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Have Plaintiffs' Lawyers Been Avoiding Federal Court Because of Daubert/Amended Rule 702?:

When I suggested that at least some lawyers were doing so in a recent post, a few commenters vociferously objected. One even claimed that I was merely spreading "corporate tort reform propaganda." Coincidentally, I just came across the following paragraph in a publication of the American Trial Lawyers Association, an organization for plaintiffs' attorneys:

In the years since Daubert, often the most daunting challenge faced by a plaintiff in a federal drug or medical device case is overcoming the defendant's challenge to the plaintiff's experts. As a result, many plaintiffs' attorneys choose to keep their cases out of federal court by any means possible, since the majority of state courts--even those that have adopted the Federal Rules of Evidence or a close approximation thereof--have rejected a strict application of Daubert and its progeny. In many cases, this has led plaintiffs' attorneys to bring in as additional defendants treating doctors, pharmacies, or suppliers, so as to destroy the diversity between all parties necessary for federal court jurisdiction. Alternatively, plaintiffs' attorneys have chosen to avail themselves of any available friendly state court forum, such as the defendant drug manufacturer's state of incorporation, even if that state is far from the plaintiffs' residence and the plaintiffs' lawyer's home state.

Related Posts (on one page):

  1. Have Plaintiffs' Lawyers Been Avoiding Federal Court Because of Daubert/Amended Rule 702?:
  2. New York Court of Appeals on the Frye General Acceptance Test:
Steve:
When I suggested that at least some lawyers were doing so in a recent post, a few commenters vociferously objected.

I reviewed the prior comment thread to see how many commenters actually objected to your conclusion that plaintiffs' lawyers have been avoiding federal court, and the correct total is one.
2.2.2007 9:54pm
none_:
forum shopping is well known and is done by lawyers on both sides of a case. this shouldnt come as a surprise.
2.2.2007 9:55pm
Viscus (mail) (www):
Steve,

A few commentators versus one. What's the difference? No need to get hypertechnical. Accuracy is overrated.
2.2.2007 10:09pm
DavidBernstein (mail):
Without even looking back R78, Justin (who denied there would be any reason for, because he says Frye is stricter than Daubert), and, to a more limited extent, Peter Norberg (who argued that it's not clear this trend is happening at all, and if it is it's because Daubert is too costly, not because it's stricter than state rules).
2.2.2007 10:18pm
Loki13 (mail):
Also in breaking news, P.A.s prefer jury trials.

Ric Romero, alas, must cede his Pulitzer for investigative reporting this year. *grin*
2.2.2007 10:18pm
Neil S (mail):
Steve,
So, is it your contention that 2 of the 3 Justin, r78, and Peter Nordberg are sock puppets?
2.2.2007 10:28pm
Loki13 (mail):
After my little snarkfest, though, I am left (like so many other times) wondering- why? Why this post?

Of course PAs want to avoid Daubert. Daubert has become an institutionalized mechanism for getting rid of scientific expert testimony, and, in conjunction with Kumho, all expert testimony. If you are in a Federal Court (slow) dealing with a deep-pockets D who can afford to Daubert all your experts, then you're not going to get very far. Finally, in addition to the standardized Daubert factors, the idea that the trial judge should have considerable leeway in rejecting evidence... well, that can allow for new, and idiosyncratic hurdles to getting expert testimony into a trial.

*shrug* So is the avoidance of Federal Courts a surprise? The line between excluding junk science (good) and denying a valid claim by allowing a D to Daubert a claim to death (bad) is a fine one. I don't know that Daubert got it right, but I don't have a better solution myself.
2.2.2007 10:30pm
Steve:
No one except r78 even questioned whether plaintiffs' lawyers have been avoiding federal court in the prior thread.
2.2.2007 10:56pm
Stan (mail):
I'm a plaintiff's lawyer and can say that I feel that the main reason we don't like federal court is that we feel like we're not welcomed. While courts will often take mindless contract claims of corporations suing each other over some amount of money, serious personal injury cases are often scoffed at. Not always, but moreso that not.

re: Daubert, it is true that many federal courts misconstrue Daubert and require that the opinion to be offered be the popular opinion rather one derived using accepted methodology. That's my view anyway.
2.2.2007 10:59pm
MLH:
By the way, the ATLA recently changed its name to the American Association for Justice.
2.2.2007 11:32pm
Stephen C. Carlson (www):
Why would the American Theological Library Association change their name to that?
2.2.2007 11:37pm
JohnAnnArbor:

By the way, the ATLA recently changed its name to the American Association for Justice.

