Posted on: 10/22/2012
Marissa L. Lyftogt and Carolina Bravo-Karimi
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As new attorneys, dealing with the federal court system can sometimes feel a little (or very) daunting. Whether it is the Federal Rules of Civil Procedure you have not looked at since law school, or the intimidation of life term appointments, federal courts are a different ballgame. The following article is meant to serve as an introductory guide to practicing in federal court.
I. Getting In
A. Grounds for Removal
We all know plaintiffs are the "master of their complaint," meaning they control the claims they raise and where their case is filed. Generally speaking, plaintiffs view state court as a much more favorable forum than federal court, which is why most plaintiffs choose to file in state court and strategically craft their complaint to avoid removal. Conversely, defendants view federal court as the ideal forum to defend claims in light of the perceived practical and strategic advantages, discussed below. This conflict means one thing for you as a defense lawyer: know your client's removal rights at all stages of litigation.
Although a case may not be removable when the initial complaint is served, it can later become removable by amendments to the complaint or other "voluntary" actions by plaintiff creating grounds for removal. In such event, defendant's right to remove arises when it is first put on notice that the case can be removed: i.e., upon receipt of "an amended pleading, motion, order or other paper from which it may first be ascertained that the case is . . . removable." 28 U.S.C. § 1446(b). This is why it is crucial to ask yourself throughout litigation whether either "diversity" or "federal question" jurisdiction can be established. This article cannot discuss all of the potential scenarios under which you may be able to remove, but below is a discussion of the most common scenarios in which a defendant's removal rights might arise and the key associated issues.
Service of a Complaint (Initial or Amended): Upon receiving a complaint or amended complaint, the first thing you should evaluate is whether grounds for removal exist on the face of the complaint, i.e. whether the case could have been filed in federal court. If so, the next step is to determine whether all defendants have been served and whether they will also join in the removal. In January 2012, the federal removal statutes were amended codifying the judicially created "rule of unanimity" requiring all properly joined and served defendants to consent to removal. See 28 U.S.C. § 1446(b)(2)(A). A rare exception to this rule is where you remove on the grounds that the federal claims against your client are "separate and independent" from the claims against the other named defendants. See 28 U.S.C. § 1141(c). Once all defendants are in agreement, the notice of removal must be filed within 30 days of the date on which service was effectuated on the last served defendant. 28 U.S.C. § 1446(b)(2)(B).
Information Obtained Through Discovery: In order to avoid removal, plaintiffs often ambiguously draft their complaint so it is unclear whether "diversity" or "federal question" jurisdiction exists. This is where discovery can be very useful. For example, if you are trying to establish diversity, you can propound written discovery in state court asking the plaintiff to specifically identify the damages he seeks to recover. Once such information is obtained, i.e. once you are put on notice that diversity jurisdiction exists, you have 30 days to remove the case. However, remember that removal on diversity grounds must be effectuated within one year after the action was filed. 28 U.S.C. § 1446(b).
Plaintiff's Failure to Serve Non-diverse Defendants: If a plaintiff voluntarily "abandons" his case against a non-diverse defendant, the action may become removable. In contrast, involuntary dismissal of a non-diverse defendant does not create grounds for removal unless you can establish the defendant was a "sham" defendant. Again, be cautious of the one-year removal deadline for diversity cases.
B. Practical and Strategic Considerations Regarding Removal
As discussed above, most defendants prefer to be in federal court. As an attorney, your job is to not only recognize when a case is removable but also to advise the client as to whether you think removal is the best course of action. While each case must be analyzed individually to determine whether federal court is indeed the better forum, below is a quick checklist of issues to consider when deciding whether to remove to federal court:
- Discovery: Once a case is removed, there is a "hold" on discovery until the parties conduct their mandatory Rule 26(f) conference. In some districts, there may be an even longer discovery hold. Depending on the amount of investigation you need to prepare your defense, this may be a huge benefit for you. The FRCP also has very specific limits on the amount and type of discovery that can be conducted. For example, the number of depositions and special interrogatories are limited. This may be an issue for your case if you have engaged in extensive discovery in state court where the limits are different. The parties can stipulate to expand the default discovery provided for in the FRCP, so make sure to raise any such issues at your Rule 26(f) conference. Lastly, in cases where out-of-state depositions are anticipated, the FRCP makes it easier to issue subpoenas in any state (as opposed to having to get a commission or a subpoena from the state where the witness resides as required in state court).
- Expertise: Federal judges are known to be more familiar with the nuances of federal statutes and case law. Federal judges also have the assistance of two law clerks who are highly skilled at conducting legal research. This means any motion you file will be thoroughly researched and briefed before the hearing.
- Hearing Dates and Trial: In most instances, and in contrast to states like California where the state judiciary has experienced drastic budget cuts over the past two years, you can get a hearing date on your motion without much delay. Similarly, cases move to trial much quicker, which may or may not be an advantage depending on your particular case.
- Familiarity with Federal Practice: Assuming you are familiar with the local federal practice and the FRCP, removal may give you a procedural advantage. In addition to potentially running afoul of the different rules of procedure, plaintiff's counsel may not be comfortable with the amount of control exercised by federal judges in moving cases to trial.
- Jury Considerations: By removing to federal court, there is a chance that plaintiff's counsel may inadvertently waive his or her right to a jury trial by failure to make a timely demand. Assuming a timely jury demand is made, unanimous verdicts are required in federal court which may be a huge advantage for a defendant if the state court requires less than a unanimous verdict. Additionally, depending on what district you are in, the jury pool may be different in federal court.
- Change of Venue: After removal, you may be able to transfer the case to another federal district (even in another state) "for the convenience of the parties and witnesses." In addition to making litigation more convenient for your client, it may put pressure on plaintiff to settle if the forum is undesirable for him.
