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Why Make a Federal Case Out of It?

The Truth News — Tue, 05 Nov 2024 09:18:19 +0000

Why Make a Federal Case Out of It?

U.S. Const. art. III, § 2; 28 U.S.C. §§ 1331-1332, 1367.
- U.S. Constitution Article III, Section 2, and 28 U.S.C. §§ 1331, 1332, and 1367 relate to the jurisdiction of federal courts in the United States:
  - U.S. Constitution Article III, Section 2 Grants the judicial power to the federal courts to hear cases arising under the Constitution, laws, and treaties of the United States. It also grants the Supreme Court original jurisdiction over cases involving ambassadors, public ministers, and consuls, and cases where a state is a party.
  - 28 U.S.C. § 1331 Grants federal district courts original jurisdiction over civil actions that arise under the Constitution, laws, or treaties of the United States. The well-pleaded complaint rule determines if a case “arises under” federal law.
  - 28 U.S.C. § 1332 Grants federal courts jurisdiction over civil actions between citizens of different states, or between a citizen of a state and a subject of a foreign state, if the amount in controversy exceeds $75,000. This is known as diversity jurisdiction.
  - 28 U.S.C. § 1367 Grants federal district courts supplemental jurisdiction over claims that are related to claims in an action over which the court already has jurisdiction. It also tolls the period of limitations for claims while they are pending and for 30 days after they are dismissed.
see U.S. Const. amend. IV, § 1; International Show Co. V. Washington, 326 U.S. 310, 316 (1945)
- Personal jurisdiction is constitutional when a defendant has minimum contacts with the state where a lawsuit is brought such that notions of fair play and substantial justice would not be offended.
see 28 U.S.C. § 1391 Venue generally
1. Applicability of Section.—Except as otherwise provided by law—
  
  (1)this section shall govern the venue of all civil actions brought in district courts of the United States; and
  
  (2)the proper venue for a civil action shall be determined without regard to whether the action is local or transitory in nature.
2. Venue in General.—A civil action may be brought in—
  
  (1)a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
  
  (2)a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
  
  (3)if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.
3. Residency.—For all venue purposes—
  
  (1)a natural person, including an alien lawfully admitted for permanent residence in the United States, shall be deemed to reside in the judicial district in which that person is domiciled;
  
  (2)an entity with the capacity to sue and be sued in its common name under applicable law, whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question and, if a plaintiff, only in the judicial district in which it maintains its principal place of business; and
  
  (3)a defendant not resident in the United States may be sued in any judicial district, and the joinder of such a defendant shall be disregarded in determining where the action may be brought with respect to other defendants.\
4. Residency of Corporations in States With Multiple Districts.— For purposes of venue under this chapter, in a State which has more than one judicial district and in which a defendant that is a corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.\
5. Actions Where Defendant Is Officer or Employee of the United States.—
  
  (1)In general.— A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.
  
  (2)Service.— The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought.
6. Civil Actions Against a Foreign State.—A civil action against a foreign state as defined in section 1603(a) of this title may be brought—
  
  (1)in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated;
  
  (2)in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title;
  
  (3)in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603(b) of this title; or
  
  (4)in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.
7. Multiparty, Multiforum Litigation.— A civil action in which jurisdiction of the district court is based upon section 1369 of this title may be brought in any district in which any defendant resides or in which a substantial part of the accident giving rise to the action took place.
  
  (June 25, 1948, ch. 646, 62 Stat. 935; Pub. L. 87–748, § 2, Oct. 5, 1962, 76 Stat. 744; Pub. L. 88–234, Dec. 23, 1963, 77 Stat. 473; Pub. L. 89–714, §§ 1, 2, Nov. 2, 1966, 80 Stat. 1111; Pub. L. 94–574, § 3, Oct. 21, 1976, 90 Stat. 2721; Pub. L. 94–583, § 5, Oct. 21, 1976, 90 Stat. 2897; Pub. L. 100–702, title X, § 1013(a), Nov. 19, 1988, 102 Stat. 4669; Pub. L. 101–650, title III, § 311, Dec. 1, 1990, 104 Stat. 5114; Pub. L. 102–198, § 3, Dec. 9, 1991, 105 Stat. 1623; Pub. L. 102–572, title V, § 504, Oct. 29, 1992, 106 Stat. 4513; Pub. L. 104–34, § 1, Oct. 3, 1995, 109 Stat. 293; Pub. L. 107–273, div. C, title I, § 11020(b)(2), Nov. 2, 2002, 116 Stat. 1827; Pub. L. 112–63, title II, § 202, Dec. 7, 2011, 125 Stat. 763.)

Civil Resource Manual

45. Removal

When suit has been brought against the government, or an officer or agency thereof, in a state or local court, an important threshold question is whether the action should be removed to the United States district court. In suits brought against the United States under 28 U.S.C. § 2410 (see USAM 4-4.540), removal will be left to the discretion of the USA, absent a specific request from the Civil Division concerning whether or not to remove. In determining whether or not to remove such cases or to recommend the removal of other cases, the USA should consider:

The likelihood of a fair disposition in the state or local court
Whether federal statutes, regulation or decisional law may be challenged in the litigation
The preference for taking appeals through the federal court system particularly When an open legal issue is involved
The relative convenience of handling the case for the U.S. Attorney
Whether the party suing the United States is attempting to secure a federal forum by bringing a facially jurisdictionally invalid suit against the United States

As noted in USAM 4-2.100, the United States may not be sued in state court at all, absent express statutory consent. Formerly, removal to the federal court of such an unconsented suit did not cure the jurisdictional defect, even in a situation in which the federal court would have had jurisdiction if the action had originally been instituted there. See Minnesota v. United States, 305 U.S. 382, 388-389 (1939); Gleason v. United States, 458 F.2d 171, 174 (3d Cir. 1972). This doctrine of “derivative jurisdiction” was abolished by section 3 of the Judicial Improvements Act of 1985, codified at 28 U.S.C. § 1441(e). See Lewis v. Windsor Door Co., 926 F.2d 729, 730 n.2 (8th Cir. 1991).

In other civil suits against government officers, employees, service personnel, and agencies, and particularly in cases in which personal injury, death, a significant federal interest, or property damage is involved, care should be taken to remove to the United States district court. Most of these actions will have to be removed within the thirty days specified in 28 U.S.C. § 1446(b). However, removal of tort suits under the provisions of the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679(d)(2), may be effected any time prior to trial, as may most suits against a member of the armed forces on account of an act done under color of office or status. See 28 U.S.C. § 1442a. Garnishment actions against the government seeking child support or alimony payments pursuant to 42 U.S.C. § 659 ordinarily should be removed unless the client agency will honor the garnishment writ or order.

The statute generally authorizing removal of state court suits against federal officers for acts under color of office, see 28 U.S.C. § 1442(a)(1), does not permit removal by federal agencies. Int’l Primate Protection League v. Adm’rs of Tulane Educational Fund, 500 U.S. 72, 76 (1991) [Editor’s Note: 28 U.S.C. § 1442 was amended in 1996 to allow agencies to remove cases to federal court].

