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11 Litig. 39 (1984-1985)

handle is hein.journals/laba11 and id is 245 raw text is: Removal
by James T. Fousekis and James F. Brelsford

It cannot be done in every case. When it can, you have to
act quickly. If you jump the wrong way, it can be a serious
error, so the decision must be made carefully. But in the
proper case, it can set the direction for a successful defense.
The question is whether to remove a case to federal court.
It is one of the defendant's few opportunities to change the
The chance to remove most commonly arises when a lo-
cal plaintiff sues a nonresident defendant in state court on
a claim exceeding $10,000. Since the case originally, could
have been filed in federal court based on the parties' diversi-
ty of citizenship, the case can be removed. Diversity cases
are not the only ones. Although they occur less frequently,
nearly any case based on a federal question can also be
Many lawyers decide to remove on simple grounds: they
prefer federal judges. Other lawyers minimize the possible
significance of removal. They do not agree with the prefer-
ence for federal judges, and there is something to their posi-
tion. See Fine, From the Bench: State Judges Deserve Better,
10 LITIGATION, No. 1 at 7 (Fall 1983).
But there is more to removal than who is the judge. It has
several advantages, some real and others perhaps imaginary,
and whether they apply depends on the case.
Removal can mean:
 Closer judicial supervision and management of the case.
 More favorable interpretations of substantive law.
* Differences in jury demographics, jury size, and una-
nimity requirements.
* The opportunity to transfer the case to another district.
* Differences in evidentiary rules and rules governing the
award of attorneys' fees.
You and your client should look at the possible benefits
and grounds for removal carefully. Simply put, can you make
a federal case out of it, and do you want to?
Removal obviously gives you an opportunity to change
judges. Whether you want to do that may depend on who
the judges are. You may be able to learn to which state judge
the case is assigned, whether for law and motion matters or
Mr. Fousekis is a partner and Mr. Brelsford is an associate in Steinhart
& Falconer in San Francisco, California.

for the duration of the case, and then can compare the known
state judge to the federal judges who might be assigned the
case after removal. If you do this, it may help make your
choice easy; one forum may suddenly appear to be the one
you want.
Even after removal you may still have a choice: If you are
unhappy with the federal judge assigned to the case and the
plaintiff moves to remand to state court, you can stipulate
to the remand. On the other hand, you may prefer (as the
authors do) the federal system and oppose going back to state
court, even if you are not particularly comfortable with the
judge assigned to the case.
As hard as it is to know which federal judge you will get,
there sometimes is a way to tell before you remove the case
from state court. Check the local federal court rule on related
cases. If your case is related to an existing or even a previ-
ous case, you may be able to find out which judge will be
assigned to it. You may have a good reason for wanting (or
not wanting) that judge to hear your case.
One of the most significant advantages of removal is the
opportunity to change the forum again. After removal, a
defendant may move to transfer the case to a more convenient
federal district 28 U.S.C. § 1404(a). The transfer may reduce
litigation costs, as well as place the case in a forum the plain-
tiff tried to avoid.
Another example arises when federal law has preempted
state remedies. For example, a labor case alleging wrongful
administration of a welfare benefit plan, breach of fiduci-
ary duty and the denial of plan benefits, though couched sole-
ly in terms of state common law, raises a federal question
under the Employee Retirement Income Security Act, 29
U.S.C. Sec. 1001, et seq., and can be removed. See Caihoon
v. Bonnabel, 560 F.Supp. 101 (S.D. N.Y. 1982).
Once you know you can remove, you must turn your at-
tention to the mechanics of how to go about it.
To remove a case you file a verified petition of removal,
with the entire state record attached, and a notice of removal,
in the federal court. You must file a notice of removal, with
the petition attached, in the state court. You also must file
a bond in the federal court to cover the plaintiff's costs in
the event the case is remanded (local rules specify the amount,

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