TorteDeForm

Justinian Lane

When defendants do it, it isn’t forum shopping

A pet peeve of many "reformers" is what they call "forum shopping," which is when a plaintiff chooses to file a lawsuit in the court he or she thinks will be most favorable to him or her.  Sometimes this is a state court, occasionally it's a federal court.  I was reminded of this when I saw Walter Olson mention that Professor Chemerinsky (sometimes referred to as the esteemed Professor Chemerinsky) has a new book on the subject:

Prof. Chemerinsky is out with a new book that (per John McGinnis's review in today's WSJ) proposes letting plaintiffs pick either a federal or a state forum, whichever they think will prove most favorable, to enforce their rights under federal law. He's not crazy about knocking out state law through pre-emption, either.

Source: PointofLaw.com | PointOfLaw Forum: Forum-shoppers' delight?

A quick observation about "forum shopping."  Defendants do this all the time by removing a case to federal courts, which are generally considered more defendant-friendly.  After a plaintiff goes to the trouble of filing and serving his lawsuit in state court, the defendant merely files a simple motion, and *poof* the case is now in a different court.  "Reformers" of course see nothing wrong with this form of "forum shopping" because it benefits their corporate benefactors.  Yet another case of "reformer" hypocrisy.

Justinian Lane: Author Bio | Other Posts
Posted at 12:28 PM, Jul 15, 2008 in Civil Justice
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Comments

Reformers criticize forum-shopping where plaintiffs seek to file a case that has no rational relationship to the forum, where plaintiffs engage in fraudulent joinder, or where plaintiffs are judge-shopping by filing multiple identical complaints until they get the judge they like. The difference between that and removal is that an out-of-state defendant's removal of a case to federal court is expressly identified as a salutary purpose of the federal courts in the Federalist Papers. (What do you have against the Founding Fathers?) The two aren't remotely analogous, and there is nothing inconsistent or hypocritical about the reformer position.

Posted by: Ted | July 15, 2008 12:58 PM

I agree with you with respect to cases of fraudulent joinder or filing multiple complaints. Of course, both practices are already impermissible. But as long as the defendant has the minimum contacts with the forum state, I see no problem with the case being filed in a state with no other relationship to the forum.

I'm a big fan of the Founding Fathers and their work... especially the 7th Amendment.

Posted by: Justinian Lane | July 15, 2008 1:37 PM

"I agree with you with respect to cases of fraudulent joinder or filing multiple complaints."

I'm pleased to see you support tort reform.

"Of course, both practices are already impermissible."

No, they're not, except in limited circumstances where plaintiffs' attorneys are particularly sloppy. They're engaged in regularly without consequence.

"I'm a big fan of the Founding Fathers and their work"

So you're going to retract your unfair attack on removal jurisdiction, then?

Posted by: Ted | July 15, 2008 1:56 PM

"No, they're not, except in limited circumstances where plaintiffs' attorneys are particularly sloppy. They're engaged in regularly without consequence."

The fact that fradulent joinder has the word fraudulent in it says it all. And just because attorneys who file multiple complaints aren't getting caught doesn't mean it's permissible... it just means they aren't getting caught.

"So you're going to retract your unfair attack on removal jurisdiction, then?"

I'm not attacking removal jurisdiction - I'm merely pointing out that defendants who remove cases to federal court for tactical reasons are no different than plaintiffs who file cases in state court for tactical reasons. Ours is an adversarial system. Both parties will seek to place the suit in the forum they think is most advantageous to them. That's by design.

Posted by: Justinian Lane | July 15, 2008 2:07 PM

So what consequence did Mark Lanier face for engaging in fraudulent joinder of doctor defendants in Ernst v. Merck?

Posted by: Ted | July 15, 2008 4:13 PM

"I'm not attacking removal jurisdiction - I'm merely pointing out that defendants who remove cases to federal court for tactical reasons are no different than plaintiffs who file cases in state court for tactical reasons. Ours is an adversarial system. Both parties will seek to place the suit in the forum they think is most advantageous to them. That's by design."

Justinian, you're still either dodging or failing to grasp Ted's point. There's nothing wrong with a plaintiff filing in state court per se; and there's nothing wrong with a defendant removing to federal court (which is, after all, a major part of our constitutional rationale for federal courts in the first place). But should a plaintiff in Minnesota be able to file suit against a defendant headquartered in Kansas in the state courts of Madison County, Illinois? You simply are trying to obfuscate the issue or simply don't understand the critique of forum shopping.

Posted by: Jim Copland | July 15, 2008 5:55 PM

Hi, Jim - nice to see you here.

Assuming the defendant has minimum contacts with Illinois, I see nothing wrong with filing there. (For those who don't know, minimum contacts is a legal standard meaning that the defendant has enough contact with a state that he or she can expect to be sued there. Wikipedia "International Shoe" if you care to learn more.)

There's no additional burden on the defendant to defend the suit in a venue in which they have minimum contacts. If anything, the plaintiff has the burden as he or she will have to travel outside of their own state, whereas the defendant likely would have had to do so anyway.

I'm presuming you have no problem with suits filed against corporate defendants in their state of incorporation. Does that mean you're OK with letting a California plaintiff injured in California sue GM in Delaware over a product designed and built in Michigan? It seems to me that if you support that lawsuit, then there's no difference if the same plaintiff filed in Florida.

Posted by: Justinian Lane | July 15, 2008 6:13 PM

"There's no additional burden on the defendant to defend the suit in a venue in which they have minimum contacts."

When Justinian says something like this that is plainly false if he gave ten seconds thought to it, he's either trolling or clueless, and there's really no point in either Jim or I engaging him. (NB that International Shoe did not state that long-arm statutes did not burden interstate commerce. It also does not endorse forum-shopping.)

