Notice of Removal (Litigation Checklist)

This notice of removal checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.  It addresses the removal of cases from state to federal court.
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Checklist:
- Only the defendant, and not the plaintiff, may removal an action to federal court.  See 28 U.S.C. 1441(a).
- File Notice of Removal with both state court where action is currently pending and federal court where to which action is to be removed
- File motion to intervene to file notice of removal if removing party is not party to state action (i.e. where removing party is debtor and state court actions will impact adjudication of bankruptcy filing)
- 28 U.S.C. Section 1452(a) provides authority for removal
- Set forth procedural background:  when state court case was filed, what claims asserted in state court action
- Attach a copy of state court complaint and all process and proceedings filed in state court (attach only to filing of notice in federal court)
- Must file notice of removal in federal court within 30 days of receipt of copy of the initial pleading setting forth the claim or cause of action sought to be removed.  28 U.S.C. 1446.  If the case is not facially removable until service of an amended complaint, the 30 day period does not begin to run until service of that amended complaint.
- Set forth basis of federal court jurisdiction, either diversity jurisdiction pursuant to 28 U.S.C. 1332 or federal question jurisdiction pursuant to 28 U.S.C. 1331.
- Where removal is based on diversity jurisdiction, set forth the basis for diversity and state that the amount in controversy exceeds $75,000 as required by 28 U.S.C. 1332(a).
- Where removal is based based on federal question jurisdiction, state the specific basis in federal law or the United States Constitution (e.g. exclusive jurisdiction over "all civil proceedings arising under Title 11" per 28 U.S.C. 1334(b)).
- Serve notice of removal on counsel for all parties to the removed action.
- File a copy of the notice of removal with the state court from which the action is to be removed.  If removing party is not a party to the state court action (i.e. in many bankruptcy proceedings), it may be necessary to file a motion to intervene to file the notice of removal with the state court.
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Thoughts & Best Practices:
- Consider the case management, congestion of the dockets, discovery, and trial differences between federal court and state court prior to seeking removal--do they favor your client?  For example, are you focusing on resolving this case by dispositive motion, and therefore would prefer the federal case management practice of staying the case while a motion for summary judgment is pending?
- Will removal eliminate a "home-court advantage" or change the demographics/leanings of the potential jury pool in your favor?
- Compare the advantage of keeping the assigned judge in state court versus the potential selection of judges at the federal court.
- Remember that a notice of removal must be signed pursuant to Rule 11, so sanctions may be imposed for improperly removal of a case.
- Where the case consists of more than one separate and independent causes of action, consider whether removal is still desirable if portions of the case (i.e. those not subject to federal question jurisdiction) are remanded and the case proceeds simultaneously in both state and federal courts.
- When seeking removal based on federal question jurisdiction, if the basis for federal question jurisdiction is not clear on the face of the complaint, consider whether the "Artful Pleading" or "Complete Preemption" doctrines may apply.
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Example Forms:
- Notice of Removal (Locked Version) (To be filed with federal court)
- Notice of Removal (Publicly Editable Version, please make improvements and comment below to describe changes)
- Notice of Filing of Notice of Removal (Locked Version) (To be filed with state court)
- Notice of Filing of Notice of Removal (Publicly Editable Version, please make improvements and comment below to describe changes)
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Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit www.vail-law.com for more information.
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This notice of removal checklist and list of best practices is part of my Colorado Litigation Checklist approach to litigation knowledge management and litigation strategy.