Removal of Claims from State to Federal Courts

AuthorErnesto Sanchez
Pages259-262
259
22
REMOVA L OF CL A I M S F ROM STATE T O
FED ER A L CO U RT
§ 22.1 INTRODUCTION
Except as otherwise expressly provided by statute, a defendant facing a state court action may
remove the action to the federal district court for the area where the action is pending if that
federal district court would have also had original jurisdiction over the action (e.g., circum-
stances such as parties’ diversity of citizenship).1 is right of removal applies to FSIA cases.
§ 22.2 PERTINENT STATUTORY TEXT
28 U.S.C. § 1441(d) provides:
Any civil action brought in a State court against a foreign state as dened in section
1603(a) of this title may be removed by the foreign state to the district court of the
United States for the district and division embracing the place where such action is pend-
ing. Upon removal the action shall be tried by the court without jury. Where removal is
based upon this subsection, the time limitations of section 1446(b) of this chapter may be
enlarged at any time for cause shown.
§ 22.3 DEFENDANTS’ RIGHTS TO REMOVE
e point of the FSIA’s removal provision is to give defendants sued in state court the right to
decide whether they instead wish to have lawsuits against them tried in federal court.2 A foreign
sovereign defendant’s waiver of FSIA immunity will not aect this right of removal, at least
absent an express indication otherwise.3
Very importantly, courts will not automatically accept every request for removal or other
desire to try an FSIA case in federal court. For example, a removal request will generally be
1. See generally 28 U.S.C. § 1441.
2. See Martinez v. Republic of Cuba, 708 F. Supp. 2d 1298, 1301 (S.D. Fla. 2010) (“[I]n enacting the FSIA, Congress
did not intend that all cases against a foreign state be in federal court; it merely gave foreign states the right to decide.”)
(citing Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983)); but see 28 U.S.C. § 1447(d) (“An order
remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that
an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title
shall be reviewable by appeal or otherwise.”); Powerex Corp. v. Reliant Energy Services, 551 U.S. 224, 237-38 (2007)
(“We are well aware that § 1447(d)’s immunization of erroneous remands has undesirable consequences in the FSIA
context. A foreign sovereign defendant whose case is wrongly remanded is denied not only the federal forum to which
it is entitled (as befalls all remanded parties with meritorious appeals barred by § 1447(d)), but also certain procedural
rights that the FSIA specically provides foreign sovereigns only in federal court (such as the right to a bench trial). But
whether that special concern outweighs § 1447(d)’s general interest in avoiding prolonged litigation on threshold non-
merits questions is a policy debate that belongs in the halls of Congress, not in the hearing room of this Court. As far as
the ird Branch is concerned, what the text of § 1447(d) indisputably does prevails over what it ought to have done.”).
3. See Suter v. Munich Reinsurance Co., 223 F.3d 150, 158-59 (3d Cir. 2000); In re Delta America Re Insurance
Co., 900 F.2d 890, 894 (6th Cir. 1990).
ForSovImmunAct_book.indb 259 4/11/13 3:32 PM

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