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)).
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