Subject Matter Jurisdiction

With apologies to Mick Jagger and Keith Richards (who wouldn’t have jurisdiction either, being UK citizens), that is what the Sixth Circuit told a pack of Spanish plaintiffs recently in In Re DePuy Orthopædics, Inc. ASR Hip Implant Products Liability Litigation, ___ F.3d ___, 2020 WL 1482384 (6th Cir. March 27, 2020).

All companies

We never heard the term “slack fill” before we started writing for this blog, but it seems to be getting a lot of attention lately. We enjoyed a podcast from NPR’s Planet Money the other day discussing slack fill in black pepper containers, and we blogged on the FDA’s regulation of slack fill a little more than a year ago.  We have to admit, the words are fun to say.  “Slack fill.”  They snap off your tongue with a certain percussive elegance.  Sort of like “Severus Snape.”  Or “Coco Crisp,” who is an actual person, a switch-hitting outfielder currently vying for a World Series crown with the Cleveland Indians.  (Coco Crisp, whose given name is Covelli Crisp, broke into the big leagues with the Indians in 2002, and he returned to Cleveland just a few months ago after spending six-and-a-half seasons leading off for our beloved Oakland Athletics.  His change from the white cleats to black is a big loss for Oakland and, if the Indians beat the Cubs, a bigger win for Coco.  But we digress.)

For those who missed our prior post on slack fill, the term refers to empty space, like the extra air in a bag of chips. The variant “nonfunctional slack fill” refers to pointless empty space.  It’s just there, serving no purpose, just like a recent slack fill class action that recently met its demise in the Eastern District of New York, Fermin v. Pfizer, Inc., No. 15-cv-2133, 2016 U.S. Dist. LEXIS 144851 (E.D.N.Y. Oct. 18, 2016).  In Fermin, the plaintiffs’ alleged that they were “tricked” into purchasing ibuprofen because the containers were too big. Id. at *1.  Never mind that the labels prominently and accurately stated exactly what was in the bottles, down to the number of pills.  These plaintiffs alleged that the “excessive empty space” in the packaging misled them into purchasing the product, and they purported to represent a class of purchasers under the consumer laws of multiple states. Id.


Continue Reading “Slack Fill” Class Action Is Empty Space

Over the years we have completed many written evaluations of young associates, and the first category on the form has almost always been “Legal Analysis.” That primacy makes sense. If a lawyer does not understand the legal issues, what good is oral or written expression, teamwork, or pretty much anything else? (That being said, it is amazing how business development can cure any perceived weakness of analytical ability). When we do what we usually do on this blog, scrutinizing judicial opinions, we are basically doing a legal analysis of a legal analysis. According to most dictionaries, to analyze something is to separate it into constituent parts. The word “analyze” comes from Greek words “ana” and “lupin” – to unloosen. Analysis picks things apart while synthesis puts things together.

Today’s case, In re Zofran Products Liability Litigation, 2016 U.S. Dist. LEXIS 59296 (D. Mass. May 4, 2016), is a nice piece of legal analysis. The court takes a messy case, separates the issues, sequences them logically, and then disposes of each part clearly and succinctly. The case was messy because the plaintiff lawyers made it so, by consolidating claims of four different plaintiffs from four different states: Missouri, Delaware, North Carolina, and Pennsylvania. The case was initially filed in Missouri state court. The defendant removed the case to Missouri federal court, and the case was then transferred to the MDL federal court in Massachusetts. The plaintiff moved to remand the case to state court and the defendant moved to dismiss the claims of the three non-Missouri plaintiffs.


Continue Reading Zofran MDL Jurisdictional Analysis Bounces Non-Missouri Plaintiffs

The Supreme Court today granted certiorari in a case, Mississippi v. AU Optronics Corp., No. 12-1036, to decide the following question:

Whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the

Don’t misunderstand us.  TwIqbal’s great.  It’s left a lot of badly pleaded carnage in its wake over the last five years.  But at times it makes sense to mix things up, to give the bench players a chance.  Take standing for instance.  Standing arguments don’t make it into motions to dismiss all that often, at least

We’d thought, because that’s what we’d seen, that subject-matter jurisdiction/fraudulent joinder issues in would-be diversity cases in federal court are to be decided early in the litigation.  Turns out that’s not necessarily so – at least according to the Second Circuit’s recent decision in a Zyprexa case, Brown v. Eli Lilly & Co., ___ F.3d ___, 2011 WL 3625105, slip op. (2d Cir. Aug. 18, 2011).

Brown was originally filed in Mississippi state court, and the plaintiff purported to bring negligent discharge claims against two local hospitals – along with the usual Zyprexa allegations – in order to destroy diversity and keep the case out of federal court.

The procedural posture (how the case got where it was) can only be described as “convoluted.”

Brown was originally filed in Mississippi state court in October, 2007.  Before removal, both hospitals filed dispositive motions in state court on statutory issues unique to:  (1) malpractice claims, and (2) Mississippi community hospitals.

Brown was removed to federal court in January, 2008.  That’s more than 30 days after suit was filed, which is usually a no-no, but apparently the plaintiff didn’t notice, so timeliness of removal was waived.  Fraudulent joinder of the hospitals was alleged, tracking the hospitals’ pending motions.

A couple of months later, in rather leisurely fashion, the plaintiff moved to remand.

Later, in August, 2008, the MDL got involved and the case was transferred to the Zyprexa MDL – with all of the various motions still pending (nobody – plaintiff, defendants, or the court – seemed to have pressed things much during this seven-month period).

The Zyprexa MDL judge, of course, is Hon. Jack Weinberg, who rarely does things the same way as any other judge.  All these preliminaries are recounted at 2011 WL 3625105, *2-3.


Continue Reading The Long And Weinstein Road To Fraudulent Joinder

We confess that we read McAdams v. Medtronic, Inc., 2010 WL 3909958 (S.D. Tex. Sept. 29, 2010), a while ago, but we weren’t sure what to make of it.  On the one hand, there’s an interesting idea in there.  On the other hand, it didn’t win in McAdams. We still don’t know if