Amicus Curiae Brief — Wyeth LLC v. Kirkland

Supreme ( ourt. 1

Pil.t 0D

SEP 13 2010

Coheiae od} i tt

ju the Supreme Court of the Gluited States

WYETH LLC, ET AL.,

;

P liltones

SANDRA KIRKLAND, ETAL...

hee ponde ni

ON PETITION FOR A WRIT OF CERTIORARI!

LO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF DRI - THE VOICE OF THE

DEFENSE BAR AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONERS

JENNIFER R. BAGOSS JERROLD J. GANZFERII

HOWREY LLP

Suite 1700

1 Park Plaza

Irvine, CA 92614

(949) 721-6900

Counsel of Record

HOWREY LLP

1299 Pennsylvania Ave

Washington, D.C. 20004

(202) 783-O800

vanzinedj@howrey.com

\ftorne, for lnicus Curt

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ...0........cccccceeeeeeeees |

SUMMARY OF THE ARGUMENT.....................0..... 2

ARGUMENT

I. This Court Should Grant Certiorari to

Provide Guidance on the Applicability and

Scope of the “Fraudulent Misjoinder’”

Doctrine in a Way that Gives Due Regard

to Diverse Defendants’ Right of Access to

ane tiie TROT AIR Rr ORO 4

. This Court Should Also Grant Review

Because Narrowing the Fraudulent

Misjoinder Doctrine Would Have a

Substantial Adverse Impact on Diverse

Defendants’ Access to the Federal Courts ............8

A. National Policy Favors Removal of

Diverse Lawsuits

B. The Need to Ehminate Incentives

Driving Fraudulent Misjoinder Also

Supports Review

CONCLUSION

TABLE OF AUTHORITIES

Page(s)

CASES

Agency Holding Corp. v. Malley-Duff &

Associates, Inc.,

453 U.S. £43 C1D87) onc cccccvecsccss : +

Amchem Products, Inc. v. Windsor,

521 U.S, 591 (1997)............... ee +

Asher v. Minnesota Mining & Manufacturing

Co.,

No. 04-CV-522, 2005 U.S. Dist. LEXIS

42266 (E.D. Ky. June 30, 2005)......

Bank of United States v. Deveaux,

9 U.S. 61 (1809), overruled in part on othe

yeaues Louisville, Cincinnati &

Charleston R.R. Co. v. Letson, 43 U.S. 497

‘0 |) Ree een Eases enn Seoeamaan eee 9

In re Benjamin Moore & Co.,

309 F.3d 296, mandamus denied, 318 F.3d

626 (5th Cir. 2002) ........cccccccceee. Menken oe

In re Bridgestone/ Firestone, Inc., Tires

Products Libaility Litigation,

260 F. Supp. 2d 722 (S.D. Ind. 2003) .... a :

Burns v. Western Southern Life Insurance Co..,

298 F. Supp. 2d 401 (S.D. W. Va. 2004)... hace

1

California Dump Truck Owners Association v.

Cummins Engine Co.,

24 Fed. Appx. 727 (9th Cir. 2001)

Conk v. Richards & O'Neil, LLP.

77 F. Supp. 2d 956 (S.D. Ind. 1999)

In re Diet Drugs Products Liability Litigation,

MDL Docket No. 12038, Civil No. 98-20478,

1999 U.S. Dist. LEXIS 11414 (E.D. Pa. July

16, 1999)

Exxon Mobil Corp. v. Allapattah Services, Inc.,

545 U.S. 546 (2005), superseded by statute

on other grounds as recognized in Frisby v.

Keith D. Weiner & Associates, 669 F. Supp.

2d 863 (N.D. Ohio 2009) .......ccccceeee:- noe 9

In re Genetically Modified Rice Litigation,

No. 4:06 MD 1811, No. 4:07 CV 825, 2007

U.S. Dist. LEXIS 76820 (E.D. Mo. Oct. 15,

Greene v. Wyeth,

344 F. Supp. 2d 674 (D. Nev. 2004).................... me

Hertz Corp. v. Friend,

130 S. Ct. 1181 (2010)

Palermo v. Letourneau Technologies, Inc.,

542 F. Supp. 2d 499 (S.D. Miss. 2008)

Falmer v. Davol,

No. 07-md-1842-ML, 2008 U.S. Dist.

