CCL Files Supreme Court Petition in Personal Jurisdiction Case

December 14th, 2022

     In a petition for certiorari, CCL urged the Supreme Court to review the en banc decision of the Fifth Circuit, denying personal jurisdiction over a Japanese multi glomerate whose container ship struck the U.S.S. Fitzgerald in the Sea of Japan, killing seven U.S. Navy sailors and injuring more than 40 others. The Fifth Circuit's decision, which drew a strong 5-judge dissent, essentially rendered Rule 4(k)(2) of the Federal Rules of Civil Procedure unconstitutional, while unending centuries of admiralty law.

     The sailors and their families brought suit in federal court in New Orleans, alleging that the container ship's negligence was responsible for the deaths and injuries. They sought jurisdiction under Rule 4(k)(2), which provides long-arm jurisdiction over foreign companies for federal causes of action when no state court of general jurisdiction can hear the case and when the foreign company has sufficient contacts with the United States as a whole. However, the federal district court applying a Fifth Circuit precedent that merely assumed that Rule 4(k)(2) was a form of general jurisdiction, held that despite extensive U.S. contacts the Japanese company still had to be incorporated or headquartered in the U.S. to satisfy due process under the Fifth Amendment.

     A three-judge panel of the Fifth Circuit affirmed because of the in-circuit precedent, but urged their colleagues to reconsider the precedent en banc. This was the result that CCL President Robert S. Peck urged upon the panel in oral argument, if the earlier decision could not be distinguished. A 17-judge court then reheard the case, with Peck arguing again, but ruled 12-5 to affirm the dismissal of the matter. 

      Today's petition urged the Supreme Court to take up the case and reverse. Lawyers for the defendant will file a brief opposing that position.

Sacramento Seeks Return to State Court in Opioids Case

October 28th, 2022

     Working with the Susman Godfrey law firm, CCL today filed a brief in support of remand of the City of Sacramento's opioids lawsuit to state court. The case had been removed from state court to federal court by Walgreens and then consolidated into the massive federal Multi-District Litigation (MDL) case being heard in federal court in Ohio. There, it languished, along with its motion to remand.

      Under instructions from the Sixth Circuit, the federal court began the process of selecting small groups of cases for briefing on whether the case belonged in federal or state court. The defendants filed their brief last month, which argued that the case inevitably raises federal issues and belongs in federal court. Sacramento, for all the government entities in its group, argued that it only raised state causes of action and that no federal issues are implicated by its pleading. The decision on remand now goes to Judge Polster, who is presiding over the MDL.


CCL Wins Seventh Circuit Decision in COVID Death Case

June 15th, 2022

      Unanimously, the Seventh Circuit today held that a case alleging that an Illinois nursing home bore liability for the COVID death of one of its residents should be returned to state court for further proceedings in a case argued just two weeks ago by CCL President Robert S. Peck.

      In Martin v. Petersen Health Operations, the estate of Marlene Hill alleged that the nursing home resident died of COVID-19 due to negligence and willful and wanton misconduct that included insufficient staff, requiring staff with COVID symptoms to continue to work and expose vulnerable residents, and a failure to undertake any protective measures in a case filed in Illinois state court. The nursing home then removed the matter to federal court. In support, it claimed that it was acting under a federal officer as part of the national government's COVID response effort, that the case belonged in federal court due to a 2005 federal statute known as the PREP Act, and that the liability, if any, arose under federal rather than state law. 

      Based on a brief written by CCL, the district court ruled that none of the grounds asserted by the nursing home were valid and ordered the case remanded to state court. The nursing home appealed the decision to the Seventh Circuit, which heard argument on June 2. In a ruling written with unusual rapidity by Judge Frank Easterbrook, the Seventh Circuit affirmed the district court and found no merit in the nursing home's argument. By rejecting those arguments and ordering the return of the case to state court, the Seventh Circuit joined three sister circuits, the Third, Fifth, and Ninth Circuits, in ruling that way.

      In its briefing, CCL pointed out that in addition to the appellate court rulings, more than 80 district courts had also ruled consistently with those decisions, with no valid decision coming out the other way. The Seventh Circuit also rejected the nursing home's reliance on pronouncements from the Department of Health and Human Services, holding that these lightly supported advisory opinions bore no weight.

