Legitimate Removal

• Date: 01 July 2023
• Author: Andrew Pauwels and Anna Transit

Published in Litigation, Volume 49, Number 4, Summer 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may

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Legitimate Removal

How to Do It and Traps for the Unwary

ANDREW PAUWELS AND ANNA TRANSIT

Andrew Pauwels is a partner and Anna Transit is an associate at Honigman LLP, Detroit.

There comes a time in every litigator’s career where they face a

(seemingly) simple but (potentially) daunting task. A client (or

maybe a senior partner) calls with a new case. The case is pending

in state court. For whatever reason—a desire to avoid the particu-

larities of state procedural rules or maybe a fear (rational or irra-

tional) of being the “road team” in front of an elected state court

judge—the client wants to get out of state court as fast as possible.

The litigator strains to draw on everything learned in law school

Civil Procedure and remembers: a case can be removed to federal

court by simply filing a notice of removal. Easy, right?

The process for removing an action to federal court appears

to be, and often is, straightforward. In these simple cases, the

defendant files a notice of removal identifying, by a short and

plain statement, the grounds for federal jurisdiction, and the case

proceeds from there without a hiccup. But all too often, the pro-

cess for removal can present an unexpected minefield, and one

that must be negotiated quickly, as a 30-day countdown clock is

usually already runn ing when the case comes in the door. Given

that removal is often one of the first actions taken on behalf of a

client in a newly filed suit, committing an unforced error can be

an unfortunate omen for the representation you worked so hard

to get. Do something wrong and the case ends up right back in

the state court the lawyer and the client wanted so badly to avoid.

Fortunately, the wary litigator can identify and chart the route

around these pitfalls in advance. While every state court or fed-

eral jurisdi ction may have its own particulariti es with which a

lawyer should be familiar, this article offers a road map to avoid

some of the most common obstacles to removing a case to fed-

eral court.

Determining Eligibility

The first step in every action is to determine whether the case

is even eligible for removal. The basic inquiry asks whether the

case could have been brought in the federal forum in the first

place. The general removal statute, 28 U.S.C. § 1441, lays out the

most common bases for removal from a state court to a federal

forum: diversity jurisdiction and federal question jurisdiction.

Diversity jurisdiction is by far the trickier proposition. To re-

move a case, it must satisfy the requirements of 28 U.S.C. § 1332,

which establishes the basic requirements for a federal court to

have original diversity jurisdiction over the claim—the amount in

controversy must exceed the sum of $75,000, and the parties may

not be citizens of the same state. While on the surface this looks

straightforward, several nuances lurk to ambush the inattentive.

One nuance is that the presence of even a single defendant

who is at home in the forum state will defeat removal based on

diversity jurisdiction. A plaintiff who files suit in a defendant’s