remove, because a defendant sued in his home state needs no protection from local prejudice.¹⁷