# Amicus Curiae Brief — Wyeth LLC v. Kirkland

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2362%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 963

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2362%3A5. Public record. Not legal advice.