Strategies, Challenges, and Answers

Must / Can / Should This Case Be Removed To Federal Court?

In my experience, most Nevada plaintiffs’ attorneys would prefer litigating their client’s cases in the Nevada state court.  Each probably has his or her own reason to prefer state court over federal.  However, defendants may realize significant advantages by getting a case out of state court.  The process of getting a case out of state court and into the proper federal court is called “removal”.

I don’t recall a plaintiff’s attorney ever consulting his defense opponent on which jurisdiction he or she should file in.  An old saying in the law is that a plaintiff is the “master of his complaint”, meaning that the plaintiff decides what causes of action should be pled, when the complaint will be filed, and where to file.  The defendant gets no choice in these matters.  Unless a defendant can find a legal basis to remove the case from the court that the plaintiff filed in, that case will remain in that court until it is concluded.

1038828_US_Supreme_CT Some cases MUST be litigated in federal court.  Those types of cases are known as “federal questions”.  These are the types of cases that the congress has said are reserved for the federal court system.  An example of a federal question is a civil rights case.  Most plaintiffs that allege a federal question will usually know to file in federal court.  However, if they make a mistake and file in state court, removal is a possible remedy.  Under these circumstances either party may remove the case from state to federal court.

There are other cases that CAN be removed to federal court, but need not be.  Nevertheless, Congress has set some very strict limits on the types of cases that can be taken out of state court and moved into the federal court system.  Normally, the cases that qualify for removal are called “diversity cases”.  There are two major requirements that a case must meet to qualify as a diversity case.  First there must be diversity of citizenship between all plaintiffs and all defendants.  In other words, none of the plaintiffs can live in the same state as any one of the defendants.  If a Nevada plaintiff sues a Nevada defendant, there is no diversity and there can be no removal.  The rule of diversity applies to corporations as well.  Normally, a corporation’s citizenship is deemed to be in the state where the corporation has filed its legal charter.  So if you have a Nevada Plaintiff, who wants to sue a Delaware corporation, then the diversity requirement is met.  That would be true even if the corporation has stores or offices in Nevada.

The second requirement is that damages claimed must exceed $75,000.00.  Usually, the court will look at what the Plaintiff is alleging or what the demand has been prior to the filing of the case to decide whether this requirement is met.

A party who wants to remove a case must act quickly.  Normally the removal petition must be filed within 30 days of the service of the complaint.  Sometimes there are special circumstances which allow removal up to one year after the case is filed.  Just one cautionary note:  if a petition to remove is filed and the court finds that it was unjustified, the party asking for removal may have to pay the fees and costs associated with the action as well as having all the federal proceedings deemed void.

The final question is SHOULD a qualified case be removed to federal court.  There are a number of differences between the two systems.  Depending on the case you are handling and the strategy you want to utilize, you will need keep these differences in mind:  1)  Usually you can get a case to trial faster in federal court;  2)  Federal court will have greater judicial scrutiny of the case during discovery;  3)  Federal judges are also more inclined to impose sanctions when warranted; and, 4)  continuances are not easily granted.

One reason that federal courts may approach litigation differently is that federal judges are appointed for life, after being fully vetted by Congress.  Since they don’t face re-election, federal judges are less likely to face what state judges do, namely the need to garner popular support and solicit campaign contributions.   Also since the geographic area of a federal district is usually much larger than that of state courts, thus there is much less inherent bias between local and non-local parties and Counsel.

Other distinctions you may want to consider in deciding whether a case should be removed from state to federal court also exist.  For instance, a federal jury verdict whether a 6, 8 or 12 person jury must be unanimous, unlike Nevada for example where a jury verdict of 2/3 majority is valid.  Nor does federal court allow peremptory challenges of judges.  Lastly, where out-of-state discovery is anticipated (witnesses, experts, etc) the procedures are much simpler under the federal rules. Also because discovery is quicker, and most motions are decided on written submissions, costs of litigation may be less expensive.

At Mills and Associates, we have removed a number of cases from state to federal court.  We are skilled in using the federal court system to our client’s advantages.  Please talk to us about whether removal is a viable and advantageous option.

About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

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