By J.D. Lowry

See that big futuristic-looking building on Las Vegas Boulevard, between André’s to the east and the Lewis Avenue Corridor Park to the west? It’s the Lloyd D. George Federal Courthouse, home of the unofficial southern division of the U.S. District Court for the District of Nevada, and as civil defense counsel, you may have given short shrift to the idea that your client might do well litigating there.

A number of strategic considerations (aside from the largely irrelevant observation that generally the lines at the metal detectors are shorter, and the timely availability of elevators is greater than at the Regional Justice Center) may lead to a decision between you and your client to pursue removal of a state court action to federal court. However, those considerations are outside the scope of this article. This article provides a brief overview of issues the average private practitioner should keep in mind with respect to removal. As with any other issue involving the federal government, there are multiple exceptions and obscurities involved in federal removal jurisdiction that can represent pitfalls lying outside the well-trod paths of “typical” civil litigation. A review of 28 U.S.C. §1441 et seq., the statutes governing federal removal jurisdiction, is always a beneficial first step.

Is there a basis for federal jurisdiction?
Civil defendants (and criminal defendants too, although they also fall outside the scope of this article) have the ability, pursuant to 28 U.S.C. §1441 et seq., to remove to federal district court cases originally brought in state court over which federal jurisdiction nonetheless exists. Removing defendants have the burden of establishing federal jurisdiction, and the federal court is obliged to reject jurisdiction if any doubt exists as to its propriety. California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004) (subsequent history omitted). Federal jurisdiction is strictly controlled, in part because courts generally favor allowing plaintiffs to pursue their claims in courts of their own choosing. Removal, like original federal jurisdiction, may be premised on two bases: the existence of a federal question, or the diversity of citizenship of the parties.

Federal question jurisdiction in the removal context may arise from the plaintiff’s pleading of one or more causes of action arising under federal law over which the federal district court would have had original jurisdiction. Federal agencies, federal officers, and members of the armed forces being sued as a result of acts taken under color of office have the right to remove their cases to federal court pursuant to 28 U.S.C. §1442 and 28 U.S.C. §1442a.

An important point for defense counsel to keep in mind is that the federal question giving rise to removal must arise from the plaintiff’s complaint. The defendant cannot create federal question jurisdiction through an affirmative defense, or through a counterclaim arising out of federal law. Also be aware that a handful of cases, including workers’ compensation cases and certain cases against carriers for damages related to shipments, are never removable or removable only under limited circumstances. 28 U.S.C. §1445.

The statute also allows removal on the basis of diversity of citizenship of the parties. 28 U.S.C. §1332(a). If no one on the plaintiffs’ side of the caption is a citizen of the same state as anyone on the defendants’ side of the caption, diversity of citizenship exists and, assuming that at least $75,000.00 is in controversy, the federal courts may assume jurisdiction. Removal is also available based on a hybrid of federal question jurisdiction and diversity jurisdiction arising under 28 U.S.C. §1369, for cases involving seventy-five or more deaths as the result of a single catastrophic accident. 28 U.S.C. §1441(e).

What if there would be complete diversity if not for the fact that the plaintiff sued your client, a Nevada resident, who has a good-faith basis to file a Federal Rule of Civil Procedure (FRCP) 12(b) (6) motion to dismiss? You may be representing a fraudulently joined sham defendant impled only to defeat diversity, and you can petition for removal to federal court and immediately thereafter move for dismissal. The defendant alleging that she has been fraudulently joined to defeat diversity bears a heavy burden, because the existence of any colorable claim by the plaintiff against that non-diverse defendant will suffice as proof that the joinder was not fraudulent.

Is it too late already?
Not if fewer than thirty days have elapsed since your client learned about the claim giving rise to federal jurisdiction. Receipt by the defendant, “through service or otherwise,” of the initial pleading setting forth the claim giving rise to federal jurisdiction triggers this thirty-day time limit, as does “service of summons upon the defendant if such pleading has then been filed in court and is not required to be served on the defendant”; if both of these events have taken place, the shorter time period applies. 28 U.S.C. §1446(b).

