Moving Your Case from State to Federal Court

 

In the court system, moving a case from the state courts to a federal court is known as “removal of Civil Actions”, “removal of jurisdiction”, or in some instances simply “removal”. This action is governed under U.S. Code  28 U.S. Code § 1441 – Removal of civil actions and pertains to a defendant’s right to have a case a moved from the state court to the federal court of that state.

The rules surrounding this action can be daunting and strict compliance is required. Authors Gregory C. Cook and A. Kelly Brennan write the following in their white paper, A Primer on Removal: Don’t Leave State Court Without It:

It goes without saying that courts heavily scrutinize removal documents to ensure not only that jurisdiction is established, but also that the removing party complied with the removal statutes in establishing jurisdiction. If the removing documents do not strictly comply with the removal statutes, courts are apt to remand the action even if the defect in the removing documents is a minor technical defect of little substance.

In other words, as a civil litigator, you need a solid grasp on the local rules for each jurisdiction involved.

The eligibility of a case to be considered for removal is complex and may be based on diversity of citizenship or a joinder of state law claims and federal law claims.  The National Paralegal College gives an excellent overview of venue and removal here.

According the NPC’s publication:

Some state civil actions are not removable. These include certain actions against a railroad or its receivers or trustees; certain actions against a carrier or its receivers or trustees to recover damages for delay, loss, or injury of shipments, unless the matter in controversy exceeds $10,000, exclusive of interest and costs; actions arising under a state’s workmen’s compensations laws; and actions arising under section 40302 of the Violence Against Women Act of 1994. See 28 U.S.C. § 1445.

While some state civil actions are not eligible for removal, some should have been filed in the federal courts originally. The rules surrounding removal will vary from state to state and jurisdiction to jurisdiction – visit SmartRules.com to learn more about Notice of Removal in both the State and Federal Courts.

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