Remand After Removal

A defendant removes a case by filing in the federal district court a notice of removal that states the grounds for removal in a short and plain statement.¹ The plaintiff takes no part in the removal and may not learn of it until the notice is on file.² Section 1447(c) supplies the check that follows: a plaintiff who believes the case is not removable, or that the defendant used the wrong procedure, moves in the federal court to remand, and that court decides whether the removal was proper.³

The right to remove rests on the premise that defendants, like plaintiffs, should be able to choose a federal court for cases within federal jurisdiction.⁴ Section 1447(c) polices the edge of that right in two sentences that follow different rules. A case must be remanded if at any time before final judgment it appears that the district court lacks subject matter jurisdiction; a motion to remand on any other ground must be made within 30 days after the notice of removal is filed.⁵ The first rule protects the court’s power, which parties cannot enlarge by consent, so the objection survives until final judgment. The second protects the parties’ interest in proper procedure, so the objection expires after 30 days.⁶

A remand returns the case to the state court and does not dismiss it. The clerk mails a certified copy of the order to the clerk of the state court, and the state court may then proceed.⁷ The plaintiff need not refile, pay a new fee, or worry about the statute of limitations, because the original suit simply continues in state court.⁸

Remand also need not send back the whole case. When state-law claims are so unrelated to a federal question claim that supplemental jurisdiction cannot reach them, most courts remand those claims to state court, as the removal statute authorizes, and proceed with the federal claim.⁹

Remand for Lack of Jurisdiction

The second sentence of § 1447(c) leaves the court no choice: “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”¹⁰ The words “at any time before final judgment” set no early deadline, “it appears” requires no motion, and “shall” makes remand mandatory. A court that finds its power missing therefore cannot keep the case, however far the case has advanced or however convenient staying might be.

Parties cannot confer jurisdiction on a federal court by consent, and so the objection never lapses before final judgment.¹¹ The court may act on its own motion or on the motion of either party, and even the party that petitioned for removal may move for remand after an unsatisfactory verdict.¹² A plaintiff whose case was removed in a procedurally proper manner keeps the same freedom to object that federal jurisdiction is lacking.¹³

Avitts shows what a jurisdictional defect costs. The court of appeals there concluded that the district court “lacked subject matter jurisdiction over this action and was therefore without authority to enter its orders,” vacated those orders, and directed that the case be remanded to the state court from which it was removed under § 1447(c).¹⁴ The order for an environmental study fell with the rest, because the federal judge had no authority to enter it, and Avitts, “if not too exhausted to press on, will have to start over in state court.”¹⁵

The federal court decides for itself any factual issue that a remand motion raises, and the removing party carries the burden of proof.¹⁶ Remand can go only to the state court from which the case was removed.¹⁷ The burden falls on the removing party because the defendant asked for the federal forum and must show that the plaintiff could have filed there originally.

One limit keeps this rule from undoing every completed federal case. A removing defendant is estopped from protesting after judgment that it had no right to remove, if at the time of trial or judgment the controversy was one the federal court could have heard originally, and Caterpillar Inc. v. Lewis extended that principle to plaintiffs.¹⁸ The Court held that finality, efficiency, and economy required denying remand when a jurisdictional defect in citizenship had been cured by the time of final judgment.¹⁹ It reasoned that “no jurisdictional defect lingered through judgment in the District Court,” and that “[t]o wipe out the adjudication postjudgment, and return to state court a case now satisfying all federal jurisdictional requirements, would impose an exorbitant cost on our dual court system, a cost incompatible with the fair and unprotracted administration of justice.”²⁰

Avitts and Caterpillar turn on the same question, whether the jurisdictional defect still exists when the court acts. In Avitts the defect remained, so the federal orders were vacated and the case went back to state court. In Caterpillar nothing lingered through judgment, so the judgment stood. The exception therefore covers only a cured defect; a defect that persists through judgment still requires remand, however long the case has been in federal court.