It's all about marketing!

(And don't forget our 33% cut of your "justice.")
2.2.2007 11:58pm
r78:

Have Plaintiffs' Lawyers Been Avoiding Federal Court Because of Daubert/Amended Rule 702?:

When I suggested that at least some lawyers were doing so in a recent post, a few commenters vociferously objected.

Actually, if you want to have a reality-based discussion about this, you previously posted:

All in all, a significant loss for those who have tried to evade the strict scrutiny trend under Federal Rule of Evidence 702 and the Daubert trilogy by fleeing to Frye jurisdictions.

I asked

Is there any evidence _at all_ that people have been "fleeing" to Frye jurisdictions?

In response, you have offered a link to a plaintiff's attorneys web site and an excerpt from an ATLA publication. I am sure that that lawyer and ATLA are tickled that you find them to be so accurate and authoritative, but I don't think such evidence would pass Daubert.

But, to get back to the question - your assertion that litigants are fleeing Federal Court because of Daubert is wrong for two reasons.

First, there is your belief that Daubert drives the preference for State Courts. Everybody who actually practices law knows that plaintiff’s prefer State court to Federal Court. I could give you ½ dozen reasons – but two that jump out at me immediately are the fact that it is easier for plaintiff’s to get a verdict when they need only 9 of 12 votes (as is usually the case in State courts) instead of 6 of 6 (as usual in Fed. Cts.) Also, fast track rules in many state courts insure that 90 or 95% of cases get tried within a year. Federal court dockets vary, of course, but the most recent case I filed in Federal Court (which was a very, very simple case and had to be filed there because the US was a defendant) was set for its initial CMC 4 months post filing and it is now set to be tried 19 months post filing.

Second you just don't have the numbers to back you up. Let’s remember that you posted:

note that I never said that ALL litigants are fleeing to state court, though I do believe that that is virtually true in products liability litigation

"Virtually all" product liability suits have fled Federal Court eh? The Overlawyered website posted some time ago that federal product liability filings have actually been increasing post-Daubert (which was in 1993):

Federal non-asbestos product liability suits, 1990: 5,812
Federal non-asbestos product liability suits, 1995: 21,310
Federal non-asbestos product liability suits, 2005: 29,052
That 1995 number is unusually high because that's the year that most of the breast implant cases were filed.

Overlawyered goes on to note that the “filings” include removals, but that doesn’t change anything because (again as anyone who actually practices law knows) Defendants will routinely remove almost any case they can and that was true before Daubert and after Daubert.

The only way you can be correct is if you were to show that actual initial product liability filings by plaintiffs in Federal Court dropped sharply after the institution of the Daubert regime.

Go ahead – prove me wrong.
2.3.2007 12:30am
Dave Hardy (mail) (www):
I confess I have never understood the precise issue here. I can understand the contrast between:

Opinion: drinking water causes cancer, because I have consulted the horological charts and tested three lab mice while aided by a witch doctor, and

Opinion: the car was doing about 45 mph when I saw it, or I gave the suspect the horizontal nystygm .. whatever it is, test, and they were drunk, or I own the property and it's worth about $100K,

But I have trouble seeing the abstract dividing line between the two, in terms of when does it go to the finder of fact and when it is too worthless/junk science for them even to hear it.
2.3.2007 12:30am
Mike BUSL07 (mail):
"Alternatively, plaintiffs' attorneys have chosen to avail themselves of any available friendly state court forum, such as the defendant drug manufacturer's state of incorporation, even if that state is far from the plaintiffs' residence and the plaintiffs' lawyer's home state."

Every time a PA lawyer begrudgingly parts with a dollar, an angel gets his wings.
2.3.2007 12:34am
fffff:
\Mike BUSL07 clerked at a large corporate law firm last summer
\\When Mike BUSL07 has been working at that firm for a while, he'll thanks his stars for plaintiff's attorneys
2.3.2007 4:08am
Richard Riley (mail):
Apropos the ATLA's changing its name per comments above: I heard a C-SPAN interview yesterday with the Republican consultant Frank Luntz, who deems himself an expert in political language and the "framing" of policy debates. One of his latest gambits is to tar John Edwards with the label "personal injury lawyer." Luntz thinks that "trial lawyer" doesn't sound horrible to your average voter (isn't that what lawyers do? thinks the man on the Clapham omnibus), while "personal injury lawyer" arguably makes people think immediately of "ambulance chaser," which supposedly has negative connotations.

