At the risk of talking too much “inside baseball” today, I’d like to review some rules of removal of a state-court lawsuit in California for employment discrimination (such as age, sex, race, national origin, whistle blowers, retaliation, harassment) to federal court. This is almost always done by defendant California employers who want to deprive our employee clients of a fair chance of winning. In fact, plaintiff employees win about 60% of the time in state court, and only about 4% in federal court according to the most recent statistics we’ve seen. So, for a number of reasons not important to today’s blog, let’s try to keep your case in state court.
Recall that a defendants may remove a case to federal court from state court if “original jurisdiction” exists. 28 United States Code Section 1441. This jurisdiction for the federal court to hear the case arises from any action under a federal law, an Admiralty case, or if the amount in controversy exceeds $75,000 AND (assuming the plaintiff is a resident of California) at least one defendant “resides” in another state. So, a potentially removable case from state to federal court would occur when John Doe, a resident of California, sues Delta Corporation, a “resident” of, say, Delaware.
This diversity must exist at the time of filing the lawsuit. Strotch Corp vs. Air Transport. Ass’n of Am, 300 F3d 1129, 1131 (9th Cir. 2002). There are two exceptions to the rule that diversity must exist at the time of filing, so as to allow defendant Big Bad Corporation to remove later. First, if the plaintiff voluntarily dismisses a non diverse defendant.then diversity exists and the case can be removed within 30 days of the dismissal. Secondly, if there is a “fraudulent joinder”, a case may be removed. This concept simply means that a defendant added a sham or nominally non-diverse defendant in order to prevent removal. Ritchey vs. Upjohn Drugs Co., 139 Fed 1313, 1318 (9th Cir. 1998).
There are other rules pertaining to affirmation of the judgment which are beyond the scope of this article. However, for today’s purposes, if you file a California discrimination lawsuit (or any lawsuit for that matter), be prepared to defend your inclusion of an out of state defendant or face possible removal to federal court.