Seventh Circuit Finds Malpractice Suit Regarding Federal Criminal Case Not Removable Despite Relevance of Applicable Federal Law

Per Hays v. Cave, 446 F.3d 712 (7th Cir. May 3, 2006):

This is a case of some novelty but little difficulty. The plaintiff brought suit in an Illinois court, charging the defendants, a law firm and its lawyers who had represented him in a federal criminal case (he was convicted, and did not appeal, and the denial of his motion for postconviction relief under 28 U.S.C. § 2255 was affirmed in Hays v. United States, 397 F.3d 564 (7th Cir.2005)), with legal malpractice under Illinois common law. The defendants removed the case to federal district court on the ground that it really arose under federal law because, as the district court ruled in refusing to remand the case, the resolution of a malpractice claim growing out of the defense of a federal criminal case would “require a substantial evaluation of applicable federal law,” specifically a determination of the meaning and scope of the federal criminal statutes under which Hays had been convicted.

Having accepted jurisdiction of the case, the district judge dismissed it on the merits, precipitating this appeal, in which Hays contends that the district court never obtained jurisdiction because the suit was not removable…

The standard applied by the district judge in deciding to deny the motion to remand was incorrect. A defendant might have defenses based on federal law to claims that arose only under state law, and it might be predictable at the outset that most of the time and the other resources consumed in the litigation would be devoted to those defenses. Yet with immaterial exceptions, a case filed in state court under state law cannot be removed to federal court on the basis that there are defenses based on federal law. Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908);

…Nothing in federal law prevents a disappointed litigant in a federal case from suing his lawyer under state malpractice law. E.g., Kregos v. Stone, 88 Conn.App. 459, 872 A.2d 901, 903 (2005); Burns v. Goudeau, 888 So.2d 1031, 1031-32 (La.App.2004)