Title: 28 U.S.C. § 1446(c): Strictly Construed, Strictly Enforced

-By Rosalie B.C. Wennberg, Esq. & Taylor A. Asen, Esq.

Gideon Asen – MLR Article Submission

Choice of venue can be a critical issue for plaintiffs—especially in a case that is likely to go to trial. In Maine, federal court tends to move more quickly than state court, and speed tends to favor the victim. By contrast, state court gives the plaintiff the benefit of requiring a two-thirds, as opposed to unanimous, jury verdict. State courts have the benefit and disadvantage of being the more local court; the geographic pool from which the jury is drawn is smaller, and likely more familiar with (and more opinionated about) the people, places, and events involved in the case.

While plaintiff’s attorneys tend to favor filing in state court, there is no one-size-fits-all approach to venue. And even if it is an attorney’s preference to stay in state court, the natural evolution of the case may open the door to removal whether they like it or not. The parties named in the original complaint are not necessarily the ones that end up in the court room for trial, and a change in the composition of the parties or questions presented can result in a change in the removability of the case.  

Congress has narrowly circumscribed diversity jurisdiction to actions in which the amount in controversy exceeds $75,000 and there is “complete” diversity of citizenship among the parties — meaning that no plaintiff is a citizen of the same state as any defendant. Readers who are participating in an upcoming bar exam (a small but mighty portion of our readership, to be sure) should anticipate a question in which there are multiple plaintiffs (or multiple defendants) from the same state, and note that diversity is not destroyed when multiple parties on the same side of the “v.” are from the same state. Federal courts also have jurisdictions over cases that present federal questions. Neither federal question nor diversity jurisdiction is exclusive to federal courts—cases that meet those criteria can properly proceed in front of a state judge and jury.

Title 28, § 1446 outlines the procedure for removing a civil action from state to federal court. The law generally gives a defendant 30 days to remove an action. Moreover,  within that 30 day window, “all defendants who have been properly joined and served must join in or consent to the removal of the action.”  § 1446(b)(2). This consent requirement applies whether an action is removable from the start or becomes removable because of a change in the composition of the parties or the questions presented. 

When removal is based on diversity of citizenship, the removing party must also abide by 28 U.S.C. § 1446(c). Among other things, § 1446(c) provides that a case may not be removed based on diversity of citizenship “more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”  Simply put, a defendant in an action that becomes removable more than a year after it commences cannot removal its case to federal court unless the plaintiff has engaged in foul play to keep it in the state system. 

These “removal statutes are strictly construed,” and a removing defendant has “the burden of showing the federal court's jurisdiction.” Danca v. Private Health Care Sys. Inc., 185 F.3d 1, 4 (1st Cir. 1999) (internal citations omitted). “Any doubt as to the propriety of removal is resolved in favor of remand.” Violette v. Capital One Bank (USA), N.A., No. 1:20-cv-00472, 2021 U.S. Dist. LEXIS 85197, at *2 (D. Me. May 4, 2021) (citations omitted). This reflects "the respect accorded the plaintiff’s forum choice." See 14AA Wright, Miller & Cooper, Federal Practice & Procedure § 3702.2, at 395-96 (4th ed. 2011).  

Importantly, an order for remand may require the payment of costs, expenses, and attorneys’ fees. 28 U.S.C. § 1447(c); see, e.g., Martin v. Dollar Tree, No. 1:25-cv-00032-LEW, 2025 U.S. Dist. LEXIS 87750, at *9 (D. Me. May 8, 2025) This relatively low threshold for imposing costs and fees serves as a deterrent for defendants who may be tempted to remove cases to stall litigation. See Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005) (“Assessing costs and fees on remand reduces the attractiveness of removal as a method for delaying litigation and imposing costs on the plaintiff.”).

Removal of mature state court actions (i.e., actions that have been going on for a year or more) present unique challenges to both parties. Plaintiffs may be tempted to join non-diverse parties in bad faith until the one-year mark of the litigation in order to prevent removal. However, engaging in this sort of gamesmanship can lead to something far worse than removal to federal court: removal to federal court mid-way through the litigation, which effectively starts the case over again. On the other hand, a defendant who seeks removal after the one-year mark runs the risk of paying the costs and fees associated with remand if their request for removal is denied—and losing credibility with the original state judge in the process. 

Whether you’d prefer to be in state court or federal court, there tend to be potential positives and negatives of both. Game playing to prevent removal, or to effectuate removal, is simply not worth the potential downside.

-download a PDF of this post here