Y’all, if you know you’re going to be removed, just initiate the case in federal court to begin with. It’ll save everybody involved a whole bunch of time and headache.
Lots of plaintiffs’ lawyers gasp when I say that. They look at me like I have three heads.
- “Are you nuts?”
- “Oh, you’re a comedian now?”
- “Clearly, you’re an idiot.”
I certainly understand why they react that way. State juries are kinder to plaintiffs, generally speaking, than federal juries. And it makes perfect sense to go where your odds of success are better. But the reality is, if you’re going to get yanked to a federal venue anyway, you’re a whole lot farther ahead to file there at the outset.
Look, I’m an AAJ member for a reason. I’m a plaintiffs’ guy. I like holding defense lawyers’ feet to the fire. A huge part of what motivates me in this business is playing a small part in making injured parties whole, whether that injury is physical/emotional, financial, or constitutional. And nine times out of ten, I’ll agree with you that state court is a better place to be than 40 Foley Square.
But purely from a service of process perspective, when you have offshore defendants, it’s a whole lot cheaper, a whole lot easier, and a whole lot less complex to operate under Fed. R. Civ. P. 4. Several reasons:
- Time. You’ve got a friend in 4(m).
- Certainty. Rule 4(f)(1) specifies the application of the Hague Service Convention. Thanks to Schlunk, you don’t have a choice in the matter, but you won’t have to argue with the judge when you can simply cite that rule.
- Flexibility. If the Convention isn’t applicable, 4(f)(3) lets you serve electronically.
- Savings. Notice pleading keeps translation costs down, while those of us in fact pleading states have to submit volumes, lest we waive a particular argument.
If you practice in Missouri and have ever scratched the surface of Rule 54, you know that the state’s rules on service of process aren’t incredibly well thought-out. Or they may have been well thought out in 1973, but they haven’t gotten a deep-dive review in quite some time, so they really don’t reflect the realities of life in the 21st century. When a client calls me from St. Louis or Cape Girardeau, I know that just getting a summons issued could be a massive pain in the neck.
Contrast this with the likes of Colorado (among other states), where the Supreme Court has substantially adopted the Federal Rules of Civil Procedure– not verbatim, but in large measure. I know that litigators in Denver or Grand Junction aren’t too hassled when it comes to process, and I know they’ll enjoy the same operating system in either venue.
Now, if you can destroy diversity and think you have a better shot in state court, by all means– tee it up. But if federal venue is inevitable, save yourself some turmoil in the beginning.