A state trial court case can be removed to federal court by a Defendant if the Plaintiff raises a theory of recovery that is based on federal law.  If the Plaintiff’s theories of recovery are only based on state law, federal question removal is not available.  The Defendant cannot create the federal question.  The Plaintiff’s claim must do so.

In Savoy v Savoy, Order, (D Nev. 2017), the Plaintiff requested an accounting, claimed breach of fiduciary duty, and requested relief such injunctive and declaratory rulings.  All of the theories of recovery and claims for relief were based solely on state law.  None were based on federal law.  The Defendants removed the case from state court to federal court claiming the Plaintiff’s claims would necessarily require court interference in ecclesiastical matters and that such interference is prohibited by the First Amendment.  The federal case was remanded back to the state court.

That the Plaintiff’s state court pleading referenced “church canon” and “church law” did not change the Plaintiff’s theories of recovery from state law based claims to claims based on federal law.  The Defendant’s defense based on the ecclesiastical abstention doctrine did not alone create a federal question.  The Defendant’s defense based on the ecclesiastical abstention might apply but would have to be pressed in state court.

While federal constitutional rights are not as often the grist of state law claims, such rights are enforceable in state courts and should be pressed as fully.  Indeed, because of the lower frequency of appearance, most state courts would tend to take genuine federal rights defenses seriously and review them carefully.  In any event, even if faced with a state court that is less than an enthusiastic student of federal constitutional rights, litigating about litigating is often a better defense from a cost of defense perspective than a defense on the merits.

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