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Removal/Remand Issues From
the Plaintiff’s Perspective
By John F. Hawkins
A. Some introductory comments and have any connection to the venue in
general ranting and raving: which the case has been filed. Some have
argued and believe there have been abus-
As frustrating as it may be for those es of the once liberal joinder and venue
lawyers inclined to remove every case rules in Mississippi state court practice. It
served on one of their clients, plaintiffs may well be that such purported abuses
really do get to decide whether to litigate have fueled the fire for tort "reform"
and try their case in Federal or State debates at the Capitol and have caused the
Court, provided jurisdiction is proper. Justices of the Mississippi Supreme Court
This deference to a plaintiff’s selection of to change the venue/joinder rules. It may
John F. Hawkins practices law in where to file his or her case is well also be that this once liberal practice of
Jackson, Mississippi with the firm entrenched in the law and has been for a joining plaintiffs in “mass tort" cases has
Baria, Fyke, Hawkins & Stracener, very long time. Unfortunately, removal given justification to the removal lawyers
PLLC. Hawkins practices in the areas has become somewhat of a cottage indus- (as I like to call them) to remove every
of civil rights, consumer fraud, labor try in Mississippi for certain lawyers and case they defend.
and employment law, nursing home their firms, or at least in certain Federal It has been rumored that at some of
negligence, medical malpractice, per- Court Districts and divisions, presumably the rather large defense firms removal is
sonal injury, products liability, admin- because some defendants (or their taught as an integral part of the defense of
istrative law and insurance bad faith. lawyers) believe they gain some advan- every case - indeed, there is the fear at
He has tried numerous cases before tage by removing a case to Federal Court. some firms that to fail to remove a case in
the State and Federal Courts in While it can be maddening to deal with time might be deemed malpractice
Mississippi. when you represent the party forced to because, baseless or not, a defense lawyer
Hawkins graduated with a B.A. engage in the extensive practice of filing can for the most part remove a case with
from Millsaps College and obtained the motion to remand, the accompanying impunity. Whether the case ultimately
his J.D. degree, cum laude, from memorandum brief and fight during dep- gets remanded or not, defense lawyers
Tulane University in 1993. He served ositions over what is or is not appropriate realize they can buy their defendant client
as a law clerk to Justice Michael D. "remand related" discovery, it can also be the benefit of the months it takes to file
Sullivan for the Supreme Court of satisfying to be the lawyer representing the motion to remand, respond to that
Mississippi from 1993 to 1995. He is a the plaintiff and finally get to argue that, motion (with the requisite extensions of
member of The Mississippi Bar, Hinds in light of the clearly baseless removal time granted on both sides of course),
County Bar Association, Mississippi and meritless opposition to your client's engage in remand-related discovery
Trial Lawyers Association (member, motion to remand, the defendant is forum (whatever that is exactly) and then await
MTLA Executive Committee and
shopping. the Federal Court Judge's ability to final-
Board of Governors; Treasurer 2002-
Many have complained about plain- ly wade through all the other Motions to
04; Parliamentarian 2001-02) and
tiffs' lawyers joining hundreds or even Remand to get an opportunity to eventu-
ATLA - the Association of Trial
thousands of individuals in one case in a ally rule on the Motion to Remand in your
Lawyers of America (member, ATLA
state court venue that has a reputation, case. Since the remand-related discovery
Key Persons Committee, 2004).
real or imaginary, of being "plaintiff must be accomplished before the case can
Hawkins resides in Jackson,
Mississippi with his wife Dorothy, and friendly." This is especially true when no even be fully briefed on the motion to
three sons - Jack, Henry and Miles. defendant can be found in that particular remand, both sides typically end up brief-
county and only a handful of the plaintiffs ing the same issues multiple times,
20 October-November-December, 2004 The Mississippi Lawyer
Removal / Remand Issues From the Plaintiff’s Perspective
including the much overused "letter Namely, you can typically get your case dismissal with prejudice on a
brief," before the Court has everything to trial quicker in my experience in finding of fraudulent joinder.