The costs provision gives the court discretion. The statute has long allowed an order requiring payment of just costs, and the 1988 amendment added actual expenses, including attorney fees, incurred as a result of the removal.²¹ The word is “may,”²² and Martin v. Franklin Capital Corp. fixes the standard: absent unusual circumstances, a court may award fees only when the removing party lacked an objectively reasonable basis for removal. The test asks whether the basis was reasonable when the defendant asserted it, and not whether the remand motion succeeded, so a defendant who raises a genuine question about federal jurisdiction can seek an answer without risking a fee award for losing.

Exam Analysis Steps

Because the second sentence of § 1447(c) turns on whether the defect concerns the court’s power and whether it still exists, a remand problem is best run in the following order.

Classify the objection. A missing federal claim, a lack of complete diversity, or too little in controversy goes to subject matter jurisdiction and may be raised until final judgment; a late notice or a missing consent is procedural and falls under the next subsection.
Ask whether the defect survives to final judgment. A defect cured before judgment, such as a nondiverse party dismissed before trial, no longer supports remand.
Identify who may raise the defect and who must prove jurisdiction. The plaintiff, the court on its own motion, and even the removing party may raise it, and the removing party bears the burden of proving jurisdiction.
If jurisdiction is lacking, remand to the state court from which the case was removed, and decide on fees by asking whether the removing party had an objectively reasonable basis for removal.

Remand for Procedural Defects

The first sentence of § 1447(c) governs every flaw in a removal that does not go to the court’s power: a motion to remand on the basis of any defect other than lack of subject matter jurisdiction “must be made within 30 days after the filing of the notice of removal under section 1446(a).”²⁴ The usual defects concern how the defendant carried out the removal:

A notice of removal filed after the 30-day removal period.²⁵
A removal without the consent of a properly joined and served codefendant, when the case is removed solely under § 1441(a).²⁶
A removal without the written notice to the adverse parties that § 1446(d) requires.²⁷

Congress worded the limit broadly on purpose. The 1988 amendment applied the 30-day limit to motions based on “any defect in removal procedure,” and although most courts read that phrase to reach every motion except one based on lack of subject matter jurisdiction, a few defined it more narrowly.²⁸ The 1996 amendment ended the doubt by substituting “any defect other than the lack of subject matter jurisdiction.”²⁹

An objection that misses the 30 days is waived.³⁰ Removing late, for example, is not a jurisdictional defect, so a plaintiff who does not move within 30 days after removal must proceed in federal court; see Wisconsin Dep’t of Corrections v. Schacht.³¹ The deadline also prevents manipulation. Without it, a party might notice a problem with removal, say nothing, and raise it only if things went badly later in the federal court.³² The short fuse forces the plaintiff to choose at the outset between objecting and accepting the federal forum.

Two 30-day periods appear in the removal statutes, and they run against different parties from different starting points:

The removal period binds the defendant and runs from the defendant’s receipt of the initial pleading, through service or otherwise.³³ Time runs from receipt of the complaint, not from the day it is filed in the state court.³⁴
The remand period binds the party objecting to a nonjurisdictional defect and runs from the filing of the notice of removal.³⁵

The two periods meet at one point. A notice filed after the removal period is itself a defect other than lack of subject matter jurisdiction, so the plaintiff’s objection to its lateness must be made within the remand period, and a late notice stays in federal court if the plaintiff is late too.³⁶ Because the plaintiff takes no part in the removal and may not know of it until the notice is on file, plaintiff’s counsel needs to watch the federal docket.³⁷

The 30-day limit also binds the court. A district court cannot remand sua sponte after the 30 days have expired if the defect is one that would bar a party’s motion as untimely.³⁸ The objection belongs to the parties, and if a judge could revive it months later, the waiver would mean nothing. A lack of subject matter jurisdiction stands differently, because parties cannot confer jurisdiction by consent and the court may therefore act on its own motion.³⁹

The forum defendant rule looks jurisdictional and is not. A diversity case that includes a defendant from the forum state remains within the federal court’s diversity jurisdiction; § 1441(b) merely bars removal of it.⁴⁰ Because the flaw is not a lack of subject matter jurisdiction, the statute’s phrase “any defect other than lack of subject matter jurisdiction” reaches it, and a plaintiff who waits more than 30 days loses the objection. A failure of complete diversity is different, because it removes the basis for original jurisdiction, and waiting cannot supply what is missing.

