A State court litigant may have the option of removing his case to Federal court, if there is Federal jurisdiction over the case. There are two ways that the Federal courts may have jurisdiction. One is that the case involves a Federal question, such as violation of a constitutional right. The other is if there is diversity of citizenship, meaning that the parties are from different states. However, in either case, the amount in controversy must be more than $75,000.00.
What if the other side disagrees that the case should be in Federal court? Then it can file a motion in Federal court to remand the case back to state court. The motion must demonstrate that there is no basis for Federal jurisdiction over the case. The court will decide the motion and if granted, send the case back to state court.
It should be noted that in the New Jersey Federal court system, one third of all judgeships are vacant which means that the remaining judges have a 150% workload, which means that motions are decided very slowly. The result is that justice may be substantially delayed before the remand motion can be decided.
Removing to Federal court can be very beneficial. I once took over a State court negligence case against a public entity which was about to be dismissed. I removed the case to Federal court on the basis that the public entity had violated my client’s constitutional rights. Eventually the defendant paid a very substantial confidential settlement in this very difficult case. Such a result would not have been possible in state court, which could have a bias in favor of protecting the public entity.
Your litigation attorney must have experience in both state and Federal court to be truly effective.