before it to rule. It is not uncommon at all Federal Court - provided of course you
to see this process take over a year. Let me are not engaged in the Motion practice Additionally, Footnote 3 on pages 6 and 7
say that again - over a year. I am confi- described above. of Judge Mills' opinion specifically
dent there are many lawyers who prac- I must presume that with the recent addresses a removing defendant's argu-
ticed before the adoption of the rules of opinions of the Mississippi Supreme ment that an innocent seller should be
civil procedure in this state who find it Court and rules changes handed down by deemed fraudulently joined based on the
difficult to believe that any case should go the Mississippi Supreme Court along with applicability of Miss. Code Ann. § 11-1-
on for more than several months without the very recent passage of more tort 64. That footnote reads as follows:
being tried and a judgment entered. "reform" legislation, there will be fewer
There is also another creature lurking baseless removals. Perhaps now we can The removal petition invokes
out there - the Multi-District Litigation get back to the business of engaging in the retailer liability provisions of
(MDL). Defendants served in certain discovery and trying cases within a rea- § 11-1-64, which was passed by
cases with causes of action that are relat- sonable period of time. the legislature as part of the 2002
ed to claims that are pending in an estab- tort reform legislation. Section
lished MDL remove every case - knowing B. The local seller issue: 11-1-64 generally provides retail-
that most, if not all of them, will then be ers with a mechanism to seek dis-
conditionally transferred (which practi- A Northern District Court Opinion missal from a products liability
tioners have come to realize really means dealing with this issue recently is enlight- action for liability purposes, but,
permanently transferred) to the MDL ening. Judge Mills' recent opinion in an obvious attempt to defeat
where the MDL Court will rule on the in the Jerry W. Duffin v. Honeywell removal jurisdiction, the statute
Motion to Remand. The practice of most International, Inc., et al. case states the provides that any such dismissed
Federal Court Judges in Mississippi is following: retailers are to remain parties to
apparently to allow the case to be trans- the action for jurisdictional pur-
ferred without deciding the Remand At any rate, the court does poses. Miss. Code Ann. § 11-1-
issues before the transfer. As discussed not agree that, under liberal notice 64(6) .... Missouri federal courts
below, I would submit that is not the best pleading rules, the complaint is interpreting a nearly identical
practice. defective as it relates to the local Missouri statute have found that
It is not a secret that delay in this busi- retailers. To the contrary, the com- statute sufficient to defeat federal
ness tends to help the defendant more plaint clearly indicates that plain- removal jurisdiction, based partly
often than the plaintiff in civil litigation. tiffs are proceeding under stan- on the fact that any dismissal
Moreover, anyone who has practiced long dard theories of strict products lia- thereunder is properly considered
enough to litigate even one case from start bility against the local retailers, an involuntary dismissal which
to finish - whether settlement or final res- alleging that they sold unreason- may not give rise to removal juris-
olution occurs just before, during or after ably dangerous and defective diction. See, e. g. Pender v. Bell
a trial knows that from the plaintiff’s per- products and that, on this basis, Asbestos Mines, Ltd., 46 F. Supp.
spective, the name of the game is getting they should be held liable under 2d 937, 940 (E. D. Mo. 1999).
a trial date and forcing the matter to be Mississippi law. Miss. Code Ann.
resolved. A baseless removal with its § 11 - 1 -63 clearly provides for It is submitted that at the time of this
attendant delays is in many cases a terri- such retailer liability in products writing, present, the argument that a local
ble thing for an injured person. liability cases, as did Mississippi's seller in-state defendant cannot provide
Not every lawyer contemplating filing common law products liability the basis for State Court jurisdiction is
a plaintiff’s case strains mightily to avoid jurisprudence. A complaint does misplaced.
Federal Court, many of us representing not need a great deal of specifici-
plaintiffs in employment or civil rights ty to convey that plaintiffs are C. The Smallwood/Ross Apparent
cases for example, file the case where it seeking to hold retailers liable Conflict
should be filed. If it is a Title VII case for under a strict products liability
example, Federal Court is the appropriate theory, and the complaint in this The Fifth Circuit Court of Appeals'
jurisdiction. If the case is against a foreign case is sufficient to set forth plain- decision in Smallwood v. Illinois Central
manufacturer of a defective machine that tiffs' allegations in this regard. R. R. Co., 342 F.3d 400, 405 (5th Cir.
