Concept
Starting the Removal
Removal
Starting the Removal
A defendant removes a case with paper, not with a court order. Removal needs leave from neither the state court nor the federal court, so no judge approves the move in advance.1 Instead the defendant makes two filings. The first is a notice of removal in the federal district court. The second, made promptly afterward, is written notice to all adverse parties together with a copy of the notice filed with the clerk of the state court.2
Each filing does work that an order would otherwise do. The notice tells the federal court why it may take the case and hands it the papers served on the defendant. The second filing tells the plaintiff, and above all the state court, that the case has moved. A plaintiff who disagrees does not turn to the state court. She moves to remand in the federal court, which decides whether the removal was proper.3 How long she has depends on the objection. A motion to remand for any defect other than lack of subject matter jurisdiction must be made within 30 days after the notice of removal is filed, but a lack of subject matter jurisdiction requires remand whenever it appears before final judgment.4
The two subsections below take the filings in order: first the notice that goes to the federal court, then the notices that go to the other parties and the state court.
Filing the Notice of Removal
Section 1446(a) says what the first filing must contain. The defendant files, in the federal district court for the district and division where the action is pending, a notice of removal that is signed under Rule 11, states in short and plain terms the grounds for removal, and attaches a copy of all process, pleadings, and orders served on that defendant.5 The notice goes to the federal court, and the state court is asked for nothing at this stage.6 Because the federal court is the court being asked to take the case, it also decides whether it may. The state court where the case began has no part in that decision.7
The Rule 11 signature carries extra weight because no judge screens the notice first. Section 1446(a) incorporates the pleading standard of Rule 11, so the allegations in a notice are held to the same ethical standards as the allegations in a complaint.8 The lawyer who signs therefore needs a basis for each jurisdictional fact the notice asserts, and the time for finding it is short.
The notice is due within 30 days after the defendant receives a copy of the initial pleading.9 Time runs from receipt of the complaint, not from the day it was filed in state court, and receipt by a person authorized to accept process for the defendant is enough.10 A case the initial pleading did not make removable can become removable later. Suppose a plaintiff sues her former employer for wrongful discharge under state law and, 15 months later, amends to add a federal Title VII claim. The defendant then has 30 days from the amended complaint to remove, and the one-year limit does not apply because the removal rests on § 1331.11 A later section develops these deadlines.
The statement of grounds must show that the plaintiff could have sued in federal court to begin with. Section 1441(a) authorizes removal only of actions “of which the district courts of the United States have original jurisdiction,” so a state-law contract claim between two Kansans cannot be removed, while the same claim between citizens of different states, or a claim under a federal age discrimination statute, can be.12 The notice should therefore name the ground, such as a claim arising under a federal statute or a claim between diverse citizens for more than $75,000, and it should include a copy of the state-court complaint and summons.13 A diversity notice must also respect one further limit. A diversity case cannot be removed if any properly joined and served defendant is a citizen of the forum state, because a defendant sued at home needs no protection from local prejudice.14
A real notice reads as a sequence of such facts, each tied to a requirement. The notice that Stanley filed against the suit of Vicente and Mary Lara is a useful model.15 It alleges that Stanley first received the summons and complaint by certified mail on August 13, 2013, less than thirty days before the notice was filed, and it concludes that the notice is timely. It alleges that the Laras are citizens of Massachusetts. And it recites that all the defendants consent to removal.16 That last allegation reflects the reading of § 1441(a) that requires all defendants to join in the notice.17
A slip in how the defendant removes differs in kind from a gap in the court’s power over the case. A notice filed late, or one that leaves off a served paper, is a defect other than lack of subject matter jurisdiction. The plaintiff must raise it by a motion made within 30 days after the notice is filed.18 After those 30 days, a district court cannot remand on its own for a defect that would have been too late for a party to raise.19 A jurisdictional defect is different, because remand is required whenever it appears before final judgment that the court lacks subject matter jurisdiction.20
Defendants wary of appearing in federal court should note that filing a notice of removal does not waive any challenge to personal jurisdiction.21 The notice is only the first of two filings, and the second is the one that takes the case away from the state court.
Notice to Parties and State Court
Once the notice is on file in the federal court, § 1446(d) requires a second step. Promptly after filing, the defendant must give written notice to all adverse parties and file a copy of the notice with the clerk of the state court. That filing, the statute says, “shall effect the removal,” and the state court “shall proceed no further unless and until the case is remanded.”23
The two acts address different audiences, and only one of them changes the state court’s power. Written notice tells the plaintiff and the other adverse parties that the case has moved. The copy filed with the state clerk tells the court that has been hearing the case that it may hear it no more, and for that reason the statute ties both the removal and the state court’s duty to stop to that filing.24
Students miss this step because the federal filing feels like the whole job. It carries the jurisdictional allegations, the Rule 11 signature, and the attached record, but it is filed in a different courthouse from the one where the case is pending, and a state judge learns nothing from it. Until a copy reaches the state clerk, the statute has not barred the state court from proceeding.
Once both steps are complete, removal takes effect without any further act by anyone. The defendant needs no leave from either court, and the plaintiff takes no part in the removal and may not know of it until the notice has been filed.25 So long as the case has not been remanded, any later state action is void, even if the case was removed improperly.26
The transfer is automatic in a way that surprises many students: filing the notice moves the case to the federal court whether or not that court has jurisdiction. In Avitts, the notice removed the case to the district court even though that court ultimately held that it had no jurisdiction.27 The rule prevents a conflict between the two court systems, because once the state court has been notified it loses all power over the case.28 Whether the removal was proper is then a question for the federal court, not the state court.29
A common exam fact pattern shows the consequence. James sues Earp in state court on a claim that she says rests on state law. Earp files the notice in federal court, notifies James, and files a copy with the state clerk. James believes the removal was improper and asks the state judge to send the case back. Even a state judge who agrees cannot act, because the case is no longer in that court. James’s remedy is a motion to remand in the federal court under § 1447(c), where the judge will resolve any factual issues needed to decide jurisdiction.30 If jurisdiction is lacking, the federal court remands the case and does not dismiss it. James need not refile, pay a new fee, or worry about the statute of limitations, since the original suit continues in the state court.31
How fast James must move depends on what she is objecting to. A motion to remand for any defect other than lack of subject matter jurisdiction must be made within 30 days after the notice of removal is filed, while an objection to subject matter jurisdiction itself may be raised at any time before final judgment.32 An objection that the written notice required by § 1446(d) was not adequately given, or that the notice was filed too late, concerns the process of removal and so falls in the 30-day group.33 A court that lets the 30 days pass cannot remand on its own for a defect of that kind.34
After removal, the federal court takes the case as the state court left it, and the statute gives it tools to complete the roster of parties and the record. The district court may issue all necessary orders and process to bring before it all proper parties, whether they were served by process issued by the state court or otherwise.35 It may also require the removing party to file copies of all records and proceedings in the state court, or it may have them brought up by a writ of certiorari issued to the state court.36 If the federal court later remands, it may require payment of just costs and actual expenses, including attorney fees, incurred as a result of the removal. The clerk then mails a certified copy of the remand order to the clerk of the state court, and the state court may proceed.37