Home | Business News | Browse by Publication | T | Trial

Keep your case in state court: defendants know that litigating in federal court can be costly and time-consuming for plaintiffs. Knowing how to combat removal attempts will ensure timely justice for your client.

Article Excerpt
Plaintiff attorneys' preference for state courts is undisputed and understandable. Reasons for avoiding federal court range from the mundane (greater familiarity with state procedure) to the strategic (greater likelihood of securing justice for clients).

In most states, local judges are elected by the very people whose disputes they will hear, motivating speedy and fair adjudication. Federal judges are appointed for life, and their courts are clogged with criminal cases. The so-called war on drugs has so overburdened the federal judiciary that getting a civil case tried at all in many federal courts is nearly impossible. (1)

To reduce their burgeoning dockets, federal courts have increasingly engaged in stringent control of discovery, aggressive encouragement of settlement, and more frequent granting of summary judgment. (2) As a result, litigation in federal court is more expensive and time-consuming. (3) Moreover, plaintiffs whose cases are removed to federal court are substantially less successful than those who originally the there. (4) Finally, but significantly, lawsuits in federal court are increasingly being consolidated into multidistrict, pretrial litigation proceedings, where they often languish for year. (5)

Defense attorneys are not oblivious to these facts; upon receiving a state court complaint, they frequently search for any conceivable basis to remove the lawsuit to federal court.

Fortunately for the plaintiff bar, federal statutes limit the grounds for removal and establish specific procedures for removal, and they are narrowly construed. Unfortunately, few plaintiff attorneys are familiar with the process, and they ultimately acquiesce to removal attempts that are either invalid on their face or easily opposed.

Federal-question jurisdiction

The general removal statute authorizes removal only if the lawsuit could have been originally filed in federal Court because at least one cause of action arises under federal law (federal-question jurisdiction) or because every plaintiff is a citizen of a different state from every defendant and the amount in controversy exceeds $75,000 (diversity jurisdiction). (6) Courts construe the general removal statute strictly, assuming as true all allegations in the complaint, resolving all factual disputes and ambiguities in the law in favor of remand. (7) As a result, you can often avoid removal simply by drafting your complain t artfully.

Avoid pleading federal causes of action. If you can obtain the recovery you seek under state law, consider limiting your complaint. Plaintiffs have the right to isolate the law under which they seek relief, and courts will not read federal claims into a complaint alleging only state law claims, so long as state law affords a remedy? More often than not, whatever federal remedy exists is also available under state law.

Disclaim federal causes of action. Because removal jurisdiction is determined from the pleadings, ensure that your complain t makes clear that you do not seek relief under federal law. Became of similarities among state and federal causes of action, your pleading of facts may be misinterpreted as a request for federal relief.

A disclaimer of federal causes can avoid such confusion. Courts frequently cite such disclaimers as evidence that a corn plaint does not invoke federal-question jurisdiction in the face of ambiguities in the complaint that the defendants cited? Consider inserting a paragraph like this early in your pleading:

Plaintiffs, disclaim any cause of action arising under the Constitution, treaties, or other laws of the United States, including but not limited to any claim arising tom an act or omission on a federal enclave or by any officer of the United States or any agent or person acting on behalf of such individual. No claim under admiralty or maritime law is alleged. To the extent this paragraph conflicts with any other allegations herein, this paragraph controls.

Upon removal, dismiss the complaint. Removal on any grounds can be circumvented by dismissing the complaint after removal and filing it again in state court, with the basis for removal eliminated. While leave of court is generally required to dismiss or amend a complaint in federal court, a plaintiff has an absolute right to do either before the defendant files all answer. (10)

Savvy, defendants file an answer simultaneously with their notice of removal. However, because answers filed in federal court must address each paragraph of the plaintiff's complaint, some defense attorneys initially file only a notice of removal, saving their answer for another day. In such a situation, you can dismiss your complaint and refile an altered version in state court, if you act quickly.

Seek dismissal...

View this article FREE - Now for a Limited Time, try Goliath Business News
Free for 3 Days!