Removing Mixed Claims

Section 1441(a) lets a defendant remove “any civil action” brought in a state court of which the district courts have original jurisdiction.¹ The unit of removal is the action, not the claim. Complaints, though, often join several claims on different jurisdictional footing: one arises under federal law, another only under state law, and the two may or may not grow out of the same events. How far the federal claim carries the rest of the complaint depends on how closely the rest is tied to it.

Two rules divide the field. State claims that belong to the same case as the federal claim travel with it, and the whole action comes over. State claims with no such connection lie beyond what the federal court may decide, so the removal statute sends them back to state court and leaves the federal claim behind. The first subsection below covers the connected claims and the second the unrelated ones.

Both rules answer a threat from two directions. If any additional claim could block removal, a plaintiff with a federal claim could keep the case in state court by adding one more count, and the defendant's access to a federal forum would turn on the plaintiff's drafting. If the federal court instead took every claim in the complaint, it might decide matters that lie beyond Article III. The rules below give the defendant a federal forum for the federal claim, keep joinder from defeating it, and hold the federal court within its power. Read the second rule against the current text of § 1441(c), which dates from a 2011 amendment; older accounts of that provision, including some still circulating in study aids, no longer match the statute.

Supplemental Claims Come Along

The word action in § 1441(a) fixes the question: would the district court have had original jurisdiction over the case as a whole?² One claim within original jurisdiction, such as a federal-question claim, is enough to answer yes. Exxon Mobil Corp. v. Allapattah Services, Inc. makes the point in describing Chicago v. International College of Surgeons, which stressed that a district court has original jurisdiction of a civil action for purposes of § 1441(a) as long as it has original jurisdiction over a subset of the claims constituting the action. Even the dissent in College of Surgeons, which disputed the Court's reading of § 1367, did not appear to contest that view of § 1441(a).³

That reading follows from what removal is for. A plaintiff holding a federal claim could have filed in federal court with related state claims attached, because supplemental jurisdiction reaches claims that share a common nucleus of operative fact with the federal claim, so that both form one case or controversy.⁴ Removal of a multi-claim action is therefore proper whenever the plaintiff could have used supplemental jurisdiction for the claims that lack an independent basis.⁵ A claim-by-claim test would defeat the statute's purpose, which is to stop a plaintiff from blocking the defendant's option by including some nonremovable claims or parties.⁶

Colter sues Bridger, a citizen of the same state, in state court for violating Colter's federal civil rights and for battery under state law. Bridger removes. The federal court acquires the entire action: the civil rights claim supplies original jurisdiction, and the battery claim comes along under supplemental jurisdiction. Neither party can dissect the case and send only part of it to the federal forum.⁷ A student who tests the battery claim alone, asking whether it could have been filed in federal court by itself, reaches the wrong answer, because the statute puts the question to the action and the battery claim belongs to an action that qualifies. Strip out the civil rights count and Bridger would have nothing to remove; the federal claim opens the door and the related state claim follows through it. The federal court keeps some control all the same, because supplemental jurisdiction is discretionary and the court may decline a state claim in an appropriate case.⁸ Only a court, and only for claims outside supplemental jurisdiction, may divide a removed action; the next subsection explains how.

The same logic applies when the federal claim arrives after the suit begins. Earp sues James, a fellow Kansan, in state court for assault under state law, then amends the complaint to add a federal civil rights claim arising from the same events. The amended complaint pleads a federal-question case with a related state claim, and § 1446(b)(3) governs its removal; the deadline sections below explain the clock. Once James removes, the federal court hears both claims, the civil rights claim under original jurisdiction and the assault claim under supplemental jurisdiction, because it could have heard both had Earp filed them together in federal court.⁹ The one-year ceiling in § 1446(c)(1) applies to removal under subsection (b)(3) “on the basis of jurisdiction conferred by section 1332,” so it does not limit removal on the strength of a federal claim added by amendment.¹⁰

A removed diversity action can carry two kinds of jurisdictional defect, and they do not reach equally far. Section 1441 incorporates the ordinary tests for original jurisdiction: the well-pleaded complaint rule, the complete diversity rule, and the rules for calculating the amount in controversy.¹¹ Shared citizenship on opposite sides spoils the whole action. A claim that falls short of the amount does not.

