• June 16, 2015

Deja VuRegular readers of Minnesota Litigator and all experienced civil trial lawyers know about the pleading rules for “diversity citizenship” for LLCs, partnerships, and associations. (Earlier posts here…)

Except sometimes, it seems that experienced civil trial lawyers don’t.

Even when the issue has been “flagged” for them by the federal trial court.

How many bites at the apple should a lawyer get? Let’s say, for example, the Court highlights your error, gives you time to fix it, and YOU STILL FAIL TO FOLLOW THE RULES? At that point, you’re done.

Side note:

Question 1: Is this one of many kinds of attorney errors that is effectively untouchable as a claim for professional malpractice, at least in Minnesota, because of Minnesota’s legal standard for legal malpractice?

A plaintiff in a professional malpractice case under our law must establish that “but for” the lawyer’s alleged error, the outcome of the case would have been different (and, of course, better).

Question 2: How in the world could the putative malpractice plaintiff (that is, the defendant in the underlying case) prove that the outcome of the case would have been better if its lawyers had properly pled diversity jurisdiction?

Answer to Question 1: Effectively, yes.

Answer to Question 2: Maybe the putative malpractice plaintiff could argue that, regardless of the ultimate outcome of the underlying case, the outcome of the litigation would have been better in the absence of the arguably negligent legal work because the putative malpractice plaintiff would not have wasted legal fees with a defective removal and a defective attempt to fix the defect. But this would mean that damages for such a claim would be limited to the legal fees for the defective removal and defective attempt to remedy. And that would be too small a sum of money to sue for. (So, refer back to Answer to Question 1.)

(And if the defendant were to get burned in state court, I would suggest that it would be next to impossible for it to prove that it would not have been burned if it had successfully removed the case to federal court.)

 

 

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