Removal of Cases

Removal of Cases A feature of American federalism is the existence of a dual judicial system. Each state has its own court system, typically consisting of trial courts, intermediate appellate courts, and a supreme court. The federal system has a similarly structured judicial system. Generally, it is the plaintiff who decides whether to bring a case in state or federal courts, and the plaintiff's decision is undisturbed so long as the selected court has jurisdiction over that kind of case and over the defendant.

Removal is an exception to this general rule, allowing a defendant to remove a case from a state court to the federal court in the district where the case is pending. Removal thus enables the defendant to defeat the plaintiff's choice of state court. After a case is removed, the state court loses power over it and the federal court assumes power to decide all aspects of the case.

Although removal jurisdiction is not mentioned in the Constitution, it has been statutorily authorized in some form since the Judiciary Act of 1789 established the lower federal court system. Under current statutes, removal is allowed only if the case falls within the jurisdiction of the federal courts and could have been brought in the federal forum by the plaintiff. As a further limit, removal of cases involving citizens of different states is allowed only if the defendant is not a citizen of the state in which the action is pending. Because removal is inconsistent with the general policy of allowing the plaintiff to choose the forum, the Supreme Court has construed removal statutes narrowly, limiting somewhat the defendant's ability to defeat plaintiff's choice.

See also Judicial Power and Jurisdiction; State Courts.

Daan Braveman