Background

A notice of removal initiates the process of transferring a civil action from a state court to a federal court. The United States Code imposes several requirements that must be met for removing a case from state court to federal court.

In accordance with 28 U.S.C. § 1446, state courts do not adjudicate whether a civil action can be properly removed — once a party has filed a notice of removal, jurisdiction is transferred automatically and immediately by operation of law from the state court to the federal court. Any objection to removal must be presented before the federal court.

How to Structure the Motion

An action may be removed to federal court if the federal court has original jurisdiction under 28 U.S.C. § 1332. Specifically, it may be removed to federal court (pursuant to 28 U.S.C. § 1441(a) if original jurisdiction is established through the following: (1) it is a civil action with diversity of citizenship; and (2) the amount in controversy exceeds $75,000.

Federal jurisdiction exists on grounds of diversity under 28 U.S.C. § 1332(a)(1), so long as the controversy is between citizens of different states (for example, the plaintiff and defendant are corporations that have been incorporated in two different states), and the alleged damages sought are in excess of $75,000.

Under 28 U.S.C. § 1332(a), the amount in controversy must exceed the sum of $75,000 exclusive of interest and cost.

An action may also be removed to federal court if there is “federal question” jurisdiction over the action under 28 U.S.C. § 1331 and 1338(a) — in other words, jurisdiction over civil actions arising under the Constitution, laws, or treaties of the United States.

If no defendants have answered the Complaint — and if the action is in its early stages — the Notice of Removal causes no undue prejudice and is not dilatory, as the plaintiff can simply dismiss the case and refile in federal court.

All defendants must consent to removal. If all defendants do not consent to removal, then the plaintiff can request remand for failure to satisfy the rule of unanimity.

Pursuant to 28 U.S.C. § 1441(b)(2), “a civil action otherwise removable solely on the basis of jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”

Timeline

Pursuant to 28 U.S.C. §1446(b), a Notice of Removal is timely if it is filed within 30 days of the receipt of the initial pleading (setting forth the claim for relief) by the defendant.

Pursuant to 28 U.S.C. §1446(d), a true and correct copy of the Notice of Removal must be filed promptly with the Clerk of Court, and notice of the same must also be given to opposing counsel.