Removing A Case To Federal Court

Plaintiff files a Complaint in the state court against several defendants alleging that he was injured by a machine at work. As defense counsel for one of the defendants, the first thing you must consider is whether this case can, and should, be removed from the state court to the federal court. You must act quickly because removal papers must be filed within 30 days of first service of the Complaint upon any of the named defendants.

What is removal?

Removal simply means that an action filed by the Plaintiff in the state court system such as the Superior Court of New Jersey may in certain circumstances be transferred by the defendants to the federal court in New Jersey. If removal is successful the case will proceed as usual but within the federal system where federal procedural rules will apply and a federal court judge and/or jury will hear the case.

Why would a defendant want to remove a case to federal court?

One of the reasons defendants consider removing cases from the state courts is that federal courts are perceived to be more friendly to defendants. Some counties in New Jersey have the reputation of awarding plaintiffs high jury verdicts. Defense counsel receiving a Complaint filed in one of those counties will therefore seek to have the case removed to federal court where the jury is pulled from a larger geographic area in hopes that the jury ultimately hearing the case will not be so forthcoming in awarding damages.

Another consideration by defense counsel is that many plaintiff’s attorneys are not as familiar with federal courts as with state courts. Not knowing well the judges and the procedural rules in the federal system can make plaintiff’s counsel feel uneasy. The comfort level is further destroyed when the plaintiff realizes how much faster a case may proceed in federal court. Defense counsel may use his usually greater familiarity with the federal courts to his advantage throughout the course of the litigation.

When can a case be removed to the federal court?

A defendant can remove a case from the state court system only if the case is one in which the federal court has “original jurisdiction.” The federal court has original jurisdiction if a federal question is involved, including when treaties or a Constitutional issue is involved such as with civil rights matters. (This article will not discuss removal of those cases.) The federal courts also have original jurisdiction under diversity jurisdiction which occurs when the plaintiff is from a different state than all of the defendants. This is the most common basis of removal of a state court case. Finally, the case must be worth at least $75,000 for the federal court to have jurisdiction.

How does one remove a case to federal court?

If in consultation with the client the defense attorney decides that litigating the case in federal court is more beneficial than allowing it to remain in state court, he will analyze whether the case qualifies for removal. First, he must make sure that no defendant was served with the Complaint more than 30 days ago. Second, he must get some evidence that the case is worth more than $75,000, such as from a demand made by plaintiff’s counsel. Third, complete diversity between the parties must exist, meaning that citizenship of every plaintiff must be different from the citizenship of every defendant.

Take as an example a simple products liability case filed in the Superior Court of New Jersey. Plaintiff’s hand was caught in a machine while working for his employer in New Jersey. Plaintiff sues the manufacturer and the repairer of the machine (but not his employer) and his wife joins the Complaint for consortium damages as another plaintiff. Both plaintiffs reside full-time in Newark and can be deemed to be citizens of New Jersey.

In order to be able to remove, defense counsel must show that all of the named defendants are not citizens of New Jersey. Since frequently the named defendants will be corporations, he must keep in mind what determines the citizenship of a corporation. Both the principal place of business and the state of incorporation are considered. If either is in New Jersey, that corporation is deemed to be a citizen of New Jersey and removal is not possible.

Plaintiff’s complaint names as defendants the manufacturer of the product, Gretzky Company, and a company which allegedly maintained and repaired the product, Lemieux Company. Gretzky is incorporated in Delaware with its principal place of business in New York. Lemieux is incorporated in Pennsylvania and has its corporate offices in Pittsburgh.

Removal of this case is possible since complete diversity exists. Both plaintiffs are from New Jersey, and both defendants are from out of state, so the defense attorney for one company or the other can attempt to remove the case to federal court. All defendants must agree on removal to the federal court system, otherwise the necessary consent will not be given and the case will remain in state court.

Armed with the consent of Lemieux, the attorneys for Gretzky may file the necessary removal motion papers including affidavits, proposed orders and notices. Using the earlier date of service on either Gretzky or Lemieux, counsel has 30 days to file this paperwork with the federal court. If the plaintiff does not attempt to remand the case back to the state court by objecting on some grounds, such as his case is worth less than the $75,000 jurisdictional amount of the federal courts, the case will proceed in the federal system. Removal has been effectuated.

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