Luntz is clever but I'm not sure he's right here. A basic problem faced by those Republicans (and others) who want to demonize the plaintiffs' bar is that a lot of people - maybe most people - don't think the plaintiffs' bar is so horrible. Tort reformers - with whom I have a lot of sympathy - focus on costly class actions cases involving junk science, but lots of people just think of lawyers who help injured people fight insurance companies.
2.3.2007 8:56am
Ted Frank (www):
The only way you can be correct is if you were to show that actual initial product liability filings by plaintiffs in Federal Court dropped sharply after the institution of the Daubert regime.

That's not true: if state product liability filings have been going up faster than federal filings, that would also indicate plaintiffs avoiding federal court. Too, one can't tell much from "filings," because plaintiffs have, over time, changed tactics: we see many more suits with multiple plaintiffs and multiple defendants as plaintiffs have learned that fraudulent joinder is often a way to engage in forum shopping and jury confusion without consequence. Plaintiffs certainly have reasons other than Daubert to improperly steer cases into state court, but their own words show that Daubert is a contributing factor.

As I noted in the first place, many of those filings are removals; we don't know how many product liability suits are filed in federal court ab initio. (And, of course, to the extent that a plaintiffs' product-liability suit is meritorious, a Daubert court would be a superior option ceteris paribus, because Daubert excludes defendants' bogus expert evidence as easily as a plaintiff's.)
2.3.2007 9:08am
Just a Nut (mail):
Dave Hardy said the most interesting and insightful thing in this discussion. What is the difference between various opinions offered in trials? Typically the evidence should aid the court or the trier of fact. Easy to say.

Indeed. That is what is at the heart of the case while lawyers are busy trying to generate procedural rules to get at short term aims. The correct teaching of Daubert is that the trial court should act as the gatekeeper. There is little to object there. Further, Frye emphasizes admitting generally acceptable expert testimony, often in the context of novel methodologies. Again, not a problem. The two do not even conflict.

Problem, comes in (maybe I am qualified to say this as a scientific researcher and a lawyer) when a party tries to get in bogus science (happens all the time-- you go to trial with the science you have not the science you should have) that most experts would end up dismissing if given enough time to evaluate it. The problem is of who should be an expert on experts? Frye says the field whiel Daubert says the trial court. Such testimony does matter as it is often the last step for staving off SJ.

Frye emphaiszes the field generally (general acceptability-- in the form of peer review etc., publications, citations), but sometimes such field may not exist or there may be other unrelated rivalries. Daubert, now sullied by various nonsensical factors as pure lawyers are prone to do, relies far too much on the judge, with review difficult.

What lawyers do is to try to get the most credentialed guy they can afford to stave off the expected attack. This is not most reliable expert, not the one who has interest in or studied the similar problems the most, or even the one with the most reliable analysis. Instead, this is a guy the judge will find hard to dismiss because of the degrees, awards, publications and the like. All of the latter are unrelated to the merits. And of course, he should be articulate, good looking, clean (as a whistle) and the like.

The thing that is buried is what David aimed at -- the testimony itself. This is often a problem of timing. It is not possible to generate enough analysis in the short time allowed by the trial calender. The judge may not allow Daubert expert testimony, which while painful, is often the plaintiff's burden as it is he who has to provide enough evidence to prevail. The challenge for the PA is to develop a record to allow review for abuse of discretion. Most attorneys or their cases are not up to this.

A better change that would allow the meritless cases or the cases with insufficient evidence to run to state court with Frye or Daubert being the deciding factors is to allow significant but later developed testimony in the record if the record was sparse due to to much emphasis on speed. Many of these cases takes years to litigate and by the time bankruptcy or judgement proceedings are in, so is the proper expert analysis, but it is too late to fix the error under the present rules. This will give each side an incentive to prove (a) the evidence could not be presented at trial, (b) the outcome was unexpected (and not cumulative) relative to the accepted expert testimony, and (c) accepting it would further justice. Denying entry of such expert evidence would arguably be abuse of discretion for failing to grant a new trial.

Alternative procedural rules can be devised if the focus is on a fair outcome to allow efficient review. Factors to aid in a challenge to an adverse Daubert decision can be devised. But, they should not be a substitute for actual ongoing inquiry into the underlying reality. Eventually something will be worked out. For now its the courts you got.
2.3.2007 9:45am
Peter B. Nordberg (mail) (www):
Ted, naming multiple parties is not synonymous with "fraudulent joinder." You don't say it is, of course, but you're not taking many pains to draw the distinction either. Naming multiple parties is often an exercise of a party's legitimate legal prerogatives. That it may be motivated in whole or in part by tactical considerations doesn't make it fraudulent.

