Cases That May Be Removed

The state and federal court systems are separate from one another . In New York, State Supreme Court is a court of general jurisdiction, meaning it can take any kind of case. U.S. District Court is a court of limited jurisdiction, meaning it can take only the kinds of cases that Congress or the Constitution says it can take. Generally, federal trial courts handle only two kinds of cases: Cases that arise under U.S. law and cases where is "diversity of citizenship"; that is, where no plaintiff lives in the same state as any defendant. For determining the state of one's residence, a corporation is a resident of the state where it was incorporated as well as the state in where it has its principal place of business. If there is complete "diversity," the action could have been brought in federal court. A case that could have been brought in federal court is (subject to certain exceptions) a case that may be removed from state court to federal court.


The Procedure to Remove a Case to Federal Court

The way it works is that the defendant can, within 30 days of being served with the original papers in the case, file a "Notice of Removal." That document is filed with the federal court, the state court, and the plaintiff's attorney. [The state court and the plaintiff's attorney will also get an additional document that informs them about the Notice of Removal]. The Notice of Removal is filed on behalf of all defendants, provided no defendant lives in the district to which the case is being removed. Upon filing, the Notice of Removal freezes the state court from taking further action on the matter. The case is then removed to the particular district in which the state court is located; thus, an action filed in Supreme Court, Kings County can be removed to U.S. District Court for the Eastern District of New York (which is to say, Brooklyn).


Specific Statutory Provisions

28 U.S. Code sec. 1441 provides general information about removal. It lets defendants remove a case to the federal court for the district where the action is pending in state court. A civil action based on the Constitution or federal law can be removed without regard to residence of the parties. The notice of removal is filed in federal court in the district and division where the case is pending. The notice must be signed, must state grounds for removal, and must include a copy of all papers served on defendant(s). It must be filed within 30 days after defendant(s) receives a copy of the initial pleading in the matter. If the action is not initially removable, but the complaint is later amended to make it removable, the 30-day period starts upon service of the amended pleading, motion, or other paper from which it may first be ascertained that the case is removable. Certain cases impose, however, a one-year limit from the commencement of the action.


What Happens After Removal?

After filing the notice of removal of a civil action, the defendants provide a copy of the notice to the clerk of the state court and all other parties, and the state court may take no further action on the case unless and until the action is remanded to the state court. Quite often, the plaintiff(s) will make a motion to "remand" the case back to state court, claiming in most such cases that there really were no adequate grounds for removal. The decision as to whether to send the case back to state court is made by the federal court.