III. Initial Selection of Forum

LibrarySword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

III. INITIAL SELECTION OF FORUM

A. Concurrent over Section 1983 Claims

Section 1983 creates a cause of action Federal and State Jurisdiction that may properly be filed in either federal or state court. The Supreme Court has held that the Supremacy Clause prevents a state from using its sovereign immunity laws to block § 1983 claims from being litigated in its courts.31 The related attorneys' fee statute, 42 U.S.C. § 1988, is as applicable to § 1983 claims filed in state court as to those filed in federal court.32 The plaintiff may thus choose whether to file in state and federal court. Although this chapter is primarily focused on procedural requirements related to federal § 1983 claims, we briefly describe some topics that counsel should consider when deciding whether to file in state or federal court.

B. Factors to Consider in Forum Choice

Although there are exceptions, the general rule is that the § 1983 plaintiff has a choice, at least initially, of the federal or the state court system. This choice should be exercised thoughtfully. Even though removal is the defendant's option, if the defendant is either unable to agree (with another defendant about removal) or does not act quickly enough (within 30 days), the plaintiff's forum choice will be the final one.

Assuming that the plaintiff has a choice of forum based on the substantive law applicable to the case, the following are examples of some practical factors to consider in making the choice:

1. Federal court personnel still have much more familiarity with § 1983 claims. However, familiarity does not necessarily mean receptivity. The records of specific judges to whom the case may be assigned are always a consideration. On the flip side, in state court, there may not be one assigned judge at all, or the judge may change yearly as judges change court assignments.
2. Counsel should compare the breadth and volume of discovery available in each potential forum. The types of discovery available in federal court, and limits on the use of these tools, are discussed later in this chapter. Many states have altered their discovery rules to more closely resemble the federal model, but some still have major differences. If any discovery must be taken out of state, that is almost always easier under the federal system.
3. If a jury trial is likely, counsel should consider such variables as geographical area from which the jury venire will be summoned, voir dire and argument procedures, and civil verdict
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