Pending before the United States Court of Appeals for the Eighth Circuit is an issue of first impression for the Eighth Circuit, an issue that several district courts have confronted, but only one other circuit court, the Eleventh Circuit (Tapscott v. MS Dealer Service Corp.) — a decision whose analysis has been subject to criticism).
So-called “fraudulent misjoinder” — a judicial gloss on a tricky issue of diversity jurisdiction (of considerable importance for mass tort or multi-district litigation) — is in such flux that even the name, specifically the inclusion of the word, “fraudulent,” is somewhat controversial.
Assuming (but not conceding) the orthodoxy that defendants are better off in federal court while plaintiffs fare better in state court, the battle of whether a defendant can remove a case from state court to federal court is an extremely important threshold issue. Thus, in Sandra Kirkland v. Wyeth (prempro/hormone replacement litigation, 8th Cir. Ct. File No. 09-1205), plaintiffs made sure to draft a complaint and sue defendants in state court (Minnesota, with its generous six-year statute of limitation for tort claims) and with “non-diverse” parties for purposes of federal diversity jurisdiction. Defendants have removed to federal court, arguing “misjoinder.” Plaintiffs have sought and been denied return to state court.
This past week, the Eighth Circuit heard oral argument in the case (Judges Bright, Murphy, Riley), with Martin Buchanan arguing for plaintiffs, William Hoffman for defendants. The Court was very active; argument was some of the finest advocacy on both sides. (To hear, go here and type in case number: 09-1205.) Decision in this case is difficult to handicap but Judge Murphy’s concern about the impact of plaintiffs’ strategy on the federal procedure of multi-district litigation (under 28 U.S.C. § 1407), along with the general advantage always enjoyed by appellees, tips my prediction in defendants’ favor.