Lawyer thread

Discussion in 'The Mainboard' started by Jax Teller, Apr 8, 2015.

  1. RJF-GUMP

    RJF-GUMP Daubert Qualified in Cooler Thermodynamics
    Donor TMB OG

    that's a bold move. One thing we do is never take more than the client takes. Sometimes that results in our fee being less than 30%.
     
  2. RJF-GUMP

    RJF-GUMP Daubert Qualified in Cooler Thermodynamics
    Donor TMB OG

    That's smart because you aren't even giving them a discount on legal fees. Expenses are a whole other category.
     
  3. Gallant Knight

    Donor
    Arkansas Razorbacks

    I don’t have a problem taking more than the client takes pre lit if I tell them that we are ready and willing to litigate the case and the client says they don’t want to
     
  4. colonel_forbin

    colonel_forbin Well-Known Member
    Donor

    Plaintiff sues one diverse and one non-diverse defendant in the same action in state court. Diverse defendant removes to federal court, arguing fraudulent joinder of the non-diverse defendant. To prove a fraudulent joinder, you have to prove it's impossible to make a claim against the non-diverse defendant.

    The non-diverse defendant then moves in federal court to dismiss for failure to state a claim.

    It seems to me that the district court does not have jurisdiction to decide the non-diverse defendant's MTD. While the two motions are theoretically arguing the same thing, a district court can only decide the non-diverse defendant's MTD if it has jurisdiction over that party, which it can't have because there's no complete diversity. So even if the district court says it's "impossible" for fraudulent joinder purposes, the most it could do is sever the claims and remand the state court defendant back to state court.

    Right?
     
  5. RJF-GUMP

    RJF-GUMP Daubert Qualified in Cooler Thermodynamics
    Donor TMB OG

    I’d think Plaintiff needs to file a motion to remand. The MTD would be stayed until the remand was ruled on.
     
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  6. colonel_forbin

    colonel_forbin Well-Known Member
    Donor

    We did file that, and a motion to stay briefing on the MTD. The court denied the motion to stay. Which makes no sense
     
  7. herb.burdette

    herb.burdette Meet me at the corner of 8th and Worthington
    Donor
    Ohio State Buckeyes

    I had this come up a few years ago in NC. This is not my case but this was cited.

    https://www.ncmd.uscourts.gov/sites/ncmd/files/opinions/14cv690moo.pdf

    If the fraudulent jointer motion is denied, there is no subject matter. The motion to dismiss is moot.

    After remand, plaintiff tried to argue that the remand order was collateral estoppel on the motion to dismiss that was mooted.

    In the 4th circuit, fraudulent joinder is a higher standard than 12(b)(6), so it wasn’t.
     
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  8. RJF-GUMP

    RJF-GUMP Daubert Qualified in Cooler Thermodynamics
    Donor TMB OG

    Currently at 47 open personal injury files, 40 of those are MVAs. 50 comp files. 24 divorce/custody files. 121 active files. At some point I'm going to need more than just one paralegal helping me. A paralegal and a shared secretary might be the way to go.
     
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  9. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    https://www.washingtonpost.com/tech...witter_impression=true&utm_term=.ec34e1f5cae5
     
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  10. Gallant Knight

    Donor
    Arkansas Razorbacks

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  11. Gallant Knight

    Donor
    Arkansas Razorbacks

    Just had scheduling conf in federal court and judge has our trial date first week of July what the fuck
     
  12. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    He clearly doesn't think much of your case.
     
  13. Gallant Knight

    Donor
    Arkansas Razorbacks

    Slip and fall at dollar tree and defense counsel removed it
     
  14. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    Judge probably plans on it resolving shortly after his dispositive motion deadline.
     
  15. Gallant Knight

    Donor
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    Think it’s 60-40 we end up trying it
     
  16. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    I don't know Texas's premises liability law, but I can tell you that there'd be about a 0% chance that case would try in Federal Court here.
     
  17. Gallant Knight

    Donor
    Arkansas Razorbacks

    They’re offering 25% of my clients medical bills
     
  18. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    That's because they like their liability position. If it's a good one, they'll win summary judgment and pay 0% of your client's medical bills. If they lose summary judgment, they'll start negotiating with an eye to damages and it'll likely be enough to settle (especially with a 4th of July trial date).
     