If I have meanwhile registered a modulated, non-vociferous skepticism about the blanket claim that Daubert is stricter than Frye, or that some lawyers may select forums with the admissibility of expert evidence in view, this was not to deny the obvious. Lawyers are known to think about these things when exercising their forum options. Products liability is certainly one area where lawyers ought to think about them very hard. I think Justin does have a point, though, in noting that plaintiffs' lawyers, as a group, have long tended to avoid federal court in the first place. And I also think the frequently Kafkaesque Daubert process would be a sufficient reason unto the day for plaintiffs to think twice about federal court, even if Daubert turned out to be somewhat more lenient than Frye, on the average, as measured by outcomes.

The main axe I'd want to grind, though, involves my view that the following pieces of popular wisdom fall somewhere in the spectrum between speculation and oversimplification:

(1) Setting some baseline standards for the quality of expert evidence inherently operates to defendants' advantage and plaintiffs' disadvantage.

(2) For that reason, defense lawyers favor standards and plaintiffs' lawyers oppose them and want to avoid them.

(3) Daubert is stricter than Frye, and so plaintiffs' lawyers prefer Frye to Daubert.

There are aspects of reality that these generalizations do capture, but there are other aspects of reality that they contradict, and still others that they ignore (e.g., the function Daubert has served in incentivizing plaintiffs to present stronger evidence; the more-than-occasional resort, by defendants, to experts whose thespian talent exceeds the rigor of their analysis; etc.). After fourteen years of Daubert, it is time, perhaps, to move beyond these over-general nostrums and battle-cries toward a more thickly descriptive and rigorously empirical characterization of the actual world. (Few of the broad claims commonly made about "Daubert" would themselves withstand scrutiny under either Daubert or Frye.) The excellent survey of state responses to Daubert in Jurimetrics a couple of years back, co-authored by Prof. Bernstein, is one example of an analysis that bores down to a finer description. It showed that merely labeling a state as a "Frye state" or a "Daubert state" is fairly uninformative. Alaska, for example, follows Daubert, but its high court has also said very explicitly that in its contemplation, Daubert will exclude almost nothing that Frye would permit. That is not the opposite of the federal version of Daubert, but it is certainly a major difference.

Maybe blogs are not the ideal forum for this finer level of analysis. But a man can dream.
2.3.2007 9:54am
Peter B. Nordberg (mail) (www):
And socket puppets dream too.
2.3.2007 10:14am
elChato (mail):
I avoid federal court whenever possible because as compared to certain local courts, the federal jury pool is much more conservative and so are the judges, in the geographic area in which I practice. If the mere question of which courthouse my client's case is going to be in, can cut its value in half (or more), you're damn right I will be looking to stay out of federal court. The fact that state judges must run for reelection and need support also makes them less arrogant than some life-tenured judges, in my experience.

Daubert is a concern in federal court but there is no shortage of reasons for plaintiff's lawyers to avoid going there.
2.3.2007 10:18am
DavidBernstein (mail):
Ted and Peter raise an interesting issue: if wanted to avoid federal court is the proximate cause of a lawyers' decision to name an in-state party as a defendant, is that ipso facto fraudulent joinder? I'm not up on the latest case law, but philosophically I'd be inclined to say yes.
2.3.2007 10:42am
elChato (mail):
David,

the parties' motivations will not grant jurisdiction if it doesn't otherwise exist. All you have to do is meet the (objective) standard for defeating a fraudulent-joinder claim- i.e., state a plausible case against a nondiverse defendant; the courts will not go behind valid legal claims and say, "well they met all the standards but since they structured their otherwise legitimate suit with jurisdiction in mind, we will not remand." Plaintiffs are free to press any legitimate case against any defendant they choose, and if you have a plausible case the courts will not deprive you of your chosen forum merely because they know you don't want to be in federal court. Otherwise it's hard to see how any case would ever get remanded.