injured your client and there is no viable The court therefore sees no valid (Miss.) August 7, 2003) (quoting with
in-state defendant, Federal Court is the argument that the complaint is approval the Third Circuit's holding in
proper place to file. Moreover, Federal defective, much less so defective
Court arguably has some advantages. as to entitle the local retailers to Continued on next page
The Mississippi Lawyer October-November-December, 2004 21
Removal / Remand Issues From the Plaintiff’s Perspective
Royer v. Snap-On Tools Corp., 913 F.2d Supreme Court's decision in Chesapeake not the same as a summary-judgment
108, 113 (3d Cir. 1990), held that "where & Ohio Railway Co. v. Cockerell, 232 U. inquiry on the merits since, (1) the court
there are colorable claims or defenses S. 146, 34 S.Ct. 278, 58 L.Ed. 544 (1914). must avoid "pretrying a case to determine
asserted against or by diverse and non- Warnings against the dangers of removal jurisdiction," Hart v. Buyer Corp.
diverse defendants alike, the court may improperly pre-trying cases in the fraudu- 199 F.3d 239, 246-47 (5th Cir. 2000) and
not find that the non-diverse parties were lent-joinder analysis can also be seen in (2) "the court must also take into account
fraudulently joined based on its view of other Fifth Circuit law. For example, even all unchallenged factual allegations,
the merits of those claims or defenses, though the fraudulent joinder inquiry including those alleged in the complaint,
instead, that is a merits determination allows consideration of "summary-judg- in the light most favorable to the plaintiff
which must be made by the state court.") ment like evidence" (i.e., the court can and resolve any contested issues of fact
The decisions in Smallwood and Royer "pierce the pleadings" by considering and legal ambiguities in the plaintiff's
are based solidly upon the United States depositions, affidavits, etc.), the inquiry is favor." Id. at 246.
District Court Judge Allen Pepper
recently stated the following in a case
involving the common defense of statute
of limitations in the context of ruling on a
Motion to Remand:
The "common claims or
defenses" test applies to the instant
case because a decision on the
issue of the statue of limitations
regarding the resident defendants
necessarily involves a decision on
the merits as to the non-resident
defendants given the doctrine of
respondeat superior. If the Court
deems that the statute of limitations
has run against the resident defen-
dants, then the statute of limitations
has also run against the non-resi-
dent defendants given that the
claims against the latter are tied to
those of the former. This the Court
may not do because it would be
pre-trying the case on the merits.
Similarly, the "common claims or
defenses" test precludes the defen-
dants' other defenses to remand
since thy also go to the merits of
the claims against all of the defen-
dants of vicarious liability.
The facts and legal issues in
this case speak to the apparent con-
flict between the decisions in Ross
and Smallwood - i.e., Ross would
seem to preclude remand in this
case; whereas Smallwood would
require remand. By "apparent," the
Court means to say that the two
decisions do not directly conflict
since neither addresses the other.
The decision in Ross did not techni-
cally trump Smallwood even though
22 October-November-December, 2004 The Mississippi Lawyer
Removal / Remand Issues From the Plaintiff’s Perspective
the decision in Ross was rendered of removal may be filed within mencement - is the purported
three weeks after that in Smallwood thirty days after receipt by the removal basis is the diversity of
since (1) Ross did not mention defendant, through service or oth- citizenship of the party.
Smallwood and (2) subsequent erwise, of a copy of an amended
decisions in Collins v. American pleading, motion, order or other That will not pose any special
Home Products Corp., 343 F.3d paper from which it may ascer- problems in those cases. It may be
765 (5th Cir. (Miss.) September 9, tained if the case is one which is or expected that the line up of the par-
2003) and McKee v. Kansas City has become removable, except that ties in the state court action has
Southern Railway Co., 2004 WL a case may not be removed on the become a permanent one by the
103439 (5th Cir. 2004) have cited basis of jurisdiction conferred by time a year has gone by. But that
Smallwood with approval and nei- section 1332 of this title more than will not always be so, and the
ther mentioned Ross. 1 year after commencement of the result in a given case is made to
Notwithstanding the apparent action. depend on the procedural varia-
conflict, this Court finds that the tions - and perhaps the procedural
"common claims defenses" analy- 28 U. S. C. § 1446(b). The language eccentricities - of the particular
sis of Smallwood and its progeny is "except that a case may not be removed states practice. The amendment
binding in the instant case and war- on the basis of jurisdiction conferred by may sometimes give too much con-
rants remand. The decision in section 1332 of this title more than 1 year trol to the state court plaintiff who
Smallwood is based almost exclu- after commencement of the action" was wants to resist a removal to the fed-
sively upon Chesapeake & Ohio added by Congress on November 19, eral court at all costs. It can invite
Railway Co. v. Cockerell, 232 U. S. 1998. The Commentary on 1998 Revision tactical chicanery.
