A law firm in North Florida has taken to calling me a forum shopper and accusing me of abusing the judicial process in official court pleadings. Their argument: After one of my client’s filed for Chapter 11 bankruptcy reorganization, we removed certain pending state court litigation from Florida state court to the United States District Court for the Northern District of Florida. We did this pursuant to bankruptcy rules. We are presently in this middle of a removal/remand fight. I contend that there are valid bases for the NDFL to retain jurisdiction.
Rather than arguing for the case to be remanded and focusing solely on the facts and the law, the Plaintiff’s lawyers in this matter have decided to go another direction: Their argument – in significant part – is that we are abusing the judicial process; that I’m a slickster; that my clients are just trying to escape the consequences of their actions. This begs the following question: Suppose we have a valid basis to keep the case in federal court. If the plaintiff in this case is right on the merits of the underlying case, then why can’t they just proceed in federal court and try the case there?
I’ll provide a link to their recent, rather salacious filing below. Beyond that, I’ll note the following: Jurisdiction matters. It matters a lot. If jurisdiction was’t hugely important, then a number of the most significant Federal Rules of Civil Procedure would not exist. Likewise, a number of critically important statutes would not exist. There would be no ability to file a case in federal court by meeting the requirements of diversity jurisdiction. There would be no ability to remove cases either in light of diversity or for preemption.
Let’s go even further. If jurisdiction and forum were not so important, then there would be no forum selection clauses (which are ubiquitous in any serious contract). Likewise, if jurisdiction and forum did not matter, then people wouldn’t fight over them tooth and nail. But they do. Litigants fight over these things constantly.
Throughout my career, I have seen many litigants fight for what they perceive to be a more favorable forum. I have seen certain plaintiffs want to remain in state court. I have seen certain defendants want to get into federal court. I have seen parties fighting to force a dispute into arbitration. And this whole time, I have never viewed these efforts as forum shopping, bad faith or abuse of the legal process. Instead, I have viewed these efforts as litigants and their lawyers fighting for their interests, fairly and within the law.
For my part: If I have a plausible, good faith basis that will allow me to fight for and potentially secure a better forum or more favorable jurisdiction, it’s a no brainer. I will take that shot every time. I am fighting for my clients’ interests. I take my work seriously. These days, I pick and choose what clients I want to represent. I turn lots of clients away. So if I get involved in a case, you’d better believe that I believe in the case, I believe in what I’m fighting for and I’m going to fight fairly but fight to win.
Jonathan Pollard is a competition lawyer and the principal of Pollard PLLC. Pollard has extensive experience litigating competition, non-compete and trade secret cases. In addition to litigation, Pollard routinely advises clients in connection with the purchase and sale of commercial interests. For more information, his office can be reached at 954-332-2380.