LEXIS 103738 (D.R.I. Dec. 23, 2008)....................5

Phillips Petroleum Co. v. Shutts

472 U.S. 797 (1985)

Rutherford v. Merck & Co..,

428 F. Supp. 2d 842 (8.D. Ill. 2006)

Southland Corp. v. Keating,

465 U.S. 1 (1984)......

Tapscott v. MS Dealer Service Corp.,

77 F.3d 1353 (11th Cir. 1996)

Walton v. Tower Loan of Mississippi,

338 F. Supp. 2d 691 (N.D. Miss. 2004)

STATUTES

§ 1332(d)

28 U.S.C. §

98 U.S.C

Fed. R. Civ. P. 2

Fed. R. Civ. P

MISCELLANEOUS

The Federalist No. 80 (Alexander Hamilton)

(ABA Publishing ed., 2009)....

Laura J. Hines & Steven 8. Gensler, Driving

Misjoinder: The Improper Party Problem in

Removal Jurisdiction, 57 Ala. L. Rev. 779

(Spring 2006)

Laura J. Hines & Steven S. Gensler, Driving

Misjoinder: The Improper Party Problem in

Removal Jurisdiction, Berkeley Electronic

Press Legal Series (20085) ...... SORE,

Paul Rosenthal, /mproper Joinder:

Confronting Plaintiffs’ Attempts to Destroy

Federal Subject Matter Jurisdiction, 59

Am. U. L. Rev. 49 (October 2009)..............

S. Rep. No. 109-14 (2005), reprinted in 2005

U.S.S.C.A.N. 3 (Leg. Hist.) (The Class

Action Fairness Act of 2005) ...................068.

James M. Underwood, The Late, Great

Diversity Jurisdiction, 57 Case. W. Res. L.

UY, TFG CR Aee I csaseccsiatascicsevaseeee canes: |

14B Wright, Miller & Cooper, Federal Practice

& Procedure § 3723 (3d ed. 1998)

INTEREST OF AMICUS CURIAE

DRI — The Voice of the Defense Bar (“DRI”)

submits this amicus curiae brief in support of

petitioners.! DRI is an international organization

that includes more than 22,000 attorneys involved in

the defense of civil litigation. A hallmark of DRI’s

institutional mission is a commitment to enhancing

the skills, effectiveness, and professionalism of

defense attorneys. Consistent with this

commitment, DRI seeks to address issues germane to

defense attorneys, to promote the role of the defense

attorney, and to improve the civil justice system.

Accordingly, DRI has long been a voice in the

ongoing effort to make the civil justice system more

fair, efficient, and — where national issues are

involved — consistent.

To promote these objectives, DRI participates as

amicus curiae in cases that raise issues of import to

its membership and to the judicial system. In

particular, DRI seeks to contribute to the Court’s

consideration of cases in which the _ practical

experience of DRI’s members may assist the

decisionmaking process.

| All parties have consented to the filing of this brief. Counsel

of record received notice at least 10 days prior to the due date of

amicus’ intention to file this brief. No counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than the amicus,

its members, or its counsel made a monetary contribution to the

briefs preparation or submission,

With respect to this case, the evolving law of

“fraudulent misjoinder’” is of great interest to DRI

and its membership. This doctrine provides an

important procedural tool for defendants to protect

their right to obtain and preserve federal subject

matter jurisdiction over cases that would satisfy the

standards for diversity of citizenship jurisdiction but

for the improper addition of “spoiler” parties who do

not belong in the case.

In its formulation of the doctrine of “fraudulent

misjoinder,” the Eighth Circuit requires not only

misjoinder of non-diverse parties as a condition of

severing and remanding those parties, but

“egregious” misjoinder. This articulation, which has

also been adopted by other courts of appeals, is of

concern to DRI because the “egregiousness” standard

is vague, confusing to lower courts, and prejudicial to

defendants who must meet an_ ill-defined

requirement to protect their right to litigate in

federal court.

SUMMARY OF THE ARGUMENT

Among the historic roots of the federal court

system was the need for our young republic to

provide a forum for the resolution of disputes

between residents of different states. To avoid even

the perception that state courts might harbor bias

against out-of-state parties, defendants have the

right to remove from state court to federal court

under diversity of citizenship jurisdiction. For more

than two centuries, this Court and others have

reaffirmed the importance of this nght of removal.

Over the same time span, Congress has expanded

the right of removal. Moreover, in recent years

Congress has increased safeguards to _ protect

plaintiffs and defendants alike from jurisdictional

gamesmanship (particularly, but not exclusively, in

the class action context).

