28 U.S.C. § 1446: Notice, 30-Day Deadline, and Remand

Under 28 U.S.C. 1446, a defendant removes a civil action from state court to federal court by filing a notice of removal in the federal district court covering the location of the state case, doing so within 30 days of service, securing the consent of every properly joined and served co-defendant, and then giving written notice to all parties and to the state court clerk. Each of those steps has its own trap, and missing any one of them can send the case straight back.

Who Can File the Notice

Only defendants can remove. A plaintiff who filed in state court cannot later reroute the case to federal court through this procedure. The right belongs to the party being sued.

When more than one defendant has been named, the statute requires that all defendants who have been properly joined and served join in or consent to the removal.¹ This is the unanimity rule. A defendant who has not yet been served does not have to consent, so served defendants can move ahead without waiting for the process server to catch up with the rest.

Class actions removed under the Class Action Fairness Act are an exception. Any single defendant can remove a qualifying class action without the agreement of the others.²

Grounds the Case Must Meet

Removal only works if the federal court would have had original jurisdiction over the case. In practice, that means one of the following.

Federal Question

The claim arises under the U.S. Constitution, a federal statute, or a treaty.³ Civil rights suits, patent disputes, and Fair Labor Standards Act wage claims are typical examples.

Diversity of Citizenship

Every plaintiff must be a citizen of a different state from every defendant, and the amount in controversy must exceed $75,000.⁴ Courts enforce complete diversity strictly: one plaintiff and one defendant sharing state citizenship kills it. A single plaintiff can aggregate multiple claims against the same defendant to clear $75,000, but different plaintiffs generally cannot pool their claims unless they share a common and undivided interest.

Diversity removal carries an extra restriction called the forum defendant rule. If any properly joined and served defendant is a citizen of the state where the suit was filed, the case cannot be removed on diversity grounds.⁵ The idea behind diversity jurisdiction is protection against hometown bias, and a local defendant does not need that protection.

Class Actions Under CAFA

A class action can be removed when the total amount in controversy exceeds $5,000,000, the proposed class has at least 100 members, and any class member is a citizen of a different state from any defendant.⁶ Only minimal diversity is needed, the one-year outer limit that applies to ordinary diversity cases does not apply, and unanimous defendant consent is not required.

Federal Officers and Agencies

Suits against federal officers or agencies acting in their official capacity can be removed regardless of whether the case would otherwise present a federal question or diversity.⁷

Related State Claims Come Along

When a defendant removes on federal question grounds, the federal court takes supplemental jurisdiction over related state-law claims arising from the same facts. The court can decline that jurisdiction when the state claims raise novel issues, substantially dominate the case, or the federal claims drop out.⁸ Independent federal jurisdiction over every claim is not required.

Cases Congress Has Placed Off Limits

A handful of case types cannot be removed at all, even if jurisdiction would otherwise support it: lawsuits against railroads under the Federal Employers’ Liability Act, claims arising under a state’s workers’ compensation laws, civil actions under the Violence Against Women Act, and shipping damage claims against carriers unless the amount in controversy exceeds $10,000.⁹

The 30-Day Clock

A notice of removal must be filed within 30 days after the defendant receives, through service or otherwise, a copy of the initial pleading, or within 30 days of being served with the summons, whichever period is shorter.¹ In Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. (1999), the Supreme Court clarified that informally learning about a lawsuit does not start the clock. Formal service under state law does.

When defendants are served on different dates, each one gets an independent 30-day window. A later-served defendant can file for removal even after an earlier-served defendant’s window has closed, and the earlier-served defendant may then join in.

Some cases are not removable when they arrive but become removable later, for example when an amended complaint or a discovery response first reveals the basis for federal jurisdiction. In that situation the defendant gets a fresh 30 days from receipt of that document. Diversity-based removal carries an absolute outer limit of one year from the filing of the action, unless the plaintiff acted in bad faith to prevent removal.¹ Courts can override the one-year cap when they find the plaintiff manipulated the case to run out the clock.

A defendant can also lose the right to remove short of the deadline by taking substantial steps in state court that show an intent to litigate there. Filing a counterclaim, pursuing discovery, or moving for summary judgment in state court can all support a waiver finding. Move promptly; every state-court filing makes the removal argument weaker.

What Goes in the Notice

The notice of removal is filed in the federal district court for the district and division where the state case is pending. It must contain a short and plain statement of the grounds for removal and be accompanied by copies of all process, pleadings, and orders served on the defendant in the state action.¹ The signing attorney certifies under Rule 11 that the removal has a legitimate legal basis.

Courts read the removal statutes narrowly, and genuine ambiguity about jurisdiction is resolved against removal. Many defendants attach a memorandum addressing likely challenges up front, such as how the amount in controversy is satisfied or why diversity is complete.

The filing fee is $405, which includes a $55 administrative fee. Defendants who cannot afford the fee may apply for in forma pauperis status.

Notifying the Parties and the State Court

Once the notice is filed in federal court, the defendant must promptly give written notice to all other parties and file a copy of the notice with the clerk of the state court.¹ Filing that copy with the state court is what actually effectuates the transfer. From that point, the state court has no authority to act on the case unless a federal court sends it back through remand.

Skipping the state court notice does not automatically undo the removal, but it invites problems. The state court may keep scheduling hearings if it does not know the case has moved, and any plaintiff planning to challenge the removal will point to the omission in a motion to remand.

How Removal Gets Undone

A plaintiff who believes removal was improper files a motion to remand. The deadline depends on the type of defect.

Procedural defects, including a missed 30-day deadline, missing consent from a co-defendant, or notice failures, must be raised within 30 days after the notice of removal is filed. Wait longer and the objection is waived. A defect in subject matter jurisdiction is different: it can be raised at any time before final judgment, and the court must remand on its own if it notices the problem.¹⁰

The removing defendant carries the burden of proving federal jurisdiction. Overestimating the amount in controversy or misjudging citizenship is where most removals fall apart.

When the court remands, it can order the defendant to pay the plaintiff’s actual expenses, including attorney’s fees, incurred because of the removal.¹⁰ Fees are not automatic. In Martin v. Franklin Capital Corp. (2005), the Supreme Court held that fees are appropriate when the removing defendant lacked an objectively reasonable basis for seeking removal. A close call that loses will usually not trigger fees; a removal with no colorable jurisdictional argument will.

A removal that no reasonable attorney could believe was legally justified can also draw Rule 11 sanctions, which may include monetary penalties, nonmonetary directives, or an order to pay the opposing party’s attorney’s fees resulting from the violation.¹¹ Filing a baseless removal to run up the plaintiff’s costs is the kind of conduct Rule 11 is meant to punish.