Keeping your case from being removed to federal court, and a look at when you might actually want it there
If you represent plaintiffs in employment- discrimination cases in California, there are many reasons you would prefer to have your case heard in state court, and many things you need to do to ensure it can remain there. This article discusses many of the most common reasons it is preferable to be in state court and offers advice on how to keep your case from being removed to federal court. But even in California, there are times when the advantages of litigating in state court do not always outweigh the disadvantages. As you’ll see in the exceptions described below, although state court is often the better choice, you should do a cost-benefit analysis in each case to determine which court is right for your particular case and client.
The reasons for litigating in state court
•One peremptory challenge without showing cause
One benefit of litigating in state court in California is the opportunity to exercise a peremptory challenge to disqualify one judge without any showing of cause. (Code Civ. Proc., § 170.6.) In federal court, there is no such opportunity and, unless you can disqualify your federal court judge for cause, you have no control over the judge you are assigned. While section 170.6 challenges do not give you control or any guarantee that you will get a great judge, they do help you avoid the worst judges.
•Greater discovery without leave of court
A second benefit to litigating in state court is the greater amount of discovery permitted without seeking leave from the court. In federal court, each party may take only ten depositions, and each deposition can only be one day of seven hours. If you want more time or more depositions, you either need a stipulation with opposing counsel or you need to seek and obtain leave from the court. In state court, there are no limits on the number of depositions that can be taken or on the amount of time you can spend deposing any particular witness. Rather, California’s seven hour per-witness limitation on deposition testimony expressly excludes employment cases. (Code Civ. Proc., § 2025.290, subd. (a)-(b)(4).) If a party feels that the depositions are becoming harassing, they have the burden to seek a protective order from the court. Of course, this cuts both ways – it also means that the plaintiff may have to sit through several days of deposition. But, in employment cases, the rule often benefits the plaintiff, who may need to take more than 10 depositions and/or may need more than seven hours to depose the corporate PMQ.
Written interrogatories are also strictly limited in federal court, to 25 per party, unless a party obtains leave from the court. This is often a severe limitation in an employment case – especially when the number and length of depositions that can be taken are limited. In state court, form interrogatories are designed specifically for employment cases. In addition, while special interrogatories are limited to 35 in state court, the ability to serve additional interrogatories is easily accomplished. Instead of seeking leave of court, a party can serve additional interrogatories by including a declaration with the information contained in Code of Civil Procedure section 2030.050. The burden is on the responding party to seek a protective order if the number of interrogatories is unwarranted. (Code Civ. Proc., § 2030.040.)
•More time to oppose motions for summary judgment
In California state court, motions for summary judgment must be noticed at least 75 days before the hearing date. (Code Civ. Proc., § 437, subd. (c).) This allows plaintiffs time to take depositions and serve additional written discovery after receiving the motion and before the opposition is due. In federal court, motions for summary judgment are often filed after the close of discovery, preventing plaintiffs from interrogating witnesses on the theories set forth in the motion. In addition, the Federal Rules of Civil Procedure allow a motion for summary judgment to be served only 14 days before the hearing. (Fed. Rules Civ. Proc., rule 6(c)(1).) While most federal courts have local rules providing longer notice periods, none are as generous as the notice period required in state court, and some are draconian. In the Central District, for example, absent a briefing schedule approved by the district court, the opposition to a summary judgment motion is due just seven days after the motion is served.
•Better jury pools, more voir dire, and larger jury verdicts
Juries are one of the biggest factors that make state courts preferable to federal court in California. Almost everything jury-related is better for the plaintiff in state court. First, the potential jury pool is often considered more plaintiff-friendly as compared to federal court. This distinction is often attributed to the sources from which California state courts select potential jurors. Specifically, in California, state jurors are randomly selected from sources “inclusive of a representative cross section of the population of the area served by the court.” (Code Civ. Proc., § 197, subd. (a).) This includes selecting jurors from the Department of Motor Vehicles license records and county voter registration records. (Code Civ. Proc., § 197, subd. (b).) In federal court, prospective jurors are selected only from voter registration records, which is considered to produce a more conservative jury panel.
