Defendant is a state university in Texas. They have removed my case from state court to the federal court. Can I file the same lawsuit in state court again with only the state law violations in the pleading,\ so that they can not remove it this time?
Country relating to Question: United States
State (if USA): Texas
Hello and thank you for the question. I am sorry to read of this dilemma.There cannot be two pending lawsuit with overlapping claims. Consider seeing if you can stipulate to discontinue the federal claims and have case remain in state court. Otherwise, on filing second action, defendant can move to dismiss on grounds there is another pending case.
Dismiss which claim, the newly filed or the pending. Also, these are two different court system and don't you think that 'dual sovereignty' will allow the case to be prosecuted under federal and state laws? My case also has a Breach of Contract cause of action and I am not sure if state agencies are immune from breach of contract cases?
The same facts cannot be pursued in 2 courts. If the case was removed, cannot file another case in one court without certain claims. The parties can try to negotiate a forum for proceeding, but otherwise need to proceed in the Federal Court.
I looked up an answer from one of your experts DWINGOESQ and he answered a client that he can let one case remain dormant and file the new case and if the party opposes then he can file a 'stipulation of dicontinuance'. So, my question is still in a dilemma!!!!
Two cases cannot proceed with the same claims. If case is dormant, the parties can file a discontinuance as to one and proceed with the other, but two cases cannot be on file at the same time as doing so will lead to dismissal of the second filed action and also not be looked at favorably by the courts.
So, should I wait for case to be dismissed from federal court or wait for something done about it and after that file in state court? My undesrtanding from your answer is that you can not have two cases simultaneously, but what about different court system and different sovereignities.
Also, if one wants to bring a case for the same reasons covered by both state and federeal law, should one wait for one court to finish its administrative process before filing the second case?
You cannot file a second case unless first case is dismissed in full without prejudice. without prejudice means it can be refiled and typically in any court. If a case is pending in federal or state court, it cannot refiled with overlapping claim in federal or state court. One cannot file a case again if a court has decided it. It would be barred by doctrines of prior decision called collateral estoppel and res judicata along with law of the case.
What if I add a new claim to my comlaint which is a cause of action under a state law and not federal law. Will my case still be dismissed?
Yes. This can only proceed in one court and that being the court where first action filed and then removed to UNLESS dismissed without prejudice or discontinued(signed by both sides) without prejudice.
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