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Suit Filed and Moved!

Discussion in 'Alternative Dispute Resolution' started by David_S, Oct 26, 2004.

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  1. David_S

    David_S Law Topic Starter New Member

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    I'm hoping to derive some information about the legal process, especially dealing Federal Rules & Procedure and what are justifiable actions from a defense attorney who has pulled something on me that I don't believe is justifiable in anyway!? I'm Pro Se at present but maybe not for long if I can find the right attorney? :D

    I filed a suit against my insurance co for, Bad Faith Claim, Breach of the Covenient etc. in Ca. Superior court and shortly thereafter the case was moved to Federal Court but with no notice to me of any kind that it was about to happen! :mad:

    I don't believe that's according to the Federal Rules of Civil Proceedure and would like some input. They have also pulled other stunts too! :mad:

    One of the reasons they gave in havine the suit moved was Diversity of Citizenship as the Ins.Co. is located in an Eastern state. I find this reason to be moot as the Ins. Co. willingly conducts business here in Ca. and reaps millions in profit from Ca. yet has their home office in the East by their choice. If an Ins.Co. does business in Ca. they are governed by the laws of Ca. and not their home state and they hire Ca. attorneys to fight for them here anyway so again the diversity issue seems utterly moot! Also I seriously doubt anyone from the main office even considers comming out for trial??:rolleyes:

    Your input is appreciated, David
     
  2. NYClex

    NYClex New Member

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    Just last month I read an article about this in TRIAL, the magazine of ATLA. It seems you fell into a very typical trap. Big companies like to remove to Federal Court because they think they have better chances for a favourable verdict there.

    Now the rules are pretty concise, they can remove under certain circumstances, diversity of citizenship is one of them. As long as the elements are given, they can do so and you cannot do much against it. What you can do is look if you can change certain things in your complaint so that the elements are no longer there that justify removal. But franlky, this should be done by a lawyer.

    Here is an excerpt of this article, like I said, this should be handled by a lawyer:

    Keep your case in state court
    ERIK B. WALKER
    TRIAL 9/2004
     
    Last edited: Oct 28, 2004
  3. David_S

    David_S Law Topic Starter New Member

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    A fantastic response which is appreciated greatly!

    Erik,
    Hello from one New Yorker to another but I grew up in Ca.

    The information you provided is very helpful and appreciated as I'm up against a defense firm who seems to spit out the paperwork in stacks of twenty or more pages for anything. You might be aware of the type but they're here in Ca!

    >Federal-question jurisdiction
    The general removal statute authorizes removal only if the lawsuit could have been originally filed in federal court because at least one cause of action arises under federal law (federal-question jurisdiction) or because every plaintiff is a citizen of a different state from every defendant and the amount in controversy exceeds $75,000 (diversity jurisdiction).<

    Interestingly enough the compalint I filed in State Court didn't have any constitutional issues in it that I raised. The defense firm interjected their own though as I was seeking punative damages!

    I have four parties named in the suit, three of whom live in Ca. and the fourth is the Ins.co. who has their office in the East by choice but gladly does business here in Ca. so I'm unsure that would satisfy
    a diversity issue.

    The dollar amount may be the deciding factor as it's well above the figure you mention.

    The main thing that I find very confounding is that the firm made no attempt to contact me in any way about their intentions of removal thereby allowing me to object?? I've read that defense attorneys often do this type of thing.

    What do you think, Erik?
     
    Last edited: Oct 29, 2004
  4. NYClex

    NYClex New Member

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    oops, no, I am not Erik. Erik is the author of the article named "keep your case is state court."

    What you are experiencing is the reality of the legal business today. Big lawfirms always bury their opponents in paperwork, and they usually don't advise you in advance of what they will do.

    You said they removed on grounds of diversity, then you don't need a federal question or a constitutional question, it is enough to have total diversity of citizenship and a sum in dispute that is $ 75,000 or more. It is curious, though, that you say you do have defendants who are in California.

    Now, like I said, since you seem to have a big case there and are up against an insurance company's legal resources you should get your own attorney to look at this.
     
  5. David_S

    David_S Law Topic Starter New Member

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    An appology.

    Hello NYClex,
    Oops is correct, my mistake for calling you by the wrong name I assumed that as the other article ended with Erik that was you.

    May I ask your profession there in NYC and is it possible to get in touch with you via email?
     
  6. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    David -- Federal court can be located in CA and interpret the issues using the laws of CA. It is just a different venue and can prove to be one not as easy for a pro-se litigant to navigate. Typically it is no-nonsense and the usual items that fly in state court don't go on for long in Federal. Regarding lack of notice, what was the explanation given? Additionally, if you are talking about a case worth over $75,000, why do you prefer (or is there no choice) to be represented by yourself and not by an attorney?

    Let me ask you this -- was the case moved to a federal court in CA or NY?
     

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