[updated September 2000] [cited in USAM 4-2.400] source

28 U.S. Code § 1446 – Procedure for removal of civil actions

Generally.—A defendant or defendants desiring to remove any civil action from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
Requirements; Generally.—
1. The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
2. 1. When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.
  2. Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
  3. If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.
3. Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
Requirements; Removal Based on Diversity of Citizenship.—
1. A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.
2. If removal of a civil action is sought on the basis of the jurisdiction conferred by section 1332(a), the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy, except that—
  1. the notice of removal may assert the amount in controversy if the initial pleading seeks—
    1. nonmonetary relief; or
    2. a money judgment, but the State practice either does not permit demand for a specific sum or permits recovery of damages in excess of the amount demanded; and
  2. removal of the action is proper on the basis of an amount in controversy asserted under subparagraph (A) if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the amount specified in section 1332(a).
3. 1. If the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an “other paper” under subsection (b)(3).
  2. If the notice of removal is filed more than 1 year after commencement of the action and the district court finds that the plaintiff deliberately failed to disclose the actual amount in controversy to prevent removal, that finding shall be deemed bad faith under paragraph 1).
Notice to Adverse Parties and State Court.—Promptly after the filing of such notice of removal of a civil action the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the notice with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
Counterclaim in 337 Proceeding.—With respect to any counterclaim removed to a district court pursuant to section 337(c) of the Tariff Act of 1930, the district court shall resolve such counterclaim in the same manner as an original complaint under the Federal Rules of Civil Procedure, except that the payment of a filing fee shall not be required in such cases and the counterclaim shall relate back to the date of the original complaint in the proceeding before the International Trade Commission under section 337 of that Act
 [1] Where the civil action or criminal prosecution that is removable under section 1442(a) is a proceeding in which a judicial order for testimony or documents is sought or issued or sought to be enforced, the 30-day requirement of subsection (b) of this section and paragraph (1) of section 1455(b) is satisfied if the person or entity desiring to remove the proceeding files the notice of removal not later than 30 days after receiving, through service, notice of any such proceeding.

(June 25, 1948, ch. 646, 62 Stat. 939; May 24, 1949, ch. 139, § 83, 63 Stat. 101; Pub. L. 89–215, Sept. 29, 1965, 79 Stat. 887; Pub. L. 95–78, § 3, July 30, 1977, 91 Stat. 321; Pub. L. 100–702, title X, § 1016(b), Nov. 19, 1988, 102 Stat. 4669; Pub. L. 102–198, § 10(a), Dec. 9, 1991, 105 Stat. 1626; Pub. L. 103–465, title III, § 321(b)(2), Dec. 8, 1994, 108 Stat. 4946; Pub. L. 104–317, title VI, § 603, Oct. 19, 1996, 110 Stat. 3857; Pub. L. 112–51, § 2(c), Nov. 9, 2011, 125 Stat. 545; Pub. L. 112–63, title I, §§ 103(b), 104, Dec. 7, 2011, 125 Stat. 760, 762.)

The What, When, How, and Why of Removing to Federal Court Before a Defendant Is “Properly Joined and Served”

Defendants often seek to move their cases to federal court after being sued in state court for reasons such as procedural consistency, efficient docket management, and reduced liability.
“Snap removal” is a procedural play where both forum and out-of-state defendants can remove a case to federal court before any in-state, forum defendant is formally served, allowing them to assert federal question or diversity jurisdiction.
While snap removals have been controversial, four federal circuit courts of appeals have upheld the practice, emphasizing the plain meaning of the removal statute and its effectiveness in discouraging fraudulent attempts to make lawsuits removal-proof.

Defendants, including individuals and corporate entities, often want to remove their cases to federal court after being sued in state court. There are frequently manifold reasons for doing so. Federal courts can provide consistency in procedure, more efficient docket management, increased opportunities for final resolution of asserted claims through motion practice, and reduced liability in the case of adverse judgments. But the strict metes and bounds of a federal court’s subject matter jurisdiction and the statutory requirements of removal under 28 U.S.C. §§ 1441 and 1446 limit a defendant’s ability to proceed in federal court once an action has been filed in state court. Courts normally defer to a plaintiff’s choice of forum and endeavor to prevent forum shopping between state and federal systems. Moreover, federal courts are courts of limited jurisdiction—unlike state courts, which have general jurisdiction—and they have an affirmative and ongoing obligation to ensure that the cases before them are based on federal question or diversity jurisdiction. See 28 U.S.C. §§ 1331, 1332; Fed. R. Civ. P. 12(h)(3). How then can defendants desiring to have a federal court assess their defenses and potential counterclaims navigate these barriers to entry? An answer lies in the oft-debated but readily available procedural play of “snap removal.”

Federal Courts’ Limited Jurisdiction

Congress has broadly authorized federal courts to exercise subject matter jurisdiction over all civil actions “arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331, or “where the matter in controversy exceeds the sum or value of $75,000” and the dispute is between citizens of different states, U.S. citizens and foreign citizens, or U.S. citizens and foreign states. 28 U.S.C. § 1332(a). The existence of federal question jurisdiction is often conflated with a plaintiff’s need to prove a defendant’s obligations under federal law or a defendant’s reliance on federal law as a defense, as in the case of preemption. See, e.g., Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003). Diversity jurisdiction is often more clear-cut, but a plaintiff may attempt to preemptively defeat such jurisdiction by naming a defendant that is a citizen of the same state—i.e., a forum defendant. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921); accord Johnson v. Am. Towers, LLC, 781 F.3d 693, 704 (4th Cir. 2015).

Removal Generally

Under the federal removal statute, a case that implicates federal question or diversity jurisdiction is removable within 30 days after formal service of process of the initial pleading. 28 U.S.C. § 1446(b)(1). Whether an initial pleading has been properly served varies by state, but the U.S. Supreme Court has clarified that the 30-day period does not begin until the plaintiff has effectuated formal service of process. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999). This is crucial, as the filing of a summons or complaint alone does not trigger the removal clock. Id. at 347–48. There must also be proper service. See id. Where a state court complaint names multiple defendants, all “properly joined and served” defendants must consent to removal unless they are fraudulently joined. 28 U.S.C. § 1446(b)(2)(A); see also Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019).

There is a readily apparent logic to these limitations. Plaintiffs are afforded deference in their choice of forum as masters of their complaint. Foreign or out-of-state defendants are not forced to litigate a case in a state court with which they are unfamiliar without some avenue of reprieve. And in multi-defendant cases, one defendant cannot unilaterally change the forum without appropriate notice to codefendants.

Snap Removals

The question then is this: Where a defendant would prefer to pursue claims and defenses in federal court—for reasons real or perceived, anecdotal or empirical—how can that be effectuated once a complaint is filed in state court? If the alleged claims arise under federal law or are completely preempted, defendants can remove as usual and assert federal question jurisdiction. In addition, if complete diversity among the parties on both sides of the v does not exist, diversity removal is not possible. In the intermediate case, however, where there is not federal question jurisdiction, complete diversity does exist, and a forum defendant is the only bar to removal under section 1441(b)(2), the way to navigate a case from state to federal court has been more difficult. But the path forward is now more favorable. A close read of the removal statute provides the solution: A forum defendant does not actually exist until that defendant has been “properly joined and served.”

Recognizing this window of opportunity, fast-acting and savvy defendants have charted a path in the past two decades, which has been validated by four federal circuit courts of appeals: snap removal. With this procedural mechanism, both forum and out-of-state defendants can remove a case to federal court with arguable or no federal question jurisdiction and complete diversity among the named defendants as long as they do so before any in-state, forum defendant is formally served.

Once removed, the defendant or defendants can assert federal question jurisdiction if it exists, and can rely on diversity jurisdiction if it does not, to stay in federal court. Further, and importantly, the federal court’s decision on the propriety of removal will generally be final as a practical matter, because the denial of a motion to remand is an interlocutory order that is not usually subject to immediate appeal. See, e.g., 28 U.S.C. § 1447(d); 15A Charles Wright, Arthur Miller & Edward Cooper, Federal Practice and Procedure § 3914.11 (3d ed. 1992) (“One aspect of appealing orders as to removal and remand remains blessedly simple. An order denying remand is not final. . . .”); see also Estate of Bishop By & Through Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1274–75 (9th Cir. 1990); Neal v. Brown, 980 F.2d 747, 748 (D.C. Cir. 1992) (collecting cases from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth Circuits).

Although a path has been laid, the issue of how to leverage the window of time between the filing of a summons and complaint and service poses another barrier to entering a federal courthouse’s doors. Thankfully, the ability to monitor court dockets electronically has made it easier to traverse this final hurdle. However, it does require a keen and vigilant eye on the potential litigation landscape and an ability to file removal papers quickly in what amounts to a service race to the courthouse with plaintiffs.

