| Chapter 2: Jurisdiction VII. Removal Jurisdiction Sections 1441 and 1442 of 28 U.S.C. cover the removal of cases to federal court. Section 1447(c) applies to remands to state court. VII.A. General Removal—28 U.S.C. § 1441 It is useful to remember, as the Fourth Circuit observed, that “[r]emoval statutes do not create jurisdiction. They are instead a mechanism to enable federal courts to hear the cases that are already within their original jurisdiction.”/144/ Removal statutes provide a federal forum to defendants wishing to assert substantive defenses in cases where one or more of the plaintiff’s claims fall within the subject-matter jurisdiction of the federal courts. The preceding discussion of federal court jurisdiction is therefore helpful to understanding principles of removal jurisdiction. The key provision of the principal federal removal statute, 28 U.S.C. § 1441(a), authorizes a defendant to remove from state court to federal court “any civil action brought in a State court of which the district courts of the United States have original jurisdiction ....”/145/ Federal courts are granted “original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.”/146/ Thus, Section 1441(b) permits the removal of a case containing claims that “arise under” federal law, regardless of the citizenship or residence of the parties./147/ Otherwise, general removal jurisdiction must be founded upon diversity, with none of the defendants being citizens of the forum state./148/ Section 1441(a), in effect, requires federal courts considering removal petitions to decide whether they could have initially exercised jurisdiction over the case./149/ For example, the All Writs Act,/150/ which allows federal courts to issue writs in aid of their jurisdiction, but which does not itself provide an independent grant of federal jurisdiction, cannot provide the basis for removal./151/ Neither can principles of “ancillary jurisdiction” confer the original jurisdiction necessary for removal, because the assertion of jurisdiction over ancillary claims must be preceded by jurisdiction over a case or controversy./152/ However, a state court appeal of a state administrative ruling is removable to federal court as long as the complaint presents a well-pleaded claim of administrative action violating federal law even if it is coupled with state-law claims that require deferential, on-the-record review of the administrative findings./153/ Removal otherwise permitted by Section 1441(a) may be barred by Congress. However, such prohibitions on removal must be expressly stated./154/ Under Section 1441(a), the removed “civil action” must also have been pending in a state “court.”/155/ The federal courts are divided on whether removal can extend to proceedings before administrative agencies. Some have applied a functional test, allowing removal in cases where a state agency functions like a court./156/ Other courts have rejected the use of such a test because they found the statutory term “state court” to be unambiguous./157/ There is somewhat less controversy over the question of whether third-party defendants are entitled to remove under Section 1441(a), most courts concluding that they are not./158/ Under the “well-pleaded complaint” rule, federal jurisdiction must appear on the face of a complaint that meets traditional pleading rules, and “[t]he well-pleaded complaint rule applies to the original jurisdiction of the district courts as well as to their removal jurisdiction.”/159/ The Supreme Court has stated: “The rule makes the plaintiff master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.”/160/ Thus, removal may not be based on federal defenses, whether they be anticipated in the complaint or actually raised in the answer./161/ However, in an exception to the well-pleaded complaint rule, removal may be permitted in those comparatively rare cases where the plaintiff’s state-law claim is completely preempted by federal law./162/ The Court recently decided two important cases relating to removal and the Eleventh Amendment. In Wisconsin Department of Corrections v. Schacht, the Court held that the presence of an Eleventh Amendment-barred claim against a State defendant in an otherwise removable case did not deprive the federal court of the removal jurisdiction that would otherwise exist./163/ The Court noted