      In arguing these issues, CCL served as co-counsel to the Chicago law firm of Levin Perconti.

CCL Files Amicus Brief in Support of Delaware Jurisdictional Argument

April 21st, 2022

     In another case of government seeking compensation for Big Oil's misrepresentations about the impact of fossil fuels and its impact on sea levels and crumbling infrastructure, this time brought by the State of Delaware, the Third Circuit will determine whether the case belongs in state or federal court. CCL filed an amicus brief in support of the state's position on behalf of the National League of Cities and the U.S. Conference of Mayors.

     The briefing follows two decisions within the past week by the Fourth and Ninth Circuits, respectively, supporting Delaware's position. In its amicus brief, CCL argued that states and local government, just like any other plaintiff, have a right to choose the causes of action they seek to pursue and keep a case in state court by virtue of those choices. It further argued that federalism principles support the right of state and local governments to pursue compensation for injuries suffered from large, multinational corporations.

       The oil company defendants will have an opportunity to reply to the state's arguments, as well as its supporting amici, before setting the case for oral argument.

Ninth Circuit Holds Counties' Climate Change Case Belongs in State Court

April 19th, 2022

     Ruling just days after the Fourth Circuit held that Baltimore's lawsuit against Big Oil should return to state court, the Ninth Circuit similarly held that lawsuits brought by three California counties and one city belong in state court. CCL filed an amicus brief in the case supporting that result on behalf of U.S. Senator Sheldon Whitehouse.

      The ruling rejected various claims the oil companies' made that the lawsuit, framed in state law terms, actually asserted various federal causes of action that should be heard in federal court. In joining the Fourth Circuit and a prior similar ruling by the Tenth Circuit, the federal appellate court based in California agreed with its sister circuits that none of the claimed federal causes of action applied. 

       The amicus brief filed by CCL argued that the defendants' claims of federal jurisdiction were invalid, in part, because they had heavily and successfully lobbied against federal laws that might apply to climate change.

        The Baltimore case had returned to the Fourth Circuit after the U.S. Supreme Court had ruled that the court had failed to address all the bases for federal jurisdiction asserted by Big Oil, based on its faulty understanding of a law that permitted interlocutory appeals of all bases for a remand order. The defendants are expected to seek further review in the Supreme Court of the new orders from various federal courts of appeals.

CCL Helps Write Reply Brief in Support of Adequate Judicial Funding

March 28th, 2022

      CCL helped a Washington state law firm write and file its reply brief in the state supreme court, arguing that a trial court's dismissal of the action without explaining its reasoning should be reversed.

      The case, filed by Stritmatter Kessler Koehler Moore, asserts that, despite warnings by a succession of state chief justices that judicial funding has hurt the delivery of justice in the state, the legislature has failed to respond, largely pawning off trial court funding on counties ill-equipped to meet the demand. The result is unseemly delays. The case was filed on behalf of a series of plaintiffs awaiting their day in court.

      The constitutional argument is premised on two provisions of the Washington Constitution: the right to justice "without unnecessary delay" and the "inviolate" right to trial by jury. The trial court rendered a final judgment consisting of a single word: "Dismissed." 

       The Attorney General's office, defending the case, claims that the two provisions do not establish a right to adequate funding, argues that only the judiciary has standing to bring such a lawsuit, and says that there is no caselaw supporting the Plaintiffs. In reply, the Plaintiffs argued that adequate funding was a remedy to "unnecessary delay," and is only one of several options the Court could choose, noting that in a school funding case, it declared the right and then asked the legislature to respond. The reply also demonstrated why the two Declaration of Rights provisions are individual rights upon which Plaintiffs may sue. Finally, it rebutted the claim that no caselaw supports Plaintiffs. Among other cases, Plaintiffs cited a Ninth Circuit decision that held a three-and-a-half month suspension of jury trials across the nation due to budget shortfalls violated the federal jury right.

      The next step is for the state supreme court to decide whether to keep the case or send it to the court of appeals.

