A complaint must set forth a short and plain statement of why the pleader is entitled to relief—but that rule holds much more than just the rules’ notice requirement. Packed in there alongside notice pleading and heightened standards are all the limits on what cases a federal court can hear. And one of those limits is standing: You can only sue if you’ve been injured. Fights over what counts as injury pop up constantly in federal litigation—and it’s not unusual for the spring underneath to have been congressionally-made. The Sixth Circuit recently settled one of those fights when it held that Congress can recognize an injury that gives Article III standing but Congress cannot create injury to give Article III standing.

James and Patricia Hagy sued their former mortgage servicer and the servicer’s lawyer under the Fair Debt Collection Practices Act. The Hagys alleged that after they settled a mortgage default with the servicer the lawyer sent two letters confirming the settlement. Those letters did not state that they were communications from a debt collector. The Hagys alleged the letters had to have that disclaimer, and because they didn’t the lawyer had violated the FDCPA. The district court entered summary judgment against the lawyer. The Sixth Circuit reversed on appeal, holding that the Hagys did not have Article III standing.

The Sixth Circuit explained that although the Hagys had properly alleged a violation of the statute, the lawyer had challenged “Congress’s authority to create this injury—to create an injury in fact that involves no harm of any sort that could satisfy the injury-in-fact requirements of Article III.” And the Hagys had not alleged any “actual injury and damages from the letter.” The letter hadn’t “created a risk of double payment, caused anxiety, or led to any other concrete harm.” In fact, “[t]he letter was good news when it arrived . . . .” Rather, the Hagy’s claimed that any letter—no matter what the letter said—caused concrete injury if the letter didn’t include the legally-mandated disclaimer.

The Sixth Circuit held that Congress has the power to recognize an injury that meets Article III’s injury-in-fact requirement, but it does not have the power to create an injury where none exists. “We know of no circuit court decision . . . that endorses any anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. . . . That approach, if accepted, would leave Congress as the sole author of any limits on the Article III judicial power to hear cases and controversies.”

You can read the Sixth Circuit’s opinion here.

Say you buy professional-liability insurance. If the insurance company lets you think the insurance covers something that it does not, how soon do you have to sue your insurance company? I’m taking a little break from the federal courts today to look at the Ohio Supreme Court’s recent decision on professional-liability insurance and accrual. The Court held that a claim of negligent procurement of professional-liability insurance accrues when you buy the policy, not when the insurance company denies a claim you thought it covered.

LGR Realty, Inc. bought a professional-liability policy from London Insurance Agency. But the policy categorically ruled out coverage for any claims brought by a third company, Plaza Property. I bet you can guess what happened next: Plaza sued LGR and London Insurance denied LGR’s claim for defense and indemnification. Then, after Plaza won its lawsuit, LGR sued London Insurance for negligent insurance procurement.

The trial court dismissed the claim as untimely under Ohio’s Rule 12(B)(6) (which is very like the federal rule). The court of appeals reversed the trial court—then the Ohio Supreme Court reversed the court of appeals, holding the claim was indeed too late. The Court held the claim accrued when the policy was issued, not when the request for indemnification was denied.

The opinion gives a short, useful review of two important exceptions to the everyday rules of accrual: the discovery rule and the delayed-damage rule. The delayed-damage rule states that when a claim is based on an act that isn’t harmful—yet—the claim does not accrue until there’s actual damage. Here the Court held that the rule does not apply to professional-liability insurance claims. That’s because “[i]t is only in the narrow circumstances in which application of the general rule would lead to the unconscionable result that the injured party’s right to recovery can be barred by the statute of limitations before he is even aware of its existence.” As soon as it bought the allegedly negligent-procured policy LGR had started paying premiums on the policy—so that’s when the harm occurred, and that’s when the claim accrued.

The Ohio Supreme Court opinion is sparing with the facts, but it’s enough to serve as a gentle reminder: Read your documents. The Ohio Supreme Court’s opinion is here.

And if you’ve gotten this far but are starting to miss the federal courts, the Sixth Circuit addressed the discovery rule just last year. The Sixth Circuit held a claim for pension benefits accrues when the request is denied. You can read that opinion here.

When you’re hit with a complaint, one box on your pre-response checklist likely reminds you to think about removing the case to federal court. But what if the complaint is so short and plain that you can’t figure out if a federal court would have jurisdiction? You don’t want to file a removal just to have the case quickly bounced back to state court—you would be unhappy; your client would be unhappy; and not one, but two judges would be unhappy. But the response deadline is looming. A default judgment will make (almost) everyone even unhappier than an ill-taken removal. So what do you do?

The Ninth Circuit has some good news for you: A defendant’s right to remove to federal court can’t be waived without voluntary litigation on the merits.

Kris Kenny sued Wal-Mart in California state court, challenging the store’s policy that employees who are hurt on the job must submit to drug tests. Wal-Mart filed a demurrer then removed the case to the Central District of California under the Class Action Fairness Act.* But the district court sua sponte remanded the case back to state court, holding Wal-Mart had waived its right to removal by filing the demurrer. The Ninth Circuit reversed, holding that Wal-Mart had not waived its right.

To begin with, a defendant can only waive the right to removal by showing a “clear and unequivocal” intent to litigate in state court. When a defendant “takes necessary defensive action to avoid a judgment being entered automatically . . . such action does not manifest an intent to litigate in state court.” It would also be hard for Wal-Mart to wave a right before it knew it had one. The complaint didn’t state what damages Kenny was seeking, and CAFA only allows removal when damages exceed $5 million. Because the complaint didn’t give Wal-Mart notice that it could remove the case, Wal-Mart could “in effect . . . remove at any time.”

The Ninth Circuit’s opinion is here.

* A demurrer is a pre-FRCP pleading similar to a motion to dismiss for failure to state a claim. The FRCP (and 35 states) don’t allow them.