Note that the thirty-day time limit for removal does not begin until the plaintiff has plainly asserted a claim giving rise to federal jurisdiction. In other words, if the plaintiff’s original complaint provides no basis for federal jurisdiction, but the plaintiff subsequently amends his complaint in a manner that creates a basis for federal jurisdiction, the thirty-day removal period commences upon the date of service of the amended complaint. Similarly, if the complaint does not plainly set forth a basis for federal jurisdiction, but a subsequent “amended pleading, motion, order, or other paper” does set forth such a basis, the defendant has thirty days from service of that subsequent document to request removal. Lovern v. General Motors Corp., 121 F.3d 160, 162 (9th Cir. 1997). Keep in mind that the “other paper” may be discovery responses or deposition testimony, and the “order” may be the state court’s order dismissing a non-diverse co-defendant who has reached a settlement with the plaintiff.

The defendant has no duty to investigate facts underlying an equivocal complaint to determine whether or not a basis for federal jurisdiction exists. Harris v. Bankers Life and Casualty Co., 425 F.3d 689, 694 n.4 (9th Cir. 2005). However, if the basis for removal is diversity jurisdiction, there is a one-year deadline from the date of commencement of the action during which removal based on newly discovered grounds may take place. 28 U.S.C. §1446(b). Thus, if you suspect that discovery will demonstrate that purportedly non-diverse parties are actually diverse, it behooves you to conduct that discovery within the first year following commencement of the lawsuit if you plan to use such diversity as a basis for removal to federal court. Also be aware of the one-year deadline if it is possible that all non-diverse defendants will settle out of the case within the first year.

Have I already waived federal jurisdiction?
Probably not. A defendant only waives federal jurisdiction if, after removability has become apparent, the defendant “takes actions in state court that manifest his or her intent to have the matter adjudicated there, and to abandon his or her right to a federal forum.” Resolution Trust Co. v. Bayside Developers, 43 F.3d 1230, 1240 (9th Cir. 1994). Anything short of proceeding to adjudication on the merits will likely not suffice as a waiver by a defendant of federal jurisdiction. Id.

What do I file, and where?
File a Petition of Removal, signed under FRCP 11, in the federal court. The Petition of Removal must contain, according to 28 U.S.C. §1446(a), a “short and plain statement of the grounds for removal,” and must be accompanied by “a copy of all process, pleadings, and orders served” upon the removing defendant(s). “Promptly” thereafter, per 28 U.S.C. §1446(d), the defendant must provide written notice of the filing of the Petition of Removal to all other parties, and file a copy of the Petition of Removal with the state court. The state court will then “effect the removal” and “proceed no further unless and until the case is remanded.”

The Petition of Removal must be filed through the CM/ECF e-filing system. The required $350 fee is payable by credit card through CM/ECF. If you are not already registered for electronic filing with the District of Nevada, you may do so by calling (888) 674-2323 and/or following the directions on the District of Nevada’s website, www.nvd.uscourts.gov. This assumes, of course, that you have been admitted to practice before the District of Nevada; if you have not, the relatively quick and painless application process is detailed in Local Rule IA 10-1 (which is also available on the District of Nevada’s website).

Will I get sent back to state court?
Maybe. The federal court is obligated to remand to state court any removed case over which the federal court loses jurisdiction. Federal jurisdiction can be lost if, e.g., the federal court dismisses the federal cause of action on which you based your petition for removal, or if discovery demonstrates that the amount in controversy in a diversity case will not exceed the jurisdictional threshold of $75,000.00.

Further, if your Petition of Removal is procedurally defective, the plaintiff may move to remand the case to state court within thirty days. 28 U.S.C. §1447(c). The plaintiff also may move for remand based on a lack of federal subject-matter jurisdiction at any time prior to final judgment. Fees and costs are available, in the federal court’s discretion, to a plaintiff who is successful in obtaining remand. Remand orders are not appealable except in civil rights cases initially removed under 28 U.S.C. §1443.

In conclusion, don’t be afraid to take the case against your client to federal court. Just don’t forget your photo I.D.!

Jodi Donetta “J.D.” Lowry, a partner at Gibson Lowry Burris LLP in Las Vegas, Nevada practices in the areas of intellectual property, commercial litigation, and health law. The focus of her practice is copyright and trademark law, and she has a strong interest in intellectual property torts related to blogs, social networking websites, and other new media. She has presented seminars and published in the fields of copyright law, plaintiff litigation in federal courts, and medical malpractice. Before entering law practice in 1999, Miss Lowry was the assistant editor of the Journal of College Science Teaching and the copyright officer of the National Science Teachers Association.  Visit the firm’s web site at www.gibsonlowry.com.