Second, in state court, attorneys have the right to question prospective jurors during voir dire. (Code Civ. Proc., § 222.5.) Though the trial judge can place reasonable limits on the scope of each counsel’s voir dire examination, the limitation must not impede an attorney’s ability to conduct a liberal examination and to discover possible bias or prejudice. (Ibid.) In federal court, attorneys may or may not be permitted to conduct voir dire examination depending on the judge assigned to their case. Rather, in many federal courts, attorneys must submit questions to the judge who then questions the prospective jurors. This makes it impossible to ask follow-up questions of prospective jurors and fully probe for bias.
Probably the main benefit to filing your case in state court, the one that outweighs almost every other consideration, is that a plaintiff prevails in California state court if three-fourths of the jurors agree on a verdict. (Cal. Const., art. I, § 16; Code of Civ. Proc., § 613.) In federal court, a unanimous verdict is necessary for a plaintiff to win. (Fed. Rules Civ. Proc., rule 48.) The difference between needing three-fourths versus everyone on the jury to agree that you win when you carry the burden of proof is substantial both in winning and in assessing damages. While compromise verdicts can occur in any court, they are more common in federal court where every single juror needs to agree. In state court, one, two or even three outliers do not affect the verdict if nine out of twelve jurors believe your client is entitled to large damages.
•Greater attorney fee awards
Larger attorney fee awards are another reason to file your employment- discrimination case in state court. Most employment cases allow prevailing plaintiffs to obtain attorney fees. California state courts are more generous in allowing multipliers, and have substantial discretion in increasing the amount of attorneys’ fees. (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 [explaining that state court judges may increase or decrease the amount of attorneys’ fees based on a number of factors including: risk associated with contingency fee, quality of work, novelty and complexity of issues and result obtained].) On the other hand, in federal court, enhancing attorneys’ fees because the attorney took the case on a contingency fee basis is prohibited under fee-shifting statutes. (McElwaine v. US West, Inc. (9th Cir. 1999) 176 F.3d 1167, 1173.) As attorneys’ fees awards are usually substantial, recovering your fees in state court as opposed to federal court can mean the difference of hundreds of thousands of dollars in a single case.
Avoiding removal to federal court
There are two things you must do to keep your case in state court – avoid diversity and include only state claims. To be clear, you must do both.
First you must avoid diversity. This means that you must include at least one in-state defendant. If you have an in-state employer, then your work is complete and you will have established diversity without looking for an individual defendant. However, if the company is incorporated out-of-state and has its primary place of business out-of-state then you must try to find a legitimate in-state defendant. In a harassment case, the harasser usually resides in California and can be named as an individual defendant – thereby defeating diversity. However, because individuals cannot be sued for discrimination or retaliation, it is not always as easy to defeat diversity in a discrimination or retaliation matter. In such cases, it is important to explore additional causes of action to determine if you can find an in-state defendant. Often these can be found by including a defamation claim or a claim of intentional infliction of emotional distress. However, be cautious; a plaintiff must be able to establish a legitimate cause of action against the non-diverse defendant. (Morris v. Princess Cruises, Inc. (9th Cir. 2001) 236 F.3d 1061, 1068; Burden v. General Dynamics Corp. (5th Cir. 1995) 60 F.3d 213, 217-18 [plaintiff’s supervisor had been fraudulently joined to prevent removal because claim against supervisor was unsupported].)
•Assert only claims under state law
Second, to avoid removal, you must only assert claims under state law. Though state courts can hear federal claims, it is almost certain that if you include federal claims, defendants will successfully remove your case to federal court. Federal courts have subject matter jurisdiction over cases that arise under federal law. (28 U.S.C., § 1331.) Thus, if a plaintiff includes a federal claim in his or her complaint, such as a discrimination claim under Title VII, a defendant may remove the case to federal court. In order to avoid this, plaintiffs should include only state law claims.
Generally, this is not a problem in California, as most California employment laws are more favorable to employees than their federal counterparts. In addition, most California employment laws allow for greater amounts of damages than their federal counterparts. For instance, the California Fair Employment and Housing Act (FEHA) allows plaintiffs to recover general damages, special damages, punitive damages, attorneys’ fees and injunctive relief – with no damage caps. On the other hand, Title VII caps compensatory and punitive damages; the cap depends on the size of the employer but ranges from $50,000 to a maximum of $300,000.
Exceptions to the general rule
While it’s helpful to have a general rule, it should not be followed blindly. There are many occasions when it may be preferable to file in federal court. Or, more often, it may be preferable to file in state court but include federal claims, which may allow a defendant to remove the case to federal court if they so choose.