Snap Decisions

Unsurprisingly, snap removals have been controversial among courts and commentators alike. Opponents criticize the practice as contrary to the spirit of diversity jurisdiction—especially when the in-state defendant is the party removing the case—and an unfair exploitation of a procedural technicality. See, e.g., Goodwin v. Reynolds, 757 F.3d 1216, 1221 (11th Cir. 2014) (affirming Rule 41(a)(2) dismissal where plaintiff filed a state court action and provided courtesy copies to defendants—one of whom was a forum defendant—and defendants removed the action before formal service after interpreting the purpose of “properly joined and served” as an effort to prevent “gamesmanship” by plaintiffs and defendants). Critics also argue that snap removal may lead to improper conduct such as a defendant misleading a plaintiff into not formally serving a complaint or evading formal service to buy time to remove.

Proponents of the practice point to the statutory text, which explicitly conditions the forum defendant rule on “served” defendants, as well as traditional tools of statutory construction. They argue that the plain meaning of the removal statute permits snap removal. Further, there is a practical and policy argument supporting the practice: Snap removals disincentivize plaintiffs from attempting to make lawsuits removal-proof by fraudulently joining in-state defendants that they have no intention of actually serving.

To date, there is a split of authority among district courts addressing whether the practice is permissible, but four circuit courts of appeals addressing the issue have upheld the practice. The Sixth Circuit led the way in 2001, noting in a footnote that “the inclusion of an unserved resident defendant in [an] action does not defeat removal” based on diversity jurisdiction. McCall v. Scott, 239 F.3d 808, 813 n.2 (6th Cir.), amended on denial of reh’g, 250 F.3d 997 (6th Cir. 2001). Several years later, in 2018, the Third Circuit upheld snap removal after a substantive analysis in Encompass Insurance Co. v. Stone Mansion Restaurant Inc., 902 F.3d 147 (3d. Cir. 2018). To be sure, the court described the procedure as “pre-service machinations to remove a case that [] otherwise could not [be removed.]” Id. at 154. But after addressing the issue as one of statutory interpretation, the Third Circuit held that snap removal is proper based on “the plain meaning of the statute” and the absence of “an extraordinary showing of contrary legislative intent.” Id. The Second Circuit soon after followed suit and affirmed the propriety of this procedure without hesitation, finding it “is neither absurd nor fundamentally unfair.” Gibbons v. Bristol-Myers Squibb Co., 919 F.3d 699, 707 (2d Cir. 2019) (“Put simply, the result here—that a home-state defendant may in limited circumstances remove actions filed in state court on the basis of diversity of citizenship—is authorized by the text of Section 1441(b)(2)[.]”). And, most recently, the Fifth Circuit has given its blessing, explaining it does not have “any doubt about the propriety of removal because . . . the text [section 1441(b)(2)] is unambiguous.” Texas Brine Co., L.L.C. v. Am. Arbitration Ass’n, Inc., 955 F.3d 482, 487 (5th Cir. 2020).

Since these decisions, district courts in several circuits have allowed allow snap removals. E.g., Kornfeind v. Kia Am., Inc., No. 23-cv-01796, 2023 WL 8456111, at *2 (C.D. Cal. Dec. 6, 2023); DMO Methuen, LLC v. FCA U.S., LLC, No. 23-cv-10724, 2023 WL 7548084, at *3 (D. Mass. Sept. 29, 2023); WFG Nat’l Title Ins. Co. v. Bay, No. 22-cv-01010, 2023 WL 6595846, at *3 n.3 (D. Or. Aug. 30, 2023), adopted, 2023 WL 6930918 (D. Or. Oct. 19, 2023).

The U.S. Supreme Court and other circuits courts of appeals have yet to weigh in on the practice.

Snapbacks?

Of note, the removal statute was amended by Congress in 2011, after snap removals had become more common, but the relevant language allowing snap removals was not altered. Congress has since contemplated taking action to change the removal statute. House Resolution 5801, styled as the Removal Jurisdiction Clarification Act of 2020, would have essentially eliminated snap removals by requiring district courts to remand (i.e., “snap back”) snap removal cases upon a plaintiff’s motion. But as its title suggests, the bill has languished for several years in the House Committee on the Judiciary (specifically the Subcommittee on Courts, Intellectual Property, and the Internet). There is no immediate indication that this legislation will ever become law.

Key Takeaways

Given all this, there are a few key takeaways. First, for defendants and their counsel who have reason to anticipate litigation and prefer to litigate in federal court, it is important to monitor state court docket activity. Second, defendants and counsel should be fluent in the service of process rules in the states where litigation is expected. Third, it is a good practice, when litigation is anticipated, to prepare snap removal templates that can be tailored and filed shortly after notice of a filed state court complaint is received. Finally, the grass is not always greener in federal court for every litigation. The pace is often faster, and state court may offer greater flexibility with procedural and evidentiary rules. In addition, the potential judge assignment in either state or federal court is a key consideration that can have a material effect on the course of a litigation. Although time is of the essence with snap removal, be sure to consider these factors as well before filing. source

Requirements for Removing a Case From State Court to Federal Court

State and federal courts have overlapping jurisdiction over many legal claims. Plaintiffs are responsible for choosing where to file their lawsuits, but defendants can have their say in some situations. “Removal” is the process of transferring a lawsuit filed in state court to the United States District Court with jurisdiction over the same area.

A defendant can remove a case from state to federal court by filing a notice of removal in federal court and then notifying the state court and the other parties. They might need the agreement or joinder of any other defendants, or they might be able to remove a case on their own. After removal, the state court no longer has jurisdiction over the lawsuit. A plaintiff can move the federal court to remand the case to state court, but the state court otherwise has no further involvement. Before removing a case, a defendant should consider the potential advantages of federal court and review the jurisdictional requirements and local rules for removal.

Why Remove a Case to Federal Court?

Federal courts may present certain advantages for defendants. For example:

Since federal judges have lifetime appointments, their courts often offer more consistency in terms of matters like docketing.
Federal courts tend to have more experience with certain types of lawsuits, so removal could mean that the case makes it through the court more efficiently.
Rules of procedure and caselaw are often more consistent in federal court. The Federal Rules of Civil Procedure are the same throughout the nation, and all district courts in a circuit are bound by the same precedents.
Jury pools in federal courts usually come from a wider geographic area.

If a defendant decides that federal court would offer enough advantages, they should begin looking at the procedure for removal.

Deadline to Remove a Case

A defendant has 30 days from the date when they receive the plaintiff’s petition or complaint to remove the case to federal court. A case that is not removable when it is first filed can become removable later if the plaintiff adds new claims, joins more defendants, or increases the amount in controversy. A defendant can remove a case within 30 days of receiving an amended petition or complaint. In many situations, however, the defendant cannot remove the case if more than one year has elapsed since the lawsuit was first filed.

Federal Subject Matter Jurisdiction

A case is removable to federal court only if the federal court would have had subject matter jurisdiction in the first place. The two most well-known bases for federal court subject-matter jurisdiction are:

Federal question jurisdiction: The case arises under the US Constitution or a federal statute; and
Diversity jurisdiction: The plaintiff(s) and defendant(s) are from different states, and the amount in controversy is at least $75,000.

Federal courts can exercise supplemental jurisdiction over state-law claims that are closely related to the other claims in the lawsuit.

If a plaintiff who is a citizen of California files suit in a California state court against a defendant who is a citizen of Minnesota, for example, they could file in federal court if the amount of their claims is $75,000 or more. If a plaintiff is asserting causes of action under both federal and state laws, a federal court could have jurisdiction over all the claims under federal question and supplemental jurisdiction.

A lawsuit that is removable based solely on diversity jurisdiction is subject to an additional restriction. It cannot be removed if any defendant is a citizen of the state in which it is filed.

Venue for Removal

Once a defendant has determined that a federal court can exercise subject matter jurisdiction over the lawsuit, they must identify the court where they can file a notice of removal. Federal law states that removal must be to the district court in “the district and division within which such action is pending.” If a plaintiff files a lawsuit in a New York state court in Manhattan, for example, the court to which the case should be removed would be in the Southern District of New York.