that the Eleventh Amendment “does not automatically destroy jurisdiction” but instead “grants the State a legal power to assert a sovereign immunity defense,” which can be waived./164/ Thus, a State’s successful assertion of an Eleventh Amendment defense after removal prevents the federal court from hearing the barred claim, but it does not destroy removal jurisdiction over the remaining claims, which the court may proceed to hear./165/ In addition, noting its long-standing acknowledgment of the principle that a State’s voluntary appearance in federal court constitutes a waiver of immunity, the Supreme Court held in Lapides v. Board of Regents, that a State did waive its Eleventh Amendment immunity when it removed a case from state court to federal court./166/ The Court’s holding, however, was limited to a situation in which a state statute waived sovereign immunity from state-law suits in state court and in which no valid federal claim was asserted against the State./167/ The Court did not reach the question whether removal of federal claims/168/ or state claims over which the state did not waive sovereign immunity in state courts abrogated a State’s Eleventh Amendment immunity./169/ VII.B. Federal Officer Removal—28 U.S.C. § 1442 Under 28 U.S.C. § 1442(a)(1), the United States, any federal agency, or any officer of the United States or agency (or person acting under that officer) being sued in their individual or official capacity may remove to federal court any civil action arising from “any act under color of such office.” The statute thus authorizes removal to federal court of state court actions against federal agencies and individuals who are acting in the course of their employment, by or on behalf of the federal government./170/ Federal agencies and officers may, therefore, remove cases under Section 1442 that other defendants could not under Section 1441: “The special right of removal conferred on federal officers by statute has been held to be absolute, and may be exercised even though the action might not have been brought initially in a federal court.”/171/ Removal is proper when none of the other defendants in the action joins in the removal notice or when the federal officer is sued as a third-party defendant rather than as an original defendant./172/ Most significant, federal officers may remove to federal court state cases in which they have a federal defense, such as absolute or qualified immunity./173/ Without such a federal defense, the Supreme Court declined to interpret Section 1442 to permit removal of cases arising solely under state law./174/ Moreover, federal officers must establish that the state suit is “for an act under color of office.”/175/ To do so, the officer must show a “‘causal connection’ between the charged conduct and asserted official authority.”/176/ Such a connection usually serves as the predicate for a colorable immunity defense./177/ Section 1442, therefore, allows removal only when the federal defendant’s act essentially was ordered or demanded by federal authority, thereby giving rise to the federal defense required by the statute./178/ VII.C. Removal of Joined State-Law Claims Should advocates file claims in state court that arise under both federal and state law, removal is possible. The Supreme Court has suggested that “t]he presence of even one claim ‘arising under’ federal law is sufficient to satisfy the requirement that the case be within the original jurisdiction of the district court for removal.”/179/ The presence of related state-law claims does not alter the fact that pleaded federal claims constitute “civil actions” within the “original jurisdiction” of the federal courts for purposes of removal./180/ Federal courts may exercise removal jurisdiction over state-law claims joined with removed federal claims under the doctrine of supplemental jurisdiction. The codification of supplemental jurisdiction principles in 28 U.S.C. § 1367, the Court has held, “applies with equal force to cases removed to federal court as to cases initially filed there; a removed case is necessarily one ‘of which the district courts ... have original jurisdiction.’”