In litigation, one of the first strategic considerations is to determine where the case will be filed. This is extremely important for a variety of reasons, and in business disputes, the client’s input is important as well. For the most part, where the case is filed is the plaintiff’s decision. But not always. There are times when a defendant can choose where the case will be litigated. One of the issues to be evaluated in cases filed in state court is whether the case is subject to removal from the state court to the federal court where that state court is situated. Cases that raise federal questions and cases that involve diverse citizens of different states can be removed from state to federal courts. In evaluating a case on behalf of a defendant, an attorney should not forget to consider whether it may be wise to litigate the matter in federal court. Remember, in cases where the plaintiff is well represented, plaintiff’s counsel has already made the strategic decision to file in state court. Why? Is there something about federal court that the plaintiff wants to avoid? Is there a benefit to choosing a forum that plaintiff wants to avoid? Experienced counsel know the answers to these questions and can help make the best strategic decision. Pro tip: Just because the plaintiff does not want to litigate in federal court does not mean that defendant should want to litigate in federal court. There is more to the analysis, and sometimes both sides will agree that state court is the better forum. If you decide that removal would be wise, remember to follow the strict procedural rules and deadlines for removal. Also, keep in mind that a plaintiff has the ability to request that the federal court remand the case to state court for several reasons. But generally, if the case was properly removed in the first place, a federal court will keep the case and decided it in that forum.
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