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.

The rationale for removal is that defendants as well as plaintiffs should have the option to choose federal court for cases within the federal jurisdiction. That jurisdiction is intended to protect both parties, and therefore, both parties should have access to it. If a federal court is particularly qualified to decide cases arising under federal law, then a defendant should be able to ask it to do so, just as a plaintiff may. Similarly, if an out-of-state defendant may suffer prejudice from litigating in a state court, he should have the same right as an out-of-state plaintiff to avoid that prejudice by invoking federal diversity jurisdiction.

A natural corollary of this rationale is that removal jurisdiction should be available to the defendant only in cases that the plaintiff could have commenced in federal court. Removal is not meant to expand federal jurisdiction but merely to make it available to defendants. Therefore, 28 U.S.C. §1441(a) only authorizes removal of state court actions “of which the district courts of the United States have original jurisdiction.” If the plaintiff could not have chosen to bring the action in federal court initially, the defendant cannot remove it. For example, if Oakley sues Cody, a fellow Kansan, on a state law contract claim, she could not sue in federal court, since there is neither diversity nor a federal question. Consequently, if she sues Cody in state court, her action against Cody will not be removable. By contrast, if she sued Cody in state court under a federal age discrimination statute, or if they were citizens of different states, Cody could remove because Oakley could have chosen to sue him on that claim in federal court.