Yet even as federal law has endeavored to provide

structure and to ensure fairness in class and “mass”

actions, some plaintiffs have concocted novel ways of

constructing multi-party lawsuits that would dodge

diverse defendants’ right of removal. One such

method is to join claims by plaintiffs — or against

defendants — that are wholly unrelated to the

primary claims alleged in the complaint. The

practical consequence of this tactic is to defeat

federal jurisdiction.

To combat the improper joinder of so-called

jurisdictional “spoilers” that prevent removal in an

otherwise diverse action, courts have crafted several

cures, including the doctrine of “fraudulent

misjoinder,” Employing a_ standard that the

Eleventh Circuit created and the Eighth Circuit has

now adopted, the decision in this case requires more

than “mere misjoinder” to sever and remand

improperly joined claims and parties to state court.

Beyond “mere misjoinder,” this standard requires

something denominated “egregious misjoinder.”

To say the least, courts are understandably

confused about the meaning and proper application

of this vague standard, which is ill-suited to protect

defendants’ removal rights. Review by this Court is

necessary to resolve this conflict and to shut the door

to the procedural gamesmanship that the decision

below encourages.

4

ARGUMENT

This Court Should Grant Certiorari to

Provide Guidance on the Applicability

and Scope of the “Fraudulent Misjoinder”

Doctrine in a Way that Gives Due Regard

to Diverse Defendants’ Right of Access to

Federal Courts

The Eighth Circuit is one of four appellate courts

to adopt the version of fraudulent misjoinder

articulated by the Eleventh Circuit in Tapscott v. MS

Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir.

1996). The Fifth and Ninth Circuits have also

acknowledged the doctrine, as have several district

courts. See Pet. 9-11 (citing, e.g., In re Benjamin

Moore & Co., 309 F.3d 296, 298, mandamus denied,

318 F.3d 626, 630-31 (5th Cir. 2002); Cal. Dump

Truck Owners Ass’n v. Cummins Engine Co., 24 Fed.

Appx. 727, 729 (9th Cir. 2001)).

There is substantial disagreement among the

courts regarding the manner in which the fraudulent

misjoinder doctrine is to be applied. Indeed, “[m]any

courts have foundered on shoals of tautology in

trying to define fraudulent misjoinder.” Rutherford

uv. Merck & Co., Inc., 428 F. Supp. 2d 842, 853 (S.D.

Il]. 2006), quoted in Palermo v. Letourneau Techs.,

Inc., 542 F. Supp. 2d 499, 515 (S.D. Miss. 2008). Of

particular concern to the lower courts is_ the

“egregiousness’ test the Eleventh Circuit created and

the Eighth Circuit has now adopted. This

articulation is less a legal standard and more a bare

label whose true meaning is unknown. Accordingly,

some district courts have commented on the inherent

difficulty in divining what the standard means and

D

how it operates: “The theory of procedural

misjoinder articulated in Tapscott is inherently

ambiguous,’ for one reason, because of the confusion

surrounding when misjoinder is so ‘egregious’ as to

constitute fraudulent misjoinder.” Palmer v. Davol,

No. 07-md-1842-ML, 2008 U.S. Dist. LEXIS 103738,

at *16 (D.R.I. Dec. 23, 2008) (citing In re Genetically

Modified Rice Litig., No. 4:06 MD 1811, No. 4:07 CV

825, 2007 U.S. Dist. LEXIS 76820 (E.D. Mo. Oct. 15,

2007)).

The poorly-defined egregiousness requirement

has added confusion and complexity to the law of

diversity jurisdiction and removal. See Conk v.

Richards & O'Neil, LLP, 77 F. Supp. 2d 956, 971 n. 5

(S.D. Ind. 1994) (citing 14B Wright, Miller & Cooper,

Federal Practice & Procedure § 3723 at 658 (3d ed.

1998)); see also Asher v. Minn. Mining & Mfg. Co., No.

04-CV-522, 2005 U.S. Dist. LEXIS 42266, at *30

(E.D. Ky. June 30, 2005) (“courts have recognized

that ‘the governing legal standards regarding the

fraudulent misjoinder doctrine are far from clear”)

(quoting Walton v. Tower Loan of Miss., 338 F. Supp.

2d 691, 695 (N.D. Miss. 2004); Rutherford, 428

F.Supp.2d at 852 (“enormous judicial confusion [has

been] engendered by the [fraudulent misjoinder]

doctrine’).

