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To Remove or Not to Remove. That is the Question

| Nov 14, 2020 | Firm News |

A defendant who is sued in a state court forum may have the right to remove that lawsuit to the federal court in the judicial district where the state court is located. There are very specific rules that apply in this situation. First, only cases that raise federal questions and/or substantial cases involving parties with diverse citizenship are eligible to be removed to federal court. Second, removal has to be accomplished very quickly, not after the defendant has already begun to litigate the case in the state court.

So which cases should be removed to federal court? In my view, this is a very strategic choice, and should never be taken reflexively.

The decision requires a clear understanding of the nature of the claims and counterclaims, and an assessment of the expected benefits of each potential venue. Considerations include the nature of the potential jury pool, the length of time it may take the case to get to trial, the likelihood of obtaining a summary judgement without the necessity for trial, the desirability of having pretrial case management by an assigned judge, and in some cases, whether the state or federal case law precedents are more favorable to the client’s case.

It may take some time and a fair amount of investigation before an attorney can make an informed decision on this issue. For this reason, a defendant who is served with a lawsuit should obtain counsel immediately.