This episode is a tutorial lecture about the practical application of the doctrine of removal. Removal jurisdiction describes the circumstances under which an action can be removed, by a defendant, from state court to federal court. The lecture focuses primarily on the application of Sections 1441 and 1446 of Title 28. This is one of several episodes regarding related topics of federal subject matter jurisdiction.
This episode is a tutorial lecture about the practical application of the doctrine of removal. Removal jurisdiction describes the circumstances under which an action can be removed, by a defendant, from state court to federal court. The lecture focuses primarily on the application of Sections 1441 and 1446 of Title 28. This is one of several episodes regarding related topics of federal subject matter jurisdiction.
Welcome to the civil procedure podcast. I am your host Thomas Mayne. And this episode is about
Speaker 2:Removal jurisdiction. This is just one of several episodes on the broader topic of federal subject matter jurisdiction. The doctrine of removal gives defendants who have been sued in state court, the right under certain circumstances to remove that case to a federal court and the right to remove exists because the promise of federal court subject matter jurisdiction, a promise that we think of as a forum where one can find expertise over matters of federal law and or a forum that can provide a neutral forum to resolve controversies between citizens of different states. While that promise of federal court subject matter jurisdiction is not just something we offer to plaintiffs. We offer it to defendants too. They too deserve access to a federal forum and access to expertise over matters of federal law. The core doctrine of removal is really easy. It has one general rule and one exception, that's it. The rest is all about mechanics or procedure. So that will be our order here, general rule one exception and then procedure. The general rule is that if a federal court would have subject matter jurisdiction over this case will then the defendant can remove it. So put another way if the plaintiff could have filed it in federal court, but didn't will, then this general rule gives the same choice to the defendant that the plaintiff had. Now, why would a plaintiff who could have filed it in federal court would not have done? So we'll probably strategic reasons. They considered the option and chose state court because after all, with a few exceptions, a plaintiff is not required to file in federal court just because there is federal subject matter jurisdiction. So removal again is all about the circumstances where the plaintiff could have filed in federal court, but didn't so what does it mean to say that a plaintiff could have filed in federal, but didn't the answer to that is all about original subject matter jurisdiction and our old friends sections 1331 and 1332. When could a plaintiff have filed an action in federal court? Well, if there was original subject matter jurisdiction, 1331 of course, the one thing we care about under 1331 is whether the claim arises under federal law. And remember that it's not enough that the claim merely references federal law, that claim must arise under federal law to fall within the scope of 1331. And then our other old friend, 1332, where the two things we care about are complete diversity and the amount in controversy. So those are our bases for original subject matter jurisdiction. And according to our general rule here for removal will, if those conditions are satisfied, the case is removable by the defendant from state court to federal court. Now hearkening back to our subject matter jurisdiction episodes, remember that this has nothing to do with the defendants defenses, nothing to do with the defendants cross claims or counterclaims. It's not what is asserted by defendants, but rather what is asserted against defendants. This is exactly the same analysis we did to determine whether there was original subject matter jurisdiction and provided. There would have been a proper anchor in original jurisdiction. It's okay to consider also additional claims and parties that fall within the scope of the court's supplemental jurisdiction. Again, all we are doing here is analyzing whether this plaintiff who in fact brought the case in state court could have brought this case in federal. And our general rule is that if the plaintiff could have, then the case is removable. But remember number, I said, there's one exception, but there's only one exception, section 1441 B of title 28 gives us an exception that is often referred to as the forum defendant rule. But you can be misled if you take that name too seriously. The statutory exception in 1441 B precludes removal, if one or more of the defendants is a citizen of the state in which the action is broad. If original subject matter jurisdiction would be founded in diversity. So this forum defendant rule prevents removal in circumstances where one or more of the defendants. So if any defendant is a citizen of the forum state, that is the sort of removal that is proscribed here that is prohibited here. But that forum defendant rule doesn't apply to cases where the original subject matter jurisdictional basis is federal question. So the forum defendant rule is for diversity cases only let's make that exception intuitive, rewind your brain back a couple of classes to original subject matter jurisdiction. And remember why we have federal question jurisdiction and why we have diversity jurisdiction. Well, the purpose of federal question jurisdiction was to allow federal courts to lend their vast expertise about federal law, to cases that arise under federal law. And the purpose of diversity jurisdiction was to allow federal courts to provide a neutral forum for the resolution of state law claims between citizens of different states. This forum, defendant rule exception observed if the defendant is a citizen of the forum state, well, they don't need it access to a neutral forum