The demand does not matter because the defect lies in how the parties line up, and it touches every claim in the action. A shortfall in the amount behaves differently.

The outcomes differ because the two requirements do different work. Nondiverse parties on opposite sides of a lawsuit remove the reason for a federal forum, so that defect fairly infects every claim. The amount requirement screens for the importance of a dispute, and one plaintiff's small claim does nothing to lessen the importance of another plaintiff's larger one.¹² Exxon Mobil rejected the idea that the contamination theory germane to complete diversity also governs the amount requirement, because the two have no inherent logical connection.¹³ Supplemental jurisdiction then reaches the smaller claim, since the Court upheld it when one plaintiff has a sufficient claim arising out of the same controversy as the insufficient claims.¹⁴ Section 1441(a) asks only whether the action could have been filed originally, so the contractor may remove.

Supplemental jurisdiction stays discretionary after removal, and the court has one more option when the federal claims drop out. In Carnegie-Mellon University v. Cohill, the Supreme Court held that a district court may remand a properly removed case to state court when the federal-law claims have been eliminated and only pendent state-law claims remain.¹⁵ Remand serves the plaintiff better than dismissal, which would force a fresh filing in state court with its added expense and delay. The court decides whether to keep the leftover claims by weighing judicial economy, convenience, and fairness.¹⁶ Under Carlsbad Technology, Inc. v. HIF Bio, Inc., a remand after the court declines supplemental jurisdiction once the federal claim is dismissed is not a remand for lack of subject-matter jurisdiction for purposes of §§ 1447(c) and (d), a point that matters for the review of remand orders discussed later in the chapter.¹⁷

Severing Unrelated State Claims

Section 1441(c)(1) governs a complaint that joins a claim arising under federal law, within the meaning of § 1331, with a claim that lies outside the district court's original or supplemental jurisdiction or that a statute has made nonremovable.¹⁹ The entire action may be removed, but only if it would be removable without the second kind of claim.²⁰ That condition ties the provision back to the removal premise: the federal claim must be able to carry the action into federal court on its own, and the troublesome claim is set aside when the court asks whether removal is available. The preceding subsection covered state claims that share a common nucleus of operative fact with the federal claim, and they need no special rule. Section 1441(c) reaches the claims with no such tie, such as a state-law claim between fellow citizens that arises from events unrelated to the federal claim.

The provision exists because a plaintiff holding a federal claim could otherwise defeat removal by adding a claim that cannot be removed. Allowing removal of the entire action keeps the plaintiff's choice to include nonremovable claims from blocking the defendant's option.²¹ Bringing everything over, however, creates a second problem. A claim so unrelated to the federal claim that supplemental jurisdiction cannot reach it may lie beyond the limits of Article III, and critics have asked whether a removal statute can lawfully carry such a claim into federal court.²² Any version of the statute must therefore give the defendant a federal forum for the federal claim without asking the federal court to decide what it has no power to decide.

Congress reached the present text in stages. The earlier version allowed removal of the entire case when a “separate and independent” claim that would be removable if sued upon alone was joined with otherwise nonremovable claims, and it let the district court either determine all issues or, in its discretion, remand all matters not otherwise within its original jurisdiction.²³ Amendments in 1990 and 2011 narrowed and refined that text.²⁴ Descriptions of § 1441(c) that rest on the old separate-and-independent-claim test, or on the court's discretion over which matters to remand, describe a statute that has been replaced.

The current text works in two steps. The entire action comes to federal court, which protects the defendant's access to the federal claim. Then the statute commands that the district court “shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed.”²⁵ Severance is mandatory, where earlier versions left the choice to the court. The federal court keeps the federal claim and any claim within supplemental jurisdiction, and it returns the unrelated claims to the state court where the action began. Because the federal court holds an unrelated claim only long enough to send it back, it never adjudicates what lies outside its power. Most courts had already met the constitutional doubt the same way, by remanding the unrelated state claims and proceeding with the federal question claim.²⁶

