Did your personal injury case get removed to federal court?

If you handle enough personal injury cases, you’ll have some that are removed to federal court, and the urge is to simply pass on the case because federal is – well – difficult. Many of the rules and standard practices that exist in State Courts throughout Georgia do not apply in our federal courts. The approachability and practicality that exists in State Courts, candidly, do not exist in federal court. But, there are some advantages to being in federal court.

1. Motions practice is, in my experience, much more rigorous in federal court. And you must know the timelines for responsive motions. This is true in State Courts, but the timelines are shorter in Federal district courts in Georgia than they are in State Courts. In Georgia State Courts, a responsive brief is due 30 days from the date of service. In the Northern District of Georgia, a responsive brief is due 14 days after service of the motion. In the Middle District of Georgia, a responsive brief is due 21 days after service of the motion. In short, know your LOCAL RULES.
2. In federal court, particularly in litigation under the Federal Tort Claims Act, you’ll very likely have to address a motion to dismiss prior to discovery beginning. Many of the issues typically raised by motions to dismiss are addressed/cured/fixed/made moot by simple amendments to your Complaint. Many of the issues you’ll see raised probably will not carry the day, but if you can clear up potential problems with a straightforward amendment of your Complaint, why not do it? Well, in Georgia State Courts, that is an easy fix. You can amend your Complain in our State Courts at any point in time prior to the entry of a pretrial order. However, the same is not true in our Federal Courts, while the Courts are to liberally grant the plaintiff the ability to amend Complaints, it is not a right. And you have to either get permission of the Court or obtain consent by the Defendant.
3. If your claims are made under the Federal Tort Claims Act, know the exhaustion requirements. It is not difficult to “exhaust” your administrative remedies, but it must be done or you’ll get bounced out of court.
4. If your claims are made under the Federal Tort Claims Act, know that the negligent federal actor must be an employee. This is tough so try to do your homework to establish that the negligent actor was an employee early.
5. Communication with opposing counsel is key.