Removing to the Federal Court means that your lawsuit transfers from State Court -where your attorney filed your lawsuit- to the Federal District Court for resolution. Because of that removal to the Federal Court, there are different Civil Procedure and Evidence Rules. Some attorneys with a law license for State Court do not have the credentials to practice in the Federal Court.Federal Court can take your case if it has jurisdiction. This type of jurisdiction is that a particular court can only hear a specific kind of case. There are different Courts for different sorts of legal issues, such as Family Court, Criminal Court, Probate Court, and Civil Court.
Federal Court also decides certain types of cases. One common type of case that a Federal Court has jurisdiction is where there is diversity. That is controlled by 28 US code section 1332. https://www.law.cornell.edu/uscode/text/28/1332. There are two required parts for the Federal Court to have diversity jurisdiction. First, the amount at stake is more than $75,000. That must be met for a Federal Court to have jurisdiction under diversity. The next required part is the diversity requirement.
The Basis For Federal Jurisdiction… Removing To Federal Court
The most common basis for federal jurisdiction that I see in my practice is that the parties are citizens of different states. For a Federal Court to have jurisdiction or the right to hear a case, there must be complete diversity. What that means is every defendant must be a citizen of a different state than the plaintiff. One example may be if FLACompany is a Florida citizen and sues NJCompany that is a citizen of New Jersey, there is complete diversity. The Federal Court will have jurisdiction if the amount at stake is more than $75,000. But if you change the facts slightly, there will not be diversity. Taking the same FLACompany is a citizen of Florida. But instead of just suing NJCompany that is a citizen in New Jersey, they also sue Harold Haroldson, a Florida citizen. In that case, there is not complete diversity, and the Federal Court would not have jurisdiction. That scenario is under 28 US code section 1441 B2. https://www.law.cornell.edu/uscode/text/28/1441
The original intention of removal of said civil actions was noble. We of all heard the term “hometown advantage.” For high-stakes litigation with a lot of money involved, Congress wanted there to be an even playing field so an out-of-state person or corporation would not get hometowned by the local state courts. The established framework of the amount in controversy and citizens of different states ensures everyone gets a fair hearing. Unfortunately, in many cases, that once noble intention has been twisted, and the risk of getting hometowned is not there.
For instance, let us look at Target in Palm Beach County as an example. They have 9 locations here in Palm Beach County. Because they are so familiar and employ hundreds of people here, they are part of Palm Beach County. That is to their credit. In my opinion, they would not be hometowned because they are part of our community. However, Target is technically a citizen of a different state and routinely removes cases to Federal Courts.
I searched the Palm Beach County Clerk’s website for cases involving Target for all of 2019 through the first half of 2020 in premises liability cases (slip and fall or trip and falls). They filed a notice of removal 16/19 times where there was not an obvious Florida co-Defendant.
In 2019 and the first half of 2020, here are the statistics.
- Number of total cases-24.
- Number with diversity-19.
- The number where there was a notice of removal-16.
- Target filed a notice of removal in 16/19 cases.
It is not just Target, but many other big-box retailers and familiar corporations will remove to Federal Court based on diversity jurisdiction. That is true even if they have a large presence here in Florida. To be diverse, it is not about their presence here in Florida, but if they are citizens of a different state.
Can the defendant remove from federal Court?
Yes, if they meet the checklist and file their notice of removal by the deadline.
When can the defendant remove from Federal Court?
There are strict deadlines for a defendant to remove the case. Under 28 US code section 1440 (b)(1), they have 30 days to file the paperwork to remove the case to Federal Court. Defendants will sometimes get a second opportunity up to a year after the plaintiff serves the lawsuit. In my example above, if the plaintiff settles with Harold Haroldson within a year of serving the lawsuit, NJCompany can remove the case to Federal Court. But, if Harold Haroldson does not resolve his case with the plaintiff for more than a year after the service of the lawsuit, NJCompany cannot remove from Federal Court. That one-year deadline is strict.
Can a defendant remove from Federal Court after their answer?
Yes. Defendants may remove a case after their answer. As long as they remove it within 30 days of initial service, or within one year if the case somehow changes and the parties became completely diverse. See 28 US code section 1446https://www.law.cornell.edu/uscode/text/28/1446
Why do defendants remove from Federal Court?
There a lot of reasons defendants will remove a case. If there is a federal question or is based on federal law, the Federal Court is the proper place. The main reason defendants want to be in Federal Court for insurance or negligence questions is that Federal Courts are much more liberal in granting summary judgment. It is far easier for a party to obtain summary judgment in Federal Court.
What does summary judgment do?
This question is a topic for another post, but the effect is that if a Judge grants summary judgment against you, you lose on that issue or even the whole case. No trial. No Jury. You lose. Sometimes a party will move for summary judgment on one issue in the case and not the entire case. If that happens, the Court can grant summary judgment, and you lose on that issue.
What is remand?
Remand is the opposite of removal. It is when a party sends a case back to state court after the other party removes it to Federal Court. Being remanded to State Court happens for a lot of reasons. In the Target examples cited above, the Federal Court remanded some cases to State Court.
At Dyson Law PLLC, we have the background, experience, and licenses to proceed if the defendant removes your case to Federal Court. We have been fortunate to co-counsel with other lawyers after their client’s case has been removed to Federal Court. The initial lawyers were not licensed or comfortable proceeding in Federal Court and called us to assist their clients. We are proud of the results that we have gotten for our clients. Please call Dyson Law PLLC at 561-903-4542 if your case was removed to Federal Court, or you believe that it may be removed to Federal Court.