Following up on my earlier post and Walter's note on Byron Stier's personal experience, let me add my own war story, complete with PACER citations to briefs I wrote nine and a half years ago.

In Connors v. Multimedia Games, #: 3:98-cv-01014-K-JFS (S.D. Cal.), plaintiffs filed a putative securities class action in the Southern District of California on May 29, 1998. The case was assigned to Judge Judith N. Keep, and plaintiffs were apparently dissatisfied with that draw. They moved on July 7 to relate the securities litigation to a pending dispute over Indian gaming in front of Judge Marilyn N. Huff on the grounds that our defendant client was involved in the business of Indian gaming. (This is called the "low-number" rule, in reference to the idea that when two related cases are assigned to different judges, they should both be assigned to the judge with the case with the lower docket number.) We objected on July 16, pursuant to the rules, but the clerk's office had already on July 13 accepted the transfer to the "low-number" case, and order for such was granted on July 27. We moved for reconsideration on August 5 because the cases weren't remotely related on the facts or the law, and the Court undid the erroneous low-number transfer a week later, returning the case to Judge Keep. (The battle of the judges ended up being moot a few months later when the Judicial Panel for Multidistrict Litigation sent the case to the Northern District of Oklahoma, where a similar securities action was pending.)

But, as our brief mentioned, the Ninth Circuit then viewed low-number judge-shopping a matter for sanctions. Hernandez v. City of El Monte, 138 F. 3d 393 (9th Cir. 1998). Perhaps the Eastern District of New York is less willing to countenance this sort of procedural objection—but the Second Circuit has previously granted mandamus when the court abuses its discretion to low-number a case without the required commonality. In re Repetitive Stress Injury Litig., 11 F.3d 368, 373-74 (2d Cir. 1993). Given the armies of attorneys tobacco companies send into their bet-the-company litigation, I'd be really surprised if I, as a twenty-something junior associate, came up with a strategy that millionaire senior defense litigators haven't already considered, but I also wonder why we haven't heard anything about mandamus against these shenanigans, especially when the Second Circuit is expressing overt skepticism about the Eastern District's practices.

Tags:

• related case