Update (February 28, 2014): In the original post, below, I covered (AGAIN) the subject of the importance, the subtlety, and the challenge of pleading diversity jurisdiction when your adversary is a business entity such as an LLC, a partnership, or association.
Getting information about the citizenship of all of the members of these entities (which might be partnerships within partnerships, within LLCs, and so on), which must be plead to establish the existence of diversity jurisdiction, can be daunting to say the least. In the original post, I wrote,
Our judges frequently find fault with lawyers for failing to investigate the citizenship of LLCs. But one wonders how many times they have tried to ferret out this information. Google is not up to the task. On the other hand, plainly the fact that this information can be obscure or hard to find does not absolve lawyers from the obligation of undertaking an investigation. Anyone want to comment and advise on the quickest cheapest means for determining the citizenship of all of an LLC’s “members and ‘sub-members’ and ‘sub-sub-members’”?
I bear some good news on this score. I had the good fortune of crossing paths with U.S. District Court Judge Joan N. Ericksen (D. Minn.) at a CLE this week and she suggested that a litigant pleading diversity of citizenship in these complex circumstances does not have to have these sometimes impossible to discover inter-relationships and sub-relationships hammered out before filing suit (particularly impossible when the defendants are not interested in cooperating with any investigation of course). Judge Ericksen’s upshot: Minnesota litigators must, however, be aware of the issue, must take steps to meet the requirements of diversity jurisdiction and, if there are open questions, there is always the later possibility of jurisdictional discovery (where defendants will not have the luxury of being able to refuse to cooperate).
The point is that federal civil litigators need to be aware of the issue, not omniscient. (Otherwise, a case can be litigated for years in federal court for nothing when the case was dead from the start due to lack of subject matter jurisdiction (as in this case). No one wants that.).
Update (February 27, 2014): Trial is pretty crazy in many different respects. I analogize a trial lawyer to a theater director directing a play with untrained actors, no dress rehearsal, a single performance (normally), an audience who really, really, really does not want to be there, and adversaries who are like scheming stage-hands slinking backstage to do everything they can imagine to sabotage your show while putting on a show of civility (and on their own show alongside yours with roles reversed).
Courts have the overwhelming task of presiding over this whacky co-production with the goal ending up with something resembling “justice” (undefinable) results.
The challenge is displayed well in a recent brou-haha just before the start of a trial this week before U.S. District Court Chief Judge Michael J. Davis (D. Minn.). After years of litigation, just before trial of an employment discrimination case, defense counsel is subsituted, new counsel wants to add witnesses for trial and, surprise!, plaintiff’s counsel also has some new ideas for trial. You can be sure that everyone has completely innocent explanations (here are some).
It is no easy job that judges have to figure out who is monkeying around and who is preparing for a full, fair trial in good faith. The simple fact is that it is difficult not to have surprise developments as one heads into trial.
It seems to me that judges should lean in favor of allowing each side to put on its best case and to allow material evidence to into evidence unless the suggestion of impropriety and gamesmanship is quite clear. And it seems to me that Judge Davis’ order on the cross-motions in the Dupont v. Allina Health System case leans the same way.
Update (February 26, 2014): I confess that sometimes I feel ALMOST as much sympathy for those dabbling in the dark art of debt collection as I feel for the debtors who have to be on the receiving end of these communications. In a recent decision on cross-motions for summary judgment before U.S. District Court Donovan W. Frank (D. Minn.), (denying both sides’ motions) we get to sit in on telephone conversations between a debt collector and a debtor in which the debtor questions whether the collector wants the debtor to pay the debt by getting money from out of her excretory tract.
As it turns out, there can be a fair bit of cash down there if you know what you’re doing. Butt, as a proctical matter, the point is that debt collectors are held to fairly high standards of what they must say and what they may say. The folks on the other end of the line do not have the same constraints.
Update (February 15, 2013): (Under the subject line: FDCPA and The Lawful Squeeze: Keep It Real): The FDCPA applies to DEBT COLLECTORS, not debt collectors and figuring out the difference is how lawyers make the big bucks. Seriously, when a company is collecting its own debt in its own name, it falls outside the FDCPA. From the FDCPA’s point of view, the company is not a “debt collector” under those circumstances; it is a creditor to whom the federal statute does not apply.
What if the company collecting the debt advertises in such a way that the consumer is unaware of the company name and is confused by the company’s later debt collection calls? How could that happen? Let’s say the consumer hooks up with the company through an internet come-on which does not highlight or disclose the company name. Again, the FDCPA targets companies that collect debts owed to others, not people or companies collecting their own debts. Therefore, the fact that a consumer might be unaware of the company name of a creditor does not somehow convert the company into a debt collector under the FDCPA. So held Sr. U.S. District Court Judge Richard H. Kyle (D. Minn.) this week in a typically direct. succinct, and correct decision (if I do say so myself).
Original post (May 9, 2012): The Fair Debt Collection Practices Act (FDCPA) has been around since 1977 when it was signed into law by Jimmy Carter on September 20, which just happens to be the very day that Fonzie first jumped the shark. (Coincidence? You decide.)
Seriously, the law has been around as long as Namie Amuro and debt collectors still cannot figure out how to comply with it day in and day out? (Maybe this is because, in part, compliance with the statute as construed by many courts puts debt collectors between a rock and a hard place, Scylla and Charybdis, Morton’s Fork, Hobson’s Choice, or Catch 22, as U.S. Dist. Ct. Judge Joan N. Ericksen (D. Minn.) recently wrote?)