Removing a case from state court to federal court is the topic of this article. The most common grounds for removing a case from a state court to federal court are that the complaint filed in the state court case involves a federal question as specified in 28 U.S.C. section 1441(a) or diversity jurisdiction as specified in 28 U.S.C. Code section 1332.
ADVANTAGES OF REMOVING A CASE TO FEDERAL COURT
The most powerful advantage of removing a case from state court to federal court is that once a defendant has properly complied with all provisions for removal the jurisdiction of the state court is immediately terminated unless and until the case is remanded by the district court. The state court cannot proceed any further and any orders or judgments issued by a state court after removal and before remand are void ab initio.
“… [T]he State court shall proceed no further unless and until the case is remanded.” See 28 U.S.C. § 1446(d); see also Ackerman v. ExxonMobil Corp. (4th Cir. 2013) 734 F3d 237, 249–250 (any postremoval action by state court is void ab initio).
The state court may resume jurisdiction only if and when the case is remanded by the federal court. See Allstate Ins. Co. v. Sup.Ct. (Wickham) (1982) 132 Cal. App. 3d 670, 676 (no power to resume if federal court dismisses rather than remands); see also Murray v. Ford Motor Co. (5th Cir. 1985) 770 F2d 461, 463 (state court has no power to set aside default judgment after removal).
And there is no specific order required of the federal court to complete the removal.
The removal is effected automatically by defendant filing the requisite documents and giving the required notice (above). See 28 U.S.C. § 1446(e); see also Rollwitz v. Burlington Northern Railroad (D MT 1981) 507 F.Supp. 582, 584.
REQUIREMENTS FOR REMOVING A CASE TO FEDERAL COURT
The United States Code imposes several requirements that must be met for removing a case from state court to federal court. The most important requirement is that the defendant must file the notice of removal within 30 days from being served with the complaint.
28 U.S.C. § 1446 states in pertinent part that,
“(a) Generally.— A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) Requirements; Generally.—
(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.”
The defendant must then comply with the provisions of Title 28 U.S.C. 1446(d) which states that, “Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” (Emphasis added).
The defendant must first file the notice of removal with the United States District Court, than serve notice on all adverse parties and finally file a copy of the notice with the clerk of the State court. Another requirement is that all of the defendants who are eligible for removal must sign the removal notice.
In most cases a case filed in state court will be removed to the federal court that has geographical jurisdiction encompassing the state court’s location. For example a case filed in the Superior Court of California, County of Riverside would be removed to the United States District Court, Central District of California Riverside division.
Removing a case from a state court to a federal court is a very powerful tool if it is used in a situation where the complaint clearly involves a federal question or there is no dispute that there is diversity of citizenship between the parties in that they both reside in, or have their principal place of business in, a state other than the state where the case was originally filed.
However it must be stressed that the federal court can remand the case back to state court on its own motion or sua sponte and levy sanctions against any party that removes a case when they do not meet the requirements. And the plaintiff can file a motion for remand with the federal court and ask sanctions as well.
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