Lawyers are, by nature, problem solvers. Many enjoy the puzzle of a complicated client question and find great satisfaction in solving that puzzle in a way that benefits their client’s goals, whether those goals are litigation-related, regulatory, or commercial in nature. Bringing resolution to a thorny issue—and impressing a client at the same time—is and feels like a win in a profession that rarely grants a clear victory.
Many of those same lawyers would count civil procedure as a problem to be overcome. Indeed, the term “civil procedure” conjures memories of law school cold calls, represents a labyrinth of rules and deadlines, or, to some, feels like an unnecessary box to check en route to a true resolution of a complicated question. But this need not be the case.
Civil procedure, especially in the federal court system, can be a powerful tool to solve complicated client problems. The federal civil procedure framework—including the Federal Rules of Civil Procedure, along with numerous precedents and federal statutes governing removal, venue, and the federal courts’ jurisdiction over various types of claims—provides a means by which attorneys can increase their likelihood of success in the courthouse. A strong grasp of federal civil procedure can also save clients time and money, enable attorneys to advocate for their clients more efficiently and effectively, and position their clients’ interests well in non-litigation contexts. Thus, properly understood, federal civil procedure is a secret weapon that can fundamentally alter the course of representation and a client’s business. And lawyers can have fun wielding this weapon.
While there are many ways that federal civil procedure may be used to a client’s or attorney’s advantage, five ways in particular stand out. First, clients and their counsel may benefit from strategic removal of a case from state court to federal court. Second, plaintiff clients may benefit from a tactical amendment while a motion to dismiss is pending or during the course of discovery. Third, if a case proceeds to trial, it may be in a client’s interest to seek judgment as a matter of law on discrete issues. Fourth, if forum contacts are light or allegations against a defendant client are sparse, a client may find it beneficial to challenge a court’s personal jurisdiction over the client. And, fifth, a client may benefit from filing a new suit or seeking a stay of the litigation while similar cases or administrative proceedings progress elsewhere.
Many clients—and their counsel—may be well served by removing a case from state court to federal court pursuant to 28 U.S.C. § 1441. However, many attorneys are not aware of the full breadth of removal opportunities pursuant to federal preemption and the corresponding problem-solving opportunities presented by such removal.
Section 1441 governs the removal of civil cases from state court to federal court and declares that
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 the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
That is, if a case could have originally been brought in federal court but was filed in state court, it may be removed by the defendant (or defendants) to the appropriate federal district court.
Removal can solve a host of potential problems. To start, federal courts often have smaller dockets, and more resources, than their state court counterparts. Accordingly, a federal judge may be able to hear and decide a client’s case more quickly than a state court judge would.
Similarly, federal courts may be more experienced with certain types of claims than state courts and therefore may be better equipped to analyze a client’s case to reach a just—if not outright favorable—decision. For example, a federal court may be much more accustomed to cases involving the Fair Credit Reporting Act than a comparable state court located within the same geographic area.
In addition, federal juries may be drawn from a wider geographic area than juries in state courts. While a state court might pull jurors from a primarily rural county, for instance, potential jurors in a federal court in the same region could also come from a nearby city or suburban center. As a result, federal juries may be more diverse than their state counterparts—jurors may reflect a wider variety of socioeconomic, political, regional, and educational backgrounds than jurors in a state court. This could prove beneficial for clients in deciding whether to take a case to trial, as well as during the trial itself. For example, if a client or counsel are not local, drawing jurors from a wider geographic area could prevent unfair bias or bolster the likelihood of a positive outcome at trial. Jurors representing a broader geographical area may be less likely to see a foreign business or unfamiliar counsel as outsiders.
Removal to federal court may also enable a client to more easily move the case to a different venue. There are myriad reasons why a change of venue might benefit a client. For instance, transfer of the case to a different venue may enable the client to take advantage of case law that is more favorable to the client (if the case could have been brought in that jurisdiction originally), or it may enable the client to litigate the matter in a location more convenient for the client or the client’s important witnesses. A change of venue is limited in a state court action.
Sometimes, removal itself achieves the basic purpose of getting a case dismissed. A client and lawyer comfortable with local courts may feel intimidated by the federal forum and decide to resolve a case rather than pursue it. On more than one occasion, we have successfully ended a dispute simply by removing it.
