by Eugene G. Beckham
I. WHY REMOVE A CASE TO FEDERAL COURT.
- A plaintiff generally gets to pick the forum and venue and this is one way to disrupt his/her possibly well-planned approach and to level the playing field. The removing party may have better familiarity with federal rules and procedural requirements. Plaintiff would have filed the action in district court if he/she wanted to try the case in federal court. In order to remove the case to federal court, you must be a federal bar member and trial bar member or file your petition to be admitted pro hac vice simultaneously with your notice of removal; or add as co-counsel an attorney who is a trial bar member.
- Fed. R. Civ. P. 26(a)(1), requires plaintiff (and defendant) to make pre-discovery disclosures. This saves money and lessens defendant's burden to quickly discover everything important from a secretive or less-than-candid plaintiff. Plaintiff must disclose:
- Knowledge about witnesses and their knowledge of the case (Fed. R. Civ. P. 26(a)(1)(A));
- The location and content of documents (Fed. R. Civ. P. 26(a)(1)(B));
- Damage calculations and the factual basis for same (Fed. R. Civ. P. 26(a)(1)(C)); and
- Allow for the copying and inspection of insurance agreements. Fed. R. Civ. P. 26(a)(1)(D).
- Without request, both parties must disclose experts along with (a) reports; (b) the basis of all opinions; (c) all exhibits used in reaching any opinion; (d) curriculum vitae; (e) a list of publications; and (f) a list of "any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years." Fed. R. Civ. P. 26(a)(2).
This helps expose unqualified or novice "experts" and those that habitually assist plaintiffs. In trial preparation and for discovery depositions, having this complete information in the initial stages is invaluable and saves money.
- Both parties must supplement disclosures previously made under enumerated circumstances as the need arises. Fed. R. Civ. P. 26(e).
- The interest rate on appeal is not 12% as in state court in Florida. §55.03, Fla. Stat. (1993). The rate applied is the coupon issue yield equivalent of the average accepted auction price for the last auction of 52 week U.S. Treasury bills settled immediately prior to the date of the judgment (28 U.S.C. §1961). Last week the interest rate was 5.49%. The easiest way to learn the rate is to call the clerk.
- The federal court has nationwide subpoena power. Attorneys issue subpoenas, not the clerk. Fed. R. Civ. P. 45. The ability to issue subpoenas saves both time and money.
After the initial discovery disclosures under Fed. R. Civ. P. 26(a)(1), I still propound interrogatories (subject to the limitations discussed in I.B.6, infra) about witnesses, documents and experts. Fed. R. Civ. P. 26(b), 33. This avoids surprises and shows diligence.
- The possibility of consensual referral to a Magistrate for trial adds control and can lead to quicker resolution. Fed. R. Civ. P. 73.
- Smaller cases will be encouraged to settle before the plaintiff has to prepare the extensive pretrial stipulation if a reasonable offer is made. A pretrial stipulation is required in the M.D. Fla. L.R. 3.06(b)(5) and in the Southern District by S.D. Fla. L.R. 16.1(E). There is no local rule requiring a pretrial stipulation in the Northern District.
- There are fewer frivolous objections to discovery. Bad faith objections in state court waste time up to the hearing date and beyond. This is not so in federal court. Cf. Fed. R. Civ. P. 11, 37.
- It is easier to obtain agreed orders because the plaintiff does not want to receive motions, write memoranda, responses and replies.
- Rules are more vigorously followed, deadlines are more stringently enforced, and real sanctions for violations are routinely imposed.
- Witnesses (and their employers) and parties pay added attention to federal court orders and subpoenas.
- If you form a plan to start with a burst of activity, take the initiative in scheduling and quickly institute it; you may keep plaintiff from becoming aggressive during the initial stage of the case. Occupy plaintiff for 30 days so he/she is too busy to educate himself/herself about 28 U.S.C. §1447(c) relating to the time limits to remand.
