In some states (we’re looking at you, California) it is frightfully hard to win on fraudulent concealment removal where the plaintiff has joined an in-state distributor of a drug or medical device. In other states, defendants have more of a shot. Today’s case, Harris v. Zimmer Holdings, Inc., 2019 U.S. Dist. LEXIS 71025 (S.D.N.Y.

Last week we posted about the need to consider the level of detail and specificity you include in any filing. We happened to stumble across another case that prompted a word to the wise – proofread, proofread, proofread. Today’s case is a defense victory in the battle between state and federal forums, but perhaps more

This post is from the Cozen side of the blog only.

The Third Circuit gets fraudulent joinder—as if the name of the doctrine isn’t enough to give it away. It refers to, quite simply, joining a defendant in a lawsuit for a purpose other than pursuing liability against that defendant. And so the Third Circuit,

The Eastern District of Pennsylvania recently entered a fraudulent joinder order that is worth highlighting because it applies a fraudulent joinder standard that we think should apply more broadly. It has always puzzled us why courts are hesitant to find non-diverse or local defendants fraudulently joined.  You know what we mean.  A plaintiff from State

We sometimes start our posts with disclaimers about how we do not know all the details of a case, perhaps supplemented by a little digging on the internet, or that we are not experts in some substantive area.  We start this post with disclaimers that we (and our respective firms) are not involved in the case we are writing about (or the related cases mentioned in it) and we are not specialists in antitrust or patent law (although others at our respective firms are).  We do know misjoinder, forum shopping, and judicial smackdowns when we see them, though.  We typically encounter misjoinder when a bunch of individual plaintiffs from various places are listed on a single caption because they each are pursuing individual claims over injuries allegedly caused by the same or similar products.  As long as at least one plaintiff is from where they have sued and at least one plaintiff is from the defendant’s home state, they all get to stay where their lawyers chose to sue, at least if they get their way.  (Set aside CAFA for now.)  When confronted with a motion to sever—or another motion that implicates the issue—they argue that joinder is perfectly appropriate because all cases against the manufacturer of product(s) are really about the same set of facts—i.e., the company designed a dangerous product and marketed it without adequate warnings of its risks.

Forum shopping is the other half of litigation tourism, as we often call it—like picking the campground for the family reunion.  The lawyer’s reason for picking the court is typically not revealed, just that a plaintiff gets to pick and their choice should be afforded deference.  We have yet to see a lawyer say they picked the venue where they felt they had the most influence with the bench and/or juries apt to put extra zeros on the damages in a case against an out-of-state defendant.  That the plaintiff lawyers, rightly or wrongly, consider where to file and how to package their clients as part of their desire to maximize the total recovery by verdict or settlement—and their fees—should not be a shock to anyone.  But we might suppose that the government lawyers trying to enforce the Federal Trade Commission Act and the Clayton Act might be above such base considerations.


Continue Reading

Spring seems to be finally here in the mid-Atlantic region and we could think of nothing better to usher in spring than some personal jurisdiction and procedural wrangling.  Every year, we see new cases with multiple plaintiffs thrown together filed in places the plaintiff lawyers want to litigate.  Laws are enacted and big cases are decided that should curtail this practice, yet the cases keep popping up like longer-lasting and worse-smelling crocuses.  The options available to defendants to break up, remove, transfer, or dismiss some or all of these multi-plaintiff state court actions have grown, but the plaintiff lawyers keep coming up with arguments for why their cases should stay put in the form and forum of their choosing.  The case we are discussing today rejects one of the major recent arguments from the plaintiff lawyers to try to impose personal jurisdiction where it should not exist—“pendent jurisdiction.”  Combined with the recent defense win on “jurisdiction by consent,” 2016 is starting out pretty well on this front.

Continue Reading