Hypothetical Illustration

Dalton sues Reyes in state court on a claim under a federal statute, and Reyes removes on the thirty-fifth day after receiving the complaint, outside the 30-day removal period. Dalton moves to remand on that ground forty-five days after the notice was filed. The court denies the motion: a late notice is not a jurisdictional defect, and Dalton had to object within 30 days after the notice was filed. Had Dalton moved on day twenty, the court would have remanded.

Now suppose Dalton’s neighbor sues a fellow citizen of their state on a state-law claim, and the defendant removes late. The neighbor moves forty-five days after the notice, this time asserting that the court lacks subject matter jurisdiction because the complaint pleads no federal claim and the parties are not diverse. The motion succeeds, because the court must remand whenever it appears before final judgment that it lacks jurisdiction, whatever the delay.

Exam Analysis Steps

Because the 30-day limit applies to only one kind of defect, a remand problem is best run by classifying the objection before counting days.

Identify the objection and the date on which it was raised.
Decide whether the objection goes to the federal court’s power, as with no federal claim, no complete diversity, or too little in controversy, or to how the removal was carried out, as with a late notice, a missing consent, or a forum defendant.
If it goes to power, stop counting, because remand is required whenever the defect appears before final judgment.
If it goes to how the removal was carried out, count 30 days from the filing of the notice of removal, and not from service of the complaint. A motion after day 30 raises a waived objection that the court cannot revive on its own, and a motion within the period is decided on its merits.

Joinder After Removal

Section 1447(e) gives a plaintiff who wants the case back in state court a second route after removal: “If after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court.”⁴² In a diversity case the plaintiff typically asks to add a defendant who shares the plaintiff’s citizenship, which ends complete diversity. Joinder then works as a countermove to the removal, a way of taking the case back to the plaintiff’s original choice of forum, and the 1988 statute leaves the success of that countermove to the court’s discretion.⁴³

Two interests collide on these facts. A plaintiff who began in federal court and later added a nondiverse defendant would lose the case, because the court would dismiss for lack of subject matter jurisdiction under Owen Equipment & Erection Co. v. Kroger.⁴⁴ Yet a plaintiff who wins a remand by adding that defendant after removal defeats the defendant’s right to remove through a choice of defendants the plaintiff was not inclined to make until the defendant invoked removal.⁴⁵ The statute lets the court weigh the two.

The court has two outcomes, and the choice is its own. If the court denies joinder, the nondiverse party stays out, complete diversity remains, and the action proceeds in federal court against the original defendants. If the court permits joinder, the action no longer satisfies complete diversity, and the court is required to remand the action to the state court.⁴⁶ That requirement follows from § 1447(c), which orders remand whenever the district court lacks subject matter jurisdiction.⁴⁷ Permission to join therefore carries the remand with it, and a court that lets the new defendant in cannot keep the case. Where an original filing would end in dismissal, § 1447(e) returns the whole action to the state court, where the claim against the new defendant can go forward with the rest.⁴⁸

Courts weighed the plaintiff’s reasons even before Congress wrote the discretion into § 1447(e) in 1988, and two earlier decisions show how.⁴⁹ In Boyd v. Diebold, Inc., the amendment adding a nondiverse party was apparently offered solely to defeat removal, and the court refused it, which preserved diversity jurisdiction. In McIntyre v. Codman & Shurtleff, Inc., the nondiverse party was added in good faith for independent reasons, such as efficiency or the belated discovery of a claim against that party, so the court allowed the amendment and remanded. The procedural move was the same in both cases, and the difference lay in why the plaintiff wanted the new party.