they're already in their home court. Ah, that's where the form defendant rule is rooted, but that same logic doesn't apply of course, to federal questions, because even someone who is in their home state court, they may not need a neutral forum, but they might want and deserve access to federal court expertise on matters arising under federal law. So the forum defendant rule our one and only exception to our general rule about removal applies only in diversity cases. So you see a removal question on an exam or in practice, and let's say that it's an action filed by a Georgia plaintiff in a Georgia state court. And the defendant a south Carolinian has removed or would like to remove that case from Georgia state court to federal court. Well, as soon as you see, it's a removal question, you start with your general rule and you say, well, could this Georgian have filed this case in federal court, start at the top 1331. Oh. Then if the cause of action arises under federal law, then this is a federal question. And yes, the general rule is satisfied if the cause of action instead arises under state law. Well, I don't know if there would be original subject matter Genesis diction. Sure. The parties are completely diverse. That's one of the two, two things I care about under 1332. But in that fact pattern, I don't know the amount controversy. If the amount in controversy exceeds$75,000, then yes, the general rule is satisfied. But if the amount in controversy doesn't exceed$75,000 than the general rule, isn't satisfied here. And the action wouldn't be removable. Of course, circumstances. When the general rule is satisfied, we then turn to the one exception, which is if the original jurisdiction was founded solely in diversity, we don't allow removal by a local defendant. So if 1331 was the basis, then you don't have to worry about the exception. If 1332 was the, well, then we've got to follow through here on that hypothetical. I said that the action was filed in a Georgia state court. And the defendant is a south Carolinian. A south Carolinian is not a citizen of the state of Georgia. So our one exception to the general rule, wouldn't pose a problem plaintiffs who filed in state court presumably prefer to litigate there for strategic reasons. And that leads us to think about how plaintiffs can make their case. Non-removable that last hypothetical gives us one example. If that Georgian has a state law claim against a south Carolinian and the Georgian doesn't want to litigate in federal court. Well, one thing they could do is leverage the form defendant rule file that action in a South Carolina state court. If the Georgian in that hypo files that action in a South Carolina state court, a south Carolinian cannot remove. Now, of course, that only works. If the plaintiff is asserting a state law claim, rather than a federal question, the forum defendant rule wouldn't prevent removal of a federal question claim. And for this reason, plaintiffs will sometimes try to disguise their claims a bit, but know that regardless of how a plaintiff characterizes their claim, if in fact the claim arises under federal law, then it's removable. Another way that plaintiffs will try to make a case non-removable is by adding another party. Imagine that our Georgian who was suing the south Carolinian doesn't want to litigate in federal court, but doesn't want to litigate in a South Carolina state court either naturally. They prefer to litigate in their home state court of Georgia here comes to magic rather than suing only the south Carolinian. All you've got to do is just add another defendant, add any Georgian to the defendant side of the V and provided. It's not a federal question claim. The case is no longer removable, not only is the forum defendant rule and obstacle. That case doesn't even satisfy the general rule because now there isn't even complete diversity. The plaintiff has thwarted. The possibility of removal. Now courts are on the lookout for this and to curb any strategic excesses courts will invoke the doctrine of fraudulent joinder. So there are limits here on what you can do. Now, if you're the type who is inclined toward the diabolical strategic manipulation of procedural rules, then, well, first of all, I love you. But more importantly for you, you might be wondering if there is a reverse phenomenon. Is there a way to use the doctrine of removal to get a case into federal court that couldn't have originated there? In other words, could a plaintiff who wanted to file in federal court, but couldn't for failure to satisfy 1331 or 1332, could they somehow file and get the defendant to get it to federal court for them? That's the diabolical part. It's brilliant, but no, it doesn't work. Actually. There used to be a loophole that allowed something like this, but another one hasn't been found yet. Now let's talk about some procedure associated with removal, and this is something of a procedural potpourri of several topics. First, if you're going remove, or when you're going to remove all of the defendants need to agree to the removal, not majority, all this reflects a certain amount of hostility toward removal and or maybe a desire to keep federal subject matter jurisdiction limited to keep it sacred. So again, if there are three named defendants, all three need to consent to the removal. As with most things, there are some exceptions to this, the class action fairness act, some actions against federal officers, but the headline and the big picture is that all defendants must consent. Second, when we talk about defendants removing typically we are only talking about the defendants in the main action, the anchor suit to your original suit, not third party defendants, not a defendant on a counterclaim. Nope, it's that main anchor original what some courts refer to as the quote, true close quote defendants. There are some exceptions here too for foreign states under 1441 D and some intellectual property claims under section 1454. But I want to avoid getting deep into the weeds. As civil procedure course is setting the stage. It's painting the big picture and the big picture for removal. Is it, the doctrine is about those anchor main original defendants. That's the suit that we're focusing on for removal third procedural point occasionally some but not all of an action is removable. Imagine, for example, a two count complaint by an Ohio, one against another Ohio, one in state court, two counts. Count one is a federal question. Count two is an unrelated claim under state law. Well, with our general rule, we would see that we'll count one. There's no problem yet. There's a jurisdictional basis for that. It's 1331. But as to that count two, that unrelated claim under state law, there's no jurisdictional basis for that. 1331 is out because it's a state law claim. 