Photo of John Sullivan

The expansion of the DDL’s home to include New York City has come with an unavoidable consequence: commuting.  Ah, the commute.  So many do it, so few want to.  Many of our readers undoubtedly do it.  And a January Monday seems like as good a time as any to muse about it.  Commuting is one-of-a-kind thing, a huge part of our lives that brings us into contact with so many people.  We see some of the individuals on our daily commute more often than we see co-workers and even relatives.  Yet we know nothing about them.

Well, we take that back.  Over time, you can learn quite a bit about them as you observe how they navigate the unspoken customs of commuting.  Of course, you first have to learn what those are.  And that’s not easy.  Some come from common sense, and some are complicated.  They can’t be learned by reading a manual.  They can, however, be learned from reading the faces of veteran commuters reacting to violations of those customs, especially by “rookies.”

Take, for instance, the recently started commute of this DDL blogger, which has been by bus.  The bus is an unusual choice, and with it has come some unusual customs.  The bus picks you up in an office building parking lot.  When you arrive for your first-ever commute, you look for a line that has formed to get on the bus, but you don’t find one.  But you’d better believe it’s there.  It’s just not obvious.  Confused, you look around.  It’s not until another commuter – clearly a veteran – arrives that you find it.  She parks her car, gets out, walks over to a particular spot in the parking lot and places something small on the ground.  You look closer and see that it’s a small umbrella and it’s now sitting at the end of a line of other small items: water bottles, umbrellas, eyeglass cases, bags, and other things.

She walks back to the warmth of her car, as the light bulb goes on in your rookie head.  Aha!  Now you know what to do.  You search your car for something small.  But you’re unprepared.  You have only quarters.  You grab one, leap from your car, place it at the back of the line, and return to your car.  Nicely done.  You’re on-line.  You’re learning.  And you have to learn.  I hear tell of a “rookie” who didn’t know this system and simply walked to the front of the line as the bus arrived.  Big mistake.  The other commuters reacted like Donald Sutherland at the end of Invasion of the Body Snatchers.  Lesson learned.

Anyway, back to your first day.  After your quarter has been safely (you think) placed on line, others arrive and add their small items.  Soon the line has grown to 20 items.  The bus then arrives, and you and others emerge from your cars.  The others move quickly to their saved spot on line.  You don’t.  You’ve already screwed up.  You chose an impossibly small item.  You can’t see the quarter in the dark, especially now that people are standing along the line and moving toward the bus.  Oh, you try.  You wander around the line, impeding the movement of others as you repeatedly bend over looking for your quarter.  No chance.  You’re now the goofy little brother that bothers everybody and accomplishes nothing.  It’s useless.  You take your medicine and walk to the back of the line, defeated and 25 cents poorer.  No one says a word to you.  Who would want to talk to this guy?  “Rookie.”

It’s not over, though.  More awaits you on the bus.  Since you managed to work yourself to the back of the line (at the bus’s last pick-up stop), there are only a handful of empty seats waiting for you.  And they’re in the back.  So, after standing way too long in the front with a bewildered stare, you begin your walk of shame toward the back.  Making things worse, your walk takes you passed every single person who just witnessed your monkey act outside.  A number of people look away.  It’s not because they think that you’re a dummy – though they certainly do think that.  And it’s not because they have no interest in what you’re doing.  It’s because they, in fact, have great interest in what you’re doing.  They are obsessed with it.  They hate you and what you could do to them.  Why?  Because each of them has an empty seat next to them, and they don’t want you to sit in it.  This is the last stop before the long ride to NYC, and if you don’t take that seat they will enjoy that long ride spread out across two seats.  It’s all they’ve been thinking about since they went to bed last night.  This is apparently the Holy Grail of bus commuting, and they will do almost anything to get it.  They’ve made themselves and the area around them as unpleasant as possible.  They take up lots of space.  Their stuff is everywhere.  They look sullen, almost dangerous.  Their eyes never meet yours, because eye contact could lead to a gesture requesting that they clear space for you.  All their plans would be shattered.

So, in this comforting environment, you choose a seat.  You have to.  Somebody is going to be unhappy.  Most will accept their fate, relent and act courteously.  But the dead serious ones won’t.  A seat next to them is a long ride.  They’ll do anything they can to establish that this is their territory, and you’ve trespassed on it.  They’re playing the long game.  They don’t want you – or anyone else – to come back to that seat tomorrow.  Once they’ve done this enough, they figure that everyone will get the picture.

And with that, you’re off to New York City.  Darn – if you’d only had something other than that quarter.

There are many other mistakes you will make.  For instance, don’t try to leave the bus without returning your seat to its upright position.  Don’t dare.  If you do, the person in the seat behind you will send you a ferocious middle-school-like eye-roll and sigh, or stare you down like one of the assassins in “Scanners.”  (We won’t provide that link.  Too graphic.)

All of this happens – all of it – with no one speaking a word.

There’s more, much more.  But that’s enough for now.  We should address some law.  There has been additional “commuting” from state court to federal court within the Eighth Circuit as part of the transvaginal mesh litigation.  In November, we posted about the Atwell case, in which the Eighth Circuit refused to remand to state court of a group of transvaginal mesh cases.  Despite the plaintiffs’ assertions that they did not want to consolidate that group of cases, they did ask the state court to transfer three cases involving over 100 plaintiffs to a single judge for discovery and trial.  A single judge, according to the plaintiffs, would better allow for uniformity of rulings and a bellwether trial.  The Eighth Circuit held that these requests suggested a “joint trial” that triggered removal as a “mass action” under CAFA.

With that decision in the books, the Eastern District of Missouri is now following the Eighth Circuit’s lead.  In Brannen v. Ethicon, No.4:13-cv-01252-JAR, Slip Op. (E.D. Mo. Dec. 30, 2013), the district court denied a remand motion, citing the Atwell decision.  Lawyers representing over 100 plaintiffs had asked the state court to transfer all of those cases to a single judge who would handle not only pretrial issues but a bellwether trial.  The district court, not surprisingly, found this request to be functionally the same as the requests in Atwell, triggering CAFA removal.

The Eighth Circuit has now become a favorable jurisdiction in which to remove such cases.  Whether in their papers or at a hearing, if plaintiffs request coordination of 100 or more cases by a single judge for the purpose of bringing about consistent rulings across multiple plaintiffs and having that same judge preside over a bellwether trial, the defense should consider removal.  There’s strong precedent for it in the Eighth Circuit now.

And Happy Commuting.