Proper pleadings prevent preemption problems: to defeat a defendant's argument that your client's claims are barred by federal preemption, begin with a well-crafted complaint.

Every lawsuit begins, with the drafting of the plaintiff's complaint. Whether the case is filed in state court or federal court, the process is the same. All actions start with what is, in most jurisdictions, a complaint that meets the basic requirements of notice pleading.

The process is pretty simple--name the parties, claim the defendant did something wrong in a general way, and assert some damages. (1) The lawsuit should be ready to serve as the vehicle for a successful and just recovery. Even a federal judge cannot make us plead our complaints with more specificity than is required by the Federal Rules of Civil Procedure. (2)

But before you send that simple complaint to the courthouse, take a moment to think about the 600-pound, yet often ignored, gorilla known as federal preemption. Once the issue of preemption is raised, it can be hard to shake.

Initial pleadings affect whether federal law preempts state law claims, be it by express, implied, or complete field preemption. That's why it's important, when drafting a complaint in just about every area of law in which plaintiff lawyers practice, to keep in mind that proper pleadings prevent preemption problems.

Once a court has determined that some or all of a plaintiff's claims are barred as a result of federal preemption, the plaintiff will have to defend the claims on appeal. Lawyers who draft more lawsuits than they do appellate briefs need a basic understanding of how federal law affects lawsuits from both a procedural and a substantive perspective. A well-drafted complaint may not only protect us from preemption problems but also help us at the appellate stage.

Avoiding removal

The first effect of federal preemption (based on any federal law that is relevant to a plaintiff's cause of action) is procedural in nature, as a lawsuit can be removed from state to federal court if it is not drafted carefully. Removal is not technically a federal preemption issue, but any technical distinction is beside the point when the topic is drafting lawsuits. If a federal statute or regulation dictates that a lawsuit will be resolved in a manner that differs from where and how it would be resolved in the absence of that federal law, then preemption has effectively occurred.

The Constitution gives federal courts exclusive jurisdiction of defined cases and controversies. (3) Further, under 28 U.S.C. [section]1441, a case may be removed from state court to federal court when the plaintiff's complaint alleges a claim arising under federal law. (4) Avoiding removal would seem simple enough: Just don't plead a federal cause of action.

Unfortunately, it is not that easy. To avoid the possibility of removal, you need to recall from law school some basic civil procedure rules relating to the drafting and interpretation of complaints, namely the well-pleaded complaint rule and the artful pleading rule. Knowing the differences between the two will help you craft pleadings to avoid removal based on federal subject matter, and it will let you control, to some extent, other preemption problems.

The well-pleaded complaint rule provides, in its simplest terms, that what the plaintiff alleges in the complaint governs what the lawsuit is about. A defendant cannot remove a case to federal court based on its defenses to the plaintiff's claims. (5) The U.S. Supreme Court has long held that the "presence or absence of federal-question jurisdiction is governed by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." (6)

The artful pleading rule, a corollary to the well-pleaded complaint rule, provides that a plaintiff cannot avoid preemption by failing to plead necessary federal questions. The artful pleading rule should come into play only where the area of law at issue is completely covered by federal law--in which case field preemption applies. (7)

Although the artful pleading rule has been applied--for purposes of removal from state to federal court--mostly in cases arising under the Employee Retirement Income Security Act (ERISA) and the Labor Management Relations Act, it is sure to be more of a problem in the future as the federal government continues to extend its regulatory reach. Even when a complaint makes no mention of federal law at all, the plaintiff might find his or her venue and jurisdiction choices "preempted" as a result of the artful pleading rule. Where this is likely, notice pleading will not suffice; instead, a specific effort to avoid the federal question is necessary. Where this risk exists, asserting that the action is based on state and not federal law is a good preventive measure.

Embracing the federal standard

Even though the artful pleading rule does not often allow an otherwise well-pleaded complaint to be removed from state to federal court, preemption may be a problem whether the case is removed or not. Rather than running from the problem, sometimes it is best to accept the inevitable by embracing the federal law as providing the standard of care that the defendant violated, and cast the complaint accordingly. That is, if you can't outrun preemption, you may be able to use it against the defendant.

Take, for example, a products liability claim implicating a federal statute that strictly defines the defendant's expected performance but does not bar state law claims relating to a breach of its standards. In a case like this, there is technically no preemption of the state law cause of action.

But that technical nicety won't matter if the case is preempted by express or implied preemption. The reality is that if there is a federal standard, it can serve to usurp a standard defined by state law (common or statutory) and become the de facto state standard. In other words, the cause of action is not preempted; only the definition of the standard of reasonable conduct is.

For example, if a Federal Motor Vehicle Safety Standard (FMVSS) promulgated by the U.S. Department of Transportation required that taillights be round, a state standard demanding that they be square is preempted. However, if the taillight involved was octagonal, a state law products liability cause of action complaining about the shape of the taillight would not be preempted, as long as the standard of care demanded was consistent with the federal standard. Thus, only the definition of the standard of care would be preempted.