146, 34 S.Ct. 278, 58 L.Ed. 544 of Section 1446 by David D. Siegel,
(1914), a decision by the United which appears in our printout of the A plaintiff with the motive of
States Supreme Court. Thus United States Code Annotated to this sec- defeating removal, for example,
Cockerell remains the law of the tion provides as follows, in pertinent part. may be able to join as a defendant,
land until the Court decides other- in a case which there is genuine
wise. The Court further distin- The mission of the second para- diversity between the plaintiff and
guishes the outcome in Ross from graph is to recognize that the action the other defendant, someone of
that in the instant case by repeating as originally brought may not be non-diverse citizenship whom the
that the Fifth Circuit Court of removable, but that it may become plaintiff does not really intend to
Appeals has cited Smallwood with so through some event occurring sue but who is arguably liable on
approval on at least two occasions afterwards. One example of this is the claim and hence properly
(in Collins and McKee) subsequent in a potential diversity of citizen- joined understate law. The plaintiff
to the Ross decision without men- ship case in which one of the origi- can then just wait a year and drop
tioning Ross. nally joined defendants, S (for that party, polishing the action to
spoiler) has the same citizenship as just the point desired and at the
Smallwood dictates that when defens- one of the plaintiffs, precluding same time dissolving the threat of
es common to both in-state and foreign removal, with the drop of a party at federal jurisdiction.
Defendants are raised, those defenses can- a later point through the voluntary
not provide a basis for determining that acts of the plaintiff or a mutual set- The one-year cut off therefore
the in-state defendant has been fraudu- tlement between the plaintiff and S, has an anti-diversity ring to it.
lently joined. The Fifth Circuit is expect- making the case right for removal.
ed to clarify these issues soon. The second paragraph of subdivi- Congress acknowledged this
sion (b) permits the removal to be because it a "modest curtailment."
D. Removal Late in the Game and the made now. It starts a new 30-day
multiple removal problem period from the time the remaining The defendants with the
defendant received the paper mani- diverse citizenship who want to
1. Removal by newly added defen- festing that F has been dropped. remove, may not be entirely help-
dant after case has been on file less. If they can produce evidence
more than one year That was of course the case to convince the court that the non-
before the amendment, and it diverse defendant can in no way be
28 U. S. C. § 1446(b) provides in part: remains so after it. What the liable under the applicable substan-
amendment does, however, is put a tive law as applied to the facts as
If the case stated by the initial 1-year outer limit on the removal -
pleading is not removable, a notice measure from the action's com- Continued on next page
The Mississippi Lawyer October-November-December, 2004 23
Removal / Remand Issues From the Plaintiff’s Perspective
pleaded, they might convince the not notifying the diverse defendant of the commencement date of the action
court to apply the so-called "fraud- non-suit until after the expiration of the is when Ford was added as a party
ulent joinder" doctrine anniversary. Id. at 425. The test appears to on October 12, 1999.
.... be whether the plaintiff engaged in forum
... If S settles the case, and certain- manipulation, but this case leaves open to Id. at 1335. The court held in a footnote
ly if S settles it for anything sub- the district court's discretion whether a that the appropriate question is whether or
stantial, it's not likely to be a situa- later-added defendant should receive not there is relation back under the appro-
tion in which the claim against S additional time to remove a case pursuant priate state rules of civil procedure:
can be shown frivolous enough to to an equitable exception.
invoke the fraudulent joinder doc- The United States District Court for Some courts have used the com-
trine. the Northern District of Mississippi has mencement of the action as to a party
David D. Seigel, Commentary on held that an amended complaint adding to be either the date of the amendment
1998 Revision of Section 1446. additional plaintiffs revised the 30-day adding the party or, if there is a rela-
The Fifth Circuit in 1992 recognized period, and even if this is not the case, the tion back, the date of the original filing
that a diverse defendant's removal of a district court refused to "apply the one- of the lawsuit. Thus these courts look
case to federal court after the dismissal year rule in a rigid mechanical manner." to whether there is a relation back
of a non-diverse defendant qualified Hill v. Ascent Assurance, Inc., 205 F. 2d under the appropriate state rules of
as a "procedural defect." Barnes v. 606, 615 (N. D. Miss. 2002). The Court civil procedure.
