Depending on the claims, parties, and preferences, there are multiple forums where litigants can choose to file suit. The majority of cases start in state courts, as they are courts of general jurisdiction. However, for defendants, moving a state court case to a federal court offers certain tactical benefits.
Before moving your state court case to a federal court, know that federal courts can only hear cases that have at least one claim arising under federal law or disputes between parties that are citizens of different states, so long as the amount of money in controversy is over a threshold amount.
If a defendant is served with a suit brought in state court—that they wish to be heard in federal court instead—they can “remove” the case to federal court by filing a simple notice of removal, “containing a short and plain statement of grounds for removal.” The notice must be filed within “30 days after receipt by or service on that defendant of the initial pleading or summons.” The grounds for removal will need to be either that a claim was brought under a federal law, the parties are from different states and the amount in dispute exceeds $75,000, one of the parties is a foreign country, or, in some circumstances, where a defendant is an agency or federal officer of the United States. If none of these jurisdictional requirements are met, then the case cannot be removed and must stay in state court.
Seems simple, right? But, what many litigants overlook is that the choice to remove the case to federal court is not just theirs—every defendant must agree and affirmatively consent. This is often referred to as the unanimity requirement. The law clearly states that “[a]ll defendants who have been properly joined and served must join in or consent to the removal of the action.” So, if there is more than one defendant, the party must get the consent of the other defendants before they file their notice of removal.
This situation can even come up when a defendant is served after another defendant has answered the suit and did not pursue removal. So long as the newly served defendant gains the consent of their co-defendant before filing the notice to remove on time, then the removal will be secure. The consent must be indicated on the face of the notice to remove, or the notice is defective.
This unanimity requirement for removal is a crucial and urgent consideration for anyone served with a suit wherein they are not the only defendant. Counsel must act quickly to gain the consent in time. To illustrate, where a defendant left a message for a co-defendant on the 28th day, but the co-defendant did not reply until day 31. The court may grant a motion to remand because the co-defendant did not give their affirmative consent in time.
Attorneys in PilieroMazza’s Litigation & Dispute Resolution Group are well-versed in bringing and defending suits in both federal and state courts. For more information, please contact Megan Benevento, the author of this blog, or a member of the Litigation & Dispute Resolution Group.