Where federal statutes or regulations impose a particular standard that the defendant has violated, assert that violation in the complaint--but be clear to assert that the violation of the federal standard constitutes a breach of state law. In the taillight example, you would not assert a failure to have square taillights; rather, you would assert that a failure to comply with federal law requiring round ones constituted a breach of state law duties.

In such circumstances, the existence of a federal law or regulation touching on the subject matter at issue is not always a bad thing. If the defendant's conduct violates federal law or regulations, preemption does not become the enemy. Instead, by acknowledging the federal law and regulations as setting standards of care that govern the defendant's conduct, you preserve the state cause of action--albeit as defined differently from what state law might provide.

In this manner of pleading, the breach-of-duty element of negligence is satisfied by proving a violation of a federal statute or regulation. If you can prove such a violation, you should affirmatively assert that deviation from federal standards in the complaint. The complaint does not assert a federal cause of action, but instead is based on state law. Federal law merely sets the standard of conduct that was violated.

Sometimes federal regulations impose only minimum standards, and state law can provide for higher or different ones. In other cases, like the taillight example, the federal standards define how the defendant is expected to act. You have to know the difference and plead accordingly.

If the complaint acknowledges that a potentially preemptive federal law applies, it must also show that the state law duty does not conflict with the defendant's ability to comply with the federal standards. Federal statutes that set minimum standards preempt only those state laws that directly conflict with, or frustrate the purpose of, the federal law. Supplemental and complementary state laws are not preempted, (8) so it is essential to claim that the state law duty demanded of the defendant can be met without impeding the defendant's ability to comply-with the federal minimums. Pleading it just this way might well prevent removal or allow for a better chance of a remand.

This is the methodology used in Harris v. Great Dane Trailers, Inc. (9) The plaintiff, whose husband was catastrophically injured when his car struck the rear of a tractor-trailer, alleged that the trailer was inadequately marked with reflectors. Despite the existence of federal regulations addressing markings on tractor-trailers, the court allowed the claim to proceed because FMVSS 108 provided only minimum standards without specifying exact requirements that would have preempted state law demands for a better or different system of reflectors.

Sidestepping preemption perils

There will be times when federal law is written or interpreted so broadly that what would otherwise be a valid state law cause of action simply does not exist. ERISA is an extreme example: Because of field preemption, it is difficult to successfully prosecute any state cause of action relating to an ERISA insurer's conduct.

Even federal statutes and regulations that do not occupy an entire field of law can be problematic. For example, there is no cause of action available under either state or federal law relating to an automobile manufacturer's choice of passive restraint systems as long as the system chosen complies with FMVSS 208. (10)

You can give up on these cases or you can dodge the preemption issue by asserting, for example, that whatever device the automaker chose was either designed incorrectly or manufactured improperly. The complaint would not claim that the manufacturer should have installed an air bag; instead, it would assert that the seat bottom was too soft, or that the car lacked a proper knee bolster, or that the seat belts were improperly anchored, or that the warnings and instructions were inadequate. By drafting the complaint this way, you don't attack the choice, you attack the implementation of that choice.

Another tactic is to look for a savings clause in the federal regulation or statute at issue that provides the law does not preempt state standards where special design-related circumstances exist. It is important to allege these circumstances in the complaint. Regulations promulgated during the present Bush administration rarely have these clauses, but older regulations might.

The key to successful avoidance of preemption's pernicious perils is to consider the problems at the outset and plead in a manner that is best suited to avert, or take advantage of, federal law. A minimalist complaint may suffice in the typical case, but where you are concerned that preemption might interfere, consider drafting a complaint that takes the preemption issue head-on and attempts to neutralize the defense before it is even asserted. If you bring multiple causes of action, this strategy might allow you to lose one on summary judgment without having the whole case thrown out.

Avoid pleading claims you know aren't likely to survive a preemption attack. The danger is not so much that your one case may be lost but that the decision might be used as authority to throw out many other cases touching on the same issue.

Plaintiff lawyers must craft the best pleadings possible to protect the state of the law. Study the law, decide on the best way to plead, and, wherever possible, choose defendants to whom the protections of preemption do not apply.

Notes

(1.) Fed. R. Civ. P. 8(a).

(2.) E.g. Wynder v. McMahon, 360 F.3d 73 (2d Cir. 2004) (reversing district court's dismissal of complaint for plaintiff's failure to comply with specific conditions on the form and content of complaint).

(3.) U.S. Const. art. III, [section]2.

(4.) See Rivet v. Regions Bank of La., 522 U.S. 470,472 (1998).

(5.) Id.

(6.) Id. at 475 (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)).

(7.) E.g. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-66 (1987); Avco Corp. v. Aero Lodge No. 73, 390 U.S. 557, 560 (1968); see also Tristin K. Green, Complete Preemption--moving the Mystery from Removal, 86 Cal. L. Rev. 363, 366 (1998).

(8.) See Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984) (where federally licensed nuclear facility was found to have violated Oklahoma tort law regarding plutonium contamination sustained by laboratory analyst, an award of punitive damages was not preempted by federal law).

(9.) 234 F.3d 398 (8th Cir. 2000).

(10.) See Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000).

MICHAEL WARSHAUER practices law at Warshauer Poe & Thornton, in Atlanta.