Filing the Notice of Removal

The procedure and timing for filing a notice of removal partly depend on the basis for federal subject matter jurisdiction. The notice of removal must include “a short and plain statement of the grounds for removal.” The defendant must attach copies of all the documents served in the state case.

When a defendant seeks to remove a case based on general federal jurisdiction, all of the defendants who have been served in the state case must either consent or join the removal. If a defendant wants to remove the case more than 30 days after a different defendant was served, that defendant can still consent to removal.

If a lawsuit is not initially removable, a plaintiff can render it removable later, such as by adding a claim that falls under federal question jurisdiction. A defendant can remove the case within 30 days of receiving the amended complaint or petition, as long as the original pleading was filed no more than one year earlier. A court can waive the one-year limit if it finds that the plaintiff “acted in bad faith in order to prevent a defendant from removing the action.” For example, a plaintiff who misrepresented the amount in controversy to avoid diversity jurisdiction may be considered to have acted in bad faith.

Notice to State Court and Other Parties

The defendant must notify the other parties and the state court “promptly” after filing the notice of removal in federal court. It must provide written notice to the other parties and file a copy of the notice with the clerk of the state court.

Severing State-Law Claims

The federal court will review its jurisdiction over the causes of action in the lawsuit. It can exercise supplemental jurisdiction over state-law claims. If it finds that it does not have supplemental jurisdiction, the court may sever those claims from the lawsuit and remand them to state court.

Cases That Are Not Removable

Federal law states that certain claims may not be removed to federal court. These include claims against railroads and motor carriers for $10,000 or less, workers’ compensation claims, and civil lawsuits brought under the Violence Against Women Act. source

Removal to Federal Court

The plaintiff is the master of his/her complaint, including where and in what court it is filed. However, the defendant can sometimes wrest the complaint out of state court and have it heard in federal court instead.

Procedurally, it is simple. The defendant files a motion to remove in federal court, a notice to the same effect in state court, and gives notice to all the parties. The case is then docketed in federal court and proceeds there. For examples of removal petitions (sometimes called notices), filter this Docket Search by jurisdiction. See also Form – Petition for Removal, and Form – Notice to State Court of Removal.

After defendants remove the case to federal court, the plaintiffs may move to remand it back to state court. The federal court can also remand the case back to state court on its own (sua sponte) if the court determines it lacks jurisdiction to consider the action. For additional information about remand, see Overview – Remand.

Removal, governed by 28 U.S.C. § 1441, ends the case in state court and transfers the action to federal court instead. Generally:

• only a case that could have originally been brought in federal court is subject to removal;

• only the defendant can remove the case; and

• all defendants must agree to remove the action (with limited exceptions – see below).

Federal Jurisdiction Required

Only cases that would have had original jurisdiction in a federal district court may be removed from state court. 28 U.S.C. § 1441. See Overview – Subject Matter Jurisdiction. Therefore, the defendant has to assert and demonstrate federal question, diversity, or statutory jurisdiction.

Federal question jurisdiction, 28 U.S.C. § 1331

Whether the complaint presents a federal question is judged by the well-pleaded complaint rule. See Point of Law (POL). That is, for federal question jurisdiction to attach, an issue of federal law must appear on the face of the complaint. If the complaint includes only state-law claims, a federal defense is not enough to support removal, even if the complaint anticipates that the defendants will assert it. POL.

But the plaintiff can’t avoid stating a federal claim simply by “artfully pleading” around a necessary issue of federal law embedded in the claims. POL. If a substantive issue of federal law or important federal policy must be decided to provide relief in the complaint, that can support removal. For example:

• Courts permit removal where federal law completely preempts state law. This is a narrow exception, but issues of securities law, labor law, ERISA, and other comprehensive regulatory schemes provide examples of state law claims or issues that must be decided under federal law.

• Courts may hold that a claim is necessarily federal, where the right to relief, if any, depends on resolution of a substantial, disputed federal question. POL.

Diversity jurisdiction: more stringent than under 28 U.S.C. § 1332

Diversity must be complete AND no defendant can be a citizen of the state in which the suit is brought. 28 U.S.C. § 1441(b)(2). This is a more stringent rule than the rule for cases originally filed in federal court. However, most circuits hold that the “no resident citizen” requirement isn’t jurisdictional and can be waived if no remand motion is filed within the required period. POL.

For purposes of the rule, a corporation is a citizen of both its state of incorporation and that of its principal place of business. 28 U.S.C. § 1332(c)(1). There are specific rules for each type of entity, so the statutes must be carefully reviewed. 28 U.S.C. § 1332(d).

The defendant must show by a preponderance of the evidence that the amount in controversy requirement for diversity jurisdiction is met. POL.

If the complaint doesn’t assert an amount in controversy, the defendants must make a good faith estimate of the amount based on the pleadings. POL. Jurisdictions have different rules about proving the amount in controversy, so jurisdictional-specific research is required.

Only Defendants Remove

The statute says “defendant or defendants” can file the notice of removal. Counterclaim defendants and third-party defendants don’t count as “defendants” for purposes of being able to initiate removal.

All Defendants Must Join/Consent

This is required unless removal is based on CAFA (see below). POL. The consent for removal must be explicit and all defendants must sign the removal filing in federal court.

PRACTICE TIP: Gauge and get consent from all co-defendants well before the deadline. It will be required in writing to file the notice.

Timing

Notice of removal must be filed in state court within 30 days “after receipt … through service or otherwise, of a copy of the initial pleading setting forth the claim for relief.” 28 U.S.C. § 1446.

If the case becomes removable after that time expires, a notice of removal must be filed within 30 days of defendant’s notice of the change (e.g., the filing of a revised complaint stating a federal claim).

One year is the absolute cut off if a federal court’s jurisdiction is based on diversity jurisdiction. CAFA is a possible exception (see below). 28 U.S.C. § 1446(c)(1).

WATCH YOUR DEADLINES. Did the defendant already respond to the complaint in state court? If not, following removal, a response is due 21 days from the date the defendant received summons and the complaint, or five days from the date of removal, whichever is longer, to file a response to the complaint. See FRCP 81(c).

PRACTICE TIP: Consider contacting plaintiff to stipulate a date for response.

Procedure

In general, a defendant must file a petition for removal in federal court, a notice of removal in the state court, and give notice of the removal to all parties in the action. See Overview – Removal Process (28 U.S.C. § 1446).

PRACTICE TIP: Local rules may dictate the format of certain aspects of the petition or notice, and might impact what must be included in the petition. To find local rules, click on the relevant state on the map under State Resources on the Litigation Intelligence Center.

Generally:

• Attach the petition for removal to the state court notice.

• Attach the state court notice to the federal petition for removal.

• Attach a copy of everything in the state court docket to the petition for removal.

Removal Jurisdiction Is Narrow

The burden of establishing federal jurisdiction is on the party seeking removal. The statute is strictly construed against removal jurisdiction. POL.

Fee Shifting Provision

28 U.S.C. § 1447(c) includes a fee shifting provision. If the court finds there was no “objectively reasonable basis” for removal, it can award fees and costs of remand to the plaintiff. POL.

CAFA Removal

The Class Actions Fairness Act 28 U.S.C. § 1453 (CAFA) was written to expand federal court access for class actions. CAFA generally permits removal where:

• The case is a class action under FRCP 23 or similar state rule or statute;

• The aggregate number of class members in all proposed classes is 100 or greater; and

• The amount in controversy is $5 million or more (aggregated among claims and plaintiffs, exclusive of interest and costs).

The remand rules under CAFA are more relaxed from those that generally apply. Key differences include:

• CAFA requires only minimal geographic diversity, instead of complete diversity with no defendant resident in the state where suit was brought. Minimal diversity here means, essentially, that at least one plaintiff is a citizen of a state where no defendant resides. Because entities have dual citizenship, at minimum, this inquiry can be complex.

