(The Return of) Ignatz, by Sam Heldman

Saturday, March 29, 2003

S.Ct. predictions
The U. Mich. cases are to be argued on Tuesday, but I can't bring myself to predict the outcomes on those cases yet. So I skip over to Wednesday, which brings Breuer v. Jim's Concrete, a relatively simple case asking whether a defendant, sued in state court under the federal Fair Labor Standards Act, can remove the case to federal court. Why does this matter, you ask? Because every lawyer and every litigant is a cynic, just like me: they know that their chances for success will likely depend in substantial part on what courtroom they're in, and what judge they are likely to get, and where the jury pool is drawn from, and who's sitting on the appellate court that will hear an appeal, and so they fight fight fight over the issue of where they will fight. (And also there are sometimes procedural differences between state and federal court that make a party prefer one or the other).

The basic rule for nearly all federal statutes (more precisely, for those that allow private lawsuits to enforce them) is that if the plaintiff files suit in the state court, the defendant(s) can remove the case to federal court. This is a matter of 28 U.S.C. § 1441(b), and § 1331, if you're really interested. But rarely, the Congress enacts a federal statute that provides for a type of lawsuit, but provides that such suits can't be removed to federal court. The FELA – a workers' injury statute for railroad workers – is an example of this rare phenomenon. The question here is whether the FLSA is, too. The argument from the plaintiffs who want to avoid removal (that is, who want to stay in state court) is that the FLSA says that suit can be "maintained" in state court; and that word "maintain", they say, means "keep it there even if the defendant doesn't want it there." This argument convinced one circuit some decades ago, once, but doesn't convince most other courts. So there's a conflict among the lower courts, and the Supreme Court has finally decided to resolve it. The Eleventh Circuit held that FLSA cases are removable just as most federal-law suits are. All I can tell you is that the Supreme Court will AFFIRM, saying that if the Congress meant to make an extraordinary departure from the ordinary rule of removability it would have been a lot more direct and clear about it (as it has been in other instances), rather than just using an ambiguous word like "maintained". I'll be quite surprised if I get this one wrong.

posted by sam 6:40 AM 0 comments


Post a Comment

Powered by Blogger


email: first name@last name dot net