Friday, August 1, 2008

Speaking of the Second Branch

This week, yet another court remanded a case to state court because Grable was not satisfied.  In Singh v. Duane Morris LLP, the Fifth Circuit held that second-branch jurisdiction did not extend to plaintiff's malpractice claim.  Suit one was a federal trademark suit that plaintiff lost because he did not produce evidence of secondary meaning.  In suit two, plaintiff sued his lawyer from suit one, arguing that the lawyer messed up by not proving secondary meaning.  Because of the suit-within-a-suit requirement of a malpractice claim, plaintiff's claim, though created by state law, involved an embedded federal issue.  Cue Grable, the second branch, and the article I posted yesterday.    Using the Grable vocabulary, the court persuasively explained how exercising jurisdiction over such a malpractice claim would be "disruptive."  (Its substantiality discussion was less than artful.) The case is notable because it reaches a different result than did the Federal Circuit in a similar case.  In the Air Measurement Case (which we covered here) the court held that second-branch jurisdiction did extend to a malpractice action when the suit within the suit involved patent infringement.    --RR

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