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).6 Courts construe the general removal statute strictly, assuming as true all allegations in the complaint, resolving all factual disputes and ambiguities in the law in favor of remand.7 As a result, you can often avoid removal simply by drafting your complaint artfully.
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Diversity jurisdiction
Plaintiffs can exercise various options in their pleading to avoid diversity of citizenship or the amount-in-controversy requirements of federal diversity jurisdiction.
Sue nondiverse defendants.
Plaintiff attorneys too often focus their attention on "target defendants," even though others may also be liable for their clients' injuries. Often, multiple entities' wrongdoings combine to produce a single injury. These additional wrongdoers may be citizens of the same state as your client. Suing them as well as the "principal tortfeasors" can destroy diversity, eliminating federal jurisdiction.
For instance, if your client was injured by a defective prescription drug, look beyond the manufacturer: The plaintiff's physician may be liable for failing to warn your client of dangers associated with the drug, sales representatives who promoted the drug to the physician may be liable for misrepresenting or concealing its side effects, and even the pharmacy may be strictly liable as an entity in the product's chain of distribution.
If your client was injured by a dangerous condition on premises owned by a foreign defendant, the premises manager may be liable for unreasonably failing to correct the defect, and the premises employees may be liable for creating or failing to correct the defect (particularly if their conduct was intentional).
Courts can ignore claims against nondiverse defendants by ruling on motions to remand only if they conclude these defendants were "fraudulently joined." Fraudulent joinder exists only if the defendant proves, by clear and convincing evidence, that there is "no possibility" the plaintiff could prevail against the defendant.16 You should therefore consider suing such entities, regardless of whether you anticipate receiving a substantial recovery from them, in order to keep your lawsuit in state court.
Make your allegations specific enough to survive a motion to dismiss for failure to state a claim on which relief can be granted, bearing in mind that the standard for evaluating a claim of fraudulent joinder is even less strict than the standard for evaluating a motion to dismiss.17 As a practical matter, judges suspicious of your motive for naming certain nondiverse parties may not strictly enforce the "no possibility" standard for fraudulent joinder. Pleading with specificity is therefore recommended.
Keep in mind, however, that suing additional defendants may create substantive problems with your claims against the principal defendant. For instance, if a court ultimately determines that a physician failed to warn of known risks of a drug, or that an intermediate distributor sold a product without warning of risks it knew, your claim against the manufacturer could be harmed by the learned intermediary defense. On the other hand, suing these intermediaries may induce them to be forthright in revealing the manufacturers' concealment of relevant information.
Move for leave to add nondiverse defendants.
The general rule is that the propriety of removal is based on the complaint that existed at the time of removal, so moving to add nondiverse defendants offers no guarantee of remand. However, some courts have granted leave to add such parties and remanded cases afterward.18
If you learn about nondiverse defendants after removal that should be sued, consider moving for leave to amend your complaint to add the defendants simultaneously with the filing of your motion to remand. Include in the latter motion the argument that, if the motion for leave is granted, diversity of citizenship will no longer exist.
Stipulate that the amount in controversy is less than $75,000.
Such a stipulation must be made in good faith. If your client's damages may conceivably be limited to that amount, consider stipulating—with your client's consent—that these are the maximum damages to which he or she is entitled.
Damages, for purposes of evaluating removal jurisdiction, include punitive damages and attorney fees but exclude prejudgment interest and costs. Multiple claims by a single plaintiff are aggregated. However, each plaintiff's claim is considered separately from every other plaintiff's claim, assuming that the plaintiffs maintain separate causes and are not staking claim to the same pool of funds. A stipulation, at the time you file your complaint, that damages for each plaintiff will not exceed $75,000 is automatically assumed true unless the defendant proves to a "legal certainty" that you have fraudulently or incompetently assessed damages.19
Avoid dismissing nondiverse defendants for at least one year.
The removal statute permits defendants to remove a lawsuit within 30 days of the filing of the first pleading (original or amended) establishing federal jurisdiction. One exception is that no lawsuit not initially removable may be removed on diversity grounds more than a year after its commencement, even if the amended pleading first establishing federal jurisdiction was filed more than a year after the suit's commencement.20
Consider maintaining your causes of action against at least one nondiverse defendant for a full year after filing your original complaint, even though the opportunity for settling with that defendant may arise earlier.
Courts are split on whether the one-year limit is jurisdictional or procedural.21 If jurisdictional, the provision cannot be disregarded under doctrines of waiver or estoppel. If procedural, the provision can be ignored on equitable grounds.
However, decisions declining to enforce the time limit generally involved egregious acts of forum manipulation by the plaintiff. In one case, the plaintiffs intentionally misrepresented the amount in controversy until the one-year deadline passed.22 In another case, the plaintiff sued the wrong nondiverse party, added the correct party very soon after learning of a defendant's intent to remove the lawsuit, and postdated a notice of dismissal of the nondiverse party, waiting to file it until the one-year deadline passed.23 Such actions are a far cry from simply refraining to settle with or dismiss a defendant before the one-year period has expired.
Consider suing the target defendant in its home state.
The provision in the general removal statute that any lawsuit that originally could be filed in federal court may be removed has an important exception: No defendant may remove a lawsuit that is filed in a court of the state in which the defendant is domiciled.24 Your client can file suit in the defendant's home state and avoid removal, even though your client and the defendant maintain diverse citizenship.
Many plaintiff attorneys assume that a corporate defendant will have an advantage in its home state. You may be surprised to learn how many prominent companies are not well received by many or a majority of citizens in their home states.
Further, you can sue a company in the state of its incorporation, in addition to the state of its principal place of business, because both states are deemed its domicile for diversity purposes.25 Corporations rarely have a home-field advantage in their state of incorporation, where they often have few ties.
