76 J. Kan. Bar Assn. 9, 22 (2007). A Practitioner's Road map to Removal and Remand in Kansas Courts.

• Author: By Casey Tourtillott and Matt Corbin

Kansas Bar Journals

Volume 76.

76 J. Kan. Bar Assn. 9, 22 (2007).

A Practitioner's Road map to Removal and Remand in Kansas Courts

Kansas Bar JournalVolume 76, October 200776 J. Kan. Bar Ass'n 9, 22 (2007)A Practitioner's Road map to Removal and Remand in Kansas CourtsBy Casey Tourtillott and Matt CorbinState court ... federal court ... justice is blind, so what's the difference? A common perception among lawyers is that forum matters. A lot. Often plaintiffs' attorneys like to file cases in state court.1 Often defense attorneys are looking for a way to remove the case to federal court.2 The reasons vary. Maybe a plaintiff's attorney is more familiar with state court practice and procedures,3 or she may want to avoid application of federal expert witness law.4 A defense attorney might expect that federal courts will be more open to granting summary judgment.5 Or perhaps an out-of-state defendant fears local bias in state court.6 Whatever the reason, empirical data suggests that the perception may be well founded: A 1998 study calculated that plaintiffs' "win rate" in removed cases is less than 37 percent.7 Any study has weaknesses, and the forum is likely not the sole basis for the low win rate. But the data should at least encourage lawyers to take a closer look at where they want to litigate their case.

Suppose an attorney represents a defendant in a Kansas state court. The particular county is notorious for generous jury verdicts, and the attorney decides that he needs to get the case moved to federal court. Where does he begin? The road to federal court is narrow. What's more, it can be full of sharp curves, speed bumps, and potholes. A defense attorney should be aware of these obstacles, or he may find himself remanded to state court on a toll road. That said, a plaintiff's attorney must be able to successfully maneuver the requirements for remand, or she may find herself on a permanent detour to federal court.

The purpose of this article is to guide Kansas practitioners through the twists and turns of removal and remand.8 Although practitioners may remove both civil and criminal cases, this article focuses on civil actions. The ins and outs of criminal removal are on a map of their own.

1. The Ticket to Federal Court: Types of Removable Cases

   A plaintiff's case must qualify for removal before the defendant can leave the state court parking lot. The concise rule of removability is this: An action is removable if the plaintiff could have originally brought the action in federal court.9 The party seeking removal bears the burden of establishing federal jurisdiction.10 That burden, moreover, is a heavy one.11

   Most removable cases fall into two categories - federal question jurisdiction cases and diversity jurisdiction cases.12 A number of federal statutes specifically permit removal13 and a number prohibit removal.14 While most of those statutes are beyond the scope of this article, practitioners should bear in mind that Congress may expand or limit the removability of a case to federal court.

   1. Federal question jurisdiction

      The court evaluates whether it has federal question jurisdiction based on the "well-pleaded complaint rule,"15 meaning that it considers the claims in the plaintiff's petition16 at the time of removal.17 The court ignores defenses18 and counterclaims.19 A defense is irrelevant to jurisdiction "even if both parties admit that the defense is the only question truly at issue in the case."20 It serves no purpose for the petition to anticipate that the answer will raise a federal question or for the removal notice to baldly declare that a federal question exists.21 Nor does it help for a defendant to assert that the plaintiff's claim is barred by a prior federal judgment.22

      The plaintiff is the master of her claims, and if she chooses to pursue only state claims (despite the availability of a federal remedy), the court will not exercise federal question jurisdiction.23 A plaintiff may not, however, engage in "artful pleading."24 In other words, if resolution of a state claim involves a "substantial federal question," the federal court will accept the case.25 Likewise, if federal law completely pre-empts state law, a plaintiff cannot escape federal court.26 But both the substantial federal question doctrine and the complete pre-emption doctrine are roads with light traffic that usually lead to dead ends. Courts use caution in identifying substantial federal questions,27 and the U.S. Supreme Court has only found complete pre-emption in three areas: (1) Section 301 of the Labor-Management Relations Act,28 (2) Section 502 of the Employee Retirement Income Security Act of 1974,29 and (3) the National Bank Act's usury provisions.30

