This post is from the non-Reed Smith side of the blog only.
We often struggle for a clever title or catchy phrase on which to hang our posts. Hence, the frequent sidebars into pop culture, sports, history, and music. But today, the court handed us our opening on a silver platter – permitted gamesmanship v.
Things are often done differently down in Louisiana. For one thing, Louisiana is the nation’s only civil law state. It’s also the only state not to have enacted the Uniform Commercial Code. We blogged about one such difference before – the state’s unique claim for “redhibition.” Today we’re examining another Louisiana legal peculiarity. This peculiarity
We have reported before on defendants’ efforts to remove cases from the Philadelphia County Court of Common Pleas to federal court. We don’t spend a lot of time examining their motives, other than to express our wholehearted approval of the strategy and noting at times that the Philadelphia CCP has taken its share of criticism.
(This post is from the Cozen side of the blog only.)
Whenever you remove a complaint that is an obvious case of fraudulent joinder, you think to yourself, “Why don’t they just admit it?” “They” being the plaintiffs’ lawyers, and the admission being that they joined the hometown doctor or pharmacy or sales rep solely
A while ago, when we posted primarily about TwIqbal and removed complaints, we commented briefly on a different, but related question – whether TwIqbal (that is to say the Supreme Court’s landmark pleading decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal) also applied to a fraudulent joinder evaluation of a plaintiff’s allegations for purposes of remand. We said that we didn’t think so, but that there wasn’t much law, and left it at that. We recently returned to this same issue after being tapped for some in-firm (this is the Reed Smith side) continuing legal education on removal issues.
It turns out that, while we’d still say application of TwIqbal is a minority position in the remand/fraudulent joinder context, it’s better backed precedentially than we had previously thought. In a couple of circuits it is backed (at least arguably) by pre-TwIqbal appellate precedent authorizing use of Rule 12 standards in fraudulent joinder cases. See Simpson v. Thomure, 484 F.3d 1081, 1084 (8th Cir. 2007); Smallwood v. Illinois Central Railroad Co., 385 F.3d 568, 573 (5th Cir. 2003).Continue Reading TwIqbal In The Remand Context?
We’ve heard the term used often enough. New York is the financial nerve center of our country. A kitchen is the nerve center of a home. It’s the title of show on the Science Channel. There’s even the medical definition: a cluster of nerve cells governing a specific bodily process. Perhaps it was actually that definition that the Supreme Court had in mind when it adopted the “nerve center” test for determining a company’s principal place of business. According to the Supreme Court, a corporation’s principal place of business is “the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities.” Hertz Corp. v Friend, 130 S.Ct. 1181, 1186 (2010). But what does that mean and why is it important for us?
The second question is easy – a lot of prescription drug/device litigation originates in state courts that defendants would prefer not to be in. For instance, plaintiffs from all around the country have flocked to both Pennsylvania and New Jersey in an effort to avoid federal court. That’s because, over the years, a lot of large manufacturers have chosen to locate here for what we assume to be a host of good and legitimate business reasons. But the litigation climate in both these states leaves quite a bit to be desired. So, to get to federal court, you have to know (or be prepared to argue) where your client’s “nerve center” is.
That was the one of the central questions in Moore v. Johnson & Johnson, No. 12-490, slip op. (E.D. Pa. Nov. 1, 2012). It’s a Tylenol case and the Tylenol in question was produced by a subsidiary of Johnson & Johnson, McNeil-PPC, Inc. (also a defendant) at a Pennsylvania facility. Plaintiff also sued two J&J executives and Costco (where plaintiff bought the Tylenol). Plaintiff is from Washington state but brought her suit in Pennsylvania. Defendants removed and plaintiffs filed a motion to remand arguing in part that McNeil-PPC is a citizen of Pennsylvania and therefore barred from removing a Pennsylvania state court action. Slip op. at 2. Plaintiff contended that McNeil’s “nerve center” was in Pennsylvania because three out of four of its highest-ranking officers are based in Pennsylvania. Id. at 5.Continue Reading What is a Nerve Center?
We’ve just found out about multiple remand denials from the Depuy hip implant MDL. Legally, they’re all pretty much the same, although there are some factual differences. They all reject, even under the relaxed fraudulent joinder standard, any possibility that a manufacturer’s sales representative can be subject to an independent product liability claim where the
Yesterday we brought you some welcome news on the pharmacy front in the never-ending struggle against fraudulent joinders. But outside of certain parts of Illinois, we’ve generally done OK where the fraudulently joined party is a pharmacy.
Today, we feature a rarer bird – a court’s decision that a claim brought against a local distributor
One of the things we really like about blogging is that it puts us in touch with smart defense lawyers all over the country. Sometimes, when we know who’s litigating certain issues in particular mass torts, well give him/her a call to check if s/he knows anything new on that point. Other times, somebody will