Removal to Federal Court

Removal to Federal Court

Under the Federal Rules of Civil Procedure, a case may be considered for removal to federal court in certain circumstances. This can be helpful to defendants for several reasons that will be discussed below, and it allows the case to move throughout the federal court system rather than the state court system. Understanding when, how, and why to remove a civil action to federal court can be helpful when defendants receive notice of a hearing for a state court claim that may need to be further reviewed by the federal system.

This article will outline when, how, and why it may be necessary to remove a case to federal court and outline good practice standards for evaluating whether to remove an initially removable case, as well as how to oppose removal if necessary.

State Court v. Federal Courts

Request Removal or Prevent Removal?

To best understand when to remove a case to federal court, it is helpful to understand the benefits and disadvantages that result from federal court and the differences from state court. In many ways, a trial in a state court and a federal court will be very similar. Both courts will hear a court first with a trial, either a jury trial or a bench trial. If either the defendant or the plaintiff files an appeal, it will move through the system until the case is resolved either at the state or federal court of appeals or the supreme court. However, several key differences can make a federal court more appealing.


First, the jury pool for the jury trial may be very different. In most state courts, the jury is selected from the county or district that the case is being heard in. However, many federal districts will cover larger areas, such as the Southern District of New York, or in some cases even the whole state. By expanding the jury pool, savvy attorneys may be able to add people more sympathetic to their cases.

For example, within the Southern District of Texas, there are rural areas and cities such as Houston. It may be helpful for the defendants and their case to draw jurors from Houston in a federal court rather than the rural county where the case was initially filed.

Second, federal judges are often on the bench for life, making them more consistent and experienced with a variety of cases than some state court judges. However, this is not always the case, and research should be done on the district courts to ensure that this benefit would be realized.

Third, the federal district courts follow the Federal Rules of Civil Procedure, which means that they have more consistent and uniform rules, regardless of where in the county the court is held. This can be particularly helpful if one of the parties is from outside the state where the suit was originally brought. Additionally, this allows the courts to subpoena witnesses from all over the country rather than just in a state.

Fourth, by removing to federal court, the defendants can control the venue in a way they generally would not. The plaintiffs are the ones who will choose the venue when they file. Yet, the defendants can choose by removing the case based on the reasons outlined later in this article.


Even with all the benefits, there are risks that a party takes when they are choosing to remove to federal court.

First, the district court or court of appeals that covers the area may be vastly different politically or otherwise from the area itself. Because judges have life appointments, they can be more set in their ways, which can pose concerns for the parties with little to no legal recourse.

Second, the rules and procedures are followed more strictly, and the sanctions that can be imposed for not following procedures are more common and intense. This can be intimidating for some attorneys, and it can be more strict for certain aspects of the trial, which can be harmful in some cases. In most state court cases, the trial will rely on state and local rules, with which attorneys are often more familiar and experienced.

While these drawbacks are difficult in some cases, in many instances, it is beneficial to remove the case if there are reasons to do so.

Deadlines and Other Roadblocks

The decision to remove a case to federal court must be made fairly quickly. Once a defendant is served, they have 30 days to remove the case. However, if the case is not immediately removable, the defendant will have 30 days from the date that it becomes removable to file to remove the case. Finally, each new defendant added to a case has 30 days to remove a case after they are served, starting the process over each time a defendant is served. However, the defendants served later are the only ones who can file to remove if the case was otherwise removable.

In addition to deadlines, several other considerations may bar or impede the ability to remove a case to federal court. If these roadblocks occur, a request to remove them may be denied.

The first is that unanimity is required in a case with multiple defendants. This means that all defendants must consent to removal to federal court for the parties to be able to remove it. There are various rules throughout the district courts that outline just how this consent should be obtained, but it is required to move forward.

Specifically for cases under diversity jurisdiction, the parties need to remove the case within a year of the case becoming diverse. However, this deadline is waived if the plaintiff acted in bad faith to halt the removal of the case. Diversity jurisdiction will be discussed in more detail below.

Finally, there can also be a waiver obstacle. If a defendant has made a significant effort to defend the case in state court and there has been litigation, the state court or the district court may block removal based on the defendant waiving their right to remove the case by choosing to litigate it in the state court.