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  19. Gallant Knight

    Donor
    Arkansas Razorbacks

    Ha judge told them at the scheduling conference that she wouldn’t consider their summary judgment

    Defense counsel said might file on on an open and obvious condition and judge said if it was open an obvious you should’ve cleaned it up
     
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  20. Sammy Meatballs

    Sammy Meatballs Well-Known Member
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    A slip and fall with no jury selection on a holiday week sounds like a 5 minute defense verdict

    And a juror may key your car on the way out
     
  21. BamaNug

    BamaNug GUWOP
    Donor
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    :angry:

    I know I've said it before in this thread, but I remember in law school when I thought all Judges were the best of the best and the smartest in the room. Man was I naive

    Had oral arguments on an Oregon MSJ a few months back--modified comparative negligence, so if Plaintiff is over 50% she is barred from recovery. She was driving down the interstate, center lane of 3, in rush hour traffic. She sees ducks in the road, slams on brakes--goes from 60 to 0 mph in a matter of seconds. She's a veterinary tech and says she stopped because of her love of animals. Our guy can't stop in time, rear-ends her at about 20-25 mph. Have dashcam footage of the whole thing--he couldn't switch lanes because of cars on either side, just locked up his brakes and slid into her.

    She admitted to the cops she stopped because of ducks in the roadway. During her deposition, she admitted it. She also admitted that if she doesn't stop for ducks, the accident does not occur.

    In denying our MSJ, the Judge stated, "Mr. Nug, you're in a bad position because of this particular Plaintiff--she loves animals, you just have the ultimate eggshell skull Plaintiff. Anybody else and I like your position." I almost bit a fucking hole through my lip.

    :bang::bang::bang:
     
  22. BamaNug

    BamaNug GUWOP
    Donor
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    What do you know, you don't even practice law
     
  23. Gallant Knight

    Donor
    Arkansas Razorbacks

    Most judges are judges because they can’t make real money practicing law
     
  24. 941Gator

    941Gator TMB's resident beach bum
    Staff Donor
    Florida Gators

    it's amazing to me that there is essentially no training besides job experience, which may be unrelated to that area of law for them.
     
  25. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    That's not normally true with Federal judges. I suppose that's changing, though.
     
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  26. BamaNug

    BamaNug GUWOP
    Donor
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    Discovered this while practicing in AL--Alabama is the only state in the US that administers its workers' compensation scheme through the civil court system, whereas the other 49 states have specialized ALJs. So you have judges who have no idea about workers' compensation determining disability ratings, PT awards, etc. (and judges can overrule a doctor's opinion on impairment ratings); or the opposite--career work comp attorneys ruling on criminal cases, etc.

    Makes zero sense.
    Agree on all counts. It's traditionally been more merit based in Fed Courts, but the past couple years is trending in the wrong direction.
     
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  27. bro

    bro Hey Hermano
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    I currently work for a Colorado state court judge. She was doing big firm insurance stuff making a ton but hated it and then was a DA for 17 years. She is quite rich. She was also a National Park Ranger for like 6 years, so she is also a bad ass.

    At the same time, when new judges begin, they flounder for a long time and I agree that it is wild that they just get thrown in there was no help or guidance besides short convos with seasoned judges,
     
  28. bro

    bro Hey Hermano
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    :roll: what the fuck
     
  29. bertwing

    bertwing check out the nametag grandma
    Staff Donor
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    One of the buttfucks at your old firm tried to depose me on an old case this month
     
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  30. dome foam

    dome foam ¯\_(ツ)_/¯
    Texas LonghornsHouston AstrosHouston RocketsHouston Texans

    sounds like judge Hughes...
     
  31. herb.burdette

    herb.burdette Meet me at the corner of 8th and Worthington
    Donor
    Ohio State Buckeyes

    Sounds to me like the judge is pissed it got removed to his court and set a 6 month trial date to send defendant a message.
     
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  32. Gallant Knight

    Donor
    Arkansas Razorbacks

    I didn’t want it to get removed trust me. Texas state courts are the Wild West

    Will probably start contributing the max to every judge next election cycle
     
  33. Gallant Knight

    Donor
    Arkansas Razorbacks

    Rosnethal
     
  34. BUstang

    BUstang Don't go in woods if you scared of da wolves

    If it was Hughes he would have been sanctioned at the scheduling conference for filing the lawsuit
     
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  35. Gallant Knight

    Donor
    Arkansas Razorbacks

    I told rosenthal that I paid my money and that I would be trying the case
     
  36. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    I think a six month trial date in a premises case is favorable to the defendant. It needs one deposition; plaintiff will need several.
     
