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Removal of Cases

REMOVAL OF CASES

When a civil or criminal case within concurrent federal and state jurisdiction is filed in state court, Congress may choose to offer the parties the right to remove it from state to federal court. Indeed, removal is the only way to provide for original federal jurisdiction in some cases, such as those in which a federal question appears for the first time in the defendant's answer to the complaint. Because federal removal jurisdiction is treated as derivative from state jurisdiction, a suit improperly filed in state court may not be removed.

Congress has employed removal ever since the judiciary act of 1789. The device serves two principal purposes. First, removal can equalize the position of plaintiffs and defendants with respect to choice of forum. For example, federal statutes allow defendants to remove most diversity jurisdiction and federal question cases that the plaintiff could have brought initially in federal court. Second, removal can provide access to a more sympathetic federal forum for defendants who are asserting federal rights as defenses. For example, statutes permit federal officers and others acting under federal authority to remove suits brought against them for conduct within the scope of that authority. Another statute authorizes removal of suits by individuals whose rights under federal equal rights laws cannot be enforced in state court. (See civil rights removal.)

Federal statutory law provides that if a removable claim is joined in the same suit with a nonremovable claim, the entire suit may be removed if the two claims are "separate and independent." If the nonremovable claim is sufficiently separate to satisfy the statutory requirement, however, it may not be within the federal court's pendent or ancillary jurisdiction. In such cases, the statute resolves the constitutional problem by granting the federal court discretion to remand the nonremovable claim to state court.

Carole E. Goldberg -A mbrose
(1986)

Bibliography

Cohen, W. 1961 Problems in the Removal of a "Separate and Independent Claim or Cause of Action." Minnesota Law Review 46:1–41.

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