Holehan v. TB Acquisition, LLC applied the codified statute and shows what a court examines. It allowed the amendment and remanded after concluding that the claims against the added defendants were viable, that the plaintiff had not been dilatory in adding them, and that the amendment was not motivated by a desire to avoid federal court.⁵⁰ Those conclusions suggest three considerations:

Whether the claim against the new party is viable.
Whether the plaintiff moved promptly once the claim came to light.
Whether the joinder serves a purpose other than escaping federal court.

Each consideration answers a different worry. Viability screens out the party who is added only as a device. Promptness asks whether the joinder grew out of the case or out of the removal, since a claim the plaintiff knew about when filing and raised only after the defendant removed looks like a reaction to the removal. Purpose ties the first two together, because after removal the joinder arrives as an answer to the defendant’s exercise of a statutory right.

The standard example puts the statute to work. Earp, a Kansan, sues Bean, a Texan, on a state-law abuse-of-process claim in an Iowa state court, and Bean removes. Earp then amends to add James, a fellow Kansan, as a second defendant.⁵¹ The addition destroys complete diversity, so the court must either deny the amendment and keep the case against Bean or permit it and remand.⁵² The three considerations decide which.⁵³ If Earp has a viable claim against James and a good reason for not naming him sooner, the court may permit joinder and remand. If James is a bystander, or Earp added him only because Bean removed, the court may deny joinder.

Hypothetical Illustration

A Wisconsin plaintiff is injured when a ladder collapses and sues the Ohio manufacturer in a Wisconsin state court, and the manufacturer removes on diversity. Discovery responses served after removal show that a Wisconsin installer assembled the ladder incorrectly, and within two weeks the plaintiff moves to add the installer. The claim against the installer is viable, the plaintiff moved promptly, and the joinder puts both responsible parties before one court. The court may permit joinder and remand.

A second Wisconsin plaintiff, injured by a similar ladder, sues the same manufacturer in the same court, knowing from the start that a Wisconsin retailer sold the ladder, and omits the retailer from the complaint. After the manufacturer removes, he moves to add the retailer and gives no reason for leaving the retailer out. The claim was in his hands when he drafted the complaint, and the only event since then is the removal, so the court may deny joinder and keep the case against the manufacturer.

The statute reaches only a joinder that would destroy subject matter jurisdiction. A plaintiff who removes nothing from the court’s power, and who adds a defendant whose citizenship does not matter, raises no § 1447(e) choice.

Exam Analysis Steps

Because the statute applies only on a narrow trigger and then asks the court to weigh several things, a joinder problem is best run as a short sequence.

Confirm that the case is in federal court by removal and that the plaintiff seeks to add a defendant afterward.
Ask whether adding that defendant would destroy subject matter jurisdiction, as a new defendant who shares the plaintiff’s citizenship does in a diversity case, and stop if it would not.
If it would, weigh the viability of the claim against the new party, the plaintiff’s promptness, and whether the joinder serves a purpose other than escaping federal court.
If those considerations favor the plaintiff, permit joinder and remand the whole action; if they do not, deny joinder and keep the case without the new party.

Review of Remand Orders

Section 1447(d) answers the question that follows every remand, whether the losing side may take the order to a higher court. Generally it may not: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,” except that an order remanding a case removed under § 1442 or § 1443 “shall be reviewable by appeal or otherwise.”⁵⁵

The bar reaches past the ordinary appeal. Because the statute says “on appeal or otherwise,” courts have held that it forbids review of a remand by mandamus, and that it prevails over leave to appeal under § 1292(b) even though Congress enacted § 1292(b) later.⁵⁶ Section 1292(b) certification ordinarily requires the district court to find that resolving the issue “may materially advance the ultimate termination of the litigation,” but that finding cannot open a remand order to review.⁵⁷

The rule is a quirk of removal jurisdiction. A ruling that a federal court lacks subject matter jurisdiction is ordinarily appealable as a final order, yet a remand for that reason is not.⁵⁸ The bar prevents defendants from removing cases that clearly lack federal jurisdiction and then appealing merely to stall.⁵⁹ A remand also ends the federal court’s role: once the state court receives the certified copy of the order, the federal court cannot vacate the remand, even if it comes to believe the order was erroneous.⁶⁰

A ruling that refuses to remand is different. The federal court of appeals may review it, generally at the end of the case on appeal from the final judgment.⁶¹ The case keeps moving toward judgment in the meantime, so the delay that the bar guards against does not arise.

