Thursday, August 10, 2006

Serial Remover Foiled Again

I’ve heard of Defendants trying to remove their state court case to federal court, but these guys over at Prudential have got to be some of the most persistent removers (yes, I believe I have invented a new word in this context, but I think this situation warrants it) I’ve ever seen. Long story short, Plaintiffs brought a class action against Prudential in an Ohio state court alleging state court claims. But Pru claims the case is actually “a federal securities class action masquerading as a state-law case, and claims Plaintiffs' purpose is to avoid federal jurisdiction where this kind of action was intended to be brought.” Yeah, right.

Anyway, here’s where things heat up. Twice Prudential tried to remove the case, first at the beginning, and next on the eve of trial, and twice they were remanded. Then the firestorm came, as “the state court trial proceeded, and the jury awarded Plaintiffs $11 million in compensatory damages and $250 million in punitive damages.

o guess what Prudential did? Yep, that’s right, they removed the case a third time (now seven years after the case was filed), arguing that Merrill Lynch v. Dabit confers federal jurisdiction. Well, I must admit my eyes glazed over reading the rest (something about 28 U.S.C. § 1446), but you’ll surely want to know that newly commissioned Judge Jack Zouhary (N.D. Ohio) (pictured) sent the case back to state court again, and also declined “to decide the issue of whether the holding of Dabit otherwise precludes this class action.”

Want to try for a fourth removal? I wouldn’t put it past them. I have a perfect time – how about after Pru loses each appeal?

Update: Looks like Pru just lost the first appeal, although they did get quite a hefty reduction in the punitive damages -- $250 million cut down to $6 million.

You can read Burns v. Prudential, issued July 10, 2006, at 2006 U.S. Dist. LEXIS 46329.

Nugget: “Ultimately, the cases Prudential cites in its effort to expand the concept of ‘order or other paper’ are either easily distinguishable or unpersuasive.”

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