TGFR: Thank Goodness For Removal

The Minnesota Supreme Court’s recent rejection of federal pleading standards reaffirms the value that federal removal has for employers.  Here’s what employers need to know about federal removal:

When Is Removal Allowed?  Under federal law, any civil action filed in a state court may be removed to federal district court provided that the federal court has “original jurisdiction” over the matter.  28 U.S.C. § 1441(a).  The federal court’s original jurisdiction may be based either on diversity jurisdiction or federal question jurisdiction.

What Is Diversity Jurisdiction?  Diversity jurisdiction exists when the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and the matter is between citizens of different states.  28 U.S.C. § 1332.  For removal, however, there must be “complete diversity” – this means that removal cannot be based on diversity jurisdiction if any one of the properly joined defendants is a citizen in the state in which the action was brought.  28 U.S.C. 1441(b)(2).  Sometimes plaintiffs try to defeat diversity jurisdiction by improperly naming a defendant who is a citizen of the state – this is known as fraudulent joinder and can be challenged by motion.

What Is Federal Question Jurisdiction?  Federal question jurisdiction exists for “all civil actions arising under the Constitution, laws, or treaties of the United States.”  28 U.S.C. § 1331.  In other words, if the claim alleges a violation of a federal law or constitutional provision, the action can be brought in or removed to federal court.

What Is The Process for Removal?  In general, a state court civil action must be removed to federal court within 30 days after the defendant is served with the lawsuit.  All defendants must consent to the removal.  To accomplish the removal, the defendants must file a “notice of removal” in the federal court as well as a “notice of filing of notice of removal” in the state court.  28 U.S.C. § 1446.  If the plaintiff believes that removal is improper, he or she may challenge the removal with a motion for remand to the state court.

Takeaway:  Federal removal is an important tool for employers because many employment law claims involve either diversity jurisdiction or federal jurisdiction.

About Michael Miller

Michael is a Chambers-rated attorney in Briggs and Morgan's Employment, Benefits, and Labor group and is head of the firm’s Employment Law Counseling and Compliance practice group. He has 25 years experience counseling employers to prevent unwanted litigation and advises companies of ongoing changes in federal, state and local employment law. Michael advises employers in all areas of employment law including discipline and discharge, leaves of absence, wage and hour compliance, non-compete and confidentiality agreements, affirmative action plans, background checking, and drug/alcohol testing. For Michael's full bio, click here.

Posted on August 20, 2014, in Litigation and tagged . Bookmark the permalink. Leave a comment.

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