State or Federal Court? That is the Question.

By on March 27, 2012

Defendants in consumer protection cases filed in Virginia state courts usually have a choice to make about where to defend the case:  state or federal court.  Most consumer plaintiffs seek relief under state and federal statutes.  The federal question allows for federal jurisdiction and removal to the US District court becomes an attractive option.  Why would you prefer to defend a lawsuit in federal court, rather than state court?  The answer lies in summary judgment.  The Virginia Supreme Court and the state legislature have made it very difficult to obtain summary judgment in state court.  The high court has instructed circuit court judges to err on the side of allowing cases to go to trial.  The Code of Virginia prevents the use of affidavits and deposition testimony in support of summary judgment.  So, it’s more likely than not that even the flimsiest plaintiff’s case will get to trial in state court.  On the other hand,  federal procedure smiles on summary judgment, where affidavits and deposition transcripts are admissible.  U.S. District court judges are empowered to dismiss frivolous lawsuits.  Thus, if a federal question is presented, and one usually is, removal to federal court is the answer.

 

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