A final consideration is the district to which you will be removing. There are no peremptory challenges in federal court so if there is a risk of being assigned a judge with whom you had a prior bad experience, be sure to include that in your analysis and your recommendation to the client.
II. Getting Out
One benefit to removing to federal court is the expertise of the federal judges and clerks and the ability to expedite litigation of your case. These factors are particularly advantageous if you intend to file any dispositive motions.
A. Motions to Dismiss
Upon removal, state court pleadings become subject to federal standards, including the Twombly/Iqbal "plausibility" standard and the much stricter standards imposed by FRCP Rule 11. These stricter standards enable you to challenge a complaint that contains no real factual allegations but merely recites the elements of a cause of action. Similarly, you can challenge claims which are "implausible" on their face, i.e., which do not enable a court to reasonably infer that the defendant is liable for the alleged misconduct. In short, claims which survive most liberal state court pleading standards may be subject to dismissal in federal court through a motion to dismiss or motion for judgment on the pleadings.
At the time you are evaluating your complaint to determine whether removal is possible, you should also analyze grounds for filing a motion to dismiss. If you intend to file a motion to dismiss after removal, remember that in most cases you will only have seven days after you remove to file your motion. See Fed. R. Civ. P. 81(2). Remember to check the local rules of the federal district to which you intend to remove to see if any other requirements must be met before filing a motion to dismiss. For example, some districts require you to meet and confer with plaintiff before you can file your motion.
B. Motions for Summary Judgment
Federal judges tend to be much more versed in the law. They also tend to be more familiar with their caseload than a state judge which means they may be more inclined to grant summary judgment. Notably, federal judges can grant partial summary judgment (summary adjudication) on issues in the case as opposed to just causes of action which is often the case in state court practice. Fed. R. Civ. P. 56(a). In addition to familiarizing yourself with the burden of proof required under federal law, you should be vigilant about the timing and notice requirements under the FRCP. While Rule 56(b) provides that a party can file a motion for summary judgment "at any time" until 30 days after the close of discovery, the local rules or the judge's scheduling order may limit the time for filing and/or hearing the motion. If the deadline is approaching, make sure to check with the court about reserving a hearing date to ensure your motion is filed and heard in a timely manner. Additionally, make sure to check the scheduling order and the local rules about the length of notice required. The default rule is that any motion, including a motion for summary judgment, be served at least 14 days before the time set for hearing (Fed. R. Civ. P. 6(c)(1)), but most local rules or chamber rules require a larger notice period.
III. Playing by the Rules
A. Know the Players
First things first, get to know the players. Federal District Courts are comprised of Magistrate Judges and District Judges and their accompanying staff. District Judges are appointed by the President of the United States and confirmed by the United States Senate for lifetime tenure. District Judges handle all dispositive matters in civil cases, such as motions to dismiss and motions for summary judgment.
Authorized by 28 U.S.C. § 631 et seq., Magistrate Judges are appointed to assist United States District Judges in the performance of their duties. Unlike District Judges, Magistrate Judges are appointed by a majority vote of the District Judges of a particular district and serve either an eight year term, if full-time, or a four year term, if part-time, subject to reappointment. Magistrate Judges conduct a wide range of judicial proceedings to expedite the disposition of the civil and criminal caseloads of the district courts. Congress set forth the outer limits of a Magistrate Judge's authority but to achieve maximum flexibility, it left the determination of which duties to assign to Magistrate Judges to the individual districts. Typically, in civil cases, Magistrate Judges handle all non-dispositive pretrial matters, such as discovery and settlement. However, they may also be assigned to write reports and recommendations to the District Judge. With the consent of the parties, Magistrate Judges may adjudicate civil cases in the same manner as a District Judge, including presiding over jury or non-jury trials.
This information is useful when you are unsure of who to call with a specific question in your case. Rule of thumb: unless you have consented to Magistrate Judge jurisdiction, call the District Judge assigned to your case with questions regarding dispositive motions, and call the Magistrate Judge in your case with questions regarding discovery and settlement.
B. Know the Rules
Of course, every attorney should review the FRCP, particularly provisions which may conflict with state law provisions. Attorneys also need to be very familiar with the local rules for the district in which they are appearing and each judge's chamber rules. As discussed above, these rules may alter the default rules in the FRCP. Most, if not all, district courts have the local rules and chamber rules posted on their website. Review all of these rules carefully before contacting the Court with questions in order to avoid receiving an answer like, "Refer to Local Rule 16.1."
If there is one golden rule about practicing in federal court, it is to avoid "ex parte-ing" at all costs. Nevertheless, be sure to review the rules concerning communication in every district you practice. The most significant difference among the various districts is the extent and manner in which attorneys are allowed to communicate with the court. Some courts allow direct telephone calls, whereas others prohibit it. And in some courts where telephone calls are permitted, the court requires all counsel to be on the phone before the court will entertain the call. Therefore, regardless of the district in which you practice, it is a good idea to contact opposing counsel to discuss the issue before calling the court.
Marissa L. Lyftogt and Carolina Bravo-Karimi are associates in Wilson Turner Kosmo LLP's Employment Law group. Litigating in both state and federal court, their practice focuses on claims of harassment, retaliation, discrimination, failure to accommodate, and wrongful termination. Prior to joining Wilson Turner Kosmo, Ms. Bravo-Karimi clerked for the Honorable Louisa S Porter in the Southern District of California. Ms. Lyftogt currently serves as a Young Lawyers Committee liaison to DRI's Employment and Labor Law Committee and was recently appointed by the California State Bar to serve on the Board of Directors of the California Young Lawyers Association.