/181/ Thus, when joined state-law claims meet the statutory standards of supplemental jurisdiction, federal courts may exercise removal jurisdiction over both the state and the federal claims. Federal courts may also, in appropriate circumstances, exercise removal jurisdiction over unrelated state-law claims pursuant to 28 U.S.C. § l441(c). This section allows a federal court to remove an “entire case” and determine “all issues therein,” “whenever a separate and independent claim or cause of action” within the federal question jurisdiction of Section 1331 is joined with “one or more otherwise non-removable claims or causes of action.” Alternatively, the court may utilize its discretion to remand “all matters in which State law predominates.”/182/ Thus, Section 1441(c) specifies circumstances justifying either removal or remand in cases involving both federal and state claims. In contrast to the exercise of Section 1367 supplemental jurisdiction upon removal, however, Section 1441(c) “provides for removal or remand only where the federal question claims are ‘separate and independent’ from the state-law claims with which they are joined in the complaint .... Suits involving pendent (now ‘supplemental’) state claims that ‘derive from a common nucleus of operative fact’... do not fall within the scope of Section 1441(c), since pendent claims are not ‘separate and independent.’”/183/ Whether the federal claim is “separate and independent” of a non-removable claim is not easy to determine. The Supreme Court has offered some guidance: “where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or action . . . .”/184/ The federal court must retain the federal claims if they are separate and independent from the state-law claims and exercise its discretion to remand only those state-law claims that it can decline to hear under the supplemental jurisdiction principles of 28 U.S.C. § 1367(c)./185/ Conversely, the district court abuses its discretion if, under Section 1441(c), it remands state-law claims that are not separate and independent from the removed federal claims./186/ The statutory phrase allowing remand of “all matters in which State law predominates” should not allow the federal court to remand the entire case to state court./187/ VII.D. Removal Procedure The statutory procedures for removal are to be strictly construed./188/ A defendant removing a civil action must file, in the U.S. district court for the district and division in which the state proceeding is pending, a “notice of removal” that contains “a short and plain statement of the grounds for removal” and that attaches the process, pleadings, and orders served upon the defendant in the action./189/ Generally, the notice of removal must be filed within thirty days after simultaneous service of the summons and complaint or formal service of the complaint, “through service or otherwise,” subsequent to and separate from the summons but only through formal service of process./190/ In a case not originally removable, the defendant may remove to federal court within thirty days of receiving information in an “amended pleading, motion, order or other paper” which allows the defendant to “ascertain ... that the case is one which is or has become removable ....”/191/ In cases founded upon diversity jurisdiction, removal is not permitted more than one year after commencement of the action./192/ Removal is effected when, promptly after filing the notice of removal with the federal court, the defendant files a copy with the clerk of the state court and gives written notice to all adverse parties./193/ A motion to remand the case to state court “on the basis of any defect other than lack of subject-matter jurisdiction” must be made within thirty days of the filing of the notice of removal./194/ If at any time before final judgment the federal court apparently lacks subject-matter jurisdiction, the case “shall be remanded.”/195/ VII.E. Remands—28 U.S.C. § 1447(C) In addition to Section 1441(c), 28 U.S.C. § 1447(c) provides that,“[i]f at any time before final judgment it appears that the district court lacks subject-matter jurisdiction, the case shall be remanded.”/196/ Removed civil actions that could not originally have been filed in federal court must be remanded to state courts. The district court has discretion to enter an order awarding attorney’s fees when remanding a removed case to state court under Section 1447(c), unless the removing party has “an objectively reasonable basis for removal.”