The choice between federal and state court is one of the most strategically significant decisions made in the course of litigation. It can dramatically favor one party over another, affecting everything from the pace and expense of litigation to the governing procedural (and, in some instances, substantive) law. It may even be outcome determinative: empirical studies suggest that defendants are 20 percent more likely to win when they remove a case to federal court. Yet as “masters of their own complaints,” plaintiffs have traditionally enjoyed largely unchecked dominion over this critical decision. In an effort to ensure that their action remains in state court, shrewd plaintiffs will avoid federal-law causes of action, name diversity-destroying parties, or file in a defendant’s home jurisdiction.

These strategies lead many defense counsel to follow a familiar routine. Step one: scour a complaint to identify a basis—any basis—for federal jurisdiction. Step two: find not a shred of a federal question or a wisp of diversity. Step three: stare dejectedly into the middle distance, questioning life and career choices. Step 4: do nothing, allow the initial 30-day removal deadline to elapse, and never again consider the possibility of removal to federal court. Defense counsel can and should break this dispiriting routine, seizing —or better still, creating—opportunities for removal long after the action is commenced. But to do so, they must first understand how to deploy the “voluntary-involuntary rule.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]