Good Strategy or Forum Manipulation? The Continuing Evolution of the Bad Faith Exception to the One-Year Time Limit on Removal

January 30, 2019Articles
Defense Counsel Journal

"Parsing through the difference between good faith strategy and bad faith gamesmanship in any given case is a complex, fact-driven calculus. It is easy to identify a blazing house fire, but much harder to determine whether flames are smoldering covertly within the walls. The two most commonly-used frameworks originate from the Hiser and Aguayo opinions. These opinions are often presented to represent mutually exclusive approaches. This appears to be the result of subsequent interpretation since the root consideration of both decisions is the same: is there sufficient evidence of a plaintiff’s intentional action or inaction to deprive a defendant of the opportunity to remove within the one-year time period. This article argues that because these approaches suffer from analytical blind spots, a third approach based upon the totality of the circumstances provides a more flexible framework for balancing the limited nature of diversity jurisdiction with the Congressional intent behind §1446(c)(1)."

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