Removal

What It Is

If you file your § 1983 case in state court, the defendant can often “remove” the case to federal court. Removal is governed by 28 U.S.C. § 1441. Because § 1983 claims arise under federal law, they almost always qualify for removal.

How It Works

1. The defendant files a notice of removal in the federal district court covering the state court location, along with copies of all state court filings.
2. All defendants must consent to removal (with limited exceptions). 28 U.S.C. § 1446(b)(2)(A).
3. The deadline is 30 days from when the defendant receives the initial pleading (your complaint) or a later document that first makes the case removable.
4. Once the notice is filed, the state court loses jurisdiction and the case proceeds in federal court.

Why Defendants Remove

Defendants — especially government entities — often prefer federal court because:

• Federal judges may be seen as more experienced with constitutional issues
• Federal procedural rules may favor defendants
• Qualified immunity motions may be resolved more efficiently

Can You Stop It?

If you believe removal was improper, you can file a motion to remand under 28 U.S.C. § 1447. Common grounds include:

• The case was removed after the 30-day deadline
• Not all defendants consented
• There is no federal jurisdiction (rare for § 1983 claims since they arise under federal law)

The Supreme Court addressed removal jurisdiction in Caterpillar Inc. v. Williams, 482 U.S. 386 (1987).

Filing in Federal Court to Avoid Removal

Many § 1983 plaintiffs file directly in federal court in the first place. Since federal courts have original jurisdiction over federal civil rights claims under 28 U.S.C. § 1331, this avoids the removal process entirely.

Practical Tips

• If you filed in state court, expect removal. It happens in most § 1983 cases.
• Watch the calendar. If the defendant removes late (after 30 days), you may be able to get the case remanded.
• Filing in federal court from the start is simpler for most § 1983 claims and avoids the disruption of removal.
• Venue after removal is the federal district embracing the state court where the case was filed.

Key Takeaway

Removal lets defendants move your state-court § 1983 case to federal court. If you want to control where your case is heard, consider filing in federal court from the beginning.