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Removal of Cases from State Court to Federal Court

Jurisdiction refers to the authority of a court to hear and decide a case. A federal court has subject matter jurisdiction in two broad categories of cases. The federal court has federal question jurisdiction, which is the authority to hear legal disputes involving the U.S. Constitution, federal laws, and treaties. The federal court also has diversity jurisdiction, which means lawsuits between two states or between citizens of two different states in a case in which at least $75,000 of damages is sought.

Basis for Removal

Federal law permits the removal of cases from state court to federal court in certain circumstances. Under federal law, any civil action brought in state court may be removed by the defendant (the person being sued) to federal court if the claim could have been filed initially in federal court. This means that the claim is one over which the federal court has original subject matter jurisdiction based on either federal question jurisdiction or diversity jurisdiction. If removal is based on a federal question, even a defendant who is a resident of the state in which the state case is filed can remove the case to federal court. If removal is based on diversity jurisdiction, complete diversity is required. In other words, all named plaintiffs (the persons filing suit) must be citizens of states that are different from all of the states in which named defendants are citizens. If the federal courts do not have original jurisdiction, the case cannot be removed from state court.

Removal Procedure

Federal law requires the defendant to file a notice of removal to federal court within 30 days after receiving the complaint that has been filed in state court.

Remands after Removal

The case must be remanded to state court if before final judgment it appears that the federal court lacks subject matter jurisdiction.

Copyright 2015 LexisNexis, a division of Reed Elsevier Inc.


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