  37. RJF-GUMP

    RJF-GUMP Daubert Qualified in Cooler Thermodynamics
    Donor TMB OG

    Our premises law is tough. Summary judgment always a threat. I take very very few.
     
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  38. herb.burdette

    herb.burdette Meet me at the corner of 8th and Worthington
    Donor
    Ohio State Buckeyes

    Maybe, but most federal judges assume defendants aren’t going to try the case and will settle.
     
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  39. herb.burdette

    herb.burdette Meet me at the corner of 8th and Worthington
    Donor
    Ohio State Buckeyes

    . . . and sue some nondiverse defendants.
     
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  40. ukcats8

    ukcats8 smugapari
    Donor
    Kentucky Wildcats

    I have an issue with SoL for a PI case. Apparently the case was filed exactly 1 year + 1 day after the fall. I am struggling with how to word my research, limited to casemaker/google. How would ya'll word this? Applicable statute: KRS 413.140. I really hope I don't have to make an equitable tolling argument. Lead attorney seems to think there is a case that says the SoL starts or ends +1 day, but that doesn't sound right to me.

    edit
    Was able to find it using "statute of limitation computation of time." Apparently Ky has a statute stating the +1 day rule.
     
    #6890 ukcats8, Feb 13, 2019
    Last edited: Feb 13, 2019
  41. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    555 S.W.2d 579
     
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  42. wes tegg

    wes tegg I'm a Guy's guy, guys.
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  43. Ray McKigney

    Ray McKigney Feel my ubiquity
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    Anyone here have any experience with trying to pierce the corporate veil of a single member LLC to execute on a default judgment against the LLC by going after the house/personal assets of the single member of the LLC?

    I think I need to file a separate complaint against the llc to pierce the corporate veil based on facts learned in discovery on the second complaint, but it all is so foreign to me, being a defense attorney my entire career.
     
  44. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    I have. When you say "separate complaint against the llc," do you mean separate from the one against the individual? If so, I think you'd generally want to operate under the same action. Your goal is more than likely going to be to show that the LLC/individual are one in the same, and that's going to be easier to do when you're in front of one judge on one action number. It's a pretty mushy, fact-driven process.
     
    #6894 wes tegg, Feb 13, 2019
    Last edited: Feb 13, 2019
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  45. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    Also, you may not have to pierce the corporate veil to achieve your goal. If some of that property is held through the LLC, your state may allow you to get a charging order for their membership interest in the LLC (Alabama has a statute that lets you do this). You generally have to couple it with a garnishment.
     
  46. Gallant Knight

    Donor
    Arkansas Razorbacks

    does a homeowners policy cover assault by the homeowner?

    have a case where a dude beat the shit out of a uber driver and was charged with elder abuse

    i had a pi run an asset search and it looks like the guy doesn't have any assets even though he lives in a good part of houston and is c-level at a pretty big real estate investment firm in town.

    client really wants to sue the guy, and i spent like 1k on a pi and want to get my money back plus some.
     
  47. Brandon Chicken

    Brandon Chicken Chow Time
    Donor

    I just remembered a case I had a long time ago where we argued that the plaintiff missed the statute by a day because one of the intervening years was a leap year. Haha. The court granted the motion but only because the pro se plaintiff failed to appear the hearing. Easily the most ridiculous (and likely wrong) argument I ever been a part of.
     
  48. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    It depends on the policy. Most include some kind of exclusion for intentional acts. But, they'll normally still defend under a reservation of rights, so you'll have some chance at getting something out of the deal. Be careful, though, because you can litigate your way out of coverage by getting too greedy.
     
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  49. Ray McKigney

    Ray McKigney Feel my ubiquity
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    We already have a default judgment with liquidated damages against the LLC, which I should have mentioned initially. The whole reason we initiated the complaint against the LLC was because the sole member of the LLC sued my client (in his individual capacity as a former employee). During the investigation we learned that his LLC had a prior distribution agreement / relationship with my client before he became an employee.

    So I don’t really know where to go other than a separate complaint against LLC to try to pierce the corporate veil, considering all of our claims and allegations are assumed to be true now and we have liquidated damages.

    I checked the register of deeds in the county in which he lives to see if he llc owned any property and it does not, from what I have gathered.
     
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  50. wes tegg

    wes tegg I'm a Guy's guy, guys.
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    Got it. It sounds like you're on the right track then. In Alabama, you can execute on personal property, so if your state is the same it might be worth looking to see if there are any vehicles, equipment, etc. belonging to the LLC. That'll probably be where you'll see a lot of comingling of funds, too.