VIII. Removal

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

VIII. REMOVAL

Given the liberal federal question removal statute,³⁹⁵ state court defendants who prefer to defend § 1983 claims in federal court can almost always remove such cases, and they are increasingly doing so.³⁹⁶

Removal of state court § 1983 cases is not available when the state court defendant fails to meet the timeliness and other procedural requirements of removal³⁹⁷ or when the federal court "lacks subject matter jurisdiction" over the case.³⁹⁸

Because state courts are not required to follow the justiciability requirements of Article III of the U.S. Constitution, defendants may not remove § 1983 cases that meet state, but not federal, justiciability requirements.³⁹⁹Likewise, federal courts do not have removal jurisdiction over § 1983 cases that are barred from federal court by the Eleventh Amendment.⁴⁰⁰ When cases are removed to federal courts that lack subject-matter jurisdiction, federal courts are required to remand the cases to state courts.⁴⁰¹

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Notes:

^[395] . 28 U.S.C. § 1441(a) (2000) (permitting defendants to remove federal question cases to federal court if the action could have been filed originally in federal court). See generally Dorsey v. City of Detroit, 858 F.2d 338...