Modern Removal and Remand Strategies: Keeping the Case Out of (or In) Federal Court

Forum Defendant Rule, Snap Removal, Home Depot v. Jackson

Recording of a 90-minute CLE video webinar with Q&A

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Conducted on Thursday, February 11, 2021

Recorded event now available

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Course Materials

This CLE course will discuss getting a case into or keeping a case in a preferred forum or moving it out of an opponents' choice of forum through removal and remand. The program will cover how both defendants and plaintiffs have achieved the desired advantages by a thorough understanding of the forum defendant rule and snap removal, 28 U.S.C. 1147(e), 28 U.S.C. 1446, federal officer removal, federal question jurisdiction, and the consequences of removal on pleadings and motion practice. The panel will also point out how to spot what the opposing party may be up to and the best responses for countermoves.

Description

A defendant in a lawsuit filed in state court can "remove" the case to federal court if there is a diversity of citizenship, except if a "properly joined and served" defendant is a citizen of the forum state. With the advent of electronic filing, defendants now have instantaneous notice of suits and may remove the case before being served, thereby sidestepping the forum defendant rule. Although several U.S. Circuit Courts have approved the practice, a debate remains on whether this practice should be approved.

Plaintiffs have their own toolbox to anticipate removal strategies and take preemptive actions to make removal difficult and remand likely. Since all parties can play the literal-reading-of-the-statute card, plaintiffs have seized on ways to bring the "real" parties into the dispute in such a way as to prevent removal.

If the case comes to a stop in federal court after removal, the parties must be aware of how the change in forum impacts the rest of the case: deadlines, motions, pleadings, what must be answered, and what is stayed.

Listen as this experienced panel of litigators discusses which removal and remand planning and strategies can make the most difference.

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Outline

  1. Statutory authority and procedural requirements
  2. Strategies for plaintiffs
    1. Avoiding federal question
    2. Avoiding diversity, pre- and post-filing
    3. Federal question issues as counterclaims; Home Depot v. Jackson
    4. Amending the complaint
  3. Strategies for defendants
    1. Contractual forum selection
    2. Snap removal
    3. Finding federal question jurisdiction
    4. Preemption
    5. Federal officer removal
    6. Federally chartered defendants
  4. Consequences of removal
    1. Avoiding remand
    2. Effect of removal on pleadings and motion practice

Benefits

The panel will review these and other key issues:

  • What statutes govern removal and remand?
  • What is snap removal?
  • What is federal officer removal, and when does it apply?
  • How can one avoid pleading with federal issues or questions?
  • What are the consequences of successful removal?
  • Can removal or remand occur well past the 30-day time period in 28 U.S.C. 1441?

Faculty

Fritzson, Joseph
Joseph S. Fritzson
Attorney
J.S. Fritzson Law Firm

Mr. Fritzson has handled all types of general liability matters and commercial litigation issues. He has represented...  |  Read More

Reichenberger, Eric
Eric L. Reichenberger
Attorney
Marshall Dennehey Warner Coleman & Goggin

Mr. Reichenberger is an associate practicing in the Casualty Department. He devotes a significant amount of time to the...  |  Read More

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