In the United States, removal jurisdiction allows a defendant to move a civil action or criminal case filed in a state court to the United States district court in the federal judicial district in which the state court is located. A federal statute governs removal.
Generally, removal jurisdiction exists only if, at the time plaintiff filed the action in state court, the federal court had a basis for exercising subject-matter jurisdiction over the action, such as diversity of citizenship of the parties or where plaintiff's action involves a claim under federal law. If removal is based solely on diversity of citizenship, removal jurisdiction does not exist if any properly joined and served defendant is a citizen of the state in which the action is pending.
Where removal jurisdiction exists, the defendant may remove the action to federal court by filing a notice of removal in the federal district court within 30 days after receiving the complaint. The defendant must file a copy of the notice of removal in the state court and must notify all other parties of the removal. In a case with more than one named defendant, normally all defendants who have been served with legal process must join in the notice of removal.
If the party contends that removal was improper, based on any ground other than that the federal district court lacks subject matter jurisdiction, the party may move the district court to remand the case to state court within 30 days after the defendant filed the notice of removal. The district court will grant the motion if it finds that removal was improper. If the district court determines that it lacks subject matter jurisdiction at any time before entry of final judgment, the district court must remand the action to the state court.
The Class Action Fairness Act of 2005 creates a separate basis for defendants to remove specified class actions filed in a state court to a federal district court.
History
The Judiciary Act of 1789 initially provided for removal jurisdiction. The Jurisdiction and Removal Act of 1875 explicitly granted federal courts jurisdiction over questions arising under federal law. The Judiciary Act of 1887 limited removal to defendants and established the well pleaded complaint requirement for removal.
Removal and complete diversity
When there are multiple defendants in a case, if even just one is a citizen of the state where the lawsuit was filed, a plaintiff can successfully object to removal if the only basis for federal jurisdiction is based on diversity of citizenship. The reason for the rule is that diversity jurisdiction was created by the Founding Fathers of the United States in the Constitution to shield defendants from possible discrimination in a foreign forum (i.e., a state not their home state). When an in-state defendant is being sued in a state court, it is expected that he will not be subject to unfair prejudice. With the exception of class actions under CAFA, every defendant must agree to remove; otherwise, the plaintiff or non-removing defendants can request remand for failure to satisfy the "rule of unanimity".
Notably, there is a circuit split (and several intracircuit splits) over whether every defendant named in the complaint must join in the removal notice, or whether the rule of unanimity applies only to those defendants who have been properly served as of the date of removal. The reason this is important is that sometimes a plaintiff may not be able to (or may deliberately choose not to) formally serve all defendants on the same day, or some defendants may become aware of the existence of the complaint before it is formally served (for example, if other already-served defendants send them a "courtesy copy"). In courts that adhere to the latter rule, removal jurisdiction may be proper as long as defendants can show that all defendants who were properly served by the date of removal joined in the removal notice, even though not all named defendants joined in the notice.
A plaintiff may never remove its own case, even if the defendant files counterclaims alleging violations of federal law by the plaintiff. A plaintiff must seek a dismissal without prejudice and refile in federal court.
There exists a small set of cases (e.g., workers' compensation actions and actions under the Federal Employers Liability Act) that are barred from removal under all circumstances.
Removal of cases involving federal agencies or federal officers
Removal jurisdiction in cases involving federal agencies or officers who are named as defendants in civil suits or criminally prosecuted is also governed by , known as the federal-officer removal statute, as well as removal under .