In Latest Round of Cuts, Dechert Lays Off Staff Attorneys

Gina Passarella
The Legal Intelligencer

02-26-2009

Attorney cuts at Dechert have continued with an additional 10 staff attorneys being laid off Wednesday.

The firm would only confirm that 10 staff attorneys were let go for economic reasons. As of Wednesday afternoon, there were 76 people listed on the firm’s Web site under the “staff attorney” category with some being referred to as senior staff attorneys.

These layoffs are the latest in a number of cuts made by the firm. Most recently, Dechert laid off 19 attorneys across its U.S. offices Feb. 12. That group included associates and counsel. The cuts were done on a day that soon came to be known as “Black Thursday” as several firms collectively laid off hundreds of staff and attorneys.

Dechert’s other run-in with attorney cuts came back in March 2008 when it laid off 13 associates in the finance and real estate department. Those attorneys were quickly offered temporary assignments in other practice groups, and some accepted the offer.

The majority of Dechert’s layoffs in 2008 were focused on staff, with 72 positions cut in December in the United States and another 15 in London.

The going rate for severance packages for Dechert attorneys has reportedly been three months’ severance, six months of paid medical benefits and transition placement support. A spokeswoman for Dechert said the staff attorneys would be receiving “separation packages.”

A FUTURE FOR STAFF ATTORNEYS

Whether staff attorneys are easy targets for layoffs isn’t a black-and-white issue, recruiter Robert Nourian of Coleman Nourian said.

Staff attorneys are generally nonpartner track attorneys who are earning less than their partner-track counterparts. They are often used on matters for which a firm would like to provide services to clients but couldn’t justify charging typical firm rates for that work, he said.

In order to find ways to handle that work in a cost-effective manner, firms will hire highly qualified attorneys who don’t necessarily want to work partner-track hours, he said. Whether staff attorneys would be the first cuts in a tough economy depends on where the work is. Those attorneys are used more on the litigation side than on corporate matters but are doing work associated more closely with a typical associate rather than the document review work done by contract attorneys.

“If the work is slowing down in a practice group that has staff attorneys, then, yes, it’s probably an easy target,” Nourian said. “But I don’t know that it’s the natural selection.”

It might make more sense, particularly in this economy, to keep the attorneys who are charging out at a lesser rate and drawing a lesser salary. The matters they are handling may require it, he said.

The use of staff attorneys has been an ever-growing trend in large, commercial law firms over the past few years, Nourian said. And despite any temporary temptation to cut those attorneys, he said he thinks they will become all the more popular in the long run as firms look to meet client demands for cost savings.

Staff attorneys may also be the solution for firms that are increasingly limiting the number of attorneys who make it to the equity partner tier. Instead of having to make tough decisions about who would move up or out, firms can have a tier of attorneys who have no expectation of making partner.

The number one priority of the labor movement is the Employee Free Choice Act (”EFCA“).  EFCA would dramatically change the rules with respect to union organizing of employees by allowing a union to bypass the NLRB’s secret ballot election procedure.  If EFCA is enacted, an employer would be required to recognize a union as the representative of its employees after the NLRB has verified that a majority of the employees have signed union authorization cards.  After recognition, the employer and the union would have 90 days to negotiate their first collective bargaining agreement.  If they are unsuccessful, a mediator from the Federal Mediation & Conciliation Service (”FMCS“) would then become involved in the negotiations.  If a contract is not agreed to in the following 30 days,  the issues will be submitted to an arbitrator, who will have the power to make a final and binding decision on all open issues.   President-elect Obama was a sponsor of the EFCA bill when  he was a Senator and Representative Hilda Solis (nominee for Secretary of Labor) voted for it when it passed the House in 2007.  It is very likely that EFCA will be enacted, but not necessarily in the first 100 days of the new administration and there may be some modifications made to the proposed collective bargaining procedures and/or to a proposed statutory fine process for unfair labor practices.

President-elect Obama will be able to appoint 3 new Board Members to the 5 member National Labor Relations Board (”NLRB“) and to designate a new Chairman and General Counsel of the Board.  These appointees are likely to be more favorable to unions and workers than those appointed during the Bush administration.   Also pending in Congress is the “RESPECT” bill, which is intended to reverse a prior NLRB decision that broadly defined which employees were supervisors and thus exempt from union organizing efforts.

