Removal And Remand

• Pages: 315-333

CHAPTER XII

REMOVAL AND REMAND

Removal and remand often are among the most

hotly-contested aspects of litigation involving antitrust and

business tort claims. A plaintiff who perceives as more

advantageous state court rules governing such factors as

pleading requirements, summary judgment, discovery, jury

selection and numerosity and time-to-trial, will seek to ensure

that the litigation proceeds in state court. Conversely, a

defendant who sees advantage in having these or other matters

governed by federal rules will search for a way to remove the

case to federal court. Because this contest usually comes at the

inception of the litigation, its outcome affects much that

follows. – Eds.

A. Introduction

In federal court, the general removal statute is Section 1441 of Title

28 of the U.S. Code, which provides in pertinent part:

(a) Except as otherwise expressly provided by Act of Congress, any

civil action brought in a State court of which the district courts of the

United States have original jurisdiction, may be removed by the

defendant or the defendants, to the district court of the United States

for the district and division embracing the place where such action is

pending. For purposes of removal under this chapter, the citizenship

of defendants sued under fictitious names shall be disregarded.

(b) Any civil action of which the district courts have original

jurisdiction founded on a claim or right arising under the

Constitution, treaties or laws of the United States shall be removable

without regard to the citizenship or residence of the parties. Any

other such action shall be removable only if none of the parties in

316 Business Tort Law

interest properly joined and served as defendants is a citizen of the

State in which such action is brought.1

This statute is strictly construed against removal.2

B. Pleading to Avoid Removal

Because removal jurisdiction may be predicated upon the existence

of a federal claim or the diverse citizenship of the parties, a case cannot

be removed to federal court if the case (1) contains no federal claims

(such as those under the federal antitrust or securities laws3); (2) is

brought in the defendant’s home state; or (3) includes at least one

nondiverse party as a defendant.

1. The Well-Pleaded Complaint Rule

Under the so-called “well-pleaded complaint rule,” a case arises

under federal law only if a federal question appears on the face of the

plaintiff’s well-pleaded complaint; federal jurisdiction is lacking even if

a defense is alleged to be based exclusively on federal law.4 The

well-pleaded complaint rule reflects the long-held policy that “the party

who brings a suit is master to decide what law he will rely upon.”5 As

applied to the removal context, the well-pleaded complaint rule means

1. 28 U.S.C. § 1441(a)-(b). In addition to section 1441, Congress has

provided for removal of specific civil actions not discussed in this chapter.

See, e.g., 28 U.S.C. § 1442 (suits against federal officers); 28 U.S.C. §

1443 (suits in which civil rights are denied). Congress has also guaranteed

certain plaintiffs their choice of forum by prohibiting removal in specific

instances. See, e.g., 28 U.S.C. § 1445(a) (Federal Employers’ Liability

Act suits).

2. See, e.g., Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002)

(citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09

(1941)); Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d

Cir. 2004) (removal statute is strictly construed against removal to honor

Congressional intent to restrict federal diversity jurisdiction).

3. A notable exception is a claim under the Securities Act of 1933, which by

statute is nonremovable. See 15 U.S.C. § 77v(a).

4. Aetna Health Inc. v. Davila, 542 U.S. 200, 124 S. Ct. 2488, 2494 (2004);

Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 9

(1983).

5. Castro v. United States, 540 U.S. 375, 386 (2003) (quoting The Fair v.

Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)).