• CAFA doesn’t require all of the defendants to agree to remove the action. Any one defendant can do it on its own.

• The one-year outer limit for removing diversity cases provided in 28 U.S.C. § 1446(c)(1) does not apply to covered class actions removed under CAFA.

Mass actions can also be removed under CAFA, but specific separate rules apply. See 28 U.S.C. 1332(d)(11)(B)(i). See the statute for differences between mass actions and class actions, including limitations on transfer.

See Overview – Removing Under CAFA.

Other Removal Statutes

All are strictly construed against removal:

28 U.S.C. § 1369 – Under 28 U.S.C. § 1441(e), if the suit is about an accident in which at least 75 people died, removal is an option.

28 U.S.C. § 1442 – Under this statute a federal officer can remove an action if he/she acted under color of law.

28 U.S.C. § 1442(1)(a) – Under this statute a member of the armed forces can remove any case.

28 U.S.C. § 1443 – This is a “civil rights” removal. Under this statute a defendant can remove if he or she will be denied a federal civil right in state court.

28 U.S.C. § 1452 – This statute relates to bankruptcy removal. When a case filed in state court is related to a bankruptcy proceeding, it can be removed to federal court if that court has jurisdiction over the bankruptcy proceeding.

Unremovable Actions

Under 28 U.S.C. § 1445, some actions are not removable.

Some actions can’t be removed at all, such as:

-Actions against a railroad;

-Workers’ compensation proceedings;

-Actions for less than $10,000 against carriers for losses to specific shipments

Appealability

There is no appeal from an order of remand based on lack of subject matter jurisdiction or a timely raised procedural defect in the removal. 28 U.S.C. § 1447(d). Statutory exceptions apply for some defendants. (28 U.S.C. 1442, 28 U.S.C. 1443), but generally there is just one shot at removal. If the case is remanded, the defendant can’t seek reconsideration or appeal.

If the defendant removed under CAFA, appeal is allowed under 28 U.S.C. § 1453(c)(1), but very tight time limits apply. You must apply within 10 days of the order for remand. SeeSmart Code®.

source

Why Make a Federal Case Out of It?

Imagine this scenario: you live in and own a house in Florida, and it is badly damaged by a storm. You file an insurance claim with your insurance company, which is headquartered outside of Florida, and your insurance company denies your claim. You disagree with the insurance company’s assessment of the claim, and you hire a lawyer to represent you in a lawsuit against your insurer. Your lawyer starts a lawsuit against your insurance company in state court, in the county where your house is located. Everything appears to be going smoothly, and then suddenly your attorney informs you that your insurance company has removed your case from state court into a federal court. How did your state court case suddenly become a federal case? How can an insurance company remove your case to a completely different court—with completely different procedures—all by itself? This article examines these questions.

To understand how a case filed in state court can be removed to a federal court, you must first understand a little bit about how jurisdiction works. Simply put, “jurisdiction” describes a court’s legal authority to administer justice. In practical terms, “jurisdiction” describes a court’s ability to hear and resolve cases. A court must always have jurisdiction over a case in order to even begin the case. Without jurisdiction, a court has no authority over a case whatsoever. In the United States, jurisdiction is generally comprised of two components: (1) jurisdiction over the subject matter of a case (the law and the facts of the case), and (2) jurisdiction over the parties in the case (also known as “personal jurisdiction”). In order to have jurisdiction over a case, a court must have both personal jurisdiction and subject matter jurisdiction over the case.

Regarding personal jurisdiction, a court must have jurisdiction over the parties to a lawsuit. For example, a court in Florida would not have personal jurisdiction over individuals in Oregon for a dispute that only took place in Oregon. Personal jurisdiction can become far more complicated, especially when dealing with corporations (which are legal entities that can be all over the world), but the general idea is that the parties to a lawsuit must have some connection to the state in which the lawsuit is brought. An Ohio man suing another Ohio man for an event that occurred in Ohio cannot bring a suit in Florida to resolve the dispute; he would most likely have to bring it in Ohio. Likewise, in the opening scenario, a Florida state court would have personal jurisdiction over the case, because both you and your house are located in Florida, and your insurance company has transacted business in Florida by issuing you an insurance policy under the laws of the state of Florida.

Regarding subject matter jurisdiction, certain courts have only limited subject matter jurisdiction. That is to say that certain courts can only resolve disputes in very narrow areas of the law. For example, federal bankruptcy courts alone have the legal authority to hear and decide bankruptcy cases. No other court in the country has that power. By contrast, most state level trial courts are courts of “general jurisdiction”, meaning that their subject matter jurisdiction is not limited to certain types of disputes. They have the general power to resolve most disputes that arise within their geographical area of the state (such as a county), apart from certain pre-empted subject matters (such as bankruptcy). In the first example, you can properly bring your lawsuit against your insurance company in your local circuit court, because your dispute (most likely a breach of contract action) falls within the general jurisdiction of your state court. Most likely, your attorney would bring suit in the county where you and your house reside.

Now, how does a state court claim suddenly wind up in federal court? Federal courts in the U.S. are courts of limited jurisdiction. Federal courts only have the power to resolve disputes in a number of limited subject matters. Among these subject matters, are (1) disputes involving federal question(s) and (2) disputes involving “diversity of citizenship”. Federal question jurisdiction is exactly what it sounds like. In order for a federal court to have jurisdiction arising under federal question jurisdiction, the case must involve some kind of federal law (i.e. a “federal question”). Unsurprisingly federal courts have the power to interpret federal laws, and create federal case law. Interestingly, state courts also have the power to interpret federal laws, and they are not bound by federal courts’ decisions (apart from the U.S. Supreme Court).

Federal diversity jurisdiction arises when two conditions are met: (1) there must be complete diversity of citizenship between the parties and (2) the “amount in controversy” is greater than $75,000.00. Diversity of citizenship is also exactly what it sounds like. The parties must be citizens of different states. In the first example, diversity of citizenship exists in your case, because you reside in Florida, and your insurance company is headquartered outside of Florida. As to the second element, your claim against your insurance company must be greater than $75,000.00, in order to have diversity jurisdiction.

Once federal diversity jurisdiction exists, any claim—even if it is also proper in state court—may be brought in federal court. When you started your lawsuit, you could have brought your claim in either state court or federal court. Even though you brought your claim in state court, the other party has the right to remove your case to federal court within 30 days after receiving the lawsuit. This is according to federal law, which expressly grants “original jurisdiction” to the federal court in all diversity cases (28 U.S.C. § 1332). Procedurally, this is done by the party seeking to move the case to federal court by filing a “Notice of Removal” in the federal court. If your attorney believes that their removal to federal court is improper, then you can file a “Motion for Remand” within 30 days after the filing of the Notice of Removal. Once a case is removed to federal court (and not remanded back to state court), then the case will be decided by a federal judge. All of the procedural rules of the federal court will apply to your case, even though the federal judge will still apply state law.

Why do some insurers prefer to remove cases to federal court? There are potentially strategic reasons to do so. For instance, if an insurer sees that the case has been assigned to a judge in a state court that they think will rule unfavorably to them, they may want to remove the case to another judge, which can be easily done by removal to federal court. Likewise, many attorneys are not admitted to federal court, or they are not familiar with federal court procedures, so removal may be a way for the insurance company to catch your attorney off-guard. Also, federal courts tend to be generally uniform across the country, and abide by strict procedural guidelines. Some insurers may prefer the increased formality of the federal court system, which again can catch an unfamiliar attorney off-guard.

If you are concerned that your insurance claim could potentially end up in federal court, or if you have a question about your claim in general, please give us a call. Many of our attorneys have experience practicing in both state and federal courts, and we have attorneys who have experience dealing with federal removal issues. source

Selected Issues in Malicious Prosecution Cases

The Truth News — Thu, 22 Aug 2024 08:55:45 +0000

Selected Issues in Malicious Prosecution Cases

Although it is frequently stated that actions for malicious prosecution are not favored by the law, this should not be used to deny a legitimate cause of action. So it is stated that the courts “should not be led so astray by the notion of a ‘disfavored’ action as to defeat the established rights of the plaintiff.” (Jaffe v. Stone (1941) 18 Cal.2d 146, 159.)