Westinghouse Electric Corporation, 962 was able to reach this conclusion by hold-
F. 2d 513, 516 (5th Circuit 1992). In ing that the action was "commenced" Id. at 1335, n.4.
Barnes, Plaintiff filed his Sixth Amended when the additional plaintiffs were added,
Original Petition, which named for the and the Court severed the additional The Alabama court ultimately held
first time completely diverse defendants, plaintiff’s suits from the original plain- that the term "commencement of action,"
on December 16, 1988. Id. at 515. Within tiff’s case. refers to the commencement of the action
thirty days, Westinghouse, which had The United States District Court for initially and not as to any later addition of
been a defendant since 1985, filed a peti- the Middle District of Alabama held in a particular party or claim. In reaching
tion for removal. Id. The Fifth Circuit rec- 2001 that a notice of removal was not this conclusion, the court reasoned as fol-
ognized that "[n]one of the parties dispute timely filed when Ford, which was added lows:
that Westinghouse removed the case more as a defendant a year after the com-
than one year after the commencement of mencement of the action, removed the Second, if Congress had intended
the action." Id. at 515. The Fifth Circuit case. Sasser v. Ford Motor Company, 126 for § 1446(b) to be claim or party
affirmed the lower court's holding that the F. 2d 1333, 1334 (M. D. Ala.). The non- specific, it could have worded the
removal procedures set forth at 28 U. S. diverse defendants were dismissed after provision to make it so. The provi-
C. §§ 1446(b) and 1447(c) were not juris- the diverse defendant was added as a sion could have read that "a case
dictional, so that the plaintiff could waive party. Id. The Alabama District Court may not be removed by a party on
his right to object removal after the case framed the issues as follows: the basis of jurisdiction conferred
had been pending for over a year in state by § 1332 of this title more than 1
court by failing to timely file his motion As the court sees it, the par- year after commencement of the
for rehearing. Id. at 516. Cases where a ties' contentions initially present a action against that party." Because
settling defendant is dismissed are distin- question of statutory construction. Congress did not do this, the
guishable from cases where a defendant is If the words in section 1446(b) - "a courts should not reword the
later added. case may not be removed on the statute to make it read this way.
The decisions from the Fifth Circuit basis of jurisdiction conferred by
indicate that the Court will construe this section 1332 of this title more than Id. at 1336.
statute as narrowly as possible in order to 1 year after commencement of the
defeat remand. For example, in 2003, the action" - mean within one year of 2. The multiple Removal Problem
Fifth Circuit, in a Rezulin case recognized the commencement of the initial
an equ itable exception to U. S. C. § action, that is, the filing of the orig- Removal is to be construed restric-
14 46(b). Tedford v. Warner-Lambert, Co., inal complaint, then Sasser pre- tively so as to limit federal subject matter
327 F. 3d 423, 434 (5th Cir. 2003). In vails, because this action was com- jurisdiction. Willy v. Coastal Corp., 855
Tedford, the Fifth Circuit found that the menced on July 31, 1998, but the F.2d 1160, 1164 (5th Cir.1988) (citations
plaintiff had engaged in "forum manipu- removal notice was not filed until omitted). Further, the removing defendant
lation," by a course of conduct, including May 17, 2000. However, if the bears the burden of demonstrating that
signing and post-dating a Notice of words mean within one year of the removal was proper and that federal sub-
Nonsuit before the one-year anniversary commencement of the action as to ject matter jurisdiction exists. Id.
