Thursday, November 15, 2007
What kinds of conditions can a trial judge place on a forum non conveniens (FNC) dismissal? Essentially, the FNC inquiry asks whether the forum proposed by the defendant is more convenient than the one the plaintiff chose. Judges often condition dismissals on defendants agreeing to waive certain rights and defenses in the allegedly more convenient forum, such as personal jurisdiction or statute of limitations. Such conditions ensure that the plaintiff can sue in the alternate forum after dismissal.
In Texas and Washington, pending asbestos cases raise an interesting proper-condition issue as the lawyers strategize to avoid (and reach) the federal asbestos MDL. Both cases were filed in states with little connection to the lawsuit (but with enough connection to establish personal jurisdiction). The forums were chosen, not for convenience, but because of an important jurisdictional consideration: proper defendants were citizens of the plaintiffs’ chosen forums, thus preventing removal and transfer to the federal MDL. In both cases, the defendants moved to dismiss for FNC, arguing, quite sensibly, that where the plaintiff lived and was exposed to asbestos was a more convenient forum. No defendant was a citizen of the forums proposed to be more convenient. Thus, if the case were dismissed without condition, upon plaintiffs’ refiling in the more convenient forum, the defendants could remove and the case could end up in the federal MDL.
The same type of condition was considered in both cases. The Washington Court of Appeals remanded its case because the trial judge did not condition his FNC dismissal. There, the defendant pointed to Arkansas state court as a better forum. No one disagreed that Arkansas was better; but, if the plaintiff sued in Arkansas , the defendant could remove and ultimately reach the federal MDL court. The likelihood of removal troubled the trial judge due to the plaintiff’s terminal illness and the federal MDL’s reputation for delay. Nevertheless, he dismissed the case because he felt he could not speculate about the potential removal. The Court of Appeals reversed because the judge should have conditioned dismissal on the defendant’s consent to trial in Arkansas state court.
In a similar case pending before the Texas Supreme Court, the defendants proposed Maine as a better forum. Again, there was little dispute that Maine was better because the Plaintiff lived there and all exposure occurred there. But once again, if the case reached Maine, it would be removable and ultimately might reach the federal MDL court. When the trial judge asked the defendants to waive their removal rights, the defendants objected, arguing that the Supremacy Clause prohibited the judge from putting that choice to defendants. The judge then denied the motion to dismiss. Earlier in the case, the judge had described the federal MDL as a “black hole” where nothing ever happened.
Were these proper conditions to place on a FNC dismissal? The answer may depend on framing the question. It wouldn’t raise many eyebrows for a court to hold: When defendants propose an alternative forum as more convenient, a trial judge may condition an FNC dismissal upon the defendants’ agreement to try the case in the forum they propose as more convenient. Consider an alternative framing: A state judge may not require a defendant to waive his removal rights due to the state judge’s view that the federal court is an inadequate forum. The former seems sensible; the latter reflects Supremacy Clause concerns. Yet they are the same. --RR
- Watch yesterday’s argument before the Texas Supreme Court in In Re General Electric Co.
- The Washington Supreme Court has agreed to hear argument in the case mentioned above, Sales v. Weyerhaeuser, on November 29.
Tuesday, November 13, 2007
Over at PrawsBlawg Eduardo Penalver started a thread on exam writing. I thought it appropriate to drop my thoughts here.
My approach all semester has been to use Hypotheticals in nearly every class session. I've challenged my students to pull from the cases, and hypotheticals rules they can construct into an analytical framework. How well they've created a framework which requires them to analyze issues is what I seek to test them on.
So how will I do it? First, my format. I've told my students the final exam (which is open case and rule book and open self-prepared notes) will be some multiple choice, some short answer questions, some medium answer questions, and an issue spotter. I will test on law and the policies behind those laws, as we've discussed both throughout the year. In short, I'm going to test them on what I've taught.
So what can they expect, and why did I settle on this format? Well first, the multiple choice questions serve a good purpose for me--- they are a quick standardized way to distribute the curve. Second, the short answer questions will afford me an opportunity to test on narrow issues which don't lend themselves to integration into the issue spotter or the medium answer questions. The medium answer questions are designed to be expanded versions of the hypotheticals we covered in class. Finally the issue spotter helps me see how well they can tie together all of these disparate concepts.
What can they actually expect? Some of the questions will be nearly identical to those we covered in class. Some will be adaptations of those hypotheticals we covered in class. Finally, some will be questions premised upon issues we extensively discussed in class. Because I believe that law school exams have the potential to be extremely unfair, I'm trying to make my final as close to what we covered in class as possible. I don't want a student who prepared for every class, actively participated, took great notes and developed an analytical framework to walk out of my exam thinking "that was unfair, none of that looked like what we learned."
My big challenges are 1) with an open book exam how close to the hypos I covered in class do I want to go 2) how do I ensure that there is some differentiation in the scores and 3) how do I not assign so much that the students can't finish the exam. I don't want to test their ability to race, I want to test their ability to analyze, and an exam that is too long won't make for a fair assesment, whereas an exam that is too short won't sort itself out very well.
I'll let you know in a few weeks what I settled on, I anticipate it will be a busy few weeks.
Recently the Sixth and Ninth Circuits addressed issues related to the burden a defendant bears to establish that CAFA's amount in controversy requirement is met in cases removed to federal court. Check out Smith v. Nationwide Prop. & Cas. Ins. Co. from the Sixth Circuit (holding that defendant failed to establish it was "more likely than not" that the jurisdictional amount was met where in a contract case plaintiff specifically disclaimed punitive damages altogether and compensatory damages in excess of the jurisdictional amount) and take a look at Guglielmino v. McKee Foods Corp. from the Ninth Circuit (holding that the defendant must establish that the amount in controversy requirement is satisfied "by a preponderance of the evidence" where the plaintiffs move to remand and specifically plead that they seek damages less than the jurisdictional amount).--Counseller
Monday, November 12, 2007
Fulbright & Jaworski, LLP has released the results of its Fourth Annual Litigation Trends Survey. Each year the law firm commissions an independent research firm to survey senior corporate counsel (this year its US and UK counsel) on their opinions as to litigation trends and related matters. You can download the complete report here, but you'll find a few of its highlights below.--Counseller
--The number of lawsuits filed against companies in the survey is down from last year.
--Suits with more than $20 million at stake are on the rise
--27% of U.S. Companies believe that the new federal rules on e-discovery have made the problem more difficult.