If however you file against diverse parties and subsequent to removal want to add a party that would deprive the court of jurisdiction, they WILL consider your motives.
2.3.2007 11:38am
Cornellian (mail):
I haven't looked at this in a while, but I don't believe naming an in-state co-defendant in order to stay out of federal court constitutes fradulent joinder. I don't see how it could be otherwise. Could a federal court really deny a motion to remand based on the plaintiff's motive in naming a co-defendant and thereby acquire subject matter over a non-diverse, non-federal question action? That would mean you could never rule on a motion to remand where the parties were non-diverse without holding a hearing on the plaintiff's motives for naming the in-state defendant.
2.3.2007 11:41am
Peter B. Nordberg (mail) (www):
I don't remotely follow the posited linkage between "proximate causation" and fraud. Fraud involves a false or misleading representation of some kind. Someone might knowingly raise a factually unmeritorious claim as a way of adding a party to defeat removal, and that claim might be considered fraudulent. But if the claim is legally and factually viable, then I don't see how the claim is rendered fraudulent by the mere circumstance that tactical considerations influenced (were one "proximate cause" of) the decision to assert it. If that's enough to render a litigation decision fraudulent, then the disciplinary boards are going to have a lot of work to do.

This seems to me to be a flat linguistic imprecision -- one that might serve some polemical purpose in the tort-repeal debates, but only at the expense of inaccuracy.
2.3.2007 11:42am
DavidBernstein (mail):
Peter: if the claim were "legally and factually valid" assumedly THAT would be the proximate cause of raising it. OTOH, perhaps you just wouldn't have bothered naming an in-state defendant against whom you have a valid claim because you had an out of state "deep pocket", but it's worth naming the in-state plaintiff to avoid federal jurisdiction. I suppose I'd agree that that is not fraudulent joinder.
2.3.2007 2:20pm
r78:
tick, tock
2.3.2007 3:42pm
Peter B. Nordberg (mail) (www):
Prof. Bernstein: I hope I haven't led us down too long a detour from your original post. The reason I'm uncomfortable with the "proximate cause" way of conceptualizing the "fraudulent" joinder issue may be that an event can have more than one proximate cause. E.g., a complaint may state a valid claim against a party, and yet the lawyer and his client might have refrained from asserting the claim, for one prudential reason or another, "but for" its diversity-destroying effect. In such a situation, diversity destruction might fairly be called the "only real reason" for the joinder, by persons speaking standard colloquial English (a stone's semantic throw from "the proximate cause"). But the joinder wouldn't be "fraudulent" in any ordinary sense. That's the narrow point I was trying to make with Ted.
2.3.2007 4:39pm
DavidBernstein (mail):
Peter, that's what I was trying to express above, I see your point.
2.3.2007 4:53pm
elChato (mail):
The word "fraudulent" is rather loaded and generates confusion, especially since the statute only refers to defendants "properly joined and served;" kudos to the 5th Circuit for changing its terminology to better track the statute. It now just calls these "improper joinder" arguments, which can be proven by showing actual fraud in pleading of jurisdictional facts (i.e. lying about citizenship or something); or, the inability of the plaintiff to state a valid claim against the in-state defendant.
2.3.2007 4:54pm
Dave Hardy (mail) (www):
Ted, naming multiple parties is not synonymous with "fraudulent joinder." You don't say it is, of course, but you're not taking many pains to draw the distinction either. Naming multiple parties is often an exercise of a party's legitimate legal prerogatives.

The other consideration is that in states which allocate fault to nonparties, you wind up FORCED to join extra parties. And in some cases fault can be allocated to the parties even if they are immune!

Rough example: you represent a plaintiff who got run over in a crosswalk, and took damages of $100K. There is some slight argument that the city designed the intersection improperly. Normally, you would not name the city -- hey, the driver ran over your party on a clear day, against a red light.

BUT if you don't, the defense will allege the city is a nonparty at fault. Your client was semiblind, they didn't have a long enough time for a person to get across the intersection, the beeper stopped before they could do so. Defense will argue city is 10-50% at fault, which reduces your damages by 10-50 K.

Don't name them, and lose that. Do name them, the city may escape on immunity, tag your client for their costs, and you still get damages reduced.

Around here, the state vs. federal considerations are different. The federal court is almost entirely criminal, go there and you have a judge who is often very inexperienced in civil cases. And any appeal goes to a circuit court that is 900 miles away, instead of right downtown, and could care less about state law details. (I had one appeal that showed that clearly. The question was whether the statute of limitations hinged on the tort or knowledge of the tort, and the state law said knowledge of it, with two appellate cases to support the clear language of the statute. The federal court of appeals decided the matter without mentioning the language of the statute nor the two cases).

