Fox is trying to neutralize Perry Tole’s home-field advantage.
The former employer of Mark Sanchez has removed the lawsuit filed by Tole, a 69-year-old truck driver whom Sanchez allegedly assaulted, from Indiana state court to federal court, via Tim Spears of WISHTV.com.
It’s a basic strategy in most American jurisdictions. The plaintiff, usually a resident of the county where the case was filed, prefers to proceed before a state-court judge. The defendants prefer that the case be presided over by a judge with a lifetime appointment, who will never be up for re-election.
There are two ways to remove a civil case. First, a state-court case can be taken to federal court if it involves a question of federal law. Second, a case can be shifted to federal court if there is full diversity of citizenship, with the plaintiff a resident of one state and all defendants residents of one or more other states.
In this case, Tole’s lawyers amended the complaint to add Indianapolis-based Huse Culinary, the parent company of the St. Elmo Steak House, as a defendant. Per Spears, Fox contends that Huse Culinary was fraudulently joined in an effort to prevent removal of the case to federal court.
Removal requires no permission. It happens with the filing of a formal notice. The plaintiff must then file a motion to remand the case to state court, arguing (as Tole’s lawyers undoubtedly will) that the “fraudulent joinder” theory is, well, fraudulent. To keep the case in federal court, Fox will have to show that Tole has no possibility of prevailing against Huse Culinary, under the theory that Sanchez was served alcohol at a time when it knew or should have known he was impaired.
It is a very high burden. Showing the case is weak won’t be enough. Fox must show that Tole has no chance of imposing liability on Huse Culinary.
Fox’s decision to roll the dice on removal underscores the perceived importance of getting the case from state court to federal court. As to Fox, there will be important questions regarding whether and to what extent Fox may be liable for allegedly negligent hiring, retention, and/or supervision of Sanchez. Fox’s lawyers undoubtedly believe the company will have a far better chance of prevailing if the case is handled by the federal court system.
The entire strategy is a very common approach in civil litigation throughout the country. The mere fact that federal law allows cases brought by in-state residents against out-of-state interests represents an acknowledgment that the potential for “home cooking” is real.
And it is. In plenty of claims, whether the lawsuit proceeds in state court or federal court will determine the outcome of the entire case.
For Sanchez, it doesn’t matter much. He’s the one who allegedly assaulted Tole during an incident in early October. For Fox, the question of federal court vs. state court could be the difference between winning and losing on the argument that Fox isn’t, or is, responsible for Sanchez’s actions.