Required State Court Cases

Additionally, there are several types of cases that the state court system has exclusive jurisdiction over. These are truly state-based cases and the rules and law that is the prevailing law need to be state court jurisdiction. These cases include criminal law of any kind and most family law cases unless there is a significant federal question. Criminal law cases have a different set of procedures than a civil action. Additionally, 28 U.S.C. §1445 states that certain railway and carrier cases, workman’s comp actions, and civil actions were brought under the Violence Against Women Act. If these cases are brought in state court, they cannot be removed to federal court.

Reasons for Removal to Federal Court

Once you have determined that the case is within the deadlines and you would like to remove it, you will still need to access it if there is a basis for removal. 28 U.S.C. §1441 states that a case may be removed for two reasons, federal question jurisdiction and diversity jurisdiction.

Question of Federal Law

Federal question jurisdiction is the jurisdiction that allows cases brought in state court under a federal statute or constitutional claims to be heard by the federal courts. These cases are allowed to be removed because the state court does not have the same jurisdiction over federal questions, and when such questions are the subject of the pleadings, the case should generally be heard by a federal court.

This can also happen after a defendant adds a counterclaim to a state court action that raises related and necessary questions of federal law. However, the counterclaim needs to be sufficiently related and not brought solely for removal purposes. Additionally, a plaintiff cannot try and halt removal by basing a case only on state law claims that are related to federal law.

Diversity in District Court

Diversity jurisdiction allows state law claims that would normally be heard in the state courts to be heard in the federal court due to the different states that the parties are from and what can potentially be conflicting laws between the parties. For diversity jurisdiction to exist, the claim must be $75,000 or more and no plaintiff and defendant are from the same state. The amount in controversy, or the amount asked by the filing party, must be pled in good faith and not pled either high or low for removal purposes.

For example, say that Pam sued Dillon and Debbie for a civil claim worth $100,000. Pam is from Minnesota, Dillon is from North Dakota, and Debbie is from Iowa. Because neither of the defendants is from Minnesota, there is complete diversity of jurisdiction between the parties. This would be the same thing if Debbie was also from North Dakota because neither one is from Minnesota. However, if Debbie was from Minnesota, the case would not be completely diverse.

An additional obstacle for a case based solely on diversity jurisdiction is that the case cannot be removed if any defendant is a citizen of the state where the case filing took place. So if the example above was the same claim as it was at the start, but Pam filed in North Dakota, then at least Dillon would be a forum plaintiff and the case would be denied if either party attempted to remove it.

When speaking about a business, the domicile is determined by the principal place of business. Many companies will be Delaware companies, but they will operate most of their business in another state. Say Pam ran a business that was incorporated in Delaware, but she carried out all her business in Minnesota. The company would be considered a Minnesota company for diversity purposes because its principal place of business is there.

A plaintiff may prevent removal by starting the case with too low of an amount in controversy or filing in the state court where the defendants live. However, if the amount of controversy is too low based on bad faith, this will not cause a case to fail to be removed.

Steps for Removal to Federal Court

Once you have established that you are within the timeline to remove and you have established either diversity jurisdiction or federal question jurisdiction, you and the other defendants can begin the process of removing the case. 28 U.S.C. § 1446 outlines how to take such action in a case.

One of the important documents needed to be filed by the removing party is the federal notice of removal. This is a written notice that contains a short and plain statement of the case and the cause for removal, helping the court identify that they need to verify the correct type of jurisdiction.

A case may be removed when the defendants file a collection of documents with the federal court, which include the following:

  • the filing fee for the suit;
  • a civil action cover sheet;
  • a written notice of removal;
  • copies of the file;
  • any pleadings, such as the complaint and any motions or orders granted in the state court;
  • any indexing from the state court; 
  • and any other jurisdiction-related or required documents.

The federal notice of removal and the copies of the documents submitted to the federal court should also be submitted to the state court on the same day.

If a federal court incorrectly removes a case, they may remand the case back to state court. This typically only happens when someone lacks good faith or a party that created diversity jurisdiction has the case dismissed.

Requesting for a removal to federal court can be beneficial, but understanding how and the requirements that are necessary are key, and hopefully, this article helped you to begin the journey of removing cases to federal court.

If you want to learn more about the federal court systems or alternative dispute resolution, contact ADR Times for educational resources and courses.

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