The U.S. Department of Labor (”DOL“) is expected to get increased funding and enlarge its staff, so that it will become more active in investigating and enforcing the numerous laws within its purview.  There are serious efforts to increase the minimum wage (”FLSA“) and to enact new safety rules (”OSHA“).  There is also talk of revising the 2004 DOL regulations pertaining to overtime exemptions, so that more employees will be entitled to overtime.

Several organizations that advocate for a more family friendly workplace  are expected to make an effort to have the Family & Medical Leave Act (”FMLA“) require paid leave.  There are several states that have recently passed such legislation.  The recently promulgated FMLA regulations are not expected to be changed in the near future.

President-elect Obama  also has the opportunity to appoint the Chairman, General Counsel and  Commissioners to the Equal Employment Opportunity Commission (”EEOC“) and that agency is expected to increase its enforcement efforts during the new administration.  Pending in Congress is the “Lilly Ledbetter Fair Pay Act”, intended to reverse the holding of a U.S. Supreme Court case, by allowing an individual to file an employment discrimination charge based on the last date that they were adversely affected by the alleged discrimination.

There are numerous other labor and employment bills pending in Congress which may be enacted as a result in the change in Congress and the administration, so stay tuned for an exciting 4 years.

Paul Cherner is a labor and employment attorney in Chicago, IL. Visit his blog at http://hrcounselblog.com.

By:    Nancy C. Grimes

        President, Managing Partner

        Grimes Legal, Inc.

Nancy Grimes has over twenty years’ experience serving the legal industry.  Clients include international, national, regional, local and independent law firms and attorneys.  Have a question you’d like answered?  Email it to ncgrimes@grimeslegal.com.

The Question:  I am scheduled to interview with a premiere NY law firm next week.  I received the lineup for the meeting today, and one of the partners on the panel is a very close family friend. So, do I acknowledge the prior relationship or do I threat him just like the others on the panel?

The Answer:  You do neither.  You don’t want to put the partner in a position where his objectivity is questioned regarding your potential hire, nor do you want him to feel he must play the “acquaintance game” and pretend he doesn’t know you.  Let him set the tone for the meeting where you’re concerned.  Or, better yet, since he is a close family friend, you should feel comfortable enough to give him a call and ask him directly how he prefers to handle the situation.  This way, you both arrive at the interview with your “game face” on and there will be no need for explanations later.

By Paul Cherner

On January 30, 2009, President Obama issued three Executive Orders that impact federal contractors.  These Orders are pro labor and are intended to reverse positions taken during President Bush’s administration.

Nondisplacement of Qualified Workers Under Service Contracts -  this Executive Order provides for the continuation of employment of employees who are working pursuant to a service contract with the federal government, when that contract is awarded to a new contractor or subcontractor who will be performing the same or similar services at the same location.  The successor contractor and/or subcontractor will be required to offer the existing nonmanagerial and nonsupervisory employees the right to continue their employment under the new contract before being permitted to hire other employees.  The Order exempts certain contracts and permits a contracting agency to exempt other contracts or subcontracts if the agency determines that the application of these rules would impair their ability to procure services on an economic and efficient basis.

Notification of Employee Rights Under Federal Labor Laws -  this Executive Order requires all federal contractors and subcontractors to post a notice in all places where employees covered by the National Labor Relations Act work, informing them of their rights under the federal labor laws.  The Secretary of the U.S. Department of Labor has 120 days to initiate rulemaking to specify the size, form and contents of this notice, which is to be posted during the term of the contract.

Economy in Government Contracting -  this Executive Order requires that costs associated with activities undertaken to persuade employees to exercise or not exercise their rights to bargain collectively through representatives of their own chosing (e.g. unions) should be treated as “unallowable” and a federal contractor may not be reimbursed for such costs.  The Federal Acquisition Regulatory Council has 150 days to adopt rules and regulations needed to implement this Order.

Paul Cherner is a labor and employment attorney located in Chicago, Illinois. Visit Paul’s blog at http://hrcounselblog.com.

By:    Nancy C. Grimes, President and Managing Partner

          Grimes Legal, Inc.

                                                                                                                                                                      Nancy Grimes has over twenty years’ experience serving the legal industry.  Clients include international, national, regional, local and independent law firms and attorneys.  “Counsel to Counsel” is updated bi-weekly.  Have a question you’d like answered?  Email it to ncgrimes@grimeslegal.com.

