Removal Clock Expired? Maybe Not

• Author: Karen L. Stevenson
• Pages: 18-19

Published in Litigation News Volume 47, Number 2, Winter 2022. © 20 22 by the American Bar A ssociation. Repro duced with permissio n. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

Published in Litigation News Volume 47, Number 2, Winter 2022. © 20 22 by the American Bar A ssociation. Repro duced with permissio n. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

he plaintiff led a complaint in state court. It

did not assert any federal claims, and the parties

were not diverse. The defendant answered and the

parties started discovery, during which a previously

unknown basis for federal subject matter jurisdic-

tion surfaced. The 30-day deadline for removal after the ini-

tial pleading had long passed. Is it too late for the defendant

to remove the case to federal court? Maybe not.

Federal Jurisd iction

A federal court does not have power to adjudicate a case

unless there is either federal question jurisdiction or diversity

jurisdiction. Federal question jurisdiction exists when the

lawsuit presents an issue arising from an alleged violation

of a federal law, a treaty, or the U.S. Constitution. Diversity

jurisdiction, as codied in 28 U.S.C. §1332, exists when the

parties on either side of the dispute are citizens of different

states and the amount in controversy exceeds $75,000. As

most of us learned on our rst day of law school, the parties

cannot waive subject matter jurisdiction.

State courts, on the other hand, are courts of general juris-

diction and can hear all manner of cases. As a result, plaintiffs

frequently le cases in state court that could be heard in fed-

eral court. The myriad strategic reasons for a plaintiff to do so

are beyond the scope of this discussion. The important point

here is that when federal jurisdiction otherwise exists over the

plaintiff’s claims, 28 U.S.C. § 1441, the federal removal stat-

ute, permits defendants to remove the case from state court

to a federal court with original jurisdiction. The rules govern-

ing removal provide very specic time limits, and a removing

defendant bears the burden of proving that removal is proper

and that the requirements of federal jurisdiction are met.

Two Paths to Removal

The procedures for removing a civil action are set out in 28

U.S.C. § 1446. Under 28 U.S.C. § 1446(b)(1), a defendant

seeking to remove a case from state court must le a notice

of removal in the district court for the district and division

where the case is pending. The notice, along with all “process,

pleadings and orders” with which the defendant has been

Removal Clock Expired? Maybe Not

By Hon. Karen L . Stevenson, Litigation News Associate Editor

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