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CHAPTER 7

Second-Guessing the Plaintiff’s Choice of Forum

Removal

INTRODUCTION

The traditional rule in American courts has been, and largely still is, that the plaintiff chooses the forum in which to bring a suit, subject to the limitations of personal jurisdiction, subject matter jurisdiction, and venue. He may choose the geographical place of suit by suing in the courts of the state he prefers. And, assuming proper subject matter jurisdiction, he may also choose the court system in which to litigate by starting the action in either a federal or state court.[1] In this respect, and in others, it is said that “the plaintiff is master of his claim.”

Removal is an exception to this rule, however. The federal removal statutes allow the defendant, after the plaintiff has chosen a state court, to “second-guess” that choice by “removing” some types of cases from the state court to a federal court. Once properly removed the case becomes a federal case, and the state court loses jurisdiction over it. Both pretrial litigation and trial will take place in the federal court.

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