In the words of the California Supreme Court: “The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to a panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings.” (Bertero v. National General Corp. (1974) 13 Cal. 3d 43, 50-51.) The judicial process is adversely affected by a malicious prosecution cause not only by the clogging of already crowded dockets but by the unscrupulous use of the courts by individuals as instruments within which to maliciously injure their fellow man. (Id. at 51.)

Each of the following elements must exist for the plaintiff to prevail on a claim for malicious prosecution:

1. The prior action was commenced by or at the direction of the defendant and was pursued to a legal termination in the plaintiff’s favor;

2. The defendant lacked objective probable cause to bring the original action;

3. The defendant must have initiated the original action with subjective malice;

4. The malicious prosecution action was a substantial factor in causing the plaintiff to suffer damages.

Final and Favorable Termination

There must be a final termination of the action before a malicious prosecution action can be brought. All time for appeals, motions for rehearing, new trial and the like must have run before an action for malicious prosecution may be filed. In addition to being a final termination of the underlying case, it must be favorable to the defendant in the underlying litigation. “Favorable termination” means more than showing simply that the malicious prosecution plaintiff prevailed in the underlying action. It is not necessary for the defendant in the prior case to be exonerated after a trial on the merits. But the termination must reflect favorably on the defendant’s innocence. If the termination does not relate to the merits of the termination, such as a dismissal on technical or procedural grounds, it is not favorable in the sense that it would support a subsequent action for malicious prosecution. (Maleti v. Wickers (2022) 82 Cal. App. 5th 181; Casa Herrera, Inc. v. Beydoun (2004) 32 Cal. App. 4th 336; Lackner v. LaCroix (1979) 25 Cal. 3d 247, 250.)

A voluntary dismissal of the prior action, even one without prejudice, will generally constitute a favorable termination which will support an action for malicious prosecution, unless it was the result of a settlement or compromise. In most cases, a unilateral dismissal is considered to be a termination in favor of the defendant in the underlying action. The dismissal may be viewed as an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits. But it is not enough merely to show that the proceeding was dismissed; the reason for the dismissal of the action must be examined to determine whether the termination is reflected on the merits. (Maleti v. Wickers (2022) 82 Cal. App. 5th 181.)

Some of the other terminations of an action that are deemed favorable to the defendant in the underlying action include:

By summary judgment that reflects on the merits of the claim.

A dismissal for failure to prosecute reflects on the merits of the action, a natural assumption being that one does not simply abandon a meritorious action once instituted.

A plaintiff’s decision not to amend a pleading to reallege one or more causes of action after a demurrer to those claims is sustained on substantive grounds with leave to amend may, upon a proper showing, constitute a favorable termination on the merits of the abandoned claim.

After a judgment of nonsuit because the plaintiff failed to designate an expert on causation.

Where the court dismissed the underlying action because the claims were barred by the litigation privilege.

A dismissal resulting from negotiation, settlement or agreement is generally not deemed a favorable termination of the proceedings because of its ambiguity. A termination based upon the action being barred by the statute of limitations is deemed technical or procedural as distinguished from a substantive termination.

Final and favorable termination of the action must be distinguished from the lack of probable cause element of the tort of malicious prosecution. Whether a prior action was terminated favorably tends to show the innocence of the defendant in the underlying action, an issue not affected by the objective tenability of the claim.

The plaintiff may pursue a claim for malicious prosecution where one theory in an underlying multi-claim action was pursued without probable cause and with malice, even though there was probable cause to pursue other theories. A defendant cannot escape liability for the malicious prosecution of an unjustified claim by joining it with a justified claim. (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal. App. 5th 117, 128; Albertson v. Raboff (1956) 46 Cal. 2d 375, 385; Mabie v. Hyatt (1998) 61 Cal. 4th 581, 592.)

Where a malicious claim is only one of multiple claims, the plaintiff need not show that all claims were resolved on the merits as long as at least one claim was terminated on the merits. But favorable termination requires favorable resolution of the underlying action in its entirety, not merely a single claim. If the plaintiff in the original action succeeds on any of his or her claims, the favorable termination element is not satisfied and the malicious prosecution action cannot be maintained. (Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal. App. 5th 117, 128.) The fact that a malicious prosecution suit may be maintained where only one of several claims in the prior action lacked probable cause does not alter the rule that there first must be a favorable termination of the entire action. (Crowley v. Katleman (1994) 81 Cal. 4th 666, 686.)

Lack of Probable Cause

The element of probable cause calls on the trial court to make an objective determination whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. Whether one has probable cause to file an action is determined by that person’s knowledge at the time the original or an amended complaint is filed, not by knowledge that is acquired at a later time. As one court observed, “a litigant cannot be permitted to file a suit based merely on a wing and a prayer and then be retroactively justified by some serendipitous discovery.” (Williams v. Coombs (1986) 179 Cal. App. 3d 626, 632 fn. 4.)

The probable cause element of a malicious prosecution action requires an objective determination of the “reasonableness” of the defendant’s prior lawsuit, i.e., whether, on the basis of the facts known to the defendant and fully disclose to the attorney, any reasonable attorney would have objectively believed the institution of the prior action was legally tenable. If so, the prior action was objectively reasonable, and the malicious prosecution defendant is entitled to prevail regardless of what his subjective intent or belief in bringing the prior action may have been. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d 863, 875, 886; Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 594.)

The resolution of probable cause or lack thereof is a question of law that calls for the application of an objective standard to the facts on which the defendant acted. Because the tort of malicious prosecution is intended to protect an individual’s interest in freedom from unjustifiable and unwarranted litigation, if the trial court determines that the prior action was objectively reasonable, the plaintiff in the malicious prosecution action has failed to meet the threshold requirement of demonstrating an absence of probable cause and therefore defendant is entitled to prevail. Sheldon Appel Co. v. Albert & Oliker 47 Cal.3d 863, 878.

Probable cause to bring an action does not depend upon it being meritorious, as such, but it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.

Probable cause may be established by the defendant in a malicious prosecution proceeding when they prove that they have in good faith consulted a lawyer, have stated all the facts to the attorney, have been advised by the lawyer that they have a good cause of action, and have honestly relied and acted upon the opinion and advice of the lawyer. (Mabie v. Hyatt (1998) 61 Cal. 4th 581; Sosinsky v. Grant (1992) 6 Cal. App. 4th 1548, 1556.) It is irrelevant whether the lawyer’s analysis or advice is correct or not: “There can be no imputation to a client of his attorney’s misconceived legal analysis so as to void the client’s good faith reliance on his counsel’s advice.” (Brinkley v. Appleby (1969) 276 Cal. App. 2d 244, 247.)

Attorney’s Liability

As noted above, probable cause to bring the action is based on whether any reasonable attorney would have believed the institution of the prior action was legally tenable. In Tool Research & Engineering Corp. v. Henigson ((1975) 46 Cal. App. 3d 675, 682-83.), the court held that an attorney has probable cause to represent a client in litigation where, after a reasonable investigation and industrious search of legal authority, the attorney has an honest and good faith belief that the client’s claim is tenable in the forum in which it is to be tried. ((1975) 46 Cal. App. 3d 675, 682-83.) Courts held that under Tool Research & Engineering Corp. a malicious prosecution plaintiff could establish a lack of probable cause simply by showing that its former adversary’s attorney failed to perform reasonable legal research or factual investigation before filing a claim on his or her client’s belief. (See, e.g., Williams v. Coombs (1986) 179 Cal. App. 3d 626, 640-44; Weaver v. Superior Court (1979) 95 Cal. App. 3d 166, 188-90.)

