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Proper pleadings prevent preemption problems: to defeat a defendant's argument that your client's claims are barred by federal preemption, begin with a well-crafted complaint.

Article Excerpt
Every lawsuit begins, with the drafting of the plaintiff's complaint. Whether the case is filed in state court or federal court, the process is the same. All actions start with what is, in most jurisdictions, a complaint that meets the basic requirements of notice pleading.

The process is pretty simple--name the parties, claim the defendant did something wrong in a general way, and assert some damages. (1) The lawsuit should be ready to serve as the vehicle for a successful and just recovery. Even a federal judge cannot make us plead our complaints with more specificity than is required by the Federal Rules of Civil Procedure. (2)

But before you send that simple complaint to the courthouse, take a moment to think about the 600-pound, yet often ignored, gorilla known as federal preemption. Once the issue of preemption is raised, it can be hard to shake.

Initial pleadings affect whether federal law preempts state law claims, be it by express, implied, or complete field preemption. That's why it's important, when drafting a complaint in just about every area of law in which plaintiff lawyers practice, to keep in mind that proper pleadings prevent preemption problems.

Once a court has determined that some or all of a plaintiff's claims are barred as a result of federal preemption, the plaintiff will have to defend the claims on appeal. Lawyers who draft more lawsuits than they do appellate briefs need a basic understanding of how federal law affects lawsuits from both a procedural and a substantive perspective. A well-drafted complaint may not only protect us from preemption problems but also help us at the appellate stage.

Avoiding removal

The first effect of federal preemption (based on any federal law that is relevant to a plaintiff's cause of action) is procedural in nature, as a lawsuit can be removed from state to federal court if it is not drafted carefully. Removal is not technically a federal preemption issue, but any technical...

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