Today I am talking about removal. And not just talking about it. I am giving you the bottom line. I have litigated 200+ cases, with many cases in state court and many cases in federal court. Non-compete. Trade secrets. Tortious interference. Fiduciary duty. False advertising. Trademark. Partnership breakups. Securities fraud. Antitrust. Employment discrimination. Civil rights. You name it. These are my rules and considerations.
An objective assessment of the Florida state court landscape. As a threshold matter, the federal bench tends to be stronger than the state court bench. And the federal bench is somewhat more insulated from improper influences and cronyism. Are there certain Florida federal judges who I regard as questionable? Of course. But on the whole, it’s a better talent pool. And in the SDFL, for example, there are a number of really outstanding judges.
Are there good state court judges in Florida? Of course. There are some truly outstanding ones. But fewer than in federal court. A big part of the reason why is that Florida badly underfunds the judiciary. Courts and judges don’t have enough resources (i.e. law clerks and staff). Judges have dockets that are massive. It takes a herculean effort for a state court judge to move the cases and give every case thorough treatment and consideration. Beyond that, there are more judicial shenanigans. Conflicts of interest. Judicial impropriety. Cronyism. Bias. As Florida state court judges are elected, there is naturally more rubbing elbows with the bar.
Over the past decade, I have seen countless cases (not mine) where some defendant from another state gets sued in Florida and just chooses to stay there. Because they end up hiring a lawyer / law firm that (a) does not actually consider removal; (b) does not have a mastery of the law of removal; (c) actually wants to stay in state court because they think they can better work the state court system; or (d) say “I know the judge.”
And I have seen a lot of those cases end in a disaster. I’m not really talking about regular people or unsophisticated defendants. I’m talking about sophisticated defendants — either people who have a bunch of money and experience or pretty substantially sized companies. Especially privately held ones or regional actors.
They call our office. I’ve heard everything:
- Our lawyer didn’t tell us about removal. We didn’t know we could get to federal court. We never knew we had that option.
- Our lawyer wanted to be in state court. He said it would be easier and less work / less expensive.
- Our lawyer wanted to be in state court. He said state court was better for this type of case.
- Our lawyer told us he knew this judge or had friends who knew the judge and that would play in our favor.
And then shit hits the fan. The other side hires some state court brawler who knows how to work the system and drag cases out forever. Just making you pour money into the litigation and wearing you down. Now you’re two years into the case with no end in sight. Or, even worse: The lawyer who knew the judge or had friends who knew the judge? Well, you lie down with dogs and you get fleas. The other side plays that same game, too — but they play it better than you.
Removal must always be considered. That doesn’t mean asking, “Should we remove?”. That means asking, “Is there any way we can remove?”. And if the answer there is “yes” or “I think so” — then you pull the trigger and do it. I don’t care what type of case it is. I don’t care who the initial assigned judge is. I don’t care who is on the other side of the case. If you sue any of my clients in Florida state court, my first question is: Can we remove this? And that’s where lots of folks run into problems.
Let’s put aside the “I want to stay in state court” lawyers (of which there are many). There are plenty of other lawyers who just don’t know removal law. Even on something as basic as diversity jurisdiction. There are so many lawyers who don’t understand corporate citizenship. They see an LLC and think the LLC is a citizen of the state of registration / organization. They don’t even know that an LLC’s citizenship is determined by the citizenship of its members.
Sounds pretty basic and pretty wild, right? But I can’t even count the number of lawyers I’ve encountered who don’t know basic stuff like that.
And that’s on something rudimentary like diversity jurisdiction. That doesn’t even touch upon the more complicated / creative grounds for removal. Satisfying the amount in controversy not based on damages but based on attorneys’ fees? Or based on the object of a declaratory judgment action? Or some shit in the relevant market that could be impacted by a judicial determination?
Or copyright preemption. How many “commercial litigators” do you know who have successfully removed a case to federal court based on copyright preemption? As in: You sued my client in state court. You sued for breach of a non-compete agreement and supposed theft of trade secrets. But your complaint is centrally about supposed copying and commercial use of your secret documents. So that’s a copyright claim. Welcome to federal court, bucko.
I say “copyright preemption” and so many big firm lawyers who are supposedly real hitters just scratch their heads. You ever heard the slogan Florida’s law firm for business? Well, I guess I’m Florida’s law firm for law. Real lawyers aren’t just one trick, copy-and-paste ponies. Real lawyers actually know some law. Real lawyers have a toolkit. Removal is a very basic part of the toolkit. Because in many parts of America, venue is basically destiny.
And removal chess doesn’t end after a preliminary analysis. If you know, you know. Removal must always be on the radar if there is an amended complaint or a bankruptcy. We have had cases sit in state court for a year or more. And then the other side files an amended complaint. They add a bunch more claims. That’s their big shock and awe move. What they assume is the collapse play (because of the hubris and ego that is so rampant among litigators). And we yank the case out of state court and remove it to federal court. It’s like the dog who caught the car.
We’ve had plenty of cases where the other side was breathing fire in state court. But once we removed the case to federal court, they freaked out, fought like mad to send it back down, or simply waived the white flag and tapped out.
Which brings me to the subsidiary point: You have to shoot your shot. It’s not enough to know and understand the law of removal. You have to be willing to pull the trigger and take risks. Even when the odds are not 100% in your favor. I hear this all the time from the general counsels of Fortune 500 companies (facts). They tell me, “Pollard, most of these big firm lawyers are so timid. They’re cowards. They’re afraid to do anything that doesn’t have a 99% chance of success. They are never willing to take a calculated risk.”
If you take a step back and look at the bigger picture: This is forum / venue strategy. It is basically forum chess. Several years ago, I was in a bankruptcy court in South Carolina when some lawyer on the other side stood up and exclaimed (in a thick, Southern draw full of faux outrage), “But your honah, Mr. Pollard is forum shoppin! Matter of fact, he even writes a blog on forum shoppin!” You caught me. You caught the tater. The judge was basically like: Stop wasting my time! I don’t care what Mr. Pollard writes a blog about. Story of my life. Can’t beat me on the merits, make it about one of my blog posts or Youtube videos — because, yeah, I’m a public intellectual.
The smear of “forum shopping” was created by corporate America. And it’s bullshit. Let’s get real: I represent my clients. I have a fiduciary duty to protect their interests (within the law and the rules). So while acting within the law and the rules, if I can get their case into a more favorable forum — why the hell wouldn’t I? Will I try that even if it might be a bit of a stretch? Absolutely.
So it’s not just knowing the law of removal / remand. It’s also knowing the law of jurisdiction and venue, generally. Because when you know that, you can often be proactive. You can often sue first in the most advantageous forum and avoid various courts where you really don’t want to be.
Jonathan Pollard the founder of Pollard PLLC. Pollard and his colleagues have litigated more than 200 cases. Many of them high-stakes, complex, non-compete / trade secret / or unfair competition matters. The firm has offices in Fort Lauderdale, Miami, and St. Louis.