This inquiry was ruled irrelevant to the attorney’s probable cause by the Supreme Court in Sheldon Appel Co. v. Albert & Oliker (supra, 47 Cal.3d 863). The high court therein stated that an attorney’s duty of care runs primarily to his or her own client rather than to the client’s adversary, and which, on the basis of important policy consideration, precludes the adversary from maintaining a negligent cause of action against its opponent’s attorney. In Sheldon Appel Co., the court reasoned that allowing inadequate research to serve as an independent basis for proving the absence of probable cause on the part of an attorney would tend to create a conflict of interest between the attorney and his or her client. A cautious attorney would be tempted to create a record of diligence by performing extensive legal research, not for the benefit of his or her client, but rather simply to protect himself or herself from the client’s adversary in the event the initial suit fails. (Id. at 883.) If the trial court determines that the prior action was not objectively tenable, the extent of a defendant’s attorney’s investigation and research may be relevant to the question of whether or not the attorney acted with malice.

The attorney’s subjective belief in the legal tenability of the prior action is not a necessary element of probable cause. However, if the trial court concludes that the prior action was not objectively tenable, evidence that the defendant’s attorney did not subjectively believe that the action was tenable would clearly be relevant to the question of malice. Inasmuch as an attorney who does not have a good faith belief in the tenability of an action will normally assume that a court will come to the same conclusion, the malicious prosecution tort will continue to deter attorneys from filing actions which they do not believe are legally tenable.

If the issue which the attorney is called upon to decide is fairly debatable, “then under his [or her] oath of office, he [or she] is not only authorized but obligated to present and urge his [or her] client’s claim upon the court. And if it subsequently is determined that the position honestly taken by the attorney was erroneous he [or she] shall be relieved from responsibility.” Brinkley v. Appleby (1969) 276 Cal. App. 2d 244, 247.

To establish malice for both liability and punitive damages, personal hostility or ill will need not be shown; the absence of an honest and sincere belief in the validity of the claim is sufficient. To establish malice for both liability and punitive damages, personal hostility or ill will need not be shown; the absence of an honest and sincere belief in the validity of the claim is sufficient. Bertero v. National General Corp. (1974) 13 Cal. 3d 43, 66.

If the trial court concludes that the prior action was not objectively tenable, evidence that the defendant attorney did not subjectively believe that the action was tenable would be clearly relevant to the question of malice. Inasmuch as an attorney will normally assume that a court is likely to come to the same conclusion, the malicious prosecution tort will continue to deter attorneys from filing actions which they do not believe are legally tenable. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d 863, 881-82.

Expert legal testimony is not permitted on the issue of whether any reasonable attorney would conclude that the claim advanced in the prior action was tenable, it being thoroughly established that such matter is essentially within the province of the court to decide. If there is a factual dispute, then such factual dispute is up to the jury to resolve. But if there is no factual dispute, or the jury determines the facts, it is a question of law for the trial court to determine if there was probable cause as a matter of law.

Damages Recoverable

A successful plaintiff in a malicious prosecution case is entitled to recover:

The cost of defending the prior action, including reasonable attorney’s fees and court costs;

Compensation for injury to his or her reputation or impairment of social and business standing;

Mental or emotional distress; and

Punitive damages.

Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50-51.

Where the underlying case involved malicious actions with substantiated actions, the plaintiff does not have the burden of showing that his or her damages were specifically attributed to the malicious prosecution as opposed to the prosecution which was not malicious. (Albertson v. Raboff (1956) 46 Cal. 2d 375, 385; Singleton v. Perry ((1955) 45 Cal. 2d 389, 498; Mabie v. Hyatt (1998) 61 Cal. App. 4th 581, 592.) source

Damages

The easiest damages to determine are the out-of-pocket costs you incurred. These would include the cost of hiring a lawyer to defend yourself, court fees, and any lost wages due to missed time at work.

Other damages are more difficult to calculate. You may ask for compensation for emotional distress and other intangible damages caused by your ordeal. These can vary from case-to-case.

Punitive damages are also a possibility in a malicious prosecution case. These damages can also vary dramatically depending on all of your facts and circumstances.

Malicious Prosecution

Series 1500 – Malicious Prosecution

1500. Former Criminal Proceeding – Essential Factual Elements
1501. Wrongful Use of Civil Proceedings
1502. Wrongful Use of Administrative Proceedings
1503. Affirmative Defense – Proceeding Initiated by Public Employee Within Scope of Employment (Gov. Code, § 821.6)
1504. Former Criminal Proceeding – “Actively Involved” Explained
1505-1509. Reserved for Future Use
1510. Affirmative Defense – Reliance on Counsel
1511. Wrongful Use of Civil Proceedings – Affirmative Defense – Attorney’s Reliance on Information Provided by Client
1512-1519. Reserved for Future Use
1520. Abuse of Process – Essential Factual Elements
1521-1529. Reserved for Future Use
1530. Apportionment of Attorney Fees and Costs Between Proper and Improper Claims
1531-1599. Reserved for Future Use
VF-1500. Malicious Prosecution – Former Criminal Proceeding
VF-1501. Malicious Prosecution – Wrongful Use of Civil Proceedings
VF-1502. Malicious Prosecution – Wrongful Use of Civil Proceedings – Affirmative Defense – Reliance on Counsel
VF-1503. Malicious Prosecution – Wrongful Use of Administrative Proceedings
VF-1504. Abuse of Process
VF-1505-VF-1599. Reserved for Future Use

source

CACI No. VF-1500. Malicious Prosecution – Former Criminal Proceeding

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. 1500. Former Criminal Proceeding – Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. VF-1504. Abuse of Process

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. 1501. Wrongful Use of Civil Proceedings

Judicial Council of California Civil Jury Instructions (2024 edition)

Learn more about these sujects

Malicious Prosecution
Prosecutional Misconduct
Vindictive Prosecution
Retaliatory Prosecution
Abuse of Process

Selected Issues in Malicious Prosecution Cases

Malicious Prosecution / Prosecutorial Misconduct

Vindictive Prosecution – Georgetown University

VINDICTIVE AND SELECTIVE PROSECUTION

What is Abuse of Process?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

What’s the Difference between Abuse of Process and Malicious Prosecution?

Malicious Prosecution Actions Arising Out Of Family Law Proceedings: Proceed Carefully

Frivolous, Meritless or Malicious Prosecution

SCOTUS Makes It Easier To Sue Police And Prosecutors For Malicious Prosecution

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

National District Attorneys Association – National Prosecution Standards – NDDA

What Happens If Charges Are Dropped Before Trial?

Functions and Duties of the Prosecutor – Prosecution Conduct

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

PC 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Thomp$on v. Clark – Maliciou$ Pro$ecution

Reichle v. Howards (2012) – Retaliatory Prosecution Claims Against Government Officials –1st Amendment

People v. Superior Court (Greer) 5th & 8th Amendment – Bias / Malicious Persecutor

Hartman v. Moore (2006) –Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

What is a Fiduciary Duty; Breach of Fiduciary Duty

Epic SCOTUS Decisions

Obstruction of Justice and Abuse of Process

What Is Considered Obstruction of Justice in California?

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PC – Filing a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 135 PC – Destroying or Concealing Evidence

Lying Cop or Citizen – PC 129 – Preparing False Statement or Report Under Oath

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

PC 146 Penal Code – False Arrest

Penal Code 148.5 PC – Making a False Police Report in California

Misuse of the Warrant System – California Penal Code § 170

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code § 236 PC – False Imprisonment

Penal Code 664 PC – “Attempted Crimes” in California

Penal Code 31 PC – Aiding and Abetting Laws

Penal Code 32 PC – Accessory After the Fact

What is Abuse of Process?

What is a Due Process Violation? – 4th Amendment & 14th Amendment

What’s the Difference between Abuse of Process, Malicious Prosecution and False Arrest?

