November 29, 2007
More on Thomson v. Novartis
On Tuesday, we summarized and linked to Drug and Device Law's discussion of Thomson v. Novartis. Apparently the forum-state-defendant issue discussed in Novartis is also the subject of other pending remand motions. See the update here. --RR
**Update: Beck and Herrmann note that the New Jersey State Judge was apparently unamused and link to an order the judge issued earlier today. Let's be candid, though, this practice is no more sinister than the other games that parties play. Preservice removal to secure a federal forum doesn't offend sensibilities any more than a plaintiff serving a fringe, local defendant to secure a state forum against the primary out-of-state defendants.
November 28, 2007
Cell Phones in the Classroom/Courtroom
How many student cellphones have gone off in your classes? What do you do about it? Ignore it? Embarrass the student? When it happens, I think it's a real teaching moment. RR and I have taken to assigning the offending student a memo about the sanctions judges have imposed on lawyers whose cellphones have gone off in court. We may have to change our tactic because of this tidbit from NPR about a judge who went a bit too far in response to a cell phone ringing in court.--Counseller
A Call For Papers
November 27, 2007
Removing despite a named forum-state defendant
Suppose complete diversity exists. The amount in controversy easily exceeds the jurisdictional amount. Yet, the plaintiff wants to keep the case in state court. The next step in the common forum-fight template is that the plaintiff sues in a forum of which at least one defendant is a citizen. It's commonplace: a forum-state-citizen defendant defeats removal. Or perhaps, as illustrated by James Beck and Mark Herrmann at Drug and Device Law, we should review 28 U.S.C. 1441(b) more carefully.
What if a defendant removes before the forum-state defendant has been served? What if a defendant monitors the docket and removes before any defendant (including the removing defendant and the forum-state defendant) has been served? 1441(b) only bars removal when a forum-state defendant has been "properly joined and served." Most folks reading that provision naturally think of fraudulent joinder -- of course we can disregard the citizenship of a jurisdiction killer who has been fraudulently joined to the lawsuit. But relying upon the plain language of the statute, several defendants have succeeded in using 1441(b) to defeat removal despite the presence of a not-fraudulently-joined forum-state defendant, by simply removing before that defendant has been served. Discussing the recent case, Thomson v. Novartis, Beck and Herrmann note:
We're not mentioning this case only because it's curious. It also has practical implications for drug companies. If your company is facing mass tort litigation -- and non-resident plaintiffs are running to sue you in your home state court, to prevent removal -- monitor your state court dockets. Remove diverse (but otherwise non-removable) cases before the plaintiffs serve the company. Presto! Federal jurisdiction in seemingly nonremovable cases.
November 26, 2007
Crash on Outlining
As some of you might have noticed, it has been a while since I have written a Civil Procedure post. I don’t have a particularly compelling excuse to offer, except to say that I am a one L—a first semester law student whose finals are drawing quite near.
I am currently sitting in my room surrounded by my casebook, the Federal Rules of Civil Procedure and, of course, Example and Explanations. I need a break. I suppose I will take this opportunity to write about the thing that is constantly on my mind: the elusive outline. I’m not sure exactly when it started, but a couple of weeks ago a few of my classmates began casually asking each other, “How is the outline coming?” Since then, it has been a constant topic of conversation and a constant source of stress for me.
The first time I sat down to make my Civil Procedure outline I was armed only with the voluminous (and sometimes incoherent) notes I have taken this semester and my casebook. I worked for an hour or so before I realized I was really doing nothing more than copying my notes and adding in facts from the cases. Though I am still not entirely sure I understand how to outline well, I realized pretty quickly that what I was doing was not right.
On my second attempt, I tried to start very broadly. I thought about the class a whole and created headings that represented what I thought of as the major topics. Then I thought about each topic and tried to create subheadings from there. I attempted to do this primarily from memory, using the book and my notes as references rather than templates from which to copy. At first, I found this to be a useful exercise; it helped me begin to think about how the ideas we had discussed relate to each other. However, as I tried to move down another level of specificity, I found myself copying straight from the book and constantly rearranging my original categories. I realized I was not yet ready to synthesize the ideas on my own; I still had some learning left to do. This method may prove to be a useful way to test my understanding after I have completed an in-depth outline. However, it did not turn out to be a very useful way to produce an outline that will aid me during the exam.
Finally, I asked an upperclassman for advice. I was promptly presented with 4 outlines from “A” students who had taken Civil Procedure with my professor in the past. My first reaction upon opening these outlines was despair: most were over 100 pages and all seemed meticulously organized and utterly complete. I felt fortunate to have them, but terrified that somewhere my classmates were creating similar masterpieces from scratch. It produced one of those temporary but increasingly frequent moments of doubt when I am sure that I am missing some secret of law school that all my classmates know. Fortunately, I have, for the most part, been able to put this doubt aside as use these outlines as tools as I develop my own.
I have heard mixed opinions on whether it is a good idea to use other peoples’ outlines as templates, or whether it is always better to start from scratch. The jury is still out for me, but my opinion from halfway through the process is that, while having four outlines seems useful, I would rather use zero outlines than just one. I think that using just one outline would make it too easy to copy and paste without thinking about the material. On the other hand, working from 4 outlines, my notes, my casebook and E and E is truly forcing me to think about what is important and how things fit together.
Because I am mid-process I have no grand conclusions about outlining. Instead, I have a few questions about the process. First, I am not sure how much information about particular cases to put in my outline. I know I will not be asked to describe the facts of any particular case, but never having taken a law exam, I am not sure how helpful it will be to have key facts at hand so I can distinguish hypotheticals from cases we have discussed. Second, I do not know how I can make my outline more helpful in answering the theory and policy questions that, based on the way class has been structured, I assume will comprise a large part of my exam. I have been tempted to spend some time thinking and writing my thoughts about each issue as I outline it. My hope is that, if I have at least a few ideas jotted down, I will be less likely to freeze on the exam. However, I wonder if doing that wastes space and time.
Ultimately, I realize these questions may not matter. I’ve been told the exam period goes by so quickly that I will likely not have much time to look at my outline, but I try to block that thought out of my mind. I do this not so much because I am afraid to take an exam without an outline, but rather because I see how much trying to produce the perfect outline is benefiting me. I believe that whether or not I give it a single glance, the process of trying to produce an exam worthy outline is the best preparation for exams. So, I suppose I should get back to it. --Crash
Click here to find Crash's last post and links to all his previous posts.