of the commencement of the action, and Ford, then Ford wins, assuming the Additionally, any doubts concerning the
24 October-November-December, 2004 The Mississippi Lawyer
Removal / Remand Issues From the Plaintiff’s Perspective
propriety of removal should be resolved charter. Green at 267, citing American tute "order or other paper"); Wright,
in favor of remand. York v. Horizon Fed. National Red Cross v. S.G., 505 U.S. 247, Miller and Cooper, 14C Federal Practice
Sav. & Loan Ass’n, 712F.Supp. 85, 87 112 S.Ct. 2465, 120 L.Ed.2d 201(1992). and Procedure §§ 3732, p. 310 (West
(E.D.La.1989) In Green the "order or other paper" 1998) ("the publication of opinions by
Plaintiffs sometimes urge the Court to establishing removability was a decision other courts dealing with subjects that
expeditiously decide a remand motion by the same Court of Appeals finding a potentially could affect a state court suit's
pursuant to Uniform Local Rule 7.2(g), statutory bar to claims brought against the removability or documents not generated
where the removing Defendant's removal non-diverse defendants. In Doe, the as a result of state court litigation are not
tactic is clearly intended to harass, frus- "order or other paper" was a U.S. recognized as 'other paper' sources for
trate, delay and cause unnecessary Supreme Court ruling finding that all suits purposes of starting a new thirty-day peri-
expense to Plaintiffs. It is not uncommon brought against the defendant must be od under Section 1446(b)"); "Other
for a defendant to remove a case more brought in Federal Court. paper" within the meaning of §§ 1446(b)
than once and sometimes shortly before There is an extensive line of cases refers to papers that are generated within
trial. finding that an opinion from an unrelated the specific state proceeding which has
One example is when a defendant case does not constitute a § 1446(b) been removed to federal court. Accord
believes an Order has been entered that "order or other paper". See, eg., Morsani Nolan v. Boeing Co., 715 F.Supp. 152,
provides the basis for removal that did not v. Major League Baseball, 79 F.Supp.2d 155 (E.D.La.1989) ("other paper"
previously exist. In Green, the Fifth 1331, 1333-34 (M.D.Fl.1999) (decision in includes only new facts in the specific
Circuit Court of Appeals held that under an unrelated case is not an "order or other case that is removed); Johansen v.
"very narrow circumstances" an opinion paper" under §§ 1446(b); "plain language Employee Benefit Claims, Inc., 668
from an unrelated case may constitute an of the statute ... implies the occurrence of F.Supp. 1294, 1296 (D.Minn.1987)
“order” for purposes of 1446(b) removal an event within the proceeding itself"); ("other paper" refers solely to documents
in a case involving the same defendants, Metropolitan Dade County v. TCI TKR of generated in the state court litigation);
and similar factual situation and legal South Florida, 936 F.Supp. 958, 959 Holiday v. Travelers Ins. Co. Inc., 666
issue. Green, at 268. In reaching its deci- (S.D.Fl.1996) (Federal Communications F.Supp. 1286 (W.D.Ark.1987) ("other
sion, the Green Court considered the Commission opinion not "other paper" paper" covers papers or actions in or a
removing party's argument that another under §§ 1446(b)); Lozano v. GPE part of the proceedings in the case in
opinion by the Fifth Circuit Court of Controls, 859 F.Supp. 1036, 1038 which removal is sought).
Appeals newly established removability. (S.D.Tex.1994) judicial opinion in an
The argument for the subsequent removal unrelated case is not "other paper" under Continued on next page
in Green was that the Fifth Circuit had §§ 1446(b)); Kocaj v. Chrysler Corp., 794
decided the case of Sanchez v. Liggett & F.Supp. 234, 236 (E.D.Mich.1992) (opin-
Myers, Inc. 187 F.3d 486 (5th Cir. 1999), ion in unrelated case is not "other paper"
after the first remand, holding that a Texas
statute barred the action brought against
under §§ 1446(b); " [statutory] language
plainly refers to items served or otherwise
o n
Gta
the seller of cigarettes and because the
claim against the resident defendant was
given to a defendant in a state court
case"); Holiday v. Travelers Ins. Co., 666
email
statutorily barred, complete diversity did
not exist. Accordingly, the Fifth Circuit
F.Supp. 1286, 1289 (W.D.Ark.1987)
(recent Supreme Court decisions not
address?
noted that the diverse defendants in both "other paper" under §§ 1446(b)); Over 70% of The Mississippi Bar
Sanchez and Green were the same and Hollenbeck v. Burroughs Corp., 664 members are receiving the
both "involved a similar factual situation F.Supp. 280, 281 (E.D.Mich.1987) (deci- Bar’s weekly e-newsletter, Bar
and legal conclusion (that Tex. Civ. Prac. sion in unrelated case is not other paper Briefs, which contains Bar
& Rem. Code 82.004 bars most products under §§ 1446(b), as the "other paper" information, legal news and
liability actions against manufacturers or language focuses on voluntary actions of upcoming CLE seminars.