- Plaintiffs may not complain about removal, but they do not seem to like being forced to litigate in district court. Few attorneys would admit feeling at a disadvantage in federal court, but that sometimes becomes apparent. A plaintiff compensated on a contingency basis may view each hour worked as a loss of profit, viewing federal court litigation as extra work unnecessary to get the money the client deserves.
- In my experience, a posturing plaintiff unreasonably overvaluing his case above the $50,000 jurisdictional minimum will be the most unhappy if the case is removed. I believe this aids in good faith settlement negotiations because it may embarrass a plaintiff if he or she is ultimately awarded less than $50,000. Costs may be imposed. 28 U.S.C. §1332(b).
- Most cases with a value in excess of $50,000 can bear the cost of a federal court defense.
- 28 U.S.C. §1446(a) refers to Fed. R. Civ. P. 11 and may provide stiff sanctions for improper removal.
- No party has much control over the timing of rulings because there are few hearings.
- Rules are more vigorously followed, deadlines are more stringently enforced, and real sanctions for violations are routinely imposed. Discovery deadlines are strictly enforced (same as advantage 9, depends on your approach).
- Legal memoranda are required for most (but not all) motions. S.D. Fla. L.R. 7.1(A)(1).
- Is it more expensive than state court? Certain motions may be more expensive due to memoranda requirements (even on agreed orders), but overall this evens out. Your adjuster may be unfamiliar with federal practice and may suspect that it will increase billing. It is our experience that by avoiding motions due to agreements, the court's limitations on hearings, and the mandatory disclosures keeping initial discovery costs down, it is just as cheap, maybe cheaper than state circuit court practice.
- Short time limits to reply and respond to motions. Extensions are allowed and should be handled by agreed order when possible. Communicate with opposing counsel for advance notice (or hints) about upcoming motions.
- Interrogatories are limited. Fed. R. Civ. P. 26(b)(2). Local rules further limit interrogatories:
- Northern District is limited to a total of 50 in a case. (N.D. Fla. L.R. 7).
- Middle District is limited to a total of 25 (M.D. Fla. L.R. 3.03).
- S.D. Fla. L.R. 26.1(E) has no numerical limitation but has other limits about content and timing stated.
- If the plaintiff practices in federal court frequently and you do not, you could be making a mistake and giving the plaintiff the advantage you seek.
- The witness fee is $45.00 per subpoena.
- There is no rule providing for an independent medical examination as a matter of right, you must file a motion. Fed. R. Civ. P. 35. My experience is that if the plaintiff refuses to attend a reasonable independent medical examination, the court will grant the motion. Limit the number or examinations requested to the bare minimum and good practice (and perhaps local rules) requires that you supply good medical documentation such as post-treatment, records, plaintiff's experts' reports, IME report of other doctors, and an affidavit of yourself verifying the need to support each request. I have been denied an IME even though plaintiff treated with a doctor of the same specialty (neuropsychology) and I have also been allowed to have an IME of a plaintiff by a physician of a specialty that never treated the plaintiff (orthopedic).
- Plaintiff may accuse you of obstructionism and delay for removing a case. S.D. Fla. L.R. 16.1(A)(2) provides for three different "tracks" for scheduling progress of litigation depending upon the apparent complexity of the case. In our experience in the Southern District, cases have uniformly been set for trial within ten months of removal ("Standard Track").
- Florida Supreme Court Standard Interrogatory Forms are partially objectionable under S.D. Fla. L.R. 26.1. You may sometimes serve your interrogatories pursuant to Fed. R. Civ. P. 33 immediately and get answers, without objections, before you must answer plaintiff's interrogatories with objections, if warranted. Answering the Florida standard interrogatories can be a bargaining chip at the S.D. Fla. L.R. 16 conference.
- An influential plaintiff's counsel who is used to getting preferential trial dates and easy continuances will be treated equally.
- Conflicts with other court dockets and discovery scheduling seems to be more easily resolved when federal involvement is disclosed.