1332 is out because the parties aren't diverse and 1367 is out because I said it was unrelated. And an unrelated state law claim is never going to satisfy that. First of our three steps of analysis under 1367, because an unrelated claim is not going to arise out of the same transaction or occurrence as the anchor claim in that suit. So one of these counts is removable, but one isn't under these circumstances, removal is allowed, but then the non-removable claim is sent back to the state court. It is remanded. This is a good time to clarify the terminology of removal. Defendants file a notice of removal, not a motion, not a request, not a petition, not a complaint. It's a notice of removal, which according to section 14, 46 should contain a copy of the state court pleadings, and also a short and plain statement of the grounds for removal, because it's a notice of removal. There is no court approving this removal. It just happens. And the court and the plaintiff are notified of the removal. Typically, then it's up to the plaintiff to challenge the propriety of removal, which is done by the plaintiff's filing of a motion for remand. It's this motion, which usually brings it to the attention of the judge. And it's on this motion for remand that the parties fight about whether removal was proper. If the removal was improper, the motion is granted and the case is remanded back to the state court. Notice that the word remanned is the same word that we use in the context of appellate procedure, where appeals courts remanned cases back to lower courts, they're using the same word in somewhat similar, but in importantly, different ways, a case may be removed only to the federal court in the district where the state court sits. So that means that a case that is pending in a state court in the Southern part of California, for example, may only be removed to the us district court for the Southern district of California. It cannot be removed to a federal court in Nevada nor even to another federal district court within California. Think of removal as only going straight up from the state court to the federal district court in which that state court sits. Now, of course, once the case has been removed up to say the Southern district of California, well, once it's there, it could be transferred to another district in California or transferred to the federal district court in Nevada, but that's no longer about running movable. That would be about transfer. So it can be fun to think about strategy unfolding in multiple steps there. And speaking of strategy, one more insight. Defendants are sometimes especially eager to get a case removed to federal courts. Obviously the preference for state court versus federal court can shift between plaintiffs and defendants preferring one over the other as the concentrated population of federal judges appointed by Republican and democratic administrations shift. And generally speaking today, corporate defendants have a strong preference for federal court over state court. So the motivation to remove can be high and motivated, talented, good lawyers. Like you can get very creative listings to look at something like that. Imagine a case involving a state law claim between a Vermont plaintiff, any New Hampshire defendant and assume a hundred thousand dollars in damages Vermont versus New Hampshire. If the plaintiff wants to file that case in a state court. Well, that's fine, even though could file that action in federal court, invoking 13 30, 2 complete diversity, a mountain controversy that's right, 1332. You would allow it, but if they file it in state court, it's going to get removed. Unless as we talked about before, they file it in a New Hampshire state court, because then the action wouldn't be removable because of the forum defendant rule that New Hampshire defendant is a local defendant. Now, obviously the plaintiff might view filing it in a New Hampshire state court, as cutting off your nose to spite your face, New Hampshire is inconvenient. It may be more friendly to the New Hampshire defendant, et cetera, but let's imagine that they do find that cutting off their nose is the best Roche here. So they do file that, that action in a New Hampshire state court, Vermont plaintiff, New Hampshire defendant,$100,000 is the amount in controversy. Well, at least it won't be removed, right? Ha uh, enter the motivated talented defense lawyer. Let's read that forum defendant rule more. It says that a diversity action may not be removed. If any of the parties in interest joined and served as defendants is a citizen of the state in which such action is brought. The forum defendant rule applies to forum. Defendants who have been joined and served. There it is. Defendants can skirt the bar on removal by removing, before they have been served would be defendants who engage in enough litigation to care about this kind of thing, monitor state court dockets. And they remove before they are served, it's called snap removal. And it's called that because that pre service[inaudible] needs to happen quickly needs to happen in a snap. And it is happening hundreds of times each year. This is a fight that's happening right now in federal courts. And several us courts of appeals have allowed it