 The Question:  Due to the economy, so many firms are laying off lawyers or closing their doors.  With the flood of attorneys overwhelming today’s legal market, how do I capitalize on potential opportunities?  How do I set myself apart from the pack?

 Signed,

Lost in the Crowd

Dear Lost in the Crowd,

In a job market where you may be among a number of outstanding candidates, it is essential to use every opportunity to make a lasting impression.

During the interview process, partners and hiring managers will ask a wide variety of questions, including:

1. Why you are interested in the firm?
2. Why did you go to law school?
3. What would you say is your greatest weakness?
4. Tell us about a recent mistake you made.
5. What do you do for fun?
6. Tell us about your style of leadership.
7. If you don’t get hired by this firm, what will you do?

However, the most important question you will be asked in an interview is, “Do you have any questions for us?” They expect to be asked about salary, benefits, or other perks. Although these are important issues, the candidate should never bring them up in a first interview. Instead, impress the interviewer with some questions suggested below. This approach accomplishes four main purposes:

1. Allows you to discover specific needs of the hiring manager that you can address and meet.
2. Establishes an impression of you as extremely interested in the position and show you are genuinely curious about the company and the opportunities available.
3. Allows you to earn about the firm’s culture and the organization as a whole, including company values, ethics, and the way personnel are managed.
4. Gives you an opportunity to uncover and discuss any concerns the hiring manager has about your candidacy.

First, the firm obviously has a need; otherwise, the hiring manager or partner would not be interviewing candidates.  Learn to look beyond the job title and what you think that role should entail. Find out what specific problems have been experienced in the near term and tell how you have handled similar problems in the past. For example you could ask:

• “In six months, what would the successful candidate have accomplished?”
• “What is the most important and pressing problem for the new hire to tackle?”
• “What would you like done differently by the next person who fills this job?”

Each of these questions will reveal an issue or problem within the firm that will affect your everyday work. If you can establish yourself as someone who has already seen and tackled similar problems, your perceived value will skyrocket.

Second, firms and companies are looking for energetic and enthusiastic attorneys who are excited about the opportunities they present. These candidates are viewed as more likely to stay in the long run. In the current job market, there will be many people with a skill set similar to yours. Your interest and enthusiasm about the firm or company may be the deciding factor on an offer. Some questions to express this interest could include:

1. “I noted on the firm/company Web site that your firm’s mission is _____________. How do you see the successful candidate contributing to that mission?”
2. “What are the firm’s/company’s goals, both short and long term?”
3. “How does this department affect the firm/company’s profit?”

Listen to the responses. Research the firm or company extensively before the interview so that you can intelligently discuss its products and/or services. Remember, not always does the most qualified candidate get the job. Sometimes it goes to the most enthusiastic.

Third, one of the most important things to remember in any interview is that you are interviewing the employer just as much as the employer is interviewing you. Asking the right questions could keep you from making a poor decision.  It could also reveal to you a firm or company that truly values its human capital and genuinely wants to contribute to an employee’s success. To discern the firm/company’s culture and values you could ask:

• “What is the firm/company’s code of ethics and how is it communicated to employees?”
• “How would you describe the culture and personality?”
• “How are risk taking and creativity rewarded?”
• “How do you recognize outstanding employees?”
• “What do you value about this firm/company and why do you enjoy working here?”

Partners and hiring managers who work for a firm/company that values its employees will readily have answers to the above questions. If they aren’t sure or if they become uncomfortable, there could be a problem. Probe deeper to determine the issues by conducting targeted research on the company or by speaking directly with employees, if possible.

Fourth and finally, thank the interviewer for his or her time, express your interest and determine the next steps in the hiring process. This is an excellent time to address any concerns or hesitations your interviewer may have. Some questions that might be beneficial are:

• “Do you have concerns or hesitations based on anything we have discussed regarding my candidacy that I could address for you before I go?”
• “What is the next step in the process?”
• “I am very excited about this position and feel that it would be a great fit. What would it take to close the deal on this position today?”

In a job market flooded with qualified candidates, you must take every opportunity to make yourself memorable and increase your perceived value in an interview. Find out what matters most to the hiring manager. When invited to ask questions, ASK THEM!   But…. make those questions count. Show your interest in the company and establish yourself as a proactive thinker ready to find out what the tough challenges are and to tackle them. Remember, just as important as giving the right answers in an interview is… asking the right questions.