- There are innumerable facts and applications of law where federal law or procedure gives advantages to the savvy litigator. To discover and exploit these situations for the protection and benefit of your clients is one of the creative challenges facing the federal court practitioner.
II. WHEN TO REMOVE.
Does jurisdiction lie?
- Removal prohibited.
- Admiralty cases. 28 U.S.C. §1333.
- F.E.L.A. (railroad) cases. 28 U.S.C. §1445.
- Removal prohibited.
- Workers' compensation cases. 28 U.S.C. §1445.
- Removal allowed.
- Federal question. 28 U.S.C. §1331.
- Diversity. 28 U.S.C. §1332.
- $50,000.00. (a)
How to get $50,000 demand, using the "good faith" standard. (i) Obtain a demand orally or by letter. Offer stipulation that no judgment may be entered over $50,000. Plaintiff's refusal to agree can be relied upon.
(ii) If demand is too small (perhaps purposely) but you still want to remove, get a letter or oral statement that the number is for "settlement only", surely more will be sought at trial.
(iii) Claims of separate parties (other than derivative claims) cannot be aggregated to reach $50,000.
(iv) Threshold may be founded on your own opinion - either the plaintiff's or defendant's point of view will suffice if it is in good faith. 1A James Wm. Moore, Brett A. Ringle & Jeremy C. Wicker, Moore's Federal Practice 157, at 132 (2d ed. 1993).
- $50,000.00. (a) How to get $50,000 demand, using the "good faith" standard. (i) Obtain a demand orally or by letter. Offer stipulation that no judgment may be entered over $50,000. Plaintiff's refusal to agree can be relied upon.
Citizenship (not residence)
- Individual citizens of different states.
EXAMPLES OF DEFENDANT CITIZENSHIP AND
DIVERSITY WITH A FLORIDA CITIZEN/PLAINTIFF ______________________________________________________________________ FLORIDA on D/O/A; VIRGINIA when filed and removed - Yes diversity
VIRGINIA on D/O/A; FLORIDA when filed and removed - No diversity
FLORIDA on D/O/A, when filed; VIRGINIA when removed - No diversity
VIRGINIA on D/O/A, when filed; FLORIDA when removed - No diversity
- Corporations (28 U.S.C. §1332(c)(1)). Principal place of business and all states in which corporation is incorporated. Exceptions for insurance companies and uninsured motorist cases.
- Citizenship on date action filed and date action removed are determinative.
Time Limits to Remove.
- 30 days from date of service. 28 U.S.C. §1446(c). An old plaintiff's trick is to give the defendant in a removable case an extension to respond hoping that the defendant will not realize the removal time expires, or put the file down for a week or so. Remember, only 20 days to answer. NEVER REMOVE A DEFAULT.
- The 30-day time limit has been held to not be jurisdictional, so it can be waived. See generally Quentin F. Urquhart, Jr., Waiver of Defects in Removal Jurisdiction, in 34 For the Defense 12, at 2-10 (Dec. 1992). Plaintiffs are not often practiced at remanding and waivable defects in the notice of removal may go unchallenged.
- A case cannot be removed after more than one (1) year in suit. 28 U.S.C. § 1446(b).
- A case can be removed upon amendment of the pleadings to raise amount in controversy. 28 U.S.C. §1446(c).
In the Case of Multiple Defendants.
- If all defendants are served, the notice of removal must be filed stating whether all co-defendants join and consent. If all served defendants do not join, your attempt to remove will fail.
- If all defendants are not served, those served must file a notice of removal and state that the named co-defendants are not joining because they have not been served. The citizenship of non-joining parties should be alleged if possible.
