September 01, 2013

Remove Your Case to Federal Court Lesser Known Options

When you need to get a case out of state court, the federal officer removal statute may provide a winning option.

Andrew E. Shipley

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You receive an urgent email from your client attaching a complaint filed in a county circuit court that demands millions of dollars in damages and a jury trial on all counts. The email opens with the following question: “Can you get us out of state court?” Having represented this client before, you know that as a large company, it would rather not deal with a David versus Goliath battle waged before a local county jury. You also know that this particular state’s procedural rules make summary judgment hard to come by. You start thumbing through the complaint to assess grounds for removal.

The plaintiff and your client both reside in the same state; absent diversity, federal question jurisdiction constitutes your sole option. Unfortunately, the complaint alleges only state law causes of action—primarily breach of contract claims with an unfair trade practices count tossed in for good measure. You recall from your civil procedure class in law school the doctrine known as the “well-pleaded complaint” rule. Under this doctrine, plaintiffs may frame their claims as they see fit—if they choose to pursue only state law causes of action, a defendant may not create federal question jurisdiction by asserting federal defenses to them. In addition, the federal question removal statute, 28 U.S.C. § 1441(a), is narrowly construed with the burden of proof resting on the removing party. Moreover, if a federal court remands the action, the removing party has no right to an interlocutory appeal because the moment the court issues the remand order, it divests itself of jurisdiction.

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