Chapter 4: Responding To The Complaint - Procedural Considerations
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Return to Defending Claims.
Once a claim is filed in state court, the first decision should always be whether to remove the lawsuit to federal court. Often times, because food-borne illness cases are fraught with emotion, and because many aspects of the food industry may be governed exclusively by federal rules and regulations, removal should be seriously considered. Additionally, regardless of whether a case is removed, the same federal rules and regulations (or, simply the facts of the case) may also support a motion to dismiss as well.
1. Considering The Potential Of Federal Removal
When considering removal, the most obvious factor is federal diversity. If available, use it. If not, you should also be aware that, depending upon the claims asserted and the nature of your client’s operations, there may be certain federal rules and/or regulations that would nevertheless support “federal question” or “federal officer” removal. Although the applicability of these doctrines will depend upon the nature of your client’s business, and the facts and circumstances of each case, they may create additional removal opportunities even in the absence of complete diversity.
2. Considering Potential Grounds For Dismissal
Regardless of whether a case will be litigated in state or federal court, you should also consider the merits of an early motion to dismiss. Beyond statutes of limitation or other procedural considerations, some or all of the plaintiff’s claims may be subject to a motion to dismiss on other grounds as well – such as federal preemption.
Although there are other federal laws that may act to preempt food-borne illness claims, the Federal Meat Inspection Act ("FMIA") is one example of federal statutory law that has a preemptive effect. This is because the FMIA is designed to regulate virtually every aspect of meat production in America. To ensure that the FMIA is not usurped by the individual states, the FMIA contains an express preemption provision which prevents states from adopting or enforcing any laws that are “different” from the federal standards. Thus, under the FMIA, any claims which attempt to penalize a food producer for doing what federal law permits (whether the claims relate to alleged adulteration or product labeling) may be strictly preempted.
As noted, in addition to the FMIA, other federal laws may operate to preempt state law in similar contexts. For example, the Poultry Products Inspection Act (21 U.S.C. § 451, et seq.), the Egg Products Inspection Act (21 U.S.C. § 1031, et seq.), the Food Drug and Cosmetic Act (21 U.S.C. § 301, et seq.) and the National Labeling and Education Act (21 U.S.C. § 343-1) each contain provisions that can operate, under the doctrines of express or implied preemption, to bar to claims implicating the relevant federal food or labeling standards.
Copyright 2009 by Shawn K. Stevens
