September 18, 2008
Sponge Bob to the Rescue
Hurricane Ike has significantly damaged the Texas coast, including the city of Houston, home to law firm Vinson & Elkins. Many of Houston's millions of residents are still without power and other basic services. To help lawyers cope with problem, V & E allowed their Houston lawyers (still without childcare) to bring their children to work with them. V & E treated the kids to snacks and a Sponge Bob marathon in one of their mock courtrooms. Read more here over at the ABA Journal.--Counseller
September 16, 2008
Preservice Removals and Appellate Review
While we've occasionally posted about preservice removals, Beck and Herrmann have done the heavy lifting. In today's installment, they ask for appellate guidance. Lower courts are split on whether a case can be removed when it contains a forum-state-citizen defendant who has not been served with process before removal. (see 28 U.S.C. s1441(b)). A remand on this ground is unreviewable on appeal, and a denied remand motion is interlocutory. So, they "urge some court to deny a motion to remand and then certify the jurisdictional question for interlocutory appeal, which would let an appellate court weigh in on the question and give trial judges (and litigants) some much-needed guidance." --RR
September 15, 2008
Balancing the Pleading Equation
Paul J. Stancil posted Balancing the Pleading Equation on SSRN, which explores the asymmetries of cost and information in the pleading system and how to strike the right balance between these considerations.--Counseller
"To the extent it is correct"
Recently, the Sixth Circuit decided In re Hamilton, a case involving interesting questions of preclusion, Rooker-Feldman, the Anti-Injunction Act, and discharge in bankruptcy. Essentially, the bankruptcy court declared some debts discharged. Later, a state court decided against tthe debtor, interpreting the discharge order to exclude a debt. The state appellate court affirmed. After some more procedural wrangling, the debtor returned to ask the bankruptcy court to enjoin execution of the state-court judgment.
Generally, when there's an alleged exception to the Anti-Injunction Act based on the effect of a federal judgment, the party seeking a federal-court injunction must ask the federal court for the injunction before the state court rules on the issue. The injunction seeker generally has two options, not three-- (1) she CAN litigate the issue in state court and appeal any adverse ruling (theoretically to the USSCT because the effect of a federal judgment is a federal-enough issue for s1257 jurisdiction); (2) she CAN seek an injunction in federal court under an AIA exception before the state court rules on the effect of the allegedly preclusion/effective federal judgment; (3) but she CANNOT have two bites at the apple by arguing the effect in state court and then resorting to a constructive appeal in federal court if the state court does not buy the preclusion (or effectiveness) argument.
In In re Hamilton, the Sixth Circuit decided that two bites at the apple are available in this context: "A bankruptcy court can find that a postpetition state court judgment is void despite the full faith and credit normally given to state court judgments." Although I am admittedly not a bankruptcy scholar, I must tentatively disagree with any "exception" based on the following reasoning:
[A]lthough state courts have unbridled authority to determine the dischargeability of debts, state courts have the authority to interpret a bankruptcy courts discharge order only to the extent that the state court's interpretation is correct.