After being retained to represent a client who has been served with a state court complaint, most defense attorneys can predict many of the questions the client will ask in the initial call. One such question is whether the case can be removed, as there are a plethora of reasons why a defendant may prefer to litigate in federal court. The initial response of most defense attorneys is to look at the citizenship of the parties and evaluate pled damages to determine whether diversity jurisdiction exists under 28 U.S.C. § 1332, as that is usually the strongest basis for removal of most actions. While less common, the attorney will also peruse the complaint for citations to federal statutes to determine whether a federal question exists, which would confer jurisdiction under 28 U.S.C. § 1331. However, it is important to remember the precise language of 28 U.S.C. § 1331, which states that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” An often-overlooked opportunity for removal lies in possible constitutional claims within a complaint. Upon rst impression, using the federal constitution as a basis for removal may sound attractive, as there are certainly many instances where a creative defendant could tie a constitutional claim to a plaintiff’s state court complaint. However, it is important to proceed with caution because of the risk of remand.

Originally Published in the West Virginia Defender - March 2022.