How to Object to a Notice of Removal to Federal Court

To object to a notice of removal to federal court, file a motion to remand in the federal court where the case was docketed, citing 28 U.S.C. § 1447 and explaining either that the federal court lacks subject matter jurisdiction or that the defendant made a procedural mistake in removing the case.¹ Jurisdictional objections are usually the stronger argument, and they carry the fewer strings.

Two Deadlines That Change Your Strategy

A motion to remand based on a procedural defect must be filed within 30 days after the defendant files the Notice of Removal in federal court.¹ Miss that window and the procedural argument is gone. The clock runs from the filing date, not the date you learn about it, so check the federal docket as soon as you suspect removal is coming.

A challenge to the federal court’s subject matter jurisdiction is different. It can be raised at any point before final judgment, and the court itself can raise the issue on its own motion.² If the court determines at any time that it lacks jurisdiction, the case must go back to state court, and no party can waive that requirement.

Even with the longer runway, file early. The case moves forward in federal court while your motion is pending, and you don’t want months of federal litigation to sink into a case that never belonged there.

Attacking Federal Question Jurisdiction

Federal district courts have jurisdiction over cases arising under the Constitution, laws, or treaties of the United States.³ When a defendant removes on this basis, the question is whether your complaint itself raises a federal claim.

Under the well-pleaded complaint rule, federal question jurisdiction depends entirely on what appears in the plaintiff’s own complaint, not on any defense the defendant plans to raise. The Supreme Court established this over a century ago: a case arises under federal law only when the plaintiff’s statement of the claim is based on federal law.⁴ A defendant who anticipates raising a federal defense or counterclaim cannot bootstrap that into federal jurisdiction.

This is where many removals fall apart. If your complaint pleads only state-law claims, walk through each cause of action in your motion and show that none of them turns on federal law.

Attacking Diversity Jurisdiction

Removal on diversity grounds requires complete diversity of citizenship between all plaintiffs and all defendants, and an amount in controversy exceeding $75,000, excluding interest and costs.⁵ Break either element and the federal court has no jurisdiction.

Breaking Complete Diversity

Complete diversity means no plaintiff shares state citizenship with any defendant. A Texas plaintiff suing a Texas corporation alongside an out-of-state company defeats diversity. Individual citizenship is based on domicile, not just current residence. A corporation is a citizen of both its state of incorporation and the state of its principal place of business. Checking each party’s actual citizenship is often the quickest path to remand.

Contesting the Amount in Controversy

The defendant bears the burden of showing the amount in controversy exceeds $75,000.⁵ If your complaint specifies a dollar amount below the threshold, the defendant has a steep climb. If your complaint doesn’t specify damages, the defendant may point to the nature of the injuries or the relief sought, but speculative or inflated calculations support remand.

The One-Year Limit on Diversity Removal

Even when diversity exists, a defendant cannot remove a case on diversity grounds more than one year after the lawsuit was originally filed in state court.⁶ The only exception is a finding that the plaintiff acted in bad faith to prevent removal, such as by naming a non-diverse defendant with no real claim against them just to keep the case in state court.

The Forum Defendant Rule

A case that otherwise qualifies for diversity removal cannot be removed if any properly joined and served defendant is a citizen of the state where the case was filed.⁷ Some defendants file for removal before a forum-state co-defendant has actually been served, a tactic known as snap removal. The federal courts are split on whether this works, so if your case involves a Notice of Removal filed before all defendants were served, check how courts in your district have ruled.

Attacking the Removal Procedure

Procedural objections must be raised within the 30-day window after the Notice of Removal is filed.¹ Two defects come up often.

First, the unanimity requirement. When multiple defendants have been properly joined and served, all of them must join in or consent to the removal.⁶ One defendant cannot unilaterally pull the whole case into federal court. Missing even one co-defendant’s consent makes the removal defective.

Second, the defendant’s own 30-day deadline. Each defendant has 30 days from receiving the initial complaint or summons to file a Notice of Removal.⁶ If the original complaint didn’t reveal a basis for removal but a later amended pleading, motion, or other paper did, the clock runs from receipt of that later document. A Notice of Removal filed outside these windows is a procedural defect.

Drafting and Filing the Motion

File the motion in the federal court where the case was removed. Caption it with the federal case number, cite 28 U.S.C. § 1447, and open with a short case history: when the state action was filed, when the Notice of Removal was filed, and why your motion is timely.

The heart of the motion is the legal argument. For a jurisdictional challenge, identify exactly which element is missing. For a diversity attack, show the parties are not completely diverse or that the amount in controversy is short. For a federal question attack, walk through each claim and show it arises under state law. For a procedural attack, name the specific rule violated and when. Removal statutes are strictly construed and doubts are resolved in favor of remand, so specifics matter.

Attach the state court complaint, the Notice of Removal, evidence of citizenship or amount in controversy where relevant, and any documentation of the procedural defect. Include a proposed remand order. File electronically through CM/ECF, serve every other party, and file a certificate of service. Check your district’s local rules for briefing and formatting requirements.

What Happens After You File

The defendant gets time to respond, commonly 14 or 21 days depending on local rules. If no response comes in, some courts treat the motion as unopposed.

The burden of proof is on the removing defendant. You do not have to prove the federal court lacks jurisdiction; the defendant has to prove it has jurisdiction, and if the evidence is in equipoise, remand follows. The court may rule on the papers or hold a hearing. If the motion is granted, the clerk sends a certified copy of the remand order to the state court, which picks the case up where it left off.¹

Asking for Attorney Fees

A remand order can require the defendant to pay the plaintiff’s costs and actual expenses, including attorney fees, incurred because of the removal.¹ It is not automatic. The Supreme Court held in Martin v. Franklin Capital Corp. that fees should be awarded when the defendant had no objectively reasonable basis for removal, and generally should not be awarded when the removal was at least objectively reasonable, even if ultimately unsuccessful.⁸ A borderline removal that turns out to be wrong usually won’t produce a fee award. A removal with no plausible jurisdictional basis is what the provision targets. If you believe the removal was baseless, ask for fees in your motion and explain why the jurisdictional argument had no reasonable foundation.

Winning Remand Usually Ends the Fight Over Forum

Once the court grants a motion to remand, that order typically cannot be appealed.¹ Narrow exceptions exist for cases removed under specific federal statutes involving federal officers or civil rights, but for most civil cases the remand order is final. That cuts both ways: put your best objections in the motion the first time, because if you win, the forum question is over.

1
Office of the Law Revision Counsel. 28 USC 1447 – Procedure After Removal Generally
2
Legal Information Institute. Federal Rules of Civil Procedure Rule 12
3
Office of the Law Revision Counsel. 28 USC 1331 – Federal Question
4
Justia. Louisville and Nashville Railroad Co. v. Mottley, 211 US 149
5
Office of the Law Revision Counsel. 28 USC 1332 – Diversity of Citizenship; Amount in Controversy; Costs
6
Office of the Law Revision Counsel. 28 USC 1446 – Procedure for Removal of Civil Actions
7
Office of the Law Revision Counsel. 28 USC 1441 – Removal of Civil Actions
8
Justia. Martin v. Franklin Capital Corp., 546 US 132