Kxacerbating the “egregiousness” requirement’s

imprecision is its inherent high degree of

subjectivity. The Tapscott rule, in the words of one

district court, adds “a very subjective and

troublesome element of complexity to an already

knotty calculus.” Burns v. Western Southern Life Ins.

Co., 298 F. Supp. 2d 401, 403 (S.D. W. Va. 2004). In

6

fact, “courts have questioned whether Tapscott’s

distinction between mere misjoinder and egregious

misjoinder might be so subjective as to be

unworkable.” Palermo, 542 F. Supp. 2d at 523

(internal citations omitted).

It is evident from these lower court opinions that

the “egregiousness” standard is not a meaningful,

normative standard at all. Instead, it 1s a

requirement that an otherwise diverse defendant

show “something more” than improper joinder, but

with zero guidance as to what that “something more”

might be. See, e.g., In re Bridgestone/Firestone, Inc.,

Tires Prods, Liab, Litig., 260 I. Supp. 2d 722, 728

(S.D. Ind. 2008) (“[pJrecisely what the ‘something

more’ is was not clearly established in Vapscott and

has not been established since”). By employing this

ill-defined label instead of acknowledging that all

misjoined parties should be severed to preserve

federal jurisdiction, the Eighth Circuit places an

unfair burden on out-of-state defendants who have

no clarity as to the means by which proper removal!

‘an be accomplished where in-state parties are

misjoined. Accordingly, parties such as petitioners,

who have the right to have their claims against

diverse plaintiffs heard in federal court, are deprived

of an effective mechanism for exercising that right.

In practice, and in absence of any objective

standard, analysis of whether an improper joinder is

“egregious” involves an inquiry into the plaintiffs

state of mind. Laura J. Hines & Steven S. Gessler,

Driving Misjoinder: The Improper Party Problem in

Removal Jurisdiction, 57 Ala. L. Rev. 779, 820-21

(Spring 2006) (“Hines & Gensler I”). The Eighth

Circult expressly adverted to this approach when it

suggested that the “egregiousness” requirement

could be satisfied by a showing that plaintiffs “acted

in bad faith.” Pet. App. 19a. But such an analysis is

inherently flawed Kven the better-established

fraudulent joinder doctrine, which permits severance

of claims against non-diverse defendants who have

been joined despite the lack of a meritorious claim

against them, does not require inquiry into the

plaintiff's subjective good faith. Greene v. Wyeth, 344

lr’ Supp. 2d 674, 685 (D. Nev. 2004) (“fraudulent

joinder is a term of art which does not impugn the

integrity of plaintiffs or their counsel and does not

refer to an intent to deceive’) (internal citation

omitted).¢

Particularly in the context of fraudulent

misjoinder, any such state-of-mind analysis poses an

unfair and nearly impossible burden for a defendant

to overcome in seeking removal. Consequently, in

crafting a standard for fraudulent’ misjoinde

attention should be given to the right of diverse

defendants to remove a lawsuit with properly-joined

parties, see, e.g. 28 U.S.C. § 1441(a); Fed. R. Civ. P

20, 21, rather than to the motives of plaintiffs or to

Several commentator have observed that fraudulent

misjoinder” is a misnomer and that “procedural misjoinder” or

‘Improper joinder’ are more appropriate terms Hines &

Gessler [I at 821; Paul Rosenthal, /mproper Joinder

Confronting Plaintiffs’ Attempts to Destroy Federal Subject

Matter Jurisdiction, 59 Am. U.L. Rev. 49, 73-74 (October 2009)

These alternatives share the salutary effect of focusing analysi

on the misjoinder itself, rather than on plaintiff's intent or on a

calibration of the depree of egregiousnes:

the “egregiousne of an improper

Hines & Gensler | at 82]