Defeating Extortion and Abuse of Process in All Their Ugly Disguises

The Use and Abuse of Power by Prosecutors (Justice for All)

HOW TO LOOK UP A CASE IN THE CALIFORNIA COURT OF APPEAL OR CALIFORNIA SUPREME COURT

The Truth News — Sun, 07 Jul 2024 06:13:06 +0000

HOW TO LOOK UP A CASE IN THE CALIFORNIA COURT OF APPEAL OR CALIFORNIA SUPREME COURT

California makes the majority of appellate case information available to the public and can be easily accessed online. Case information includes the case summary, docket, disposition, briefs, parties and attorneys, and lower court. Both California’s Appellate Courts and Supreme Court case information sites update case information once each hour throughout the business day.

If you are looking for a specific case, or for your own case, in a California Court of Appeal or California Supreme Court, then you can take the following steps to find it.

Step 1: Go to the California Courts Webpage.

First, navigate to the California Courts: The Judicial Branch of California webpage. It can be found at the following link:
https://www.courts.ca.gov/.

Step 2: Scroll Halfway Down the California Courts Homepage.

About halfway down the California Courts homepage, you will see a headline labeled “Courts.” Under that, you will see the following categories:

Step 3: For California Court of Appeal Cases, Select Appellate Case Search.

California Courts Website – Appellate Courts Case Information – Search – Appellate Case Search – web UI screenshot – form.

Under the category “Courts of Appeal,” you will see a link for Appellate Case Search. Click on that link or type into your browser the following:
https://appellatecases.courtinfo.ca.gov/.

From that page, you can select which Appellate District you want to search within. Links for each Appellate District search page are as follows:

1^st Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=1
2^nd Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=2
3^rd Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=3
4^th Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=4
- Division 1 —
  https://appellatecases.courtinfo.ca.gov/search.cfm?dist=41
- Division 2 —
  https://appellatecases.courtinfo.ca.gov/search.cfm?dist=42
- Division 3 —
  https://appellatecases.courtinfo.ca.gov/search.cfm?dist=43
5^th Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=5
6^th Appellate District —
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=6

From there, you will be able to search by additional characteristics for the case for which you are searching.

If you are unsure which Appellate District your case is in, but know which California County Superior Court your trial case was heard in, you can easily find out which appellate court your case should be in. Here are the counties that each Appellate District court has jurisdiction over:

1^st Appellate District — Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma.
2^nd Appellate District — San Luis Obispo, Santa Barbara, Ventura, and Los Angeles.
3^rd Appellate District — Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yolo, and Yuba.
4^th Appellate District — San Diego, Inyo, Riverside, San Bernardino, and Orange.
5^th Appellate District — Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne.
6^th Appellate District — Monterey, San Benito, Santa Clara, and Santa Cruz.

Step 4: For California Supreme Court Cases, Select Supreme Court Case Search.

California Courts Website – Appellate Courts Case Information – Search – Supreme Court Case Search – web UI screenshot – introduction.

Under the category “Supreme Court,” you will see a link for “Supreme Court Case Search.” Click on that link or type into your browser the following:
https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0

Technically, you can access both California Court of Appeal cases and California Supreme Court cases from the initial link (https://appellatecases.courtinfo.ca.gov/); however, the link provided for the Supreme Court allows you to search additional characteristics within Supreme Court cases only.

Step 5: How to Search

From the Appellate Courts Case Information search page (https://appellatecases.courtinfo.ca.gov/), you can search for both California Court of Appeal cases and Supreme Court cases. First, you select which type of case you want. Then, you should select “Search.”

Once you get to the page within the court system that you are trying to search, you can narrow your search according to the following characteristics:

Case Number
Party (Last Name/Organization)
Attorney (Last Name/Law Firm)
Case Caption (Party v. Party)
Court Calendar Date (for Court of Appeal only)

Enter whatever information you have for the case and you will be taken to a Search Results page.

Step 6: Selecting Your Case

From the Search Results page, you will see a list of cases that match the characteristics you put into the search page. The following information will describe each case in the search results:

Supreme Court Case Number (and parties)
Court of Appeal Case Number
Trial Court Case Number
Attorney and Firm Name (this may not appear if you search by party name)

Next, you should click on the case number of the case for which you want to see the information. It will be highlighted and underlined when you move your mouse cursor over it.

Step 7: Reviewing Information About Your Case

Once you select the case you want to review, you will be taken to a webpage with information about that case specifically. There will also be the following information in what appears to be tabs:

Case Summary
Docket
Briefs
Disposition
Parties and Attorneys
Lower Court

You can click on each of the links on these tabs to review information about your case. Some of them may be blank if there is no information for that particular section.

Step 8: Getting E-Mail Updates About Your Cases

From the Case Search website, you can also sign up to receive automatic e-mail notifications about cases. In order to do that, select which court you want to find a case within on the initial search page (https://appellatecases.courtinfo.ca.gov/), and then instead of “Search,” select “E-mail.” You will be taken to a page where you can input your email address, the case number, and which case activity of which you want to be notified. source

4th District Court of Appeal Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content

Why Make a Federal Case Out of It?

Why Make a Federal Case Out of It?

Civil Resource Manual

45. Removal

28 U.S. Code § 1446 – Procedure for removal of civil actions

The What, When, How, and Why of Removing to Federal Court Before a Defendant Is “Properly Joined and Served”

Federal Courts’ Limited Jurisdiction

Removal Generally

Snap Removals

Snap Decisions

Snapbacks?

Key Takeaways

​Requirements for Removing a Case From State Court to Federal Court

Why Remove a Case to Federal Court?

Deadline to Remove a Case

Federal Subject Matter Jurisdiction

Venue for Removal

Filing the Notice of Removal

Notice to State Court and Other Parties

Severing State-Law Claims

Cases That Are Not Removable

Removal to Federal Court

Why Make a Federal Case Out of It?

Selected Issues in Malicious Prosecution Cases

Selected Issues in Malicious Prosecution Cases

Final and Favorable Termination

Lack of Probable Cause

Attorney’s Liability

Damages Recoverable

Punitive damages.

Malicious Prosecution

Series 1500 – Malicious Prosecution

CACI No. VF-1500. Malicious Prosecution – Former Criminal Proceeding

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. 1500. Former Criminal Proceeding – Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. VF-1504. Abuse of Process

Judicial Council of California Civil Jury Instructions (2024 edition)

CACI No. 1501. Wrongful Use of Civil Proceedings

Judicial Council of California Civil Jury Instructions (2024 edition)

Learn more about these sujects

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Obstruction of Justice and Abuse of Process

ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

Penal Code 115 PC – Filing a False Document in California

Penal Code 118 PC – California Penalty of “Perjury” Law

Federal Perjury – Definition by Law

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Crimes Against Public Justice

Penal Code 118.1 PC – Police Officer$ Filing False Report$

Spencer v. Peters– Police Fabrication of Evidence – 14th Amendment

Penal Code 132 PC – Offering False Evidence

Penal Code 134 PC – Preparing False Evidence

Penal Code 135 PC – Destroying or Concealing Evidence

Penal Code 141 PC – Planting or Tampering with Evidence in California

Penal Code 142 PC – Peace Officer Refusing to Arrest or Receive Person Charged with Criminal Offense

Penal Code 148.5 PC – Making a False Police Report in California

Penal Code 182 PC – “Criminal Conspiracy” Laws & Penalties

Penal Code 664 PC – “Attempted Crimes” in California

What is a Due Process Violation? – 4th Amendment & 14th Amendment

HOW TO LOOK UP A CASE IN THE CALIFORNIA COURT OF APPEAL OR CALIFORNIA SUPREME COURT

HOW TO LOOK UP A CASE IN THE CALIFORNIA COURT OF APPEAL OR CALIFORNIA SUPREME COURT

Step 1: Go to the California Courts Webpage.

Step 2: Scroll Halfway Down the California Courts Homepage.

Step 3: For California Court of Appeal Cases, Select Appellate Case Search.

Step 4: For California Supreme Court Cases, Select Supreme Court Case Search.

Step 5: How to Search

Step 6: Selecting Your Case

Step 7: Reviewing Information About Your Case

Step 8: Getting E-Mail Updates About Your Cases

Requirements for Removing a Case From State Court to Federal Court

ARE PEOPLE LYING ON YOU?
CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!