CCL Calls Attention to Another Good Decision in PREP Act Case

March 15th, 2022

     CCL filed supplemental authority in support of its completed briefing in the Seventh Circuit, letting the court know of a new decision from the Fifth Circuit that agrees with CCL's arguments. 

      In Martin v. Petersen Health Operations, CCL is defending its victory in winning remand to state court in a federal district court in Illinois, where it argued that there was no federal jurisdiction over this nursing home death case because the facility was not acting as a federal agent and the federal PREP Act did not apply, either as a form of complete preemption or as a federal basis for adjudicating the case. In a decision last week, the Fifth Circuit, based in New Orleans, joined the Third Circuit (Philadelphia) and Ninth Circuit (San Francisco), in agreeing with CCL's argument. In addition, more than 100 federal district courts have now also agreed. 

      The defendant's reply brief is due March 21. Nonetheless, CCL suggested that the Seventh Circuit dispense with oral argument in view of the overwhelming consensus in the courts that the federal courts lack jurisdiction over a state law cause of action.

CCL Files Supreme CourtAmicus Brief for Civil Procedure and Federal Court Scholars

February 28th, 2022

     In 2013, a freight train carrying crude oil derailed, destroying much of the downtown of a city in Quebec and killing 47 people, who subsequently sued. Their case was dismissed by the federal district court in Maine on jurisdictional grounds. They appealed the dismissal, but for the first time in the case, the U.S. Court of Appeals for the First Circuit held that the bankruptcy, rather than the general civil rules applied, meaning that their notice of appeal had to be filed within 14, rather than 30, days, and depriving the appellate court of subject-matter jurisdiction.

     The plaintiffs have now sought review in the U.S. Supreme Court. In an amicus brief filed by CCL, scholars who teach and write in the areas of civil procedure and federal courts urged the Court to take up the case because switching the applicable rules mid-stream is inconsistent with due process and has troubling and far-reaching consequences for civil litigation. By insisting that a non-party's bankruptcy petition was sufficiently related to this litigation and therefore warranted application of the bankruptcy rules, the First Circuit invited other litigants to search for a distantly related bankruptcy litigation to game the system and knock out cases against themselves, the brief argued.

      The case, Roy v. Canadian Pacific Railway, will be considered by the Supreme Court in conference in April after the defendant was granted a 30-day extension of time to respond to the plaintiffs' petition and the CCL amicus brief.

CCL Files Amicus Brief in Support of Hoboken's Climate-Change Lawsuit

December 19th, 2021

     The U.S. Conference of Mayors and the National League of Cities emphasized federalism considerations in an amicus brief filed in the Third Circuit in support of the City of Hoboken, New Jersey's climate-change lawsuit, seeking damages for infrastructure injuries due to oil companies' false claims about gasoline emissions. CCL filed the amicus brief along with Janet, Janet & Suggs.

      The defendant oil companies moved the case from state court to federal court and resisted the return of the case to New Jersey state court on claims that it constituted a federal cause of action. The amicus brief filed today explained that municipalities, like all other plaintiffs, are masters of their complaint and have a right to choose the court in which their state-based claims are heard. 

CCL Files Opposition to a Motion to Dismiss

November 26th, 2021

     In a challenge to the Texas statute that limits damages in medical malpractice cases brought in federal court, CCL filed its opposition to a motion to dismiss made by the Texas Attorney General on behalf of the state judicial defendants. The opposition also questioned the propriety of the Texas Attorney General filing a response in support of his own motion as both an attempt to evade the page limits on motions and improper because court rules only permit a response from those opposing the motion.

     The opposition noted that Section 1983 permits injunctions against enforcing state laws against state judges after a declaratory judgment was obtained. The current motions before the court seeks that declaratory judgment. The U.S. Supreme Court had previously permitted actions against judges who enforce unconstitutional laws.

     Subsequent to CCL's filing, the U.S. Supreme Court held that Texas judges could not be defendants in a Section 1983 preenforcement challenge to a statute in the high-profile S.B. 8 case, in which abortion providers sued over a new state vigilante bill that put a bounty on those who perform or assist in obtaining abortions. As a result, CCL will dismiss the judges in its case and proceed against the other defendants.