allowing forum defendants to remove diversity cases from state to federal court provided they are doing it before they are served, because technically that's what the text of the statute says. Now, ironically, the language that allows snap removal, that language, that prevents removal by local defendants provided they have been served. That language was added to prevent gamesmanship by plaintiffs because before that and served language was added to the statute before that was in there. Plaintiffs could prevent any diversity case from being removed by simply adding a forum defendant to any suit as a sham. And they wouldn't even serve them as in never sir, because if you didn't serve them, you didn't need to worry about having a bogus claim against them. You didn't need to worry about them filing a motion. You didn't need to worry about them trying to get you sanctioned. Congress added the and served language to prevent planes TIFs from naming sham, defendants, merely tooth wart removal. And now that same and served language allows defendants to display some gamesmanship and are now removing cases that Congress never intended to allow removal of, to be clear, the snap removal trick isn't giving the federal courts a case over which they wouldn't have original jurisdiction. It's still Vermont versus New Hampshire. It's still complete diversity with the amount in controversy satisfied. It's just circumventing the forum defendant rule, which was designed to prevent removal by local defendants who are already litigating in their home court. Okay, let's go back to the more generally applicable procedures and mechanics of removal for one last point, defendants have 30 days to remove 30. Now, when I lecture for bar exam purposes, I remind graduates that you'll see those digits three and zero for the 30 days. You'll see it in the M and the O the M is the three. The O is the zero. You'll see that 30 right in the middle of the word remove. The 30 day counter starts to run from the date of formal notice or service of that state court action. Not from some informal awareness of the lawsuit, appreciate that. Sometimes a case will not be removable at its outset, but will be come removable by virtue of changed circumstances. For example, imagine an exam question that starts as a state law claim between non diverse parties in state court. Now that action is not removable full stop, but then imagine that in the exam, I give you a fun motion to amend question whereby that plaintiff is now seeking to add a federal question to their state suit. And assuming that the state has a rule that looks like federal rule 15. Well, that miss exam question is allowing you to show off your knowledge of 15 a and of course, if there's a statute of limitations problem, you would then tackle relation back under 15. Oh, that's why I asked this question, but now in the next question, in the exam, I tell you to assume that the motion to amend was granted. And now that federal question is an additional count in the complaint, will that count could have been brought in a federal court there's original subject matter jurisdiction over that federal question. And moreover, if the state law claims arise out of the same transaction or occurrence as that federal cause of action, there would be supplemental jurisdiction over those claims to defendant would like to remove. And so I asked you on the exam now that that motion to amend was granted, can the defendant remove well, the original action wasn't removable, but once the federal question was added changed circumstances, yes, the 30 day window opens for removal. Another example, imagine that the Vermont plaintiff from our previous hypo Suze and serves a New Hampshire defendant and also a Vermont defendant in a state court asserting state law claims Vermont plaintiff, two defendants, New Hampshire and Vermont state law claims won't. Even if the amount in controversy is satisfied, the action isn't removable, of course, because there's no diversity. The court wouldn't have subject matter jurisdiction under 1332. So it fails our general rule, but the exam question evolves a little bit. And so imagine in the next paragraph of the exam question, I have you analyzing the Vermont defendants 12 B six motion. And so you do all of your analysis for the 12 B six motion. And so assume that you conclude that the court would grant the 12 B six motion that Vermont defendant is no longer in the suit all now, it's just Vermont plaintiff versus New Hampshire defendant. And let's imagine the amount in controversy is satisfied. Well, here are the changed circumstance is new found diversity. So an action that wasn't removable became removable because of the changed circumstance and our statutory regime for removal contemplates this. And again, the 30 day window opens. So our changed circumstance can be new found federal question or new found diversity jurisdiction, the statutory regime, however, imposes an absolute limit on changed circumstances caused by new found diversity. The new found diversity changed circumstance must occur within one year of the commencement of the original action. In other words, if that Vermont defendant wins their 12, B six, 15 months after the suit was filed we'll then the window does not open it. Doesn't open for 30 days. It doesn't open at all. There isn't such a time limit when the changed circumstance is a new found federal question. So that's it for our big picture overview of removal jurisdiction. We had one general rule, one exception, and a bunch of little procedural details. There is a whole chapter in the U S code about removal. And of course those statutory provisions provide even more details. Most important. When you look there are the sections 1441 and 1446, that concludes
Speaker 1:This episode of the civil procedure podcast. We've focused here on removal jurisdiction. This is just one of many related episodes about the broader topic of federal subject matter jurisdiction. I appreciate your attention and I hope you have a good day.[inaudible].