Vol. 6, No. 5, Pg. 25. BASIC REMOVAL PRACTICE AND PROCEDURE.

• Author: By Robert F. Daley Jr.

South Carolina Lawyer

1995.

Vol. 6, No. 5, Pg. 25.

BASIC REMOVAL PRACTICE AND PROCEDURE

25BASIC REMOVAL PRACTICE AND PROCEDUREBy Robert F. Daley Jr.It is crucial for any litigator to know the basics about removal of a state court action to federal court. An understanding of the grounds for removal, the procedure for removal and remand, and the requirements of a removal notice is a necessity. For a defense lawyer, this knowledge will help in drafting proper removal notices and avoiding remand to state court. For a plaintiffs' lawyer, a basic grasp of removal fundamentals will assist in drafting complaints that remain in state court and in identifying defects in removal notices or lack of jurisdiction requiring remand to state court. This article discusses basic removal practice and procedure with a focus on South Carolina district court and Fourth Circuit case law.

GROUNDS FOR REMOVAL

Two basic grounds for removal exist: a federal question and a dispute of more than $50,000 between parties with diversity of citizenship. 28 U.S.C. § 1441 provides the relevant authority:

(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 . . . . (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 interest properly joined and served as defendants is a citizen of the State in which such action is brought.

Federal Question Jurisdiction. A federal question must appear on the face of the well-pleaded complaint, McGraw v. FD Services, Inc., 811 F.Supp. 222, 223 (D.S.C. 1993), without consideration of any defenses or counterclaims that are raised or anticipated. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (anticipation of federal defense); Cook v. Georgetown Steel Corp., 770 F.2d 1272, 1275 (4th Cir. 1985) (attempt to inject federal question into case through counterclaims); Watson v. First Union Nat'l Bank of South Carolina, 837 F.Supp. 146, 148 (D.S.C. 1993). An exception to this rule is the complete pre-emption doctrine: "Congress may so completely pre-empt a particular area that any civil complaint raising this select group of claims is necessarily federal in character." Watson, 837 F.Supp. at 148 (quoting Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64 (1987)).

The federal district court has discretion to assume jurisdiction of the entire case or remand the portion not within its original jurisdiction.

If federal law creates the cause of action, federal courts unquestionably have federal subject matter jurisdiction. If, however, state law creates the cause of action, federal question jurisdiction depends on whether the plaintiff's claim necessarily depends on resolution of a substantial question of federal law. Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994) (quoting Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 28 (1983)). If a claim is supported not only by a theory establishing federal subject matter jurisdiction but also by an alternative theory that would not establish such jurisdiction, then federal subject matter jurisdiction does not exist. Id. at 153 (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 811 (1988)).

When a complaint has a separate and independent claim or cause of action based on federal question jurisdiction and other claims or causes of action that are not removable, the entire case may be removed. The federal district court has discretion to assume jurisdiction of the entire case or remand the portion not within its original jurisdiction. 28 U.S.C. § 1441(c).

26Federal law supplies the test to determine what is a separate and independent claim or cause of action. State law, on the other hand, is relevant in determining the nature of the claims to which the federal test is applied. Accordingly, state law determines the character of plaintiff's claim, and federal law determines whether that claim meets the standard of § 1441(c). Hinks v. Associated Press, 704 F.Supp. 638, 640 (D.S.C. 1988). 28 U.S.C. § 1441(c) only allows removal of a separate and independent claim that is made by the plaintiff; a cross-claim between two defendants may not be the basis for removal under 28 U.S.C. § 1441(c). Lawyers Title Ins. Corp. v. Pioneer Nat. Title Ins. Co., 600 F.Supp 402, 404 (D.S.C. 1984).

Corporations are citizens of any state in which they are incorporated and the state where their "principal place of business" is located.

The question whether a plaintiff has stated a claim under Fed.R.Civ.P. 12(b)(6) has no effect on the question whether the claim a...