19. Should the court grant the worker's motion to remand?

The jurisdiction of federal courts is concurrent with state courts. This means that a particular controversy that is litigable in federal court may also be brought in state court. Where jurisdiction is concurrent, the plaintiff makes the initial decision whether to use state or federal court by filing his case. The defendant then can choose to remove or remain under the state court's jurisdiction.

Generally, any action brought in state court of which the federal courts would have had original jurisdiction may be removed by the defendant to the federal district court. Removal of a civil action from state to federal court is governed by 28 U.S.C. § 1441(a). § 1441(a) gives the exclusive ability to defendants to remove an action that could have originally been brought by the plaintiff in federal court.

The federal court must have subject-matter jurisdiction over the removed claim, based on diversity or federal question. Additionally, a defendant seeking to remove to federal court must file a notice of removal in the district court where the state action is pending. Under 28 U.S.C. § 1447, when a case has been improperly removed to federal court, the plaintiff may move to remand back to state court.

A plaintiff may file a motion to have a case remanded (sent back) to the state court. If the plaintiff bases this motion on a defect other than subject-matter jurisdiction (e.g., a defect in removal procedures), the motion must be brought within 30 days of removal. The court must remand, however, whenever it is shown that there was no federal subject-matter jurisdiction.

For a diversity case, the action will be removable only if no defendant is a citizen of the state in which the action was brought. 28 U.S.C. § 1441(b). Since removability is based on the existence of original federal jurisdiction, the usual principles governing the existence of diversity jurisdiction apply.

Venue for an action removed under 28 U.S.C. § 1441(a) lies in the federal district court «embracing the place where such [state] action is pending.» Thus, in a properly-removed case, venue is proper in the federal court of the state where the case was pending, even if venue would have been improper had the plaintiff originally filed the action in the federal district court of that state.

A defendant seeking removal must file a notice of removal containing a short and plain statement of the grounds for removal in the federal district court in the district and division within which the action is pending.

B is correct. The federal judge should not grant the worker's motion for remand because the farmer properly removed the cause of action to federal court, which is where it should remain. The removal statute allows a defendant to remove a civil action brought in state court if the federal court has federal question jurisdiction.

Here, the complaint alleges a violation of farmer's rights under Title VII of the federal 1964 Anti-Discrimination Act. Because the cause of action raises a federal question, and it could have originally been brought in federal court, the farmer can properly remove the case to federal court in State B.

A is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the judge should deny the motion to remand, it is not because the case was mistakenly filed in state court. There was nothing erroneous about the federal claim having been filed in state court. Jurisdiction of federal courts is concurrent with state courts, meaning a case that is litigable in federal court may also be brought in state court. This Title VII claim, therefore, was properly brought in state court. Removal is permitted not because an error was made, but because the removal statute allows defendants to select a federal forum in those circumstances where the removal statute applies.

C is incorrect. This is an incorrect statement of the law. Removal requires notice to be filed in the federal court in the proper district and division where the action is pending; there is no requirement that such notice be filed in state court. Therefore, this is not a basis to grant the worker's motion to remand the case.

D is incorrect. The fact that the farmer is a resident of State B does not mean that the worker's motion to remand should be granted. This is an instance of federal question jurisdiction, and removal is proper, as stated above. If the removal had been based on diversity, the fact that the farmer was a resident of State B would have prevented the removal. This is inapplicable here, however, where the complaint alleges a violation of federal law, raising federal question jurisdiction; therefore, the farmer can remove to federal court in State B.