- If you represent both (or all) defendants and one is served but the rest are not, file a notice of removal stating that the co-defendant(s) is/are not served and the citizenship of the unserved co-defendants. Those other defendants must join in the removal within 30 days of when they are served. As a practical matter, if your initial disclosure under Fed. R. Civ. P. 26 will identify the name and correct address of unserved defendants you will represent, and no other consideration (such as lack of cooperation or inability to communicate) preclude it, take the cooperative approach, and after getting permission from your clients, agree to accept service. It will save your client money, the plaintiff will appreciate it and it will start the clock running on plaintiffs' 30 days to remand. Plaintiff can claim in a remand motion, where one attorney will represent multiple defendants, that unserved defendants had notice through his attorney and should have earlier joined. I have avoided this by joining and responding as above-described.
- If served through the secretary of state, but one or all defendants not personally served, same as C-3, supra.
- A case cannot be removed more than one year after its institution. 28 U.S.C. §1446(b).
- Held this can be waived. Wilson v. General Motors Corp., 888 F.2d 779 (11th Cir. 1989). But see, Brock v. Syntex Laboratories, 791 F. Supp. 721 (E.D. Tenn. 1992).
III.HOW TO REMOVE YOUR CASE.
Are you ready?
- You have the jurisdictional basis (or bases).
- You know if the removal is timely or not.
- All defendants consent, client consents.
- You are federal bar/trial bar member or have associated federal trial bar counsel.
- You have a current copy of rules and local rules.
- 14 Federal Procedure Forms, Removal of Actions, § 58:8, at 341, 345-438, (Lawyers Cooperative Pub. Co. 1978).
- 11 Am. Jur. Pleading & Practice Forms, Federal Practice & Procedure, 229-677 (1986).
- 29 Federal Procedure, Removal of Actions, § 69:61 at 517-603 (Lawyers Cooperative Pub. Co. 1989).
Getting It Done.
- Confirm decision with client and co-defendants.
- Insist on being the party handling the removal so you are certain it will be done properly.
- Prepare notice per 28 U.S.C. § 1442 (See A.3, attached). You must specifically allege:
- Citizenship of all parties, served and unserved.
- Amount in controversy.
- Joinder of the defendants served and allege citizenship of all defendants.
- Basis of jurisdiction.
- Generally, there is no need for posting a bond because Fed. R. Civ. P. 11 gives the district court great power to protect the parties, but N.D. Fla. L.R. 12(B) provides for a $500 bond. Notice of removal is no longer required to be verified because Fed. R. Civ. P. 11 governs. The pleading should be captioned a "Notice of Removal", not a petition.
- Fill out federal civil cover sheet (See A.2, attached).
- A filing fee is required.
- Obtain two copies of the entire state court file and attach them to the notice and cover sheet. This is required by N.D. Fla. L.R. 12(A) and M.D. Fla. L.R. 4.02(b). There is no local rule requirement for this in the Southern District, but it is good practice to do this. A lawyer, or you yourself, should copy the file to evaluate the status of the pleadings. DO NOT REMOVE A DEFAULT.
- File the original and one copy of the notice of removal and the attachments, with the cover sheet and filing fee the same day as the state court file is copied to be sure nothing else is filed. If something is filed after your copies are made, no diligence problem can arise.
- File in state court a notice of the removal after the district court accepts the notice. This notice should state the district court case number.
IV. IMMEDIATE POST REMOVAL ACTIONS
- Fed. R. Civ. P. 81(c). 1. Defendant must answer within 20 days of service or within five days of removal, whichever is longer. 2. Removing party must demand jury trial within 10 days of notice of removal filed. Other parties get 10 days from notice of the removal. If demanded in a pleading in state court, that is sufficient.
- Local rules.
Northern District: N.D. Fla. L.R. 12(C) - 10 days to file memo on pending motions.
Middle District: M.D. Fla. L.R. 4.02 - 10 days to file memo on pending motions.
Southern District: S.D. Fla. L.R. 7.2 - 5 days to file memo on pending motions.
INDEX TO APPENDIX
- Civil Cover Sheet.
- Notice of Removal.
- Consent to co-defendant's removal.
- Notice to state court of removal of action.