Removal is not always obvious on the face of a complaint. Most attorneys would consider removing a state court complaint that alleged a claim for violation of federal law. However, removal also may be available for purely state statutory claims due to federal preemption of the subject matter. For example, certain state law computer-fraud claims that prohibit copying of business materials are preempted by federal copyright law and may therefore be removed to federal court. See, e.g., Maxient, LLC v. Symplicity Corp., 63 F. Supp. 3d 592, 599 (E.D. Va. 2014) (finding portions of the Virginia Computer Trespass statute to be preempted). Removal in these circumstances can be of great strategic value to a client. In addition to the general benefits of removal discussed above, removal of state law claims under a theory of federal preemption—particularly where a plaintiff did not intend to invoke federal law—may provide a solution for clients who need to pause the case for a short time or who would benefit from partial dismissal or settlement discussions if remand is sought.
A client may also benefit from amendment of the complaint before, or during, briefing on a motion to dismiss. The early opportunity to amend a complaint as of right may prevent or resolve significant concerns for a client, such as allowing the client to correct any pleading oversights or add crucial claim details, without risking dismissal or incurring the expense of seeking leave to amend over opposing counsel’s objection.
Rule 15(a)(1) states that
a party may amend its [complaint] once as a matter of course within: . . . 21 days after serving it, . . . 21 days after service of a responsive pleading[,] or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
And for circumstances in which a party does not amend its complaint as a matter of course, Rule 15(a)(2) provides that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.”
Early amendment may solve, or prevent, myriad problems for client and counsel alike. At bottom, a by-right amendment is essentially a “do-over” to strengthen a complaint. This may involve adding or amending allegations to enable the case to survive a defendant’s motion to dismiss—including after evaluating any arguments for dismissal—or adding or amending allegations based on further information learned during post-filing investigation. For instance, if a client’s complaint suffers from a technical failure, such as a failure to plead jurisdiction properly, amendment of the complaint could save the case from dismissal. Likewise, if it becomes clear during post-filing investigation that another individual or entity participated in the alleged wrongful conduct—or may be responsible for the defendant’s liability—and the client may have a legal claim against the individual or entity, it may make sense to amend the complaint to seek damages from that individual or entity as another defendant.
Moreover, amendment of a client’s complaint can buy the client (and counsel) more time to strategize and prepare for subsequent stages of the litigation. A defendant generally has 21 days (or 60 days, if the defendant has waived service) to respond to a complaint—either by filing an answer to the complaint or by filing a motion to dismiss. Filing an amended complaint restarts that response clock, and the client can use that additional time to prepare for discovery or motions practice.
Critically, the amendment of a complaint can also narrow the scope of the case to save the client and counsel from needlessly litigating claims that will not succeed. To the extent the legal or factual basis for a claim changes early in the case—or a client no longer sees a strategic or business value to pursuing a particular claim—amendment can save effort and expense for the client, the attorney, and the court. Early amendment in these circumstances enables the client and counsel to focus on the most important issues before the court, potentially decrease attorney time and costs, and potentially increase the client’s likelihood of success on the claims the client chooses to pursue.
Moving for judgment as a matter of law on strategic, narrow issues during trial pursuant to Federal Rule of Civil Procedure 50 can be beneficial for a client in numerous ways. Doing so can narrow—and potentially simplify—the issues ultimately presented to the jury. And even if not successful, a motion for judgment as a matter of law may operate to solve problems for the client and court.
Rule 50 provides, in general:
If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.
Unsurprisingly, moving for judgment as a matter of law during trial can help increase a client’s chances of achieving a successful outcome of the litigation. For one thing, a motion for judgment as a matter of law will be ruled on by the judge presiding over the case. That is, by moving for judgment as a matter of law, the client can potentially save an issue (or multiple issues) from being decided by a jury of laypersons and, instead, have it analyzed and decided by an experienced federal judge. This may be particularly useful to a client embroiled in a complicated area of law that benefits from legal expertise and familiarity, such as patent claims or contract interpretation. By the same token, a motion for judgment as a matter of law can help narrow the scope of the case for the jury and enable them to devote more attention and focus to other, more difficult or pressing issues in the case.
Even if not successful, moving for judgment as a matter of law during trial still can be beneficial and work as a problem-solving maneuver for certain clients. For instance, preparing such a motion requires a client and counsel to step back from the nitty-gritty details of trial and ensure that the big-picture claim or defense is presented clearly. A well-presented motion for judgment as a matter of law can also create a strong record for appeal. And filing a motion for judgment as a matter of law during trial will enable the client to file a renewed motion for judgment as a matter of law after the trial. Not only does this allow the judge a second review of the argument, but after the throes of trial, a judge may have more time to carefully consider and analyze the arguments in the motion. That analysis may lead the judge to grant the motion in the client’s favor.
Moving for judgment as a matter of law can also save a client time and money. Specifically, if the court grants the motion, the client may save time and money that would have otherwise been spent filing an appeal or moving for a new trial. And if a defendant client successfully obtains judgment as a matter of law, the costs and expense of presenting a defense during the latter half of trial are reduced or potentially eliminated.