sellers of cigarettes)". Green at 268. the plaintiff, not factors beyond the plain-
In reaching its conclusion in Green, tiff's control); Johansen v. Employee If you’re not receiving Bar
the Fifth Circuit looked to the Third Benefit Claims, Inc., 668 F. Supp. 1294, Briefs each week, then we do
Circuit case of Doe v. American Red 1296-97 (D.Minn.1987) (based on the not have your email address.
Cross, 14 F.3d 196 (3d Cir. 1993). In Doe, statutory language, "other paper" should
the court held that subsequent removal of be interpreted to refer to documents gen- Simply email Theresa
the action was appropriate because while erated within the state court litigation, and at The MS Bar at
the case was pending, the United Supreme not an extraneous decision in another trobinson@msbar.org
Court had determined in a separate but case); Gruner v. Blakeman, 517 F.Supp. and give her your
similar case that the American Red Cross 357, 360-61 (D.Conn.1981) (subsequent email address.
was conferred federal jurisdiction by its decision in a related case did not consti-
The Mississippi Lawyer October-November-December, 2004 25
Removal / Remand Issues From the Plaintiff’s Perspective
E. MDL Transfers and why the ered the Motion. The resident defendant
Removal/Remand decision should be
made here:
was not fraudulently joined - rather, this
was a case where the local drug represen-
tative made direct representations about
2005
This one is pretty obvious from the
plaintiffs perspective - a lawyer filing a
Motion to Remand believes the Motion to
the safety and efficacy of the drug to one
of the plaintiffs, who interestingly enough
is a local physician. The experts who
Calendar published by
Remand has merit. If we prevail on our reviewed the matter agreed that the claim The Mississippi Bar Young Lawyers Division
Motion to Remand, the case gets remand- that the drug had contributed to the health
ed instead of being transferred to the problems of the decedent was legitimate. CONTENTS INCLUDE
MDL - otherwise affectionately known as The doctor-plaintiff had relied on the rep-
the "black hole" from which a case never • County, Circuit, Chancery,
resentations of the drug representative, a Court of Appeals and Supreme
returns. In all seriousness, it is respectful-
fact situation that at least one Mississippi Court Judges
ly submitted that our Mississippi Federal
Federal Judge (Judge Barbour) ruled to be • U.S. Bankruptcy Court & U.S.
Judges should be the Judges making deci-
sufficient to state a claim against the in-
sions as to whether, in the context of a District Court Personnel
fraudulent joinder analysis for example, state drug representative. The case should
have been remanded and we requested an • U.C.C. Filing Fees
Mississippi law recognizes at least the • 2005 Calendar
possibility the plaintiff has stated a claim emergency hearing. Instead, the matter
against the in-state resident defendant the was conditionally transferred to the MDL. • MS Legal Organization Listing
removing party claims the plaintiff has It was gone. Over a year later, the MDL • MS State Government
fraudulently joined. Moreover, there are Magistrate ruled that remand was proper. • Secretary of State -
cases where more delay and expense - The MDL District Judge overruled the Corporate Fees
which is what the MDL causes in many Magistrate and kept the case in the MDL.
• And more...
cases - is not only inherently bad, but is This was truly a bad development for the
dangerous for a particular party. Mississippi family of the decedent. Cost: $10.00 each,
For example, I filed a single plaintiff It is respectfully submitted that plus $5.00 shipping and
pharmaceutical case that clearly should Mississippi Federal Judges should rule on
handling per book
have been remanded and would have if Motions to Remand before allowing cases
the local Federal Court Judge had consid- to be transferred. Limited supply –
Go ahead and order
yours today!
2005 YLD Calendar
Order Form
Name
Address
Office Phone
Date Ordered
Quantity Requested
$___________ 10.00 per copy
5.00 shipping and
+ $___________ handling per book
Total amount
= $___________ enclosed
Mail order form along
with payment to:
MB Young Lawyers Division
P.O. Box 2168
Jackson, MS 39225-2168
26 October-November-December, 2004 The Mississippi Lawyer
