Removal, remand, venue, and transfer of civil cases in federal court

Black-letter propositions

1. 01

   A civil action brought in a state court of which the federal district courts have original jurisdiction may be removed by the defendant or defendants to the federal district court for the district and division embracing the place where the action is pending.

2. 02

   A civil action removable solely on diversity may not be removed if any properly joined and served defendant is a citizen of the state in which the action is brought.

3. 03

   A notice of removal must be filed within 30 days after the defendant receives the initial pleading through service or otherwise, and each defendant has 30 days after receipt by or service on that defendant.

4. 04

   When an action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal, and a later-served defendant may remove with the consent of an earlier-served defendant even though the earlier-served defendant did not previously consent.

5. 05

   If the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case has become removable, but a diversity case may not be removed on that basis more than one year after commencement unless the plaintiff acted in bad faith to prevent removal.

6. 06

   A motion to remand for any defect other than lack of subject-matter jurisdiction must be made within 30 days after the notice of removal is filed, but if at any time before final judgment it appears that the court lacks subject-matter jurisdiction, the case shall be remanded.

7. 07

   An order remanding a case to state court is generally not reviewable on appeal or otherwise, except a remand based on federal officer or civil rights removal, and the remand order may require payment of just costs and actual expenses, including attorney fees, incurred because of the removal.

8. 08

   A civil action may be brought in a district where any defendant resides if all defendants reside in the state, in a district where a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property is located, or, if no district qualifies, in any district where a defendant is subject to personal jurisdiction.

9. 09

   An entity that is a defendant resides in any district in which it is subject to the court's personal jurisdiction for the action, and a natural person resides in the district where the person is domiciled.

10. 10

    A court in which venue is laid in the wrong district shall dismiss or, in the interest of justice, transfer the case to a district where it could have been brought, and a court may transfer a properly venued case for the convenience of parties and witnesses to a district where it might have been brought or to which all parties have consented.

Use this attack sequence under time

Common wrong turns

• A defendant who is a citizen of the forum state cannot remove a diversity case, even if the plaintiff is from another state.
• The 30 days run from service, not just from the filing of the complaint.
• A remand for lack of subject-matter jurisdiction may occur any time before final judgment and is not appealable.
• Improper venue leads to dismissal or transfer, while a convenience transfer requires a district where the case might have been brought or consent.

Worked example

A plaintiff from State A sues a defendant from State B in State A's state court for $200,000 on a state-law claim. The defendant is served on June 1 and files a notice of removal on July 15.

Practice this topic

Removal

Section 1441(a) provides that a civil action brought in a state court of which the district courts have original jurisdiction may be removed by the defendant or defendants to the district court for the district and division embracing the place where the action is pending, and section 1441(b)(2) provides that a civil action removable solely on diversity may not be removed if any properly joined and served defendant is a citizen of the state in which the action is brought.

Section 1446(b)(1) requires the notice of removal within 30 days after receipt by the defendant, through service or otherwise, of the initial pleading, and section 1446(b)(2) requires all properly joined and served defendants to join in or consent to removal under section 1441(a), gives each defendant 30 days from its own service, and lets a later-served defendant remove with the consent of an earlier-served one. Section 1446(b)(3) allows removal within 30 days after a paper shows the case has become removable, and section 1446(c)(1) bars diversity removal on that basis more than one year after commencement absent bad faith.

Remand

Section 1447(c) provides that a motion to remand for any defect other than lack of subject-matter jurisdiction must be made within 30 days after the notice of removal, that the case shall be remanded if at any time before final judgment the court lacks subject-matter jurisdiction, and that the remand order may require payment of just costs and actual expenses including attorney fees. Section 1447(d) provides that a remand order is not reviewable on appeal or otherwise, except a remand under section 1442 or 1443.

Venue and transfer

Section 1391(b) provides that a civil action may be brought in a district where any defendant resides if all defendants reside in the state, in a district where a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property is located, or, if none exists, in any district where a defendant is subject to personal jurisdiction, and section 1391(c) provides that an entity defendant resides in any district where it is subject to personal jurisdiction for the action.

Section 1406(a) provides that a court in which a case is filed in the wrong division or district shall dismiss or, in the interest of justice, transfer it to a district where it could have been brought, and section 1406(b) preserves jurisdiction over a party who does not timely object to venue. Section 1404(a) allows transfer for the convenience of parties and witnesses, in the interest of justice, to a district where the action might have been brought or to which all parties have consented.

Frequently asked questions