The current e-fling policy of the state judicial branch poses an unnecessary and unwarranted threat to a defendant's right to remove a case to federal court.

Under the federal removal statutes, a defendant removing a civil action to federal court must file its notice of removal in the appropriate federal court "within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.…" The removal process carries with it a number of procedural hurdles, the vast majority of which are on the federal court side of the ledger, but the last thing that a removing defendant must do in order to perfect a removal is to file with the state court a copy of the notice of removal filed with the federal court. Under federal law, the filing of that notice "shall effect the removal and the State court shall proceed no further unless and until the case is remanded."

Connecticut law has always presented a potential hiccup in the otherwise orderly removal process because of its relatively unique provisions concerning the commencement of a civil action and its related employment of the "return date" with regard to civil process. Specifically, because in Connecticut an action is commenced not by the filing of a complaint but by service of the complaint (with the formal filing to follow in a manner linked to the "return date"), it has long been possible for an action to be commenced (by service on a defendant) long enough before its return date so as to implicate the 30-day removal period set by federal law.

In the past, however, this potential conflict has never been an issue as a practical matter. A defendant served with a complaint in a Connecticut state-court action knew she had 30 days in which to remove the case to federal court, and regardless of the return date selected by the plaintiff, the defendant knew that so long as a copy of the notice of removal was filed with the appropriate Superior Court clerk within that 30-day period, the federal right to remove was preserved inviolate.

The advent of e-filing in state court, however, has brought an end to the security of that practice. With e-filing, a plaintiff proceeds just as she did in the past: she prepares her summons and complaint, selects a return date, marks the summons with that date and has the process served on the defendant. But now a plaintiff also ostensibly controls when any filing can be made in connection with the case because, until she returns it to the court (i.e., by e-filing the complaint and physically opening the matter on the court's docket), there is no practical way for the defendant to file any pleadings in the case, including a copy of its notice of removal to federal court. Thus, by selecting a return date more than 30 days out from the service date, a plaintiff can seek to deprive a defendant of the right to remove the case to federal court.

There is a simple fix to this problem. The judicial branch maintains a list of items that may be filed in paper form. The branch simply needs to include the copy of a federal notice of removal among those items that can be filed in paper form. In so doing, the branch will cure this evident oversight in its e-filing regime and protect a party's right to have its case heard in federal court when otherwise appropriate under federal law.