Here, the defense often removes to federal court, because the state appellate courts tend to favor plaintiffs.
2.3.2007 11:17pm
Dave Hardy (mail) (www):
With regard my previous post, from my position down in the trenches... and this is a very real example, not a hypothetical:

I testify, in a criminal proceeding against you that will lead to jail time...

that I told you to focus your eyes on the tip of my finger as I moved it from side to side.

If I think your eyes tracked it smoothly, you are innocent. If they were jerky, falling behind and then jerking to catch up, you are guilty, in my opinion.

I have a high school diploma or at best a BA in an unrelated field. My opinion is based on having taken a short course in which the lecturer taught me this was true. At best, and this is at best, the students were allowed to test it on one person, and it seemed to work. But a previous appellate decision has said the test was OK. I know nothing else about it, and if cross examined on it, would say just that -- I was told it was a valid test, and was trained on it, and know little more about it.

Welcome to DUI and the horizontal nystygam ... I can't remember how to spell it, but whatever it is test. Perfectly admissible in state court.
2.3.2007 11:24pm
Ted Frank (www):
Peter, if your point is that "fraudulent joinder" is a misnomer for the concept it describes, I'll be the first to agree with you, but there are plenty of court opinions finding fraudulent joinder without a showing of malice. I would support changing the name of the concept to something less pejorative, since the term "fraudulent" fools judges and, judging by his comment in this thread, even sympathetic law professors like David Bernstein into cabining "fraudulent joinder" into a narrower box than the concept merits.

In every lawsuit against Merck in state court outside of New Jersey, plaintiffs got there by naming in-state third parties. Often these in-state third parties have shallow pockets; in states without joint and several liability, it is a huge tactical mistake to bring these third parties to trial because the jury might decide to blame the third parties rather than the deep pocket. (Even in states with joint and several liability, why risk that the jury will exonerate Merck and put the entire damages award on the shoulders of the middle-class doctor?) And, indeed, not once has the in-state third party been brought to trial. What are we to conclude?

I would say that this is an improper evasion of federal jurisdiction and properly contained in the "fraudulent joinder" heuristic, even if one can construct a colorable claim against the third party. Some courts agree; others do not. The problem could be resolved by ending the requirement for complete diversity (which contradicts the purpose of diversity jurisdiction), which in turn would end the socially wasteful practice of harassing lawsuits against third parties who nobody intends to take to trial.
2.5.2007 10:24am
jallgor (mail):
Ted Frank:
I am curious, what courts agree that fraudulent joinder can be shown if a defendant names a valid in-state defedant solely for the purpose of avoiding federal jurisdiction? I had a lot of experience a few years back in removal and remand in Missippi and Alabama and would have loved to make such an argument but I don't recall finding any cases to support the notion.
"Fraudulent Joinder" is really a misnomer. "Improper Joinder" is a much better term.
To the commenter who said both sides are guilty of forum shopping I disagree. Only a plaintiff can forum shop since they are the ones who choose where to bring suit and how to frame the claims and parties to avoid certain jurisidictions. Defendants can merely try and fight against it.
2.5.2007 11:25am
Ted Frank (www):
Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003), held that 28 U.S.C. § 1446(b)'s one-year time limit for removing cases didn't apply when the colorable claim against the resident defendant was dropped one year and ten days after the claim was filed, and found fraudulent joinder even though the claim against the resident defendant doctor was colorable. That may not have helped you directly in your Mississippi and Alabama cases, and it's not clear that 1446(b) permits an equitable tolling.

Arthur v. International Flavors &Fragrances, Inc., No. 05-5011-CV-RED (W.D. Mo. 2005) hedged its bets and found that there was no colorable claim against the resident defendant doctor, but that was almost certainly based on the parallel finding that "Plaintiffs have no real intention of prosecuting the action against" the resident defendant; previous cases brought against IFF and Dr. Scacewater had been tried in state court (with Scacewater dismissed before the case went to trial).
2.5.2007 12:22pm
jallgor (mail):
Thanks for responding Ted,
I knew about the Warner-Lambert case but it's not really useful. Neither of those cases really support the removal of a claim based on the deliberate inclusion of an in-state defendant solely for the purpose of destroying diveersity. It's a doctrine I wish the courts would adopt though and I think most people would agree even if they can't quite put their finger on why such joinder is wrong. It just doesn't seem right to sue somebody that you don't really intend to seek damages from just so you can pick your court. Sueing somebody isn't an abstract thing. Most often these instate defendants are individual people for whom a lawsuit is the kind of thing you'd lose sleep over. In a small rural town its also the kind of thing that people talk about. The whole game bothers me.
2.6.2007 8:54am