      Where a case contains one federal claim, the court may assert supplemental jurisdiction over tag-along state claims.31 Even when the state claims do not qualify for supplemental jurisdiction, the federal court may still retain "separate and independent" claims pursuant to 28 U.S.C. § 1441(c).32 The separate and independent claim basis for removal (or remand) is tricky, however, and courts rarely apply it.33

   2. Diversity jurisdiction

      1. The parties

         Diversity jurisdiction in the removal context is more limited than original diversity jurisdiction. By statute, a defendant who lives in the "home state" of an action cannot remove the case.34 Although the court may exercise diversity jurisdiction when a plaintiff has voluntarily dismissed a nondiverse party in state court,35 the court will not do so when the state court dismisses a nondiverse party.36 On the other hand, where a potential - not actual - defendant is nondiverse, a defendant need not negate his existence.37 Plaintiffs also may not defeat diversity by naming John Does.38

         Defendants have a few arguments they may make when diversity is not apparent on the face of the petition: the plaintiff fraudulently joined a nondiverse party to keep the case out of federal court,39 and/or diversity exists because the parties are misaligned.40 A defendant may not realign itself, though - realignment lies within the province of the court.41

      2. Amount in controversy

         The court determines the amount in controversy based on the petition or, where the petition is unclear, from the notice of removal.42 Take the situation where a plaintiff pleads an open-ended amount in controversy (i.e., "more than $50,000"). In this instance, the defendant must prove by at least a preponderance of the evidence that the amount in controversy exceeds $75,000.43 What if a plaintiff specifically claims an amount of damages less than $75,000? Then the defendant must establish the jurisdictional amount by a reasonable certainty.44 The value of any counterclaims is irrelevant in this calculation.45 But the defendant may establish the amount in controversy by showing its costs of complying with a potential injunction.46 In Kansas, a useful tool for defendants is Kansas Supreme Court Rule 118, which allows a defendant to seek specific information about the plaintiff's claimed damages.47

         The court has a duty to independently assess its jurisdiction, which means that removal is not automatically proper, even if the parties agree that the amount in controversy exceeds $75,000.48 That said, a plaintiff is free to disclaim damages over a certain amount.49 A plaintiff who wants to prevent removal in a case where the parties are diverse should consider disclaiming damages more than $74,999 in the petition.50 Once a federal court exercises diversity jurisdiction, a plaintiff cannot amend her claimed damages to defeat federal jurisdiction.51

2. Following Directions: Statutory Removal Procedures

   Courts strictly construe removal statutory procedures,52 employing a presumption against removability.53 This means that a single wrong turn by a defendant in removing a case can be a one-way ticket back to state court. For example, District of Kansas Local Rule 81.2 allows the court to remand a case if the defendant fails to file a copy of all state court records within 20 days of filing the notice of removal. The following section discusses what defendants must do to properly remove a case. It goes without saying that only a defendant may remove an action; once a plaintiff chooses to file her case in state court, she may not remove her own case.54

   1. Filing requirements

      So what do defendants need to do? The notice of removal must contain a "short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon [the removing defendant(s)]."55 Defendants must sign the notice in accordance with Federal Rule of Civil Procedure (Fed. R. Civ. P.) 11. Removing defendants also must: (1) promptly serve written notice of removal on all adverse parties,56 (2) file "forthwith" a copy of the notice of removal with the state court,57 (3) file a certificate in federal court showing that all notices and filings in state court were served,58 and (4) comply with other federal and local rules for commencement of actions.59 The removal is not effective until the removing defendants file a copy of the notice of removal with the state court.60 The date removal is effective, of course, is key for timing requirements.

   2. Timing

      When do the actions need to be taken? It depends, but it matters. While time limits are procedural requirements, not jurisdictional requirements,61 courts do not hesitate to remand a case for untimely removal.62 The parties may not extend the...