East Brunswick, NJ asked in Appeals / Appellate Law for Virginia

Q: HELLO, What is the diference to appeal vs file a complaying with circuit court?


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2 Lawyer Answers
Charles William Michaels
Charles William Michaels
  • Appeals & Appellate Lawyer
  • Columbia, MD

A: First, I am not a Virginia lawyer. However, I would need some more context to answer your question. The difference between an appeal and a complaint filed with the trial court should be obvious. An appeal is after the parties have litigated an issue before the trial court, received a final judgment from that court, and one of the parties contends that the trial court was incorrect in some areas of that litigation and thus takes an appeal. A complaint before the trial court is just that--the beginning of a litigation. If this is a real estate matter, then from the limited context of your question, a complaint before the trial court is the way to go. But I cannot actually answer your question, in this limited fashion.

Tim Akpinar
Tim Akpinar
  • Appeals & Appellate Lawyer
  • Little Neck, NY

A: It sounds like you may be talking about "removal" when you mention transfer to Circuit Court. Removal is when your state court action is moved (you say "transfer," and despite the use of the term "removal" in the Federal Code of Civil Procedure, you are correct in describing the process). The removal process is governed by 28 U.S.C. § 1441. Ask your attorney why the Civil Court recommended removal - did you have subject matter jurisdiction in terms of a federal issue 28 U.S.C. § 1331, or diversity 28 U.S.C. § 1332. In a nutshell, that means you are dealing the U.S. Constitution or federal law, or you and the other party meet the test for not being from the same state.

This is an important decision and you should discuss it with your attorney. It isn't clear whether you are in East Brunswick, New Jersey or Virginia. That makes a difference because in removal actions, you go to the federal district court in the federal district in which the state court sits - so take out a map and review this with your attorney.

Good luck

Tim Akpinar

Here is an excerpt of 28 U.S.C. § 1441 - you could find the statute in its entirety online

(a) Generally -

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

(b) Removal Based on Diversity of Citizenship.—

(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.

(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

Continued... you will find the rest of the statute online

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