For those of us interested in or practicing in commercial civil litigation, removal of a case from state court to federal court is a regular event. It also is an important strategic event for defendants because of perceived tactical advantages of a federal forum, such as the following: (a) a more defendant-friendly jury pool; (b) more favorable jury rules; (c) greater familiarity of defendant’s counsel’s with federal court and greater familiarity of plaintiff’s counsel with state court; and (d) a perceived higher cost of federal court that defendants may be able to bear more easily than plaintiffs.
But what happens when a defendant who is a citizen of the forum state tries to remove on diversity grounds? Section 1441(b) of the removal statute prohibits removal in such a case under what has come to be known as the Forum Defendant Rule. Under this rule, removal to federal court on diversity grounds is prohibited if any one of the defendants in the action is a citizen of the state in which the action was filed.
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