Removing a Case to Federal Court
| Publication year | 1983 |
| Pages | 1639 |
1983, October, Pg. 1639. Removing a Case to Federal Court
The right of a defendant to remove a suit from state court to federal court is a creature of statute, and successful removal requires precise compliance with the applicable federal law.(fn1) The procedure for removal is straightforward, but the determination of whether a case is properly removable may raise intricate problems for which there are no simple answers. Both tactical and procedural concerns bear on a defendant's decision to invoke removal jurisdiction. This article surveys some of these tactical and procedural problems and addresses the procedures involved in perfecting and challenging removal.
The tactical considerations which a defendant must weigh in determining whether to remove a case to federal court are similar to those considered by a plaintiff in choosing any forum. On the state level, an obvious consideration is location of the forum if the suit is filed in a state court outside of Denver.
Removing a case to federal court in Denver may provide considerable advantages in convenience and cost to an out-of-state defendant, particularly when it will be necessary to bring in out-of-state witnesses for trial. Removing a case from an outlying county to federal court also may alleviate some of the client's fears of being "home-towned." Of course, these results are not automatic. For example, a defendant facing a close issue on liability may prefer to have the potential damages considered by a jury panel drawn from a conservative area of the state.
In addition to geography, the defendant should consider procedural differences. With Colorado's adoption of rules of evidence and procedures substantially the same as the federal rules, the differences in Colorado are minimized. Nonetheless, some important distinctions still exist. In federal court, for example, jury voir dire is conducted entirely by the judge.(fn2) Some attorneys may consider this a significant handicap.
Another difference is the procedure in obtaining out-of-state depositions. In state court, this requires a dedimus potestatem and strict compliance with the individual requirements of the state in which discovery is sought, which may or may not be familiar to a Colorado attorney.(fn3) In federal court, on the other hand, counsel must file only a certified copy of the deposition notice, and the discovery rules of the district in which discovery is taken will be the same as those in Colorado.(fn4)
Counsel also may wish to consider differences in courtroom decorum as dictated by various judges.(fn5) For example, will the state judge assigned to the case allow more, less or about the same time for opening statement and closing argument as counsel expects in federal court? The answer to this question, and to others like it, can be evaluated only by counsel's experience or by talking to other lawyers with the requisite experience. Such questions should be considered and addressed before making the decision to remove.
Once defense counsel is satisfied that federal court offers tactical advantages to the client, the case must be one which is properly removable pursuant to 28 U.S.C. § 1441--1451. Generally, a defendant may remove any case over which the federal court would have had original jurisdiction if the plaintiff had filed it there. However, this rule has some important limitations.
First, for the federal court to obtain removal jurisdiction, it is necessary that the matter be one over which the state court has jurisdiction. This is because removal jurisdiction is derivative in nature.(fn6) Of course, since most state courts possess general subject matter jurisdiction, this limitation is slight. An objection to personal jurisdiction in state court can be more problematic. It
Assuming the state court has jurisdiction, it is then necessary that the matter be within the removal jurisdiction of the federal court. In cases involving a federal question, removal jurisdiction is co-extensive with original federal question jurisdiction under 28 U.S.C. § 1331.(fn8) Diversity jurisdiction is co-extensive with § 1332, with the important exception that a case may not be removed if any one of the defendants is a citizen of the state in which the suit is filed, even if the plaintiff is a nonresident such that there is complete diversity.(fn9)
To illustrate this point, if the plaintiff is a citizen of Texas and files suit in state court in Colorado against a citizen of Colorado, the case cannot be removed to federal court in Denver even though it would have had jurisdiction if the plaintiff...
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