Whether a lawsuit proceeds in state or federal court is an important strategic decision impacting a defendant’s case. When a case which could be brought in federal court is brought in state court, a defendant’s first instinct naturally ought to be to remove the case to federal court. Indeed, defendants and their counsel need not necessarily resign themselves to the court of plaintiff’s choosing and may, under certain circumstances opt to remove a case to federal court. This can have the tactical advantage of disrupting plaintiff’s approach, leveling the playing field, or obtaining some other particular advantage of its own. The decision to remove is not, however, a foregone conclusion and a defendant must assess the potential advantages and disadvantages of defending a case in federal versus state court to ensure that removal is in its best interest. Further, because removal to a federal court has certain time and procedural requirements, the analysis must be prompt and informed.
Is There Federal Jurisdiction?
The right to remove a case to federal court is statutory and arises out of 28 U.S.C. 1441 which states: “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 defendants, to the district court of the United States….” The district courts have original jurisdiction over two general types of actions (1) federal question; or where the amount in controversy exceeds $75,000 and the suit is between citizens of different states. 28 U.S.C. § 1332. In the context of a product liability dispute, jurisdiction is usually based on the latter, otherwise known as diversity jurisdiction. In short, a case is removable based on diversity jurisdiction if the jurisdictional limit has been met and there is complete diversity of citizenship (all plaintiffs are citizens of states different from all defendants) and no defendant is a citizen of the forum state.
Once it is determined that a case is removable, the defendant must determine whether removal is in its best interest.
In Which Court Do We Want to Defend the Action?
From a historical perspective, removal can be viewed as a means of protecting a non-resident defendant from local prejudices of jurors or even judges. Certainly, it is a logical conclusion that, for example, a large New York corporation would not fair as well against a group of individual plaintiffs in a rural state court. However, other practical considerations, varied as the jurisdictions themselves, should be taken into account when determining whether to remove a case.
Judge
Depending on the jurisdiction at issue or the case involved, a judge may already be assigned to a matter or a certain judge or judges may be likely. Information about the prospective judges’ experience, demeanor and political inclinations may be perceived as advantageous to one party over another. Different judges may be more knowledgeable than others or have more expertise with particular legal issues or concerning complex cases.
Counsel
Knowledge of your adversary may impact your decision to be in state over federal court. Does the adversary regularly practice in the state court? Is he or she well-known or respected in the court? Would he or she be at a disadvantage with a lack of familiarity with federal court practice?
Jury
If the case will be tried to a jury, consider the demographics of the potential jury pool. Will an action proceeding in one court be likely to pool jurors more favorable to plaintiff or defendant? What are the differences between voir dire in the state and federal court? Will you or your opponent benefit from a lengthy or in depth voir dire process?
Rules of Procedure
Once a case has been removed from state court, it is subject to the Federal Rules of Civil Procedure. F.R.Civ.P 81 (c). Therefore, an important deliberation is what effect differing rules of procedure would have on the action.
In general, federal courts may operate on a tighter timeline to trial and hold parties to court-imposed scheduling orders more strictly. This may work to a defendant’s advantage or disadvantage depending on its perspective and particular needs. Other rules prohibiting frivolous claims and objections may be more vigorously enforced in federal court with the stark possibility of sanction as well, leaving frivolous claims and objections less likely.
More specifically, the Federal Rules of Civil Procedure 26(a)(1), require plaintiff (and defendant) to make pre-discovery disclosures which may save time and costs. Differing procedures may also affect the amount of briefing and number of court appearances which will be required. Additionally, federal rules will not only require the disclosure of experts; the disclosure will entail the production of detailed written expert reports and will allow for the deposition of experts. F.R.Civ. P. 26 (a)(2). Because not all states have the same extensive disclosure requirements or permit expert depositions, a party may be left at a disadvantage in challenging an opponent’s experts in state court or even left without a full understanding of the scope of the expert’s opinion.
Act Swiftly to Remove the Action
If a case is properly removable and removal is deemed in the defendant’s best interest, a defendant must ensure compliance with removal procedures set forth in 28 U.S.C. § 1446, as well as with Federal Rules of Civil Procedure and Local Rules of Civil Procedure if applicable. These procedures are not onerous, but are not without potential pitfalls. A critical danger to avoid, and which requires swift action on the part of counsel, is the thirty day time limit for removal.
The governing provision, 28 U.S.C. § 1446(b), specifies that the removal notice “shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the [complaint].” The deadline can be unclear depending on the state court procedures for filing a state action as a summons and complaint are not always served together. The defendant may be served with the summons, but the complaint is furnished to the defendant sometime after; the summons may be served, but the complaint is filed in court; or service of the complaint is not required because it is made available through filing. Consequently, immediate analysis is necessary to avoid waiver of the right to remove.
A case may be remanded to state court based on the late filing of the removal or other procedural defects in contents of the removal; or failure to give notice to other parties; as well as lack of subject matter jurisdiction. 28 U.S.C. 1447 (c).
Summary
If federal jurisdiction exists, defendants should carefully consider the differences between state and federal court proceedings given the particular facts of the case and the particularities of the state court to determine the best course. Immediate action is necessary to ensure a timely filing and avoid being forced to litigate in a court of plaintiff’s choosing.
— Karey P. Pond
