How to Remove a Federal Subpoena Case to Federal Court

How to Remove a Federal Subpoena Case to Federal Court

Getting slapped with a federal subpoena can be scary. You may feel overwhelmed and unsure of what to do next. But don’t panic. You have options. One potential move is to remove the federal subpoena case to federal court. Here’s an overview of how the removal process works and why you may want to consider it.

What is Removal?

Removal is the process of transferring a case from state court to federal court. According to federal law, a defendant can remove a civil case from state court to federal court if the federal court has original jurisdiction over the case. Original jurisdiction means the federal court has the authority to hear the case in the first place.

Federal courts can have original jurisdiction over a case for a couple reasons:

• The case involves a federal question – meaning it deals with the U.S. Constitution, federal laws, or treaties.
• The parties are from different states and the amount in controversy exceeds $75,000. This is known as diversity jurisdiction.

In a federal subpoena case, federal question jurisdiction usually applies since the subpoena stems from a federal investigation or case. This allows the recipient of the subpoena to remove the enforcement action to federal court.

The Benefits of Removal

There are several potential advantages to removing a federal subpoena case to federal court:

• It disrupts the other party’s litigation plan. The party that issued the subpoena likely preferred state court and removal foils their strategy.
• Federal court rules and procedures may be more favorable to your case.
• You gain access to nationwide subpoena power for discovery.
• Federal judges may be more familiar with the complex federal laws at issue.
• You may view the federal forum as more neutral rather than possibly biased in favor of the local plaintiff.

The Removal Process Step-by-Step

If you receive a federal subpoena and decide you want to remove the enforcement action to federal court, here is how to do it:

1. Act quickly. You only have 30 days after being served with the subpoena to file your notice of removal. (See 28 U.S.C. §1446)
2. Draft the notice of removal. This document should identify the parties, explain why the federal court has jurisdiction, and request that the case be removed. Include a copy of the subpoena enforcement action complaint as an exhibit.
3. File the notice of removal with the federal district court in the district where the state court case is pending. You must also file copies with the state court and all parties. (See Federal Rule of Civil Procedure 5.2 for privacy protections that may apply.)
4. Ensure federal court admission requirements are met. Your attorney must be admitted to the federal bar and be a member of the court’s trial bar. If not, they must apply for pro hac vice admission when filing the notice of removal or retain co-counsel who is admitted.
5. Notify state court. You must promptly file a copy of the notice of removal with the state court where the subpoena enforcement action is pending. This provides notice that the state court can proceed no further. (See 28 U.S.C. §1446(d))
6. Opposing party may try to remand. The party that issued the subpoena may file a motion to remand the case back to state court. You can file an opposition brief explaining why the case should remain in federal court.
7. Discovery begins. Once the case is in federal court, discovery will commence per the Federal Rules of Civil Procedure. This includes interrogatories, document requests, depositions, and more.

Grounds for Remand

Even if you successfully remove a federal subpoena case to federal court, the opposing party may file a motion to remand the case back to state court. Some common grounds they may argue for remand include:

• Procedural defects – The notice of removal was untimely or procedurally improper. (See 28 U.S.C. §1447(c))
• Lack of jurisdiction – The federal court lacks subject matter jurisdiction over the case.
• Forum defendant rule – Removal is not permitted if any defendant is a citizen of the state where the action was filed. (See 28 U.S.C. §1441(b)(2))
• Voluntary-involuntary rule – A state court case can only be removed if it was voluntarily filed by the plaintiff. Defendants typically can’t remove involuntary cases brought against them.

If you persuade the judge that federal jurisdiction exists and no procedural defects are present, the case will likely remain in federal court. Expect a fair amount of legal wrangling on these issues.