The Roots of Removal

Abstract

Academic observers of federal litigation generally describe the field by reference to its constitutional and statutory foundations. Also at play within this landscape are powerful normative policy elements recognized by scholars and practitioners – at least implicitly – as essential to an adequate description of the litigation choices available to the participants. One of these policy features is the oft-repeated maxim that the plaintiff is the master of the claim. Although this basic premise quietly dominates both academic discussions and practice realities, a number of factors operate to impose very real limitations on that principle. These limitations, in turn, shape how we approach federal litigation, including, specifically, how we approach federal court jurisdiction. One of these limitations on a plaintiff's power that implicates federal jurisdiction is removal – and removal provides an instructive example of the exceptionally rich environment where policy elements interact with constitutional and statutory features. Removal is a means of moving a state court lawsuit into federal court, and approximately 30,000 civil cases are transferred in this manner annually. Through removal, under certain circumstances, a defendant is able to defeat the plaintiff's choice of forum. Thus, removal inherently raises questions regarding what limitations should be placed on a plaintiff's choice of forum. These questions have been answered in different ways depending on the specific issue and the timing, with the timing including both the historical context and the litigation point in time. The dramatic way in which these differences play out are illustrated in three particular aspects of removal law. As a general matter, when removal is accomplished at the very outset of a lawsuit, the procedures are quite straightforward. However, removal that is instituted after the initial thirty-day removal period raises more issues and has the potential to become more complicated. Three of the most difficult issues in removal law arise in such a subsequently-instituted removal context – the first (versus last) served defendant rule, the voluntary-involuntary rule, and the one-year limitation for removing diversity cases. Courts and commentators typically have discussed these issues separately, without realizing that these issues, when analyzed together, share an underlying commonality that yields a surprisingly effective framework: the inherent tension between deferring to the plaintiff's choice of forum versus the defendant's right of removal.

Keywords: removal, federal courts, federal jurisdiction, federal litigation