For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
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plained that “this Court does not believe<br />
the Sixth Circuit has issued a definitive and<br />
binding ruling on point….” Balzer v. Bay<br />
Winds Fed. Credit Union, 622 F. Supp. 2d<br />
628, 630 (W.D. Mich. 2009). Balzer found<br />
that the analysis required “calls for a more<br />
nuanced consideration of both the nature<br />
of the procedural flaws, and the context of<br />
the case at the time the flaw is identified.<br />
This approach permits a court to balance<br />
the respective interests of judicial economy,<br />
finality of judgments, and the seriousness<br />
of the procedural flaw.” Id. at 631.<br />
Practical Considerations<br />
for <strong>Defense</strong> Counsel<br />
Attorneys representing clients that are<br />
forum defendants that have or plan to<br />
remove cases on the basis of diversity jurisdiction<br />
may find the following tips helpful<br />
to consider.<br />
First, know the law in the particular<br />
jurisdiction. As mentioned, the circuit<br />
courts disagree on whether removal by a<br />
forum defendant is a procedural or jurisdictional<br />
defect. <strong>Defense</strong> counsel need to<br />
be aware of the applicable law in their<br />
jurisdiction. <strong>Defense</strong> counsel practicing in<br />
jurisdictions following the majority rule<br />
and representing a forum defendant in<br />
a case removed on the basis of diversity<br />
jurisdiction should feel confident that as<br />
long as plaintiff did not file a motion to<br />
remand within 30 days of the notice of<br />
removal, the plaintiff has waived his or her<br />
right to later object. In jurisdictions such<br />
as the Fourth, Sixth, and Eighth Circuits,<br />
where the courts are less clear or follow<br />
the minority rule, defense counsel must<br />
be wary of removal when they represent<br />
forum defendants.<br />
Second, advise clients early. If a client<br />
has removed a case to a federal district<br />
court in the Fourth, Sixth, or Eighth Circuits<br />
based on diversity jurisdiction, advise<br />
the client as soon as possible of this issue.<br />
In these jurisdictions, a violation of the<br />
forum defendant rule may be interpreted<br />
as a subject matter jurisdiction defect. <strong>The</strong><br />
plaintiff or the court itself may object to the<br />
subject matter jurisdiction of the court at<br />
any point. Thus, it is in a defense counsel’s<br />
best interest to know where the relevant<br />
issue falls in this circuit split and advise a<br />
client on the front end of the potential for a<br />
remand to the state court.<br />
Advise forum defendant clients with<br />
cases in the Eighth Circuit against removal<br />
based on diversity jurisdiction. If a forum<br />
defendant is considering removal to a federal<br />
district court in the Eighth Circuit<br />
based on diversity jurisdiction, counsel<br />
should advise the client against removal.<br />
Even if the plaintiff never objects to the<br />
removal, the court could, at any point, raise<br />
the issue on its own and remand the case<br />
for lack of subject matter jurisdiction. If the<br />
state court is extremely unfavorable to the<br />
defendant, consider evaluating the possibility<br />
of removal with the client for the purpose<br />
of appealing the issue eventually to<br />
the U.S. Supreme Court in the hopes that<br />
the Court would resolve the circuit split the<br />
client’s favor.<br />
Conclusion<br />
<strong>The</strong> majority of U.S. circuit courts find<br />
that a violation of the forum defendant<br />
rule is a procedural defect, and a plaintiff<br />
will waive objecting rights if the plaintiff<br />
Engineers, Architects, Scientists & Fire Investigators<br />
Admiralty / Maritime<br />
Architecture / Premises Safety<br />
Automotive Engineering<br />
Aviation<br />
Biomechanical Engineering<br />
Construction Claims / Injuries<br />
Dram Shop / Liquor Liability<br />
Education / Supervision<br />
Electrical Engineering<br />
Environmental / Toxic Torts<br />
does not properly object to the removal in<br />
a motion to remand within 30 days of the<br />
filing of the notice of removal. However, the<br />
U.S. Supreme Court has yet to weigh in on<br />
this issue, and at least one circuit court has<br />
found the defect to be jurisdictional and<br />
not subject to waiver.<br />
<strong>Defense</strong> attorneys representing forum<br />
defendants must be mindful of the circuit<br />
split and pay particular attention to the law<br />
in the jurisdictions in which they practice.<br />
Attorneys practicing in the Eighth Circuit<br />
need to advise their forum clients as early<br />
as possible of this issue, and they may want<br />
to advise against removal based on diversity<br />
jurisdiction unless a client is willing<br />
and able to litigate the case perhaps all<br />
the way to appealing to the U.S. Supreme<br />
Court. Attorneys practicing in the Fourth<br />
and Sixth Circuits will also want to advise<br />
their clients of the circuit split and unsettled<br />
authority in their jurisdiction as early<br />
as possible in a case.<br />
Fire / Explosion<br />
Human Factors<br />
HVAC / Plumbing<br />
Occupational Health / Safety<br />
Oil & Gas Drilling<br />
Product Liability<br />
Sports and Recreation<br />
Structural Engineering<br />
Toxicology<br />
Vehicle Collisions<br />
With 175 experts at one firm, Robson <strong>For</strong>ensic provides expertise in more<br />
than 75 unique disciplines. Visit us online for expert bios and CVs.<br />
www.robsonforensic.com | 800.813.6736<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong> ■ 55