Conduct Unbecoming a Federal Litigant: Conduct-Derived Waivers of the Right to Remove to and of the Right to Obtain Remand from Federal Court
63 Pages Posted: 15 Sep 2017
Date Written: August 22, 2017
The law governing removal and remand has increasingly been codified. Lawyers and judges look first to the statutes. But what conduct will waive the right to remove and the right to obtain remand of a case are among the shrinking number of issues that remain governed by common law. The absence of statutory provisions governing conduct-based waivers raises the question whether courts unilaterally should be recognizing such waivers at all, as a matter of separation of powers, and if so, under what circumstances waiver should be found. This Articles addresses those questions. It also takes on the underlying policy questions whether the law should make it easy for defendants to waive their right to remove (favoring plaintiffs' choice of the state court forum) or difficult (favoring defendants and the movement of cases to federal court), and whether the law should make it easy for plaintiffs to waive their right to remand (favoring defendants and the retention of jurisdiction by federal courts) or difficult (favoring plaintiffs and the reinstatement of their choice of state court as the forum to resolve their dispute).
On close examination, I found that the doctrines that the courts have molded in these domains are not even-handed. Defendants are held to have waived their right to remove far less frequently than plaintiffs are held to have waived their right to remand. The historic preference for state courts reflected in the basic tenets that the removal statutes should be strictly construed and all doubts resolved in favor of remand, bolstered by the increasing degree to which federal courts are not hospitable fora for plaintiffs, argue for an adjustment of the common law of waiver that will, at a minimum, make the standards for waiver equivalent for plaintiffs and defendants, and at the maximum, reverse the imbalance in favor of plaintiffs' choice of forum. Because the courts are unlikely to change what they have been doing without a push from Congress and because Congress, as presently constituted, is highly unlikely to take a strong pro-plaintiff stance, this Article proposes statutory language that Congress could enact that would guide the courts to level the playing field. That change would be desirable as a matter of policy. In addition, such an enactment would aid attorneys and litigants by providing a spur to courts to re-think and clarify the circumstances under which they will find waiver of the rights to remove or to obtain remand. Judges and lawyers still would have to dig into case law but the statute would direct them there so they would no longer be in the dark as to whether judge-made waiver doctrines even exist concerning removal and the right to remand, and the body of case law that they would find ideally would be more coherent and defensible.
Keywords: Civil Procedure, Federal Courts, Removal, Remand, Waiver
JEL Classification: K10,
Suggested Citation: Suggested Citation