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January 2011
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D.C. Bar Association finally offers online legal research, through Fastcase

The D.C. Bar is now offering Fastcase accounts as an included benefit of bar membership, i.e., at no extra cost.  The District of Columbia databases that are included are the D.C. Court of Appeals decisions, and the federal courts in the D.C. Circuit.  Fastcase does not appear to have the Superior Court decisions, nor D.C. workers compensation opinions -- yet.   Having access to the local workers compensation opinions is critical, at least for us. 

I like the Fastcase interface, and I am glad to see the D.C. Bar adopt it.  The D.C. Bar was years late on that decision, however, and the fact is, they started to offer Fastcase as a benefit of bar membership several months after Google rolled out Google Scholar's search of legal opinions by jurisdiction. 

I hope that Fastcase can run fast enough to avoid being steamrolled by Google Scholar and to give some head-to-head competition to Lexis and Westlaw.   

 


The sea change in online legal content

There's been a sea change in online legal content.  Large law firms have always had countless white papers, newsletters, and client alerts, but full access to such resources was usually reserved for firm clients, or prospective clients, or to readers who would at least fill out a contact form online.  Many firms would coyly omit any case citations, and then say that anyone interested should call.  That's changed. 

Now it appears that the gates have been mostly thrown open to Google and other search engines.  Search on any legal topic, and you will find page after page of high quality legal analysis, freely available to all comers, complete with pinpoint cites to cases.  In many instances, you will find publishable articles which must have taken many weeks to write and edit.

This sea change isn't just the result of the recession, although that doubtless has been an important factor, and maybe was the tipping point.  Other factors include the ongoing conversion of the federal and state courts to electronic case filing, the ongoing conversion of federal and state agencies to electronic records, the widespread adoption of internet publishing software by law firms, the growing capabilities of search engines to find and organize all of this material while weeding out the spam, and the perceived pressure to show up in search engine results at least as well as your direct competition.  

There was a time when I wouldn't bother doing ordinary Google searches on a legal topic, but for now I find that it should be the first step.

Law firm marketing consultants have been advocating "content marketing" for a long time, and even now, some are advocating that the response to the glut of online legal content is more and better online legal content


Removal to federal court before forum defendant is served

There was an interesting post on Ron Miller's blog, The Maryland Injury Lawer Blog, on the recent case of Robertson v. Iuliano, No. 10-1319 (D. Md. Feb. 4, 2011). Robertson v. Iuliano illustrates that in a case filed in state court, where diversity jurisdiction would exist but for the presence of forum defendants, and the forum defendants have not yet been served, the non-forum defendant can, in many jurisdictions including Maryland, still remove the action to federal court.

In fact, in the Robertson case, the non-forum defendant removed the case to federal court before he or any of the other defendants were served.

Under the unanimity rule reaffirmed by the 4th Circuit in its recent en banc opinion, where there are multiple defendants, it is necessary for the other defendants in the case to consent to the removal within 30 days of their being served. Here they apparently did, because they filed oppositions to the motion to remand. The District Court denied the plaintiff's motion to remand.

In a medical malpractice case, removal would result in the application of the more stringent Daubert standard for the admissibility of expert testimony, which would be reason enough to do it.

I can understand why this result could be viewed by the plaintiffs' bar as unfair, but on the other hand, I've seen many cases where a forum defendant was joined in a complaint for no apparent reason other than to destroy diversity.

There was a recent article on this topic in DRI's journal, For the Defense, in April, 2010, which among other things provided citations to other jurisdictions where this is the rule. See Tiffany Reece Clark, Removal Before the Forum Defendant Is Served - The Plain Language of 28 U.S.C. sec. 1441(b). Here are some other perpectives on this issue, one from the defense side, one from the plaintiffs' side, and one giving more extensive background on pre-service removal.

In sum, in the Robertson case the defense used a combination of two rare procedures -- removal before service of the forum defendants, and removal even before service on the client -- to steal a march on the plaintiff and gain a tactical advantage that may turn out to be decisive.

 

 

 


Search engine makes Recap database more valuable

The Recap archive is now more useful to litigators, since there is a search engine to access the downloaded pleadings.  I had previously complained about the lack of a search engine, so now that they have one, it's only fair that I point that out.   (Recap is that Firefox plug-in that comes alive when you use Pacer, and sends a copy of any filing you download to the Internet Archive to improve public access.)

Now, if you wish to view the pleadings in an important precedent because you are working on a similar matter, the Recap search engine should be a useful tool.  Chances are good that if you want to look at the pleadings, someone else has had the same thought.

 


Eastern District of Va. finds insurer has no duty to defend in Blackberry malpractice case

In Minnesota Lawyers Mutual Ins. Co. v. Antonelli, Terry, Stout & Kraus, LLP, No. 1:08-CV-1020 (E.D. Va. Nov. 18, 2010), the Court granted the insurer's motion for summary judgment concerning insurance coverage for the "Blackberry malpractice case."

 

In the "Blackberry malpractice case", which is pending in Florida, the plaintiffs claim that alleged breaches of duty by the defendant law firm and attorneys prevented them from receiving any share of the settlement of NTP's patent infringement claims against RIM concerning Blackberry wireless messaging technology. NTP's suit against RIM resulted in a $612.5 million settlement, and one of the defendant attorneys is alleged to have received $177 million of the NTP settlement proceeds.

 

In the coverage action, the Eastern District of Virginia based its ruling on the business enterprise exclusions in the policy, which relieved the insurer from its duty to defend the insureds in the underlying malpractice case.