/197/ Federal courts have a general non-statutory power to remand pendent state claims besides the power to remand cases under the removal statutes. The Court in Carnegie-Mellon University v. Cohill has held that federal courts possessing discretion to hear pendent state-law claims may remand those claims to state court instead of dismissing them outright./198/ Orders remanding cases to state courts from which they were removed on grounds set forth in 28 U.S.C. § 1447(c), as well as Section 1441, are not reviewable on appeal./199/ 144. Lontz v. Tharp, 413 F.3d 435, 444 (4th Cir. 2005) (citation omitted). 145. "Defendant” is defined narrowly. A state-court plaintiff may not remove a counterclaim, which, had it been an independent action, would have been subject to original federal jurisdiction. Shamrock Oil and Gas Corp. v. Sheets, 313 U.S. 100 (1941). 146. See 28 U.S.C. § 1331. 147. Removal based upon federal question jurisdiction need not be founded upon a “cause of action created by federal law.” “Instead, the question is, does a state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 125 S. Ct. 2363, 2368 (2005). 148. 28 U.S.C. § 1441(b); See Lincoln Property Co. v. Roche, 126 S. Ct. 606 (2005). See also 28 U.S.C. § 1332(a) (federal diversity jurisdiction); Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996) (the “complete diversity” requirement of Section 1332(a), which mandates that the citizenship of each plaintiff must be diverse from the citizenship of each defendant, applies to removal jurisdiction based on diversity). Cf. Class Action Fairness Act, Pub. L. No. 109-2, § 5(a) (2005) (codified at 28 U.S.C. § 1453(b)) (defendant in class action filed in state court may remove the action “without regard to whether any defendant is a citizen of the State in which the action is brought” and removal may be accomplished without the consent of all the defendants). 149. See City of Chicago, 522 U.S. at 163. The Supreme Court formerly treated the removal jurisdiction of the federal courts as derivative; the Court reasoned that federal courts could entertain cases removed from state courts only if the state court originally had subject-matter jurisdiction of the suit. See Lambert Run Coal Co. v. Baltimore and Ohio Railroad, 258 U.S. 377, 382 (1922). Congress ended this practice in 1986 by amending 28 U.S.C. § 1441(e) to provide that the federal court to which the action is removed “is not precluded from hearing and determining any claim” in the action because the state court “did not have jurisdiction over that claim.” Thus, federal courts may now exercise removal jurisdiction in cases in which they have subject-matter jurisdiction but the state courts do not. 150. All Writs Act, 28 U.S.C. § 1651(a). 151. Syngenta Crop Protection Inc. v. Henson, 537 U.S. 28 (2002). 153. City of Chicago, 522 U.S. at 164-65. 154. Breuer v. Jim’s Concrete of Brevard, 538 U.S. 691 (2003). Certain state-court civil actions, such as those arising under state workmen’s compensation laws or the federal Violence Against Women Act of 1994, for example, expressly may not be removed to federal court. 28 U.S.C. § 1445(c), (d). 155. McDowell v. Wetterau Inc., 910 F. Supp. 236 (W.D. Pa. 1995) (removal allowed from state justice-of-the-peace court). But see Williams-Willis v. Carmel Fin. Corp., 139 F. Supp. 2d 773, 775 (S.D. Miss. 2001) (removal not allowed from tribal court); DeCoteau v. Sentry Insurance Co., 915 F. Supp. 155 (D. N.D. 1996) (same). 156. See, e.g., Volkswagon de Puerto Rico Inc. v. Puerto Rico Labor Relations Board, 454 F.2d 38, 44 (1st Cir. 1972). The Seventh Circuit’s use of a functional test in Floeter v. C.W. Transport Inc., 597 F.2d 1100, 1102 (7th Cir. 1979), was recently questioned by the Circuit in Wirtz Corp. v. United Distillers and Vintners North America Inc., 224 F.3d 708, 713 (7th Cir. 2000) (stressing need to examine Floeter decision in greater detail and limiting its holding to its facts). 157. See, e.g., Oregon Bureau of Labor and Industries ex rel. Richardson v. U.S. West Communications Inc., 288 F.3d 414, 419 (9th Cir. 2002); DeLallo v. Teamsters Local Union #776, No. 94-3875, 1994 U.S. Dist. LEXIS 11275, at *3, 1994 WL 423873, at *1 (E.D. Pa. Aug. 12, 1994). 