Federal court is not necessarily bad – it’s just that, for the reasons outlined above, state court is usually preferable. The two occasions when federal court should be considered as a serious possibility for your initial filing are when (1) you are in a very conservative jurisdiction and believe federal court may be a better venue; or (2) when there is an evidentiary rule that is more favorable to you in federal court and this evidentiary rule could impact the outcome of your case.
Don’t get “home-towned”
For instance, if you have the option of filing in the Eastern District or a small town where you might get “home-towned” by the defendant, you might consider filing in federal court. This is relatively easy to accomplish – you simply need to include a federal claim in addition to your state claims so that you can file in federal court.
Another example of when you might want to file in federal court is when you have a probable-cause finding from the EEOC or the DFEH. Under federal law, a probable-cause finding is admissible. In state court, it is discretionary depending on your judge. As this could have a significant impact on the outcome of your case, you will need to do a complete cost-benefit analysis to determine the best option for you. These examples are by no means an exhaustive list of when to consider filing in federal court, but show that there are occasions when filing in federal court makes sense.
Protecting yourself against defendant’s successful removal
There are also times when it makes sense to file a complaint in state court but include federal claims. This means that defendants might remove the case to federal court, but they might not. If they miss their deadline for removal, your federal claims can still be heard in state court. This makes sense when federal law applies and state law doesn’t or when federal law provides for greater damages than state law.
There are several examples of this. One example is when you are suing certain religious associations or corporations that are exempt under the FEHA but are not exempt under Title VII. In this situation, you can file your federal claims in state court and hope that the defendants do not remove to federal court so that you can have your case heard with the advantages of a state court jury. Another example is when you have a violation of the California Family Rights Act (CFRA) and the Federal Family and Medical Leave Act (FMLA). Often, it makes sense to simply file state claims under CFRA and not risk removal. But, there are circumstances when including an FMLA claim may be advisable. For instance, the FMLA has a longer statute of limitations and has no administrative exhaustion requirement, so if you’ve missed the statute of limitations under CFRA, your FMLA claim may still be viable. Also, the FMLA does not allow for punitive damages, but it does provide for liquidated damages. So, if you represent an employee with large wage loss, it may make sense to allege an FMLA claim and ask for liquidated damages.
Make the most out of federal court
Despite our general preference for state court, if you end up in federal court, use the Federal Rules of Civil Procedure to your advantage. One advantage to being in federal court is the rule 26 disclosures. In federal court, unless otherwise provided by stipulation or court order, each party must disclose to other parties in the case certain information concerning witnesses, documents, computations of damages, and liability insurance without awaiting discovery requests by an opposing party. (Fed. Rules Civ. Proc., rule 26(b).) In addition, a party who has made an initial disclosure, or who has responded to written discovery has a continuing duty to supplement or correct its disclosure or discovery responses. (Fed. Rules Civ. Proc., rule 26(e).) The initial disclosures obligation and duty to supplement not only accelerates the exchange of information about your case but reduces discovery disputes and gamesmanship. In addition, all parties are expected to effectuate discovery quickly. If either party attempts to delay or obstruct discovery, federal court magistrate judges are often more willing to intervene. Motions are often heard much more quickly in federal court, and, if both parties are willing to stipulate to a magistrate judge, trial dates are often earlier and more secure.
While state court is usually preferable for plaintiffs in employment-discrimination cases in California, there are certain instances in which filing in federal court and/or including federal claims in your initial filing should be considered. In order to determine which forum is best for your case and client, conduct an independent cost-benefit analysis.
Sarah B. Schlehr is the managing and lead trial attorney at The Schlehr Law Firm, P.C. in Burbank, California. Ms. Schlehr’s practice focuses on representing employees in discrimination and harassment cases, with a special interest in pregnancy and other leave of absence cases. She graduated from Harvard Law School in 2001. Her firm’s website is www.pregnancylawyer.com and she can be reached at firstname.lastname@example.org.
Christa L. Riggins is an associate attorney at The Schlehr Law Firm, P.C. Ms. Riggins represents employees in a broad range of employment matters, including sexual harassment and pregnancy discrimination cases. She graduated from Notre Dame Law School in 2013. She can be reached at email@example.com.
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