 

Essentially, the Court found that the malpractice claims arose out of legal advice rendered by the insured attorneys; that the insured attorneys rendered these services in connection with the Telefind, Flatt Morris, and NTP enterprises; and that Flatt Morris and NTP were both owned, controlled, or managed by the Insureds. The damages alleged in the malpractice action resulted from a conflict of interest between the insureds and the plaintiffs, who claimed an interest in NTP, Telefind, and Flatt Morris. Therefore, the business enterprise exclusions applied.

 

There was also a Specific Entity Endorsement in the policy, excluding:

Any CLAIM resulting from any act, error or omission arising out of rendering or failing to render PROFESSIONAL SERVICES to or on behalf of the following individual(s), business enterprise(s) or organization(s): "NTP Incorporated"

However, and somewhat curiously, due to the ruling based on the business enterprise exclusions, the Court did not reach the issue whether the Specific Entity Endorsement barred coverage.

 

This coverage decision has been appealed to the 4th Circuit, which will be the second time the case has reached the 4th Circuit.

 

More background concerning this decision, and judicial interpretatioin of business enterprise exclusions in LPL policies, is available here.


Discovery and social networking sites

DRI's online newsletter, E-Discovery Connection, vol 5, issue 3, has a number of worthwhile articles on discovery of information on social networking sites.  I like the case where a federal judge offered to do an in camera review of a party's Facebook account by "friending" the party.  Think about whether you would want a federal judge reviewing all of your Facebook pages, which would include things you didn't even write.

The following cases are among those discussed in that newsletter:

EEOC v. Simply Storage Mgmt. (courtesy of Indiana Law Blog)

O'Grady v. Superior Court

Romano v. Steelcase

Barnes v. CUS Nashville

McMillen v. Hummingbird Speedway

 Dexter v. Dexter

Moreno v. Handford Sentinel

Rehberg v. Paulk

McCann v. Harleysville

Crispin v. Audigier

 

 


Lack of diversity jurisdiction can be raised at any time

A recent D.C. Circuit opinionreminds us that the lack of diversity jurisdiction can be raised at any time, even on appeal. IN RE: LORAZEPAM & CLORAZEPATE ANTITRUST LITIGATION was an appeal of a $77 million judgment in an antitrust suit.  On appeal, the defendants moved to dismiss for lack of diversity jurisdiction. 

Plaintiffs were four health insurers who brought suit against two drug manufacturers.  Plaintiff brought suit for themselves and as claim administrators for self-funded customers, which are corporations which pay their employees health benefits out of their own funds.  On appeal, a motion was filed for the first time to dismiss due to lack of diversity jurisdiction, on the bases that one or more of the self-funded customers destroyed complete diversity:

After the parties had filed their briefs, and a few days before oral argument, defendants filed a motion to dismiss, arguing for the first time that the district court lacked jurisdiction because at least one (Minnesota Mining and Manufacturing Corporation (3M))—and potentially more—of plaintiffs' self-funded customers were from the same state as at least one of the defendants. The existence of these customers, defendants argued, destroyed "complete diversity" and stripped the court of power to hear the case.

The Court decided the appeal based on long-standing principles of diversity jurisdiction:

  • The absence of jurisdiction can be raised for the first time on appeal even by the party who invoked federal jurisdiction.
  • Parties cannot confer jurisdiction by consent. A corollary, long established, is that a party does not waive a jurisdictional objection by failing to raise it, at least so long as the jurisdictional defect appears on the face of the record.
  • Under the diversity statute (now 28 U.S.C. § 1332), "diversity jurisdiction does not exist unless each defendant is a citizen of a different state from each plaintiff." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373 (1978). Thus the presence of just one nondiverse plaintiff destroys diversity jurisdiction under § 1332.
  •  Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539 (1824), holds that the court's jurisdiction "depends upon the state of things at the time of the action brought . . .."
  • Ordinarily a finding that the district court lacked jurisdiction would lead the appellate court to vacate the court's judgment and remand for dismissal. See, e.g., LoBue v. Christopher, 82 F.3d 1081, 1082 (D.C. Cir. 1996).

Rather then dismiss the appeal, the Court invoked Rule 21, and remanded to the district court for consideration of whether the jurisdictional spoilers could be dismissed:

Rule 21 of the Federal Rules of Civil Procedure provides that "[o]n motion or on its own, the court may at any time, on just terms, add or drop a party." Fed. R. Civ. P. 21. This Rule allows the district court to dismiss so-called "jurisdictional spoilers"—parties whose presence in the litigation destroys jurisdiction—if those parties are not indispensable and if there would be no prejudice to the parties. Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 830-32 (1989).

Hit tip to Barry Bennett's Blawgletter and to Litigation World for pointing to this case.


Fourth Circuit, in en banc decision, addresses timing for removal where there are multiple defendants

In an en banc decision, the Fourth Circuit in Barbour v International Union, reaffirmed the rule in that Circuit for the time window for removal to federal court in a case in which there are multiple defendants.  The notice to removal must be filed within the 30 day window after the first defendant is served, but later served defendants have a 30 day window to join in the notice of removal.  If the later served defendants do not join in the notice of removal, the case has to be remanded to state court for lack of unanimity among the defendants.

To be sure, it seems eminently reasonable that, in drafting § 1446(b), Congress intended for the first-served defendant to decide within his thirty-day window whether to remove the case to federal court or allow the case to remain in state court. Such routine removal decisions are made day-in and day-out in courts all across the Nation. If the first-served defendant decides not to remove, later-served defendants are not deprived of any rights under § 1446(b), because § 1446(b) does not prevent them from removing the case; rather, it is the rule of unanimity that does. In other words, once the firstserved defendant elects to proceed in state court, the issue concerning removal is decided under the rule of unanimity. Alternatively, if the first-served defendant does file a notice of removal, the later-served defendants dictate whether the case remains in federal court, either by joining the notice or declining to do so.

Hat tip to Deborah Elkins of the Virginia Lawyers Weekly Blog.

Further information is available here.