158. Casul v. Modell's NY II, Inc., No. 04 Civ. 7204, 2004 U.S. Dist. LEXIS 19604, *5-6, 2004 WL 2202581, at *1-2 (S.D.N.Y. Sept. 30, 2004); Sanford v. Premier Millwork & Lumber, 234 F. Supp. 2d 569, 571 (E.D. Va. 2002); Johnston v. St. Paul Fire & Marine Ins. Co., 134 F. Supp. 2d 879 (E.D. Mich. 2001); but see Mignogna v. Sair Aviation, Inc., 679 F. Supp. 184, 189 (N.D.N.Y. 1988); Soper v. Kahn, 568 F. Supp. 398, 402 (D. Md. 1983); Ford Motor Credit Co. v. Aaron-Lincoln Mercury, Inc., 563 F. Supp. 1108, 1112-14 (N.D. Ill. 1983). 159. Franchise Tax Board, 463 U.S. at 10 n.9. 160. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). An “independent corollary” to the well-pleaded-complaint rule is the “artful pleading” doctrine, which holds that “‘a plaintiff may not defeat removal by omitting to plead necessary federal questions.’” Rivet, 522 U.S. at 475 (quoting Franchise Tax Board, 463 U.S. at 22). If the federal court determines that the plaintiff has “artfully pleaded” claims in this manner, it may allow removal even though no federal question appears on the face of the complaint. The artful-pleading doctrine generally allows removal in cases where federal law completely preempts state-law claims pleaded by the plaintiff. Rivet, 522 U.S. at 475. 161. Rivet, 522 U.S. at 475 (affirmative preclusion defense resting on prior federal judgment is not a basis for removal). 162. Beneficial National Bank v. Anderson, 539 U.S. 1, 9 (2003). See also Aetna Health Care Inc. v. Davila, 542 U.S. 200 (2004) (ERISA preempts state law tort claims against ERISA regulated health providers; defendants may therefore remove state claims). 163. Wisconsin Department of Corrections v. Shacht, 524 U.S. 381 (1998). 164. Id. at 389 (citations omitted). The Supreme Court also rejected the argument that a remand was appropriate under 28 U.S.C. § 1447(c). If an Eleventh Amendment defense pertains to subject-matter jurisdiction, Section 1447(c) requires a remand only when the entire case is with- out subject-matter jurisdiction, not when jurisdiction is lacking over only one claim within the case. Id. at 391–92. 166. Lapides v. Board of Regents, 535 U.S. 613 (2002) (Clearinghouse No. 53,836). 167. Id. at 617. See Omosegbon v. Wells, 335 F.3d 668 (7th Cir. 2003); Bank of Lake Tahoe v. Bank of America, 318 F.3d 914, 916–19 (9th Cir. 2003) (Nevada waived Eleventh Amendment immunity from state-law claims by joining in removal to federal court). Plaintiff’s Section 1983 damages claim against the State was barred since a State was not a “person” for purposes of such a claim. Id. (citing Will v. Michigan Department of State Police, 491 U.S. 58, 66 (1989). The Lapides Court accordingly noted that the U.S. district court might remand the state-law tort claims against the State to state court under the supplemental jurisdiction standards referred to in 28 U.S.C. § 1367(c)(3). Lapides, 535 U.S. at 618, 624. 168. Since Lapides, several Courts of Appeal have extended its holding and found that states waive their Eleventh Amendment immunity from suit over federal claims as well when they remove such claims to federal court. Meyers v. Texas, 410 F.3d 236, 240-50 (5th Cir. 2005); Embury v. King, 361 F.3d 562, 564 (9th Cir. 2004); Estes v. Wyoming Dept. of Transp., 302 F.3d 1200, 1206 (10th Cir. 2002). 169. Whether removal of state-law claims over which the state had not waived sovereign immunity in state court waives such immunity seems to have divided the courts. Embury, 361 F.3d at 566 (implicitly finding a waiver); compare Stewart v. North Carolina, 393 F.3d 484 (4th Cir. 2005) (finding no waiver of immunity over state claims to which it would have been immune in state court); Boone v. Pa. Office of Voc. Rehab., 373 F. Supp. 2d 484, 492-94 (M.D. Pa. 2005) See also Meyers, 410 F.3d at 249-50 (criticizing Stewart). 170. The statute also permits removal by any person acting under the authority of an federal officer. For an interesting recent decision interpreting this provision, see Watson v. Philip Morris Cos., 127 S. Ct. 2301 (2007) (holding that cigarette manufacturer could not use § 1442(a)(1) to remove claims of false advertising on the grounds that it was heavily and actively regulated by the FTC; statute requires delegation of power or authority). See also Kaye v. Southwest Airlines Co., No. 3:05-CV-0450-D, 2005 U.S. Dist. LEXIS 18389, 2005 WL 2074327 (N.D. Tex. Aug. 29, 2005) (airline could not use provision to remove because its collection of certain fees was not sufficiently controlled by the government). 