Removing a Case to Federal Court Offers Advantages

For litigators, the decision to remove a case to federal court is often a significant and difficult one. However, removal can be a powerful defense strategy, so it should be an important tool in any civil litigator’s briefcase.

The removal process – which involves moving a lawsuit from state court to federal court – can occur for two reasons. The first is being complete diversity, where the parties are citizens of different states and the amount in controversy is over $75,000.

The second is federal question jurisdiction. That means if a plaintiff’s claim raises a question under federal law, defense counsel can seek to remove the case to federal court.

While plaintiffs get to choose where they initially file a lawsuit – and often will file in a court that they believe is advantageous to their case – defense attorneys can use the removal option to gain back some advantage for their client.

Among the additional advantages:

1. Removal provides not only a new jurisdiction but also may provide a larger pool of judges.
2. The jury pool is also larger in federal courts.
3. Federal court may provide more neutral ground for the defendant.
4. Oftentimes, federal judges have greater breadth of knowledge and exposure to different types of case law.

Removal doesn’t guarantee success, of course. A federal judge may have more rigid rules than a state judge, various standing orders to be aware of, and more leeway in determining how their courtroom is run. All of these could weigh into how the case will be heard and determined.

And just because you can seek to remove doesn’t mean you should. It’s wise for litigators to envision the outcome they desire and then determine whether the move to federal court is likely to deliver that outcome. For example, a federal court that entertains a challenge to its jurisdiction or identifies one itself, may order remand of the case back to state court.