Hypothetical Illustration

Nakamura sues Sheriff Doyle and Doyle's business partner, Pell, in a state court, and all three parties are citizens of that state. The complaint alleges that Doyle violated Nakamura's federal civil rights during an arrest, and it separately alleges that Doyle and Pell breached a commercial lease signed years before the arrest. The civil rights claim arises under federal law and would support removal on its own. The lease claim shares no facts with the arrest, and because the parties are fellow citizens it has no independent basis for federal jurisdiction, so it falls outside both original and supplemental jurisdiction. The action would be removable without the lease claim, so Doyle may remove the entire action. After removal the federal court keeps the civil rights claim, severs the lease claim as to both defendants, and remands it to the state court.²⁷

Severance reaches only the claims that could not have stayed. A state-law battery count against Doyle, arising from the arrest itself, would share a common nucleus of operative fact with the civil rights claim and would remain in federal court under supplemental jurisdiction, because the statute directs severance of the claims described in paragraph (1)(B) and no others.²⁸ Sorting a mixed complaint therefore yields three groups: the federal claim, the claims related to it or independently within federal jurisdiction, and the unrelated claims. Only the third group goes back. A court that keeps the second group still holds the separate discretion, described in the preceding subsection, to decline the related state claims.

The statute also changes which defendants must agree to the removal. When an action is removed solely under § 1441(a), all defendants who have been properly joined and served must join in or consent.²⁹ In a § 1441(c) removal, only the defendants against whom a federal-question claim has been asserted must join in or consent.³⁰ The narrower rule fits the provision's purpose. The federal claim is the sole basis for removal, and a defendant sued only on claims that will be severed and sent back has nothing at stake in the federal case. If that defendant could veto the removal, a plaintiff could defeat § 1441(c) by adding a friendly co-defendant on an unrelated state claim, which is the kind of blocking the provision exists to prevent. In the Nakamura facts, Pell is sued only on the lease claim, so Doyle needs no consent from Pell. Had Nakamura also pleaded the civil rights claim against Pell, Pell would have to join. The multiple-defendant sections below develop the ordinary unanimity rule and each defendant's separate clock.

Section 1441(c) opens with a federal-claim requirement, so it gives no help to a defendant whose action rests on diversity. Severance cannot repair a diversity action spoiled by a party outside original jurisdiction, because paragraph (1)(A) calls for a claim arising under federal law and a diversity claim does not qualify.³¹ Without a federal claim, removal falls back on the general premise that the plaintiff could have brought the whole action in federal court.³²

Hypothetical Illustration

Vasquez, a Colorado citizen, sues Halloran, a Utah citizen, and Brewster, a Colorado citizen, in a Colorado state court. The complaint pleads a state-law contract claim for $200,000 against Halloran and a state-law negligence claim against Brewster, and no claim arises under federal law. A suit against Halloran alone could have been filed in federal court on diversity. But the action as pleaded names a defendant who shares Vasquez's citizenship, so the district court would have lacked original jurisdiction over the action. With no federal claim to satisfy paragraph (1)(A), Halloran cannot ask the court to sever the claim against Brewster and keep the rest, and the whole action stays in state court. Nothing suggests Brewster was joined as a sham, so the judge-made practice of disregarding obvious removal-defeating joinder does not rescue Halloran either.³³

The line is principled. A federal claim gives the federal courts an interest in the action no matter who the parties are, so it makes sense to cut unrelated claims away and keep the federal one. Diversity jurisdiction depends on how the parties line up across the whole action, so a nondiverse party undermines the basis for jurisdiction itself and leaves nothing to sever around.

Exam Analysis Steps

Because § 1441(c) depends on several conditions that must each be checked, run it as a sequence applied to the complaint as the plaintiff wrote it:

Find a claim that arises under federal law within the meaning of § 1331, because without one the provision does not apply, however many other claims the complaint contains.
Sort the remaining claims into those that have an independent basis of jurisdiction or fall within supplemental jurisdiction, which stay with the federal claim, and those that have neither or that a statute makes nonremovable.
Set the second group aside and ask whether the action would be removable without it, since the entire action may be removed only if it would be.
Identify the defendants against whom a federal claim is asserted, because only those defendants must join in or consent to the removal.
After removal, sever every unrelated claim and remand it to the state court from which the action came, leaving the federal court with the federal claim and the claims related to it.

Step three does the real work, because it links § 1441(c) back to the removal premise. A federal claim that could not be removed on its own, for instance because another statute bars its removal, gains nothing from the provision, and the unrelated claims cannot then be severed and sent back, because the action never reached federal court.³⁴