Removal, remand, and the forum-defendant rule

Black-letter propositions

1. 01

   Only defendants may remove; all properly joined and served defendants ordinarily must consent.

2. 02

   Removal goes to the federal district embracing the state court.

3. 03

   The notice generally must be filed within 30 days after service or receipt of a removable pleading.

4. 04

   A diversity action ordinarily may not be removed if a properly joined and served defendant is a citizen of the forum state.

5. 05

   A motion to remand a procedural defect must be made within 30 days; lack of subject-matter jurisdiction may be raised later.

Use this attack sequence under time

Common wrong turns

• The forum-defendant rule is not the same as lack of diversity jurisdiction.
• A plaintiff cannot remove a counterclaim-based case under the ordinary removal statute.

Worked example

A State B defendant removes a diversity action from State B court on day 20. Complete diversity and the amount requirement are satisfied.

Practice this topic

Removal statutes

28 U.S.C. 1441(a) lets a defendant remove a civil action brought in state court of which the district courts have original jurisdiction to the district court for the district and division embracing the place where it is pending. Section 1441(b)(2) says an action otherwise removable solely on diversity may not be removed if any properly joined and served defendant is a citizen of the State where the action is brought. Section 1441(c) lets a mixed federal and state claim case be removed, with the non-supplemental state claims severed and remanded.

Section 1446(a) requires a notice of removal signed under Rule 11 with a short and plain statement of the grounds for removal, plus process, pleadings and orders served. Section 1446(b)(1) sets 30 days from receipt of the initial pleading, and (b)(2) requires all properly joined and served defendants to join or consent when removal is under 1441(a).

Late removability, remand and review

Section 1446(b)(3) allows removal within 30 days after receipt of an amended pleading, motion, order or other paper showing the case has become removable. Section 1446(c)(1) bars diversity removal under (b)(3) more than one year after commencement unless the plaintiff acted in bad faith to prevent removal.

Section 1447(c) requires a motion to remand for any defect other than lack of subject-matter jurisdiction within 30 days after the notice of removal, but a case must be remanded at any time before final judgment if subject-matter jurisdiction is lacking. Section 1447(d) makes a remand order generally unreviewable on appeal, with exceptions stated in the statute.

Frequently asked questions