Only Defendants May Remove

Only Defendants May Remove

Removal has two gates, and a case must pass through both. The first is jurisdictional: the court asks whether the plaintiff, who sued in state court, could have filed the same action in federal court. If so, the defendant may usually remove; if not, the case stays in state court.¹ The second gate concerns the person holding the notice of removal. Section 1441(a) allows removal “by the defendant or the defendants,” and by no one else.² The preceding section covered the first gate by asking when a federal defense or counterclaim can make a case one the plaintiff could have brought in federal court. This section covers the second, which stays shut even after a federal claim has appeared in the case.

The party who may remove is the one the original plaintiff sued. A plaintiff cannot remove, and a counterclaim does not change that: even when the defendant’s counterclaim leaves the plaintiff “defending,” the plaintiff remains a plaintiff for removal purposes. The Supreme Court so held in Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941).³

Suppose James sues Earp, a fellow Kansan, in Kansas state court for assault. Earp answers with a counterclaim alleging that the same encounter violated his federal civil rights, and James wants to move the case to federal court. He may not, for two independent reasons. James could not have filed in federal court originally, because a state-law assault claim between citizens of the same state supplies no basis for federal jurisdiction, and, as the preceding section explained, Earp’s federal counterclaim does not supply one. And James is the plaintiff, so Shamrock Oil forecloses his removal whatever the counterclaim says.⁴ Either reason is enough, and a complete answer names both.

Reverse the roles and the result flips. Suppose Earp sues James in state court for violating his federal civil rights, a claim state courts may hear, and adds a state-law battery count. James is now the party sued by the original plaintiff, and he may remove. The federal court takes the entire action, civil rights claim and battery claim together, because neither party can dissect a single case and send only parts of it to the federal forum.⁵ The federal claim is the same in both versions; what differs is whether the party seeking federal court was sued by the original plaintiff. Removal also runs in one direction only: a defendant properly sued in federal court cannot remove to state court.⁶

The rule makes sense once you ask what removal is for. It gives defendants the same access to federal court that plaintiffs have.⁷ A plaintiff, by contrast, picked the forum when it filed, and a rule letting the plaintiff leave state court after the defendant’s counterclaim would hand the plaintiff a second chance at forum selection, triggered by the defendant’s own response. The statute’s other language fits the picture. The unanimity requirement, for example, directs that “all defendants who have been properly joined and served must join in or consent to the removal” when a case is removed solely under § 1441(a).⁸ Removal is an act of the defense side of the case.

Defendant status is necessary, but it does not guarantee removal. Diversity cases show the gap. If a Kansas plaintiff sues two non-Kansas defendants in Kansas state court, no defendant is from the forum state, and the defendants may remove despite § 1441(b). If one of the defendants is a Kansas citizen, § 1441(b)(2) bars removal of the diversity action, even though the plaintiff could have filed it in federal court, because here removal jurisdiction is narrower than original jurisdiction.⁹ The next section takes up that limit.

The same definition of “defendant” controls parties who enter the case through a counterclaim. In Home Depot U.S.A., Inc. v. Jackson, CitiBank sued Jackson in state court over charges on a Home Depot credit card. Jackson answered with a class action against Home Depot and another party, asserting state-law claims for unlawful referral sales and deceptive trade practices. Home Depot removed, and Jackson moved to remand. The Supreme Court held removal impermissible: “[b]ecause in the context of these removal provisions the term ‘defendant’ refers only to the party sued by the original plaintiff . . . neither provision allows such a third party to remove.” That reasoning covered both § 1441(a) and the removal provision of the Class Action Fairness Act.¹⁰ Stated generally, “section 1441(a) does not permit removal by any counterclaim defendant, including parties brought into the lawsuit for the first time by the counterclaim.”¹¹

Home Depot goes beyond Shamrock Oil. The removing party in Shamrock Oil was the original plaintiff, who had chosen the state forum. Home Depot was a stranger to the suit, pulled in by the original defendant’s counterclaim. A newcomer who never chose the forum might seem to deserve removal’s protection, but the Court read “defendant” in light of the statute’s structure and its own precedent and confined it to the party sued by the original plaintiff.¹² The Court did not decide whether third-party defendants, newly joined as such under state procedural rules, may remove, but its language and reasoning suggest they may not. Denying them removal in effect traps new defendants in state court, which in turn may bear on the wisdom of the Court’s presumption that state courts share jurisdiction over federal claims.¹³ On an exam, treat third-party defendants as unable to remove, while noting that the Court left the point open.

One statute reverses this allocation for a narrow class of cases. Section 1441(a) begins with the words “Except as otherwise expressly provided by Act of Congress,”¹⁴ and 28 U.S.C. § 1454 is such an Act: it permits removal of a civil action in which any party asserts a claim arising under the patent laws, and it lets any party remove. Congress wanted patent claims in federal court whoever raises them. Suppose a plaintiff sues in state court for breach of contract and the defendant counterclaims for patent infringement. The original plaintiff, who could not remove under § 1441(a), may remove under § 1454. That makes § 1454 a true exception to the rule that only defendants remove. Outside it, a federal counterclaim leaves the original plaintiff in state court, as James was left in his assault suit.