Thermtron Products, Inc. v. Hermansdorfer reads the bar narrowly: it prohibits review only of remand orders issued under § 1447(c).⁶² Those orders rest on lack of subject matter jurisdiction or on a defect in removal procedure, the two grounds covered in the preceding subsections.⁶³ A remand on either ground cannot be reviewed even if the ruling is wrong, but a remand on a ground that § 1447(c) does not specify falls outside the bar, and mandamus will lie to set it aside.⁶⁴ Thermtron remains the governing rule, though it has drawn heavy criticism, and Justice Thomas has called for overruling it, whether judicially or legislatively. See Kakarala v. Wells Fargo Bank, N.A. (Thomas, J., dissenting from denial of certiorari).⁶⁵

The ground the district court gives decides whether review exists, and the soundness of its ruling does not. A case may be removed by entirely proper procedures and still lie outside the district court’s subject matter jurisdiction, and so long as the remand rests on a “colorable” ground of that kind, appellate review is barred, as Powerex Corp. v. Reliant Energy Services, Inc. held.⁶⁶ A dismissal of a party that leads to a remand can be reviewed, though the remand itself cannot, and Powerex rejected the broader idea that any prior ruling of substantive law behind a remand is reviewable on its own.⁶⁷

The later decisions show where the bar stops. In Quackenbush v. Allstate Insurance Co., the Court held that a remand on abstention grounds falls outside § 1447(c), so the order was directly appealable as a final judgment. In Carlsbad Technology, Inc. v. HIF Bio, Inc., it held that a remand of state claims after the district court declines supplemental jurisdiction, once the federal claim has been dismissed, is not based on a lack of subject matter jurisdiction for purposes of §§ 1447(c) and (d).⁶⁸ The court in that setting has jurisdiction over the state claims and chooses not to exercise it, so no ground the statute lists supports the bar.

The statute’s own exception covers remands of cases removed under § 1442 and § 1443, the federal officer and civil rights removal statutes taken up in the next section.⁶⁹ In BP P.L.C. v. Mayor & City Council of Baltimore, the Court held that § 1447(d) permits appellate review of the whole remand order, not just the part addressing § 1442 or § 1443, when the defendant relied on one of those statutes as a ground for removal. A defendant who removed only under § 1441 has no such review.

The Class Action Fairness Act adds a further exception. Section 1453(c) lets the court of appeals accept an immediate appeal from an order granting or denying a motion to remand.⁷⁰ Congress wanted to prevent a single federal judge from circumventing the Act through an unreviewable remand, and courts count the 60 days allowed for completing an accepted appeal from the date the appellate court accepts the appeal, not from the date it is filed.⁷¹

Exam Analysis Steps

Because the answer depends on the ground the district court used and on the statute under which the case was removed, review questions are best run in the order an appellate lawyer would ask them.

Decide whether the district court granted or denied the motion to remand. A denial leaves the case in federal court and is reviewed on appeal from the final judgment, while a grant ends the federal case.
If the court remanded, check whether the case was removed under § 1442 or § 1443. A remand in those cases is reviewable by appeal or otherwise, and the court of appeals may consider every ground of removal the defendant relied on.
Otherwise, identify the ground the district court actually used and ask whether § 1447(c) lists it, meaning lack of subject matter jurisdiction or a timely raised defect in removal procedure.
If the ground is listed, treat the order as unreviewable by appeal, mandamus, or § 1292(b) certification, even if the district court was wrong, so long as a jurisdictional ground is colorable.
If the ground is something else, such as abstention or declining supplemental jurisdiction over state claims, treat the order as outside the bar and reviewable.
In a class action removed under the Class Action Fairness Act, add that the court of appeals may accept an immediate appeal from an order granting or denying remand.