How to remove a civil action from a State court to United States District Court is the topic of this blog post. The most common grounds for removal are that the complaint involves a federal question as specified in Title 28 U.S. Code section 1441(a) or diversity jurisdiction as specified in Title 28 U.S. Code section 1332.
Parties seeking to remove a civil action to United States District Court should carefully review the statute specifying the procedure for removal of civil actions to United States District Court which is found in Title 28 U.S. Code § 1446 which states in pertinent part that,
“(a) Generally.— A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) Requirements; Generally.—
(1) The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.”
The defendant must then comply with the provisions of Title 28 U.S.C. 1446(d) which states that, "Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded." (Emphasis added).
The basic procedure to be followed is that a defendant should first file the notice of removal with the district court, serve notice on all adverse parties, than file a copy of the notice with the clerk of the State court. The power of the removal procedure is that once a defendant has properly complied with all provisions for removal the jurisdiction of the State court is immediately terminated unless and until the case is remanded by the district court. The State court cannot proceed any further and any orders or judgments issued by a State court after removal and before remand are void ab initio.
Although the removal procedure is abused on occasion there is no question but that it is a powerful tool if used in situations where the complaint clearly involves a federal question or there is diversity of citizenship between the parties.
Attorneys or parties who would like to view a portion of a sample 7 page notice of removal that includes brief instructions, citations to statutory authority, a notice to adverse party of removal to Federal Court as well as a certificate of service of notice to adverse party of removal to Federal Court sold by the author can use the link shown below.
Sample notice of removal to United States District Court
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
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