A notice of removal is the document a defendant files to move a lawsuit from state court into federal district court. Federal law allows this only in specific situations, and the filing must be made within 30 days of formal service. The governing rules sit in 28 U.S.C. sections 1441 through 1447, and getting them wrong sends the case back to state court, sometimes with a bill for the plaintiff’s attorney fees attached.
When a Case Qualifies for Removal
The federal court has to have original jurisdiction over the case. That means the lawsuit is the kind that could have been filed in federal court to begin with. Two paths get you there.
The first is a federal question. If the claim arises under the U.S. Constitution, a federal statute, or a federal treaty, the case belongs in federal court no matter who the parties are or how much money is at stake.
The second is diversity of citizenship. The plaintiff and defendant must be citizens of different states (or one must be a foreign citizen), and the amount in controversy must exceed $75,000, not counting interest and costs. Diversity has to be complete: no plaintiff can share state citizenship with any defendant.1Office of the Law Revision Counsel. 28 U.S. Code 1332 – Diversity of Citizenship; Amount in Controversy
The Forum Defendant Rule
Diversity alone isn’t enough. If any properly joined and served defendant is a citizen of the state where the lawsuit was filed, the case can’t be removed on diversity grounds.2Office of the Law Revision Counsel. 28 U.S. Code 1441 – Removal of Civil Actions The rationale is that diversity jurisdiction exists partly to shield out-of-state defendants from home-court bias, and a home-state defendant doesn’t need that shield.
The statute’s “properly joined and served” wording has produced a tactic called snap removal, where a defendant files for removal after the suit is filed but before an in-state co-defendant has been served. Several federal appeals courts have upheld it, but it is not settled in every circuit.
The 30-Day Deadline
A defendant has 30 days to file the notice of removal, counted from formal service of the initial complaint or summons, whichever is shorter.3Office of the Law Revision Counsel. 28 U.S. Code 1446 – Procedure for Removal of Civil Actions Informal notice does not start the clock. In Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., the Supreme Court held that the window opens only with formal service, not with a courtesy copy or a faxed complaint sent outside the official process.4Legal Information Institute. Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc.
Multiple Defendants
Each defendant gets a separate 30-day window running from their own service date. A later-served defendant may file for removal even after an earlier-served defendant’s window has closed, and the earlier-served defendant can then consent to that removal.3Office of the Law Revision Counsel. 28 U.S. Code 1446 – Procedure for Removal of Civil Actions
Cases That Become Removable Later
A case can start out non-removable and become removable later. A plaintiff might amend the complaint to add a federal claim, or a non-diverse co-defendant might be dismissed. When that happens, the defendant gets a fresh 30 days from the date they receive the document that first reveals removability.3Office of the Law Revision Counsel. 28 U.S. Code 1446 – Procedure for Removal of Civil Actions
For diversity cases there’s a hard outer limit: removal cannot occur more than one year after the original state-court filing. The only exception is a finding that the plaintiff acted in bad faith to prevent removal, such as keeping a non-diverse defendant in the suit solely to block federal jurisdiction and then dropping them past the one-year mark.3Office of the Law Revision Counsel. 28 U.S. Code 1446 – Procedure for Removal of Civil Actions Federal-question removals have no equivalent one-year cap.
What the Notice Must Contain
The notice is filed in the federal district court for the district where the state case is pending. It must include a short, plain statement of the grounds for federal jurisdiction, whether federal question, diversity, or both. An attorney signs it, or the defendant signs personally if unrepresented, under the same standards that govern any federal filing.3Office of the Law Revision Counsel. 28 U.S. Code 1446 – Procedure for Removal of Civil Actions
Attached to the notice must be copies of all process, pleadings, and orders served in the state case, so the federal judge sees where things stand.3Office of the Law Revision Counsel. 28 U.S. Code 1446 – Procedure for Removal of Civil Actions A civil cover sheet is also required.5United States Courts. Civil Cover Sheet
All Defendants Must Agree
Every defendant who has been properly joined and served must either join the notice or formally consent to removal.3Office of the Law Revision Counsel. 28 U.S. Code 1446 – Procedure for Removal of Civil Actions A single holdout defeats the whole removal. The one exception is when defendants are sued on separate and independent claims, in which case a single defendant can remove just their portion.
Notice to the Plaintiff and the State Court
Right after filing in federal court, the defendant serves written notice on every opposing party and files a copy with the state court clerk. Once the state court receives that copy, it loses authority to act further in the case unless the federal court remands it.3Office of the Law Revision Counsel. 28 U.S. Code 1446 – Procedure for Removal of Civil Actions
Cases That Cannot Be Removed at All
Some lawsuits are barred from removal regardless of whether federal jurisdiction would otherwise exist. Under 28 U.S.C. section 1445, these include:
- Claims arising under a state’s workers’ compensation laws.
- Railroad worker injury claims under the Federal Employers’ Liability Act.
- Actions against carriers for lost, delayed, or damaged shipments, unless the amount in dispute exceeds $10,000.
- Civil actions arising under certain provisions of the Violence Against Women Act.
Beyond section 1445, individual federal statutes governing specific claims (including some securities actions) contain their own anti-removal provisions.6Office of the Law Revision Counsel. 28 U.S. Code 1445 – Nonremovable Actions
How a Plaintiff Fights Removal
Once the case is in federal court, it proceeds under the Federal Rules of Civil Procedure. A plaintiff who thinks removal was improper files a motion to remand.
The deadline depends on the defect. Procedural defects (missed 30-day window, missing consent from a co-defendant, failure to notify the state court) must be raised within 30 days of the notice of removal being filed. Miss that window and the defect is waived. Defects going to subject-matter jurisdiction (the federal court simply cannot hear this type of case) can be raised at any time before final judgment, and the court can raise them on its own.7Office of the Law Revision Counsel. 28 U.S. Code 1447 – Procedure After Removal Generally
The defendant carries the burden of showing that federal jurisdiction exists. When real doubt remains, federal courts tend to remand.
Fee Exposure on a Failed Removal
A remand order can also require the defendant to pay the plaintiff’s reasonable costs and actual expenses, including attorney fees, resulting from the removal.7Office of the Law Revision Counsel. 28 U.S. Code 1447 – Procedure After Removal Generally Fees are not automatic, but a removal that was plainly unjustified makes an award much more likely.
Why Defendants Remove
Removal is a strategic choice. Federal courts draw jurors from a wider geographic area than most state courts, which can dilute strong local sentiment. Federal judges often have more experience with complex commercial disputes, and federal discovery tends to be more structured, which helps defendants in large, document-heavy cases.
It is not always the right move. Federal courts enforce tighter scheduling orders and stricter procedural requirements, which raises litigation costs. And a removal that gets remanded can leave the defendant paying both sides’ legal bills for the detour.