To Remove or Not to Remove: Considerations for Removing Actions to Federal Court

Note: An abridged version of this article appeared in the July New Hampshire Bar News.

Removal of state actions to federal district court provides practitioners with a valuable tool for actions filed in state court that involve a question under federal subject matter jurisdiction. Defendants in particular may find that removing a case with a federal questions from state court, which also has state law questions, may provide a more favorable venue for their defense, including the application of the Federal Rules of Civil Procedure and Evidence, electronic filing and a broader population to form a jury pool.

Practitioners representing defendants may be quick to file for removal to federal district court once they see the plaintiff’s state law matter contains a federal question. Yet, the presence of state law claims in addition to a federal question should give practitioners pause and take into consideration whether they should file for removal because the supplemental jurisdiction that the federal district court exercises over the state claims is dependent on whether the federal question remains germane. This consideration is relevant to the intended strategy of the defendant to fully adjudicate the matter through trial in the federal district court or remove to federal district court solely to file a motion to dismiss under Rule 12(b)(6).

When a defendant removes a matter that has state law questions and motions the court for dismissal under Rule 12(b)(6), the court will first look to the federal question when it makes its decision. If the court dismisses the federal question, it will no longer be able to exercise supplementary jurisdiction over the plaintiff’s state law claims. See Camelio v. American Federation, 137 F.3d 666, 672 (1st Cir. 1998). In that instance, the court would be required to remand the plaintiff’s state law claims back to the superior court for further adjudication. See Camelio 137 F.3d at 673.

Once the remaining state claims are remanded to state court, the defendant will be obliged to either file an Answer to the plaintiff’s state law claims or a Motion to Dismiss presumably within thirty days of remand from the federal district court. See Rule 9(b). The end result is that the practitioner’s decision to remove the matter to federal district court only to make a dispositive motion results in the federal claim being removed and requires an additional motion to dismiss filed in superior court to dispose of the state law claims, which incurs additional time and expense to the defendant.

Practitioners facing a scenario where state law claims supplement a federal claim should consider whether removal is beneficial or necessary before filing with the federal district court or whether the matter should remain with the superior court . Among the factors to consider are whether the federal question is exclusive to the subject matter of the federal district court or whether the superior court has concurrent jurisdiction over the claim; whether there is a tactical advantage to remove to federal district court; and/or whether the defendant intends to fully adjudicate the matter before the federal district court or file a dispositive motion.

In accord with these factors, practitioners should consider the application of the Rules of Professional Conduct when deciding to remove such a matter to federal district court. For example, communication to the client under Rule 1.4(a)(3) and Rule 1.4(b) might be implicated. Communicating to the client the rationale for removal to federal district court for a dispositive motion and the possibility of duplicative filing upon remand of the state law claims would be implicit to make the client aware that the tactic might involve added time and expense. Depending on the scope of representation in the fee agreement, the client may wish not to pursue removal if there is no tactical benefit and a dismissal of the federal claim results in a duplicative filing in superior court upon remand of the state claims.

Practitioners should consider their professional duty to act with reasonable diligence and promptness in representing the client under Rule 1.3 when considering removal. When faced with the issue of supplemental state law claims, the practitioner should resolve whether removal to federal district court and filing a dispositive motion is reasonably diligent in adjudicating the defendant’s matter or whether diligence requires that the practitioner allow the superior court to exercise it concurrent jurisdiction over the federal claim and its subject matter jurisdiction over the state claims when considering a dispositive motion.

Removal to federal district court is a beneficial tool for practitioners to employ when faced with federal questions in superior court. However, even though practitioners have the option to use removal should not eclipse the reasoning of whether using removal would be advantageous. Practitioners should accordingly analyze whether it is to the defendant’s advantage to remove the matter to federal court and if suitable discuss the issue with their clients.



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