Lane ignored my question, too, as is typical when he changes the subject after being called out in making a false statement.

Posted by: Ted | July 15, 2008 10:02 PM

Ted, I have to object to your usage of the disjunctive "either." I may very well be trolling and clueless. Quit selling me short.

If a defendant has minimum contacts in a state such that a resident of that state could properly sue them there, then where is the additional burden if a resident of a different state sues them in that state?

You're hardly one to chastise me for ignoring questions... if I had a dollar for every one of my questions you've ducked, I could probably fill my gas tank. I haven't answered because I haven't had time to research whether there was actually a finding that the joinder was fraudulent, or if it was just joinder you disagree with. Since you're so intimately familiar with all things Vioxx, feel free to share the story... but only if you're willing to share what you think an appropriate punishment would be.

Posted by: Justinian Lane | July 16, 2008 12:40 AM

"If a defendant has minimum contacts in a state such that a resident of that state could properly sue them there, then where is the additional burden if a resident of a different state sues them in that state?"

You're still writing before thinking, given that ten seconds of thought would provide an answer. Or perhaps writing before reading: if you read International Shoe, rather than just the Wikipedia entry, you certainly didn't understand it.

For someone who is so quick to criticize reformers for their positions, you're awfully unfamiliar with them: I've been writing about Lanier's fraudulent joinder in Ernst for nearly three years. Again, perhaps you should bother to learn what you're talking about before posting.

Posted by: Ted | July 16, 2008 8:38 AM

You didn't answer my question, Ted. Use my hypo about the California motorist suing GM in Delaware: If you think that suit should be permissible merely because GM is incorporated in Delaware, then why shouldn't the motorist be able to sue in say, Connecticut? All of the witnesses are going to be located in Michigan, and all of the evidence will be in California or Michigan. So where's the extra burden in making GM appear in Connecticut vs. Delaware? There is none.

Once again, Ted, you are not all reformers. And all reformers don't hold the same position on every issue. So there's nothing dishonest about my stating "reformers feel this way..." anymore than when you claim "trial lawyers feel this way..."

From now on do I need to say "reformers (except possibly Ted Frank because I don't know his position on the issue) feel this way..."?

As I've said before, I don't pay much attention to anything you've written about Vioxx because (a) You were a member of the Vioxx defense team, and (b) you believe it's a safe product when even Merck won't return it to the market. And don't try and blame lawyers for keeping it off the market. After all the bad press the drug got, there's no lawyer out there who would take a failure to warn suit if it were back on the market.

Posted by: Justinian Lane | July 16, 2008 2:32 PM

Note Justinian's hypocrisy: his fallback position defending his unfair attack on Walter Olson and myself for accurately quoting "The Product Liability Mess" was that we should have inquired with Neely what his position was on his own words and we were "unethical" for having failed to do so. (Of course, Walter had done so, so even this fallback position was false. But Justinian hasn't apologized for that lie, either.)

In contrast, Justinian feels it perfectly okay to simply invent statements that no reformer has made and put it into "reformers'" mouths. He also admits that he refuses to read what reformers actually write, which shouldn't surprise us, since he still hasn't read "The Product Liability Mess" though he feels free to comment on others who have.

Justinian doesn't explain why my position on the safety of Vioxx is at all relevant to a question about civil procedure. Mark Lanier's use of fraudulent joinder does not become more or less appropriate depending on the safety of Vioxx. Lane is changing the subject, as is his wont when he gets caught making false claims about something he doesn't actually know anything about.

Justinian is mad at me that I didn't answer a question he posed to Jim. That question, like the other question he asked, is again typically thoughtless of Justinian. Perhaps he could spend ten seconds thinking about why I reject the false premise that suing a Delaware corporation in Delaware is identical to suing a Delaware corporation in Florida.

Posted by: Ted | July 16, 2008 4:35 PM

Your position on Vioxx is relevant to Lanier's use of joinder because your opinion on Lanier's actions in Vioxx cases is tainted by Merck money. Did a judge rule that Lanier's actions were improper? If so, shoot me a cite so I can read it and give my opinion.

Suing a Delaware corporation in Florida that does substantial business in Florida *is* identical (burden-wise) to suing that same corporation in Delaware, provided that none of the evidence or witnesses are located in Delaware.

A friend of mine has a small software development firm incorporated in Nevada. His business is entirely located and operates within California. Under existing law, either California or Nevada would be a proper forum. But the burden for him to defend a suit in Nevada is substantially more than it is for him to defend the suit in California. If it's "fair" for him to have to defend a suit in Nevada merely because he incorporated there, what's so unfair about him having to defend the same suit in say, Colorado, providing he has minimum contacts with the state?

Posted by: Justinian Lane | July 16, 2008 4:55 PM

"Did a judge rule that Lanier's actions were improper?"

Lane has a knack for thoughtless questions, and this one is particularly thoughtless, given the context of the discussion. Why don't you try reading instead of typing once in a while?

"Suing a Delaware corporation in Florida that [has minimum contacts] in Florida *is* identical (burden-wise) to suing that same corporation in Delaware, provided that none of the evidence or witnesses are located in Delaware."

(I've changed the sentence to reflect the original discussion; Justinian elides a significant difference, which I will assume was a careless or thoughtless error rather than a deliberately dishonest attempt to change the subject.)

Justinian is going to be a poor lawyer if he can't think of a single way Delaware differs from Florida in this example. I suspect he didn't think at all before writing it, because it should take any reasonably honest and intelligent person less than ten seconds to think of a relevant difference. But perhaps he didn't actually read International Shoe before citing it, which would be consistent with all the other posts he makes where he talks about things he hasn't read or understood.

Posted by: Ted | July 16, 2008 6:15 PM