As A Defendant, Can I Require the Plaintiff to File in Federal Court?
With few exceptions, a case that can be filed in federal court also can be filed in state court. The plaintiff’s choice of forum will often control. However, if a federal court has jurisdiction over a case the plaintiff elected to file in state court, there is a procedure that allows certain defendants to transfer that case to the federal court system under certain circumstances. The procedure is called removal.
A defendant has a right to “remove” a case to federal court if the federal court has jurisdiction over that matter. The federal court will have jurisdiction if the parties are completely diverse from each other and the claim in question exceeds $75,000 or if one of the claims arise under or is preempted by federal law. Jurisdiction alone is not enough. The party who wishes to remove the case must do so within 30 days of receiving the information from which the case becomes removable (typically, the Complaint) and must first secure the consent of all other defendants who have been served. In addition, only defendants who are not citizens of the state in which case is pending are eligible to remove the case. In other words, a defendant sued in a state court in which that defendant is considered a citizen does not have the right to remove the case to federal court, even if the plaintiff could have originally filed suit there.
The decision whether to remove a case to federal court is unique to each case and will depend on many factors. As a defendant presented with a Complaint filed in state court, it is important to review the allegations to determine whether there is a right to remove the case to federal court and, if so, whether that right should be exercised. A failure to take prompt action to remove a case eligible to be removed will result in the loss of the ability to do so.
- By Joe Calandrelli