Removal

The transfer of a person or thing from one place to another. The transfer of a case from one court to another. In this sense, removal generally refers to a transfer from a court in one jurisdiction to a court in another, whereas a change of venue may be granted simply to move a case to another location within the same jurisdiction.

Normally a plaintiff has the right to choose the court where he or she will commence an action. An important exception to this rule is the defendant's right, in some circumstances, to have a case removed from a state court to a federal court. Federal law explains this right of removal in detail. It is available only when the federal court has jurisdiction, or authority, to hear such a case. The right may be claimed only by a defendant; a plaintiff cannot petition for removal of a case he or she has commenced in state court, even after the defendant asserts a counterclaim against the plaintiff that would justify the exercise of federal jurisdiction.

If a plaintiff has more than one claim against a defendant, and not all of the claims qualify for removal, it is not clear whether the whole case should be sent to the applicable federal court. Sometimes the individual claims that support federal jurisdiction can be severed and heard in federal court individually. This can be done if the removable claims are sufficiently distinct that they can be determined on their own. Otherwise they must be tried together. A federal court has discretion to weigh the circumstances and decide each case on its own facts. The right of the plaintiff to pick the court must be balanced with the right of the defendant to use a federal court when there is federal jurisdiction. The same considerations apply when there are multiple defendants, and some are entitled to removal of the case but others are not. If there are multiple defendants and multiple claims, the reasoning can become rather confusing.

The process of removal raises serious questions concerning FEDERALISM, the relationship of the states and the federal government. The idea of a federal court ousting a state court from a lawsuit already pending in the state is somewhat unsettling. The removal procedure itself emphasizes the potential for conflict. A person who is sued in a state court files a petition in the nearest federal court asking for removal of the action, which has the effect of removing the action to the federal court. A copy of that petition is then filed in the state court. The state court can take no further action whatsoever unless, and until, the federal court remands, or sends, the case back to it. The procedure generally works well because federal judges are careful to recognize the legitimate interests of the states in determining causes that are not necessarily federal in nature.