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Practice Tip: Avoiding Federal Jurisdiction in Mass Actions

By Lawrence Goldhirsch

Plaintiffs' lawyers generally prefer to litigate in state courts for numerous reasons. First of all, most of them have more experience in state court and thus are up to date with their local rules, nuances' and jurists' idiosyncrasies. Also, many states do not curtail experts' opinions as much as Daubert and its progeny do. If an MDL has been formed, many lawyers do not like getting tied up in a case where the venue may be many miles from their home states. Also, a federal jury requires unanimity, whereas most states permit partial verdicts.

Last, but not least, many lawyers think, often incorrectly, that their cases will settle faster in a state court. They think that involvement in an MDL guarantees that the case will go on for years; however, when commencing a state court action, practitioners must be careful not to trigger a removal to federal court pursuant to 28 U.S.C. 1441, the removal statute, or 28 U.S.C. 1332, the diversity statute containing the recently passed Class Action Fairness Act (CAFA). (CAFA also applies to mass tort actions which are now known as “mass actions” under the statute.)

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