By: Nate Bohlander, Esq.

Removal of a case to Federal Court is a tool of which every civil defense attorney is keenly aware. There are many defensive advantages to litigating in Federal Court, including more favorable jury pools, knowledgeable and conscientious judges more likely to consider meritorious motion practice, and the infamous “rocket dockets,” whereby the parties are pressed to pursue active discovery rather than engage in wasteful delay tactics. While the foregoing characteristics are not always true across the board, defendants generally want their cases heard in Federal Court, while plaintiffs do all they can to avoid removal and litigate in State Court.

More often than not, cases are removed based on diversity of citizenship between the parties. 28 U.S.C. §1332(a). This analysis is traditionally a fairly straightforward process; if the plaintiff resides in the state in which the matter is venued, then all defendants need to be residents of a different state. Plaintiffs’ counsel will oftentimes seek to find an “anchor defendant,” or a party resident of the same state as the plaintiff, to defeat removal and keep the matter in State Court. Given most jurisdictions’ “generous” pleading rules, this strategy usually pays off, leaving defendants in somewhat of a lurch.

However, there is another means by which matters may be removed which is frequently overlooked: original jurisdiction based upon a federal question. 28 U.S.C. § 1331. If plaintiffs’ claims “arise[] under the Constitution, laws, or treaties of the United States,” then the Federal Court is deemed to have “original jurisdiction” over the case. Unlike the party residency requirements of diversity, federal question arises when the cause of action is alleged to violate the Constitution, any codified U.S. statute, or any treaty to which the U.S. is a party. Since original jurisdiction can be hard to come by in the arena of personal injury civil litigation, it oftentimes goes overlooked. But an experienced defense attorney, particularly one who routinely practices in that particular area of law, will recognize this option early on and remove the matter without the need of diversity between the parties.

An example of this is aviation/aerospace law and the Montreal Convention. In one recent case, our firm was able to leverage just the simple threat of original jurisdiction removal to achieve dismissal of our client, with prejudice, before discovery had even begun. Upon initial glance, the matter was destined to remain in State Court. The plaintiff and several defendants were considered residents of the same state, and the case arose from a seemingly state law-based incident: plaintiff alleged that she was caused to fall out of a wheelchair while being assisted through an airport. However, upon our initial investigation, we learned that plaintiff was traveling into the United States from abroad. Both the arriving and departing countries were signatories to the Montreal Convention, which covers airline liability in cases of death or injury to passengers in the course of travel. As the Montreal Convention is a treaty to which the U.S. is a signatory, the case presented a federal question over which the Federal Court could assert original jurisdiction. Faced with the prospect of being forced to litigate the matter in Federal Court or agree to our client’s dismissal, plaintiff’s counsel chose the latter. Our client was able to save not only the cost of litigation, but stay out of the mediation room and courtroom. Federal Court can be such a daunting proposition for plaintiffs’ counsel that they will choose to avoid it altogether in order to keep the matter in their favored State Court venue, even if it means losing potential “deep pockets” along the way. While not all original jurisdiction analyses will lead to a dismissal with prejudice, this recent example proves the power of leverage and Federal Court.

When selecting counsel to represent your clients’ interests, it is important to choose a firm with nuanced knowledge of a particular industry. Morgan & Akins, PLLC has been representing airlines, airport vendors, and port authorities for decades. We also highly value “outside the box” thinking, and pride ourselves on not merely checking the boxes along the normal course of litigation. This combination of acumen and mental dexterity means we can quickly spot early dismissal and/or resolution options, which can save your clients time, money, and aggravation.