How to Draft and File a Notice of Removal to Federal Court

A notice of removal to federal court is the document a defendant files to move a civil lawsuit out of state court and into the U.S. District Court for the district where the state case is pending. It has to include a short, plain statement showing why the federal court has jurisdiction, be filed within a strict 30-day window, carry the consent of every served co-defendant, and arrive with copies of the state-court papers attached. Get any of those wrong and the plaintiff can move to remand, sometimes with your money on the line.

Confirm You Have a Basis for Federal Jurisdiction

Two grounds account for almost every removal.

The first is federal question jurisdiction. District courts hear civil actions “arising under the Constitution, laws, or treaties of the United States.”¹ Under the well-pleaded complaint rule, the federal issue must appear on the face of the plaintiff’s complaint. A federal defense you plan to raise does not count. The federal question has to be part of the plaintiff’s own theory.

The second is diversity of citizenship. Every plaintiff must be a citizen of a different state than every defendant, and the amount in controversy must exceed $75,000, exclusive of interest and costs.² If the complaint pleads a specific dollar figure, that number controls. If it doesn’t, the notice itself can assert that the amount exceeds the threshold, but the court will only accept that if a preponderance of the evidence supports it.³

Two boundaries apply only to diversity-based removal. If a properly joined and served defendant is a citizen of the state where the lawsuit was filed, removal on diversity grounds is barred by the forum defendant rule.⁴ And a diversity case cannot be removed more than one year after it began in state court, unless the court finds the plaintiff acted in bad faith to prevent removal; deliberately concealing the amount in controversy is treated as bad faith by statute.³ Neither restriction applies when you remove on federal question grounds.

Watch the 30-Day Clock and Get Every Defendant On Board

The notice must be filed within 30 days after the defendant receives the initial pleading or summons that first shows the case is removable. Miss it and the right to remove is generally lost. If the case wasn’t removable at the start but later becomes so, through an amended complaint, a voluntary dismissal that cures a diversity problem, or discovery that reveals the amount at stake, a fresh 30-day clock runs from the paper that first makes removal possible.³

Every defendant who has been properly joined and served has to join in or consent to the removal.³ If one served defendant refuses, the case stays put. Consent is typically documented in writing and filed with the notice. Defendants who have not yet been served don’t count toward this unanimity requirement.

When defendants are served at different times, each gets an independent 30-day window from the date of that defendant’s service. A later-served defendant can file a notice of removal and pull in earlier-served defendants who had not previously consented, even after their own 30 days have run.³

What Goes In the Notice

The notice of removal is not a government fill-in form. It’s a custom-drafted document, usually styled like a legal brief, that has to satisfy 28 U.S.C. § 1446(a). A few district courts post sample templates, but most lawyers draft from scratch.

The document should contain:

A caption identifying the U.S. District Court for the district and division where the state case is pending, the full names of all parties, and the state court case number. The federal court will assign a new case number when the notice is filed.
A short and plain statement of the grounds for federal jurisdiction. For diversity cases, state the citizenship of every party and the amount in controversy. For federal question cases, identify the specific federal statute or constitutional provision at issue in the plaintiff’s claims.
A timeliness statement showing the notice is being filed within 30 days, with the date the defendant received the complaint or the paper that first triggered removability.
A statement that all served co-defendants have joined or consented, with written evidence of each consent attached.
A signature that meets Federal Rule of Civil Procedure 11, meaning the signer certifies the legal contentions are warranted.³

Attachments

The notice must be accompanied by copies of all process, pleadings, and orders served on the defendant in the state court action.³ At a minimum that means the complaint, the summons, and any motions or orders entered before removal. The federal statute calls for copies, not certified originals, but individual districts can require more through local rules. Check yours before you file.

Filing the Notice

The completed notice and its attachments go to the clerk of the U.S. District Court for the district and division where the state case is pending.⁴ Attorneys file through the court’s CM/ECF system. Pro se litigants often cannot e-file the initial notice and may have to submit paper copies at the courthouse or use the court’s electronic document submission portal; rules vary by district.⁵

The filing fee for a civil action in district court, whether initiated by original complaint or removal, is $405, made up of a $350 statutory fee and a $55 administrative fee.⁶ The fee is due when the notice is filed. A defendant who cannot afford it can apply to proceed in forma pauperis, which requires a financial disclosure showing inability to pay.⁷

Most districts also want a completed JS-44 Civil Cover Sheet with the notice. The form has a checkbox for cases removed from state court and gives the clerk the docketing basics: nature of suit, cause of action, and party information.⁸ It’s administrative; it does not substitute for anything in the notice itself.

Notify the Other Parties and the State Court

Filing in federal court is only half the job. The removing defendant must promptly give written notice of the removal to every adverse party and file a copy of the notice with the clerk of the state court where the case started.³ Filing the copy with the state court clerk is what formally strips the state court of jurisdiction. Until that happens, the state court still has authority over the case. Once it lands, the state court cannot take further action unless the federal court remands.

Don’t sit on this step. The statute says “promptly.” Serve the adverse parties and file the state-court copy the same day you file the federal notice, or as close to it as you can manage.

The Remand Risk Behind Every Drafting Choice

After removal, the plaintiff’s usual move is a motion to remand. Two kinds of challenges behave very differently.

Procedural defects, meaning things like a late filing, a missing co-defendant consent, or an incomplete set of state-court attachments, must be raised within 30 days after the notice of removal is filed.⁹ If the plaintiff misses that window, those objections are waived.

Lack of subject matter jurisdiction is different. If the federal court lacks it, the case must be remanded at any time before final judgment, with no deadline, and the court can raise the issue itself.⁹ A weak jurisdictional theory can unravel the removal months into the litigation.

When a court remands, it can order the removing party to pay the plaintiff’s costs and actual expenses, including attorney fees, incurred as a result of the removal.⁹ Fees are not automatic on every remand, but frivolous or objectively unreasonable removals draw them regularly. Remand orders are generally not appealable, so you get one attempt to get the jurisdictional analysis right. Draft accordingly.

1
Office of the Law Revision Counsel. 28 USC 1331 – Federal Question
2
Office of the Law Revision Counsel. 28 USC 1332 – Diversity of Citizenship; Amount in Controversy; Costs
3
Office of the Law Revision Counsel. 28 USC 1446 – Procedure for Removal of Civil Actions
4
Office of the Law Revision Counsel. 28 USC 1441 – Removal of Civil Actions
5
United States District Court, Central District of California. Electronic Filing and Case Access for People Without Lawyers
6
Northern District of California. Court Fee Schedule
7
United States Courts. Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form)
8
United States Courts. Civil Cover Sheet
9
Office of the Law Revision Counsel. 28 USC 1447 – Procedure After Removal Generally