If a suit is filed in state court, it can be removed (this just means changed) to federal court under certain circumstances.
Rules of Removal
- The case must have been eligible to be brought in federal court originally. This means that it satisfies either diversity jurisdiction or federal question jurisdiction.
- Only a defendant is allowed to remove a case from state court to federal court. A plaintiff is NOT allowed to remove a case.
- If removal is appropriate, the case will be removed to the federal court in the district where the state court sits.
- If the removal is based only on diversity jurisdiction, none of the defendants can be citizens of the state where the state-court action is taking place. This rule does NOT apply if the removal is based on federal question jurisdiction.
Example
The plaintiff, a citizen of New York, brings a breach of contract claim under state law against the defendant, a citizen of Massachusetts, in Massachusetts state court. The plaintiff is seeking $125,000 in damages. Can either the plaintiff or the defendant have the case removed to federal court?
Analysis:
Can the plaintiff remove the case to federal court? NO. A plaintiff can NEVER remove a case to federal court.
Thus the only question is whether the defendant can remove the case to federal court, and the answer is also NO. The case was indeed eligible to be filed in federal court originally under diversity jurisdiction. The plaintiff and defendant are citizens of different states and the claim is for over $75,000, so diversity jurisdiction is present. However, if the removal is based on diversity jurisdiction none of the defendants can be citizens of the state where the state-court action is taking place. The defendant is a citizen of Massachusetts and the case is taking place in Massachusetts state court, so removal to federal court is not proper.
Note: If the defendant were removing on the basis of federal question jurisdiction there would be no issue, and the case would be removed to federal court in the district where the Massachusetts state court sits. Remember, this rule only applies when removal is based only on diversity jurisdiction.