171. 14C Charles A. Wright et al., Federal Practice And Procedure § 3727, at 166–68 (3d ed.1998). 173. In Jefferson County v. Acker, 527 U.S. 423 (1999), federal judges were permitted to remove to federal court collection actions filed by the county in state court seeking payment of an occupational license fee. The judges asserted an ultimately unsuccessful federal defense on the grounds of intergovernmental tax immunity. 174. Mesa v. California, 489 U.S. 121 (1989). 175. 28 U.S.C. § 1442(a)(3). 176. Willingham v. Morgan, 395 U.S. 402, 409 (1969) (citation omitted). Such a connection was established by the federal judges in Jefferson County whose legal theory was that the county’s enforcement action was grounded upon their being engaged in the occupation of federal judges. 177. See Mesa, 489 U.S. at 133 (federal employees prosecuted for crimes involving vehicles had no immunity defense and therefore did not “act under color of such office”). 178. Wright et al., supra note 171, at 146–57. 179. Schacht, 524 U.S. at 386 (citing College of Surgeons, 522 U.S. at 163–66). See also Exxon Mobil Corp. v. Allapattah Services, Inc., 125 S. Ct. 2611, 2623 (2005) (. . . “College of Surgeons stressed that a district court has original jurisdiction of a civil action for purposes of § 1441(a) as long as it has original jurisdiction over a subset of the claims constituting the action.”) (emphasis supplied). 180. Exxon Mobil, 125 S. Ct. at 2623 (citing College of Surgeons, 522 U.S. at 166). 181. College of Surgeons, 522 U.S. at 165 (citing 28 U.S.C. § 1367 (a)) (further citation omitted). 182. 28 U.S.C. § 1441(c). 183. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 786 (3d Cir. 1995) (citations omitted). The combination of supplemental jurisdiction and Section 1441(c) raises an interpretive question whether a claim may not be “separate and independent” enough to qualify for Section 1441(c) while also being too separate and independent to qualify for supplemental jurisdiction. See Busey v. Bd. of County Commissioners of Shawnee, 163 F. Supp. 2d 1291, 1296 (D. Kan. 2001). 184. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 14 (1951). 185. Borough of West Mifflin, 45 F.3d at 786–87; see discussion of Section 1367(c). 186. See Eastus v. Blue Bell Creameries, 97 F.3d 100, 105 (5th Cir. 1996). 187. See Majeske v. Bay City Bd. of Educ., 177 F. Supp. 2d 666, 672-73 (E.D. Mich. 2001); Miney v. Staff Leasing, 100 F. Supp. 2d 1050, 1055-58 (D. Ariz. 2000); Wright & Kane, supra note 12, § 39, at n.43 (criticizing the holdings of courts remanding entire cases under Section 1441(c) and stating, “The remand provision of§ 1441(c) surely applies only to cases removed under that subsection”); but see Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1037 (8th Cir. 1999). 188. Syngenta Crop Protection, 537 U.S. at 32. 189. 28 U.S.C. § 1446(a). 190. Id. § 1446(b); Murphy Bros. v. Michetti Pipe Stringing Inc., 526 U.S. 344 (1999). The “initial pleading” in the statute refers not only to the complaint but also to any pleading “contain[ing] sufficient information to enable the defendant to intelligently ascertain the basis for removal.” Whitaker v. American Telecasting Inc., 261 F.3d 196, 203 (2d Cir. 2001) (quoting Brooklyn Hospital Center v. Diversified Information Technologies Inc., 133 F. Supp. 2d 197, 201 (E.D.N.Y. 2001). 191. 28 U.S.C. § 1446(b). See, e.g., Eyak Native Village v. Exxon Corp., 25 F.3d 773, 779 (9th Cir. 1994), cert. denied, 513 U.S. 1102 (1995) (plaintiffs’ reply brief, filed two years after commencement of action in state court, set forth removable federal claim which triggered thirty -day removal period). 192. 28 U.S.C. § 1446(b). 197. Martin v. Franklin Capital Corp., 126 S. Ct. 704, 708 (2005). 198. Carnegie-MellonUniversity v. Cohill, 484 U.S. 343 (1988). 199. 28 U.S.C. § 1447(d) (exempting civil rights cases). See Kircher v. Putnam Funds Trust, No. 05-409, 2006 U.S. LEXIS 4676 (U.S. Jun. 15, 2006); see also Powerex Corp. v. Reliant Energy Services, 127 S. Ct. 2417 (2007) (when a district court remands a properly removed case because it lacks subject-matter jurisdiction, the remand is covered by § 1447(c) and is unreviewable pursuant to § 1447(d)). VII. Absention--Discretion to Decline Jurisdiction> |