ll. This Court Should Also Grant Review

Because Narrowing the Fraudulent

Misjoinder Doctrine Would Have a

Substantial Adverse Impact on Diverse

Defendants’ Access to the Federal Courts

A. National Policy Favors Removal of

Diverse Lawsuits

The need for diversity of citizenship

jurisdiction to protect the right ol out-ol-stat

htigants 1 and has always been - a core principle

of American jurisprudence. Indeed, the vital role of

diversity jurisdiction was recognized by the I*irst

Congress when it passed the Nation’s first Judiciary

Act in 1789. James M. Underwood, Jihe Late, Great

Diversity Jurisdiction, 57 Case. W. Res. L. Rev. 179

181 (Fall 2006). Among the Founding Iathers who

championed diversity yur) diction Alexander

Hamilton explained that

llIin order to lensure} the iInviolabl

maintenance of that equality of privileges and

Immunities to which the citizens of the Union

will be entitled, the national judiciary ought to

preside in all cases in which one State or it

citizens are opposed to another State or it

citizens To secure the full effect of so

fundamental a provision against all evasion

and subterfuge, it Is necessary that if

construction should be committed to. that

tribunal which, having no local attachment

Will be hkely to be Impartial HDetweel the

diflerent state and their citizen md whict

wing to its official existence to the Union, wall

never be likely to feel any bias inauspicious t

tne prin ipl on which itis founded

ine rederall { Ne si) at 405 CAL mder tTlamalte

(ABA Publ hing ed AADUY)

Or more than LWo centuri thi (court na

honored the Founders’ onginal intent in establishin

diversity jurisdiction Chie Pustics Marshall

observed in 1809 that even uf the tribuupals of thr

tates will administer justice a impartially is those

of the nation, to parti Ol every dé Cription thie

Constitutions lrame) ouvht to alleviate even

apprehension and Teas of bas by providing: for

diverse case to be heard in federal court sant Of

(/nited Stat Deveaux, 9 US. GI 47 (TROD)

overruled in part on other pround hoursovill

Cincinnati, & Charleston Plt. Co hetson, 443 U

197 (1844) And, as this Court recently affirmed

diversity jurisdiction exists “to provide ai federal

lorum for important dispute where tate court

miprht favo! Ol DE perceived i lavoriny hom Late

ntigant Kxxon Mobil Corp i VWlapattah Ser

[ne 545 US 046 Jod-I4 (ZO0OD) upper eded by

ftatute on other pround (] recopnized tn lerisby

Keith D. Weiner & Assor 669 } muy nm. 2d R63 (NLD

Omio 2009) (citing 2 | > ( 332 (d)C2))

The real-world « Kpertence of DKI membe!

ré miorce the W dom a) th} (oourt cle 1f)T} cil

evidence the CONntTMuUINY validity Ol Lnese LW

hundred year old concern When misjoinder

lowed to defeat diversity of citizenship jurisdict

LO

the resulting deprivation of a federal forum fuels the

perception that out-of-state defendants (particularly

those that may be unpopular) will not receive fair

treatment. In short, when the artifice of improperly

gerry-built lawsuits eviscerates a defendant’s right to

litigate in federal court, the rule of law suffers.

Consistent with this Court’s due concern for

the appropriate availability of a federal forum,

Congress reaffirmed the importance and desirability

of federal jurisdiction in cases involving residents of

different states as recently as 2005. The Class

Action Fairness Act of 2005 (“CAFA”), 28 U.S.C.

§§1332(d), 1453 & 1711-1715, amended the diversity

jurisdiction statute which had kept many interstate

class actions out of federal courts. Congress enacted

CAFA in response to evidence of gross abuses of the

class action device, particularly in state courts. /d.

The Senate report on CAFA noted that some state

courts took an “I never met a class action I didn’t

like’ approach to class certification,” S. Rep. No. 109-

14, at 22 (2005), reprinted in 2005 U.S.S.C.A.N. 3, 22

(Leg.Hist.) (The Class Action Fairness Act of 2005).

In the preceding years, there had been a “dramatic

explosion of class actions in state courts” because

those courts had not apphed the Rule 23

requirements for certification with the same rigor as

their federal counterparts. /d. at 14. The Senate

viewed state courts’ cavalier attitude toward class

certification as unfairly damaging to the rights of

plaintiffs and defendants alike, particularly in

massive national class actions. Jd. at 22-27.

39

In addition to expanding federal jurisdiction

over class action litigation, CAFA also expanded the

lL]

protections to class action litigants, including the due

process rights guaranteed by the Fourteenth

Amendment. For example, absent plaintiff class

members have the right to notice and an opportunity

to opt out of the class. Phillips Petroleum Co. v.

Shutts, 472 U.S. 797, 811-12 (1985). If the case

settles, the court must review the settlement to

ensure its fairness to absent class members.

Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 627

(1997). In passing CAFA, Congress specifically

criticized so-called “coupon” settlements in which the

attorneys receive the bulk of the settlement proceeds

and class members only receive a coupon for

products or services. S. Rep. No. 109-14, at 15.