Challenging personal jurisdiction by filing a motion pursuant to Federal Rule of Civil Procedure 12(b)(2) can serve as an additional avenue by which to solve client problems and obtain an early litigation advantage.
To challenge personal jurisdiction, a client must file a motion to that effect before filing an answer to the complaint. There are many reasons why it may be beneficial to challenge personal jurisdiction, particularly where claims against the client are sparse, the client wishes to distance itself from other defendants, or the plaintiff’s chosen jurisdiction may be inconvenient or challenging.
Primarily, a client’s successful challenge of personal jurisdiction may result in the court dismissing the litigation, or at least dismissing the client from the litigation. Even if the litigation may be refiled in another court that has personal jurisdiction over the client, challenging personal jurisdiction in the initial lawsuit can buy the client—and counsel—time to prepare their case, obtain funding, or identify the true responsible parties. Alternatively, the client may have a better chance of success if it is sued in its home court. And in some cases, the plaintiff may choose not to file suit elsewhere because it lacks interest or resources to pursue the case in a different jurisdiction.
Likewise, if it is unclear whether a court has personal jurisdiction over a client, challenging personal jurisdiction forces the plaintiff to establish, by a preponderance of the evidence, that personal jurisdiction is appropriate. This can, in some instances, prompt the plaintiff to seek discovery to determine whether personal jurisdiction exists. Although discovery can be expensive, jurisdictional discovery is limited and can be a means to break up the discovery process for a defendant client. And if the motion to dismiss for lack of personal jurisdiction is successful, the costs of limited jurisdictional discovery are typically lower than the costs a client would suffer were the litigation to proceed. Jurisdictional discovery also requires the plaintiff to preview its discovery strategy and incur additional costs, which may encourage dismissal or settlement.
In addition, challenging personal jurisdiction via Rule 12(b)(2)may allow a lawsuit to be dismissed without resolution of the merits of the plaintiff’s case. This can be especially beneficial in certain circumstances if there is a risk that a resolution on the merits could create unfavorable case law or would present a business risk for the client.
Finally, it may be beneficial for a client to file a new case covering the same alleged misconduct or to seek a stay of litigation as parallel cases proceed in other jurisdictions. In some circumstances, a client may need to control the pace of litigation—either because it is proceeding too slowly or too quickly and in too many jurisdictions—and the strategic filing of suit or a motion to stay can help the client keep its claims or defenses on track.
On the one hand, a client may benefit from the opportunity to bring a new suit in federal court. Although attorneys may not file duplicate cases, the client needing quick resolution may benefit from seeking declarative relief in a relevant jurisdiction, filing suit against new or previously undiscovered defendants that were not available in the original lawsuit, or pleading alternative, previously unavailable claims in a new case. A new suit of this nature may be particularly useful if a client’s original claims are stalled by procedural hurdles, relief against certain defendants is not available, or the client needs an alternative means of obtaining relief. In those circumstances, understanding federal civil procedure—and what claims or defenses may or may not be filed in a separate case—may provide an attorney with additional options to secure the client’s goals.
On the other hand, seeking a stay of federal court proceedings may be useful if parallel cases are proceeding elsewhere. In such circumstances, a stay could prevent inconsistent rulings against a particular litigant dealing with dual-track litigation. Alternatively, a stay of litigation may buy a client and counsel more time to develop their case and hone their strategy and arguments, or to limit the costs incurred in litigating claims on multiple fronts. And to the extent separate litigants have brought similar legal claims, a stay may allow the later-filing litigant to capitalize on favorable rulings or case law that could prove persuasive to the court presiding over its case. Seeking a stay as parallel cases proceed gives this case law time to develop and, ultimately, benefits the judicial process as a whole.
Like any tool in a lawyer’s toolbox, federal civil procedure is a means by which attorneys can more efficiently, and more effectively, advocate for their clients. Wielding this tool effectively requires not only familiarity with the rules but a willingness to engage with them. Embrace the fun of outmaneuvering opposing counsel, digging up an arcane procedural tactic that advantages your client, and thinking three procedural steps ahead. Not only will you find opportunities for your clients to achieve an outright win at trial, secure a favorable dismissal of a claim, litigate in a more favorable jurisdiction, or open the door to favorable settlement discussions—you’ll also lower client costs and be ready to shift gears when your client’s needs change. Plus, you’ll have fun doing it. Clients will always need creative solutions, and attorneys who are comfortable with federal civil procedure and how it works will be better able to provide that solution when it counts.
