Removal

As the party who initiates litigation, the plaintiff enjoys the privilege of choosing the forum that will adjudicate the dispute. But this right is not absolute. Congress has provided defendants in civil actions with a mechanism, called removal, to trump the plaintiff’s choice of a state court when the defendant prefers to have the case heard by a federal judge. Although unmentioned in the Constitution, removal has existed as a statutory phenomenon since the initial Judiciary Act of 1789.

Briefly put, a case that falls within the federal courts’ original jurisdiction, i.e., one that the plaintiff originally could have filed in federal court, can be removed there by the defendant(s). This general rule, however, is subject to a series of statutorily designated exceptions, some of which expand upon, and others of which restrict, the limits of original jurisdiction. Moreover, this procedure operates in only one direction. A defendant cannot remove a case from federal to state court. Neither can a defendant transfer a case from one state court to a court of a different state. The specific requirements for removal are set forth at 28 U.S.C.

§1441 and the procedural requirements governing this process are detailed at 28 U.S.C. §§1446 and 1447. We shall now explore several of the issues addressed and generated by these provisions.