These and other safeguards protect both

plaintiffs and defendants in federal court class

actions. But these protections, which Congress

deems essential, are not necessarily available in

state court cases with multiple joined plaintiffs. As a

result:

Ironically, recent developments in class action

jurisdiction may well exacerbate the problem.

Under [CAFA], Congress broadly expanded

diversity jurisdiction over interstate class actions

and mass actions.... One possible result is that

plaintiffs will continue to file the same types of

lawsuits, knowing that they are likely to be

removed. But one also might suspect that

plaintiffs will file ever more joined-but-not-mass

actions in order to escape [CAFA]. And of that

group, many are sure to deliberately join spoiler

parties with an eye towards defeating ordinary

diversity removal

12

Laura J. Hines & Steven S. Gensler, Driving

Misjoinder: The Improper Party Problem in Removal

Jurisdiction, Berkeley Electronic Press Legal Series

(2005) (“Hines & Gensler II”), at 43. Thus, the desire

to avoid CAFA’s protections — including = such

salutary measures as judicial oversight = of

settlements to ensure that plaintiffs’ attorneys do not

retain an unfair share of the proceeds — may be an

unintended incentive to misjoin non-diverse

defendants and other plaintiffs.

B. The Need to Eliminate Incentives

Driving Fraudulent Misjoinder Also

Supports Review

This Court should provide a much-needed

disincentive to the strategic joinder of improper

parties to prevent removal. “It is no secret that

plaintiffs often deliberately structure their state

court lawsuits to prevent removal by defendants to

federal court.” Hines & Gessler I, 57 Ala. L. Rev. at

781. Plaintiffs have a clear incentive to structure

their lawsuits in this manner: there 1s a widespread

perception that plaintiffs are more likely to succeed

in state court than in federal court. Jd.

This Court has been vigilant in its efforts to

curtail procedural gamesmanship. In Hertz Corp. v.

Friend, 130 S. Ct. 1181 (2010), California employees

sued their employer, Hertz, in state court; Hertz

removed the case, claiming diversity jurisdiction

based on the location of its headquarters in New

Jersey. The district court found that California was

Hertz’s “principal place of business” and remanded

the case to state court. The Ninth Circuit affirmed,

but this Court held that the correct standard for

L3

assessing the locus of corporate citizenship is the

“nerve center’ test (rather than a “principal place of

business” test or any test related to the magnitude of

business activities conducted in a state). Jd. at 1191-

93. One of the Court’s primary reasons for its

holding was that the simplicity of the “nerve center”

test would deter gamesmanship:

Complex tests produce appeals and reversals,

encourage gamesmanship, and, again,

diminish the lIkelihood that results and

settlements will reflect a claim’s legal and

factual merits.

Id. at 1193. This Court has also sought to curtail

similar gamesmanship in other contexts. See, e.g.,

Southland Corp. v. Keating, 465 U.S. 1, 15 (1984)

(interpreting Iederal Arbitration Act to apply to

claims brought in state courts in order to discourage

forum shopping); Agency Holding Corp. v. Malley-

Duff & Assocs., Inc., 483 U.S. 143, 149, 154 (1987

(applying the statute of limitations for Clayton Act

civil enforcement actions to RICO actions to avoid a

“multiplicity of applicable state limitations periods”

that would “present{[] the dangers of forum

shopping...”).

Here, fraudulent misjoinder is another form of

gamesmanship that “wrongfully deprives Defendants

the mght of removal,” Jn re Diet Drugs Prods. Liab.

Litig., MDL Docket No. 1203, Civil No. 98-20478,

1999 U.S. Dist. LEXIS 11414, at *14 (E.D. Pa. July

16, 1999). This Court should grant certiorari here,

as it has in other cases, to perform the important

function of preventing the procedural gamesmanship

that 1s so detrimental to the judicial system. In

14

doing so, the Court should clarify that federal law

provides a mechanism to sever improperly-joined

parties, and to preserve diversity jurisdiction, even

in instances of “mere” misjoinder

CONCLUSION

The petition for a writ of certiorari should be

yranted.

Respectfully submitted.

JENNIFER R. BAGOSS JERROLD J. GANZFRIED

HOWREY LLP Counsel of Record

4 Park Plaza, Suite 1700 HOWREY LLP

Irvine, CA 92614 1299 Pennsylvania Ave., N.W.

(949) 721-6900 Washington, D.C. 20004

ganzfriedj@howrey.com

(202) 783-0800

Attorneys for Amicus Curtae

September 20