Remand

What It Is

When a defendant removes your case from state court to federal court, you can ask the federal judge to send it back. This is called remand, and it is governed by 28 U.S.C. § 1447.

When Remand Is Available

A federal court must remand a case if:

• The court lacks subject matter jurisdiction. If the case does not belong in federal court, it must go back. This can be raised at any time.
• There was a procedural defect in the removal process — for example, the defendant missed the 30-day deadline or not all defendants consented. You must raise procedural defects within 30 days of the removal notice. 28 U.S.C. § 1447(c).

Remand in § 1983 Cases

Remand is less common in § 1983 cases because these claims clearly arise under federal law, giving the federal court jurisdiction. However, remand may still succeed if:

• The defendant removed too late (after the 30-day window)
• Not all defendants joined in the removal notice
• The case involves only state-law claims and the federal claims have been dismissed, leaving no reason for the federal court to keep it

The Procedure

1. File a motion to remand in the federal court where the case was removed.
2. Explain the defect — lack of jurisdiction or procedural error.
3. Request attorney’s fees. Under § 1447(c), the court may award costs and fees if the removal lacked an objectively reasonable basis. Martin v. Franklin Capital Corp., 546 U.S. 132 (2005).

Can the Remand Order Be Appealed?

Generally, no. An order remanding a case to state court is usually not appealable. Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976) carved out narrow exceptions, but in most cases the remand order is final.

Practical Tips

• Act quickly. You have only 30 days after the notice of removal to raise procedural defects.
• Jurisdictional arguments have no deadline — you can raise lack of subject matter jurisdiction at any time.
• Ask for fees if the removal was clearly improper. Courts can award costs under § 1447(c).
• Consider whether you even want remand. Federal court can be a good forum for § 1983 claims. Think strategically before fighting to go back to state court.

Key Takeaway

If a defendant improperly removes your case, you can file a motion to remand within 30 days. But for § 1983 claims, federal court is often where you want to be anyway.