Latest Removal Procedure Ruling in Alabama

Earlier this month, Alabama Chief District Judge Watkins issued an opinion dealing with removal procedure in Stewart v. Bureaus Investment Group #1, 2011 WL 2313213.

In the Circuit Court of Macon County, Alabama, Bureaus brought a debt-collection action against Stewart.  Stewart answered and filed a counterclaim complaint, asserting a claim under the Fair Debt Collection Practices Act (FDCPA) and various state-law-based claims.  Bureaus dismissed its debt-collection complaint, leaving pending only Stewart’s counterclaims. 

Interestingly, Bureaus then moved to realign the parties and the state court granted its motion.  Thereafter, Bureaus filed a notice of removal, asserting federal-question jurisdiction, predicated on the FDCPA claim.  Stewart filed a motion to remand and argued that there was no removal jurisdiction because only defendants may remove and, when the matter was commenced Bureaus was the plaintiff.

As noted by Chief Judge Watkins, no Circuit Court of Appeals has addressed “whether an order of realignment by a state court can allow a former plaintiff, now defendant, to remove a case to federal court based upon a pleading that was originally filed as a counter-complaint.”  Chief Judge Watkins determined that such a former plaintiff/now defendant could and subsequently denied Stewart’s motion to remand.  Because removal jurisdiction is determined based on the situation at the time of removal, for Chief Judge Watkins, at the time of removal, Stewart was the plaintiff prosecuting claims against Bureaus, the defendant.  The prior procedural history was immaterial in the analysis.

Likely, Stewart did not oppose the motion for realignment because she believed that there was no possibility of removal because Bureaus had instituted the litigation as the plaintiff.  The lesson to be drawn is that, if confronted with this scenario, one should oppose a motion to realign because the motion is being filed solely to divest the state court of jurisdiction and unnecessary for any other purpose.  Chief Judge Watkins’s analysis may be correct but it would be interesting to see if the Eleventh Circuit would affirm if there is ever any appellate review. Obviously, this case could turn out significantly different in another venue.

Our firm handles many cases dealing with the above issues. Most of the cases we handle involve victims of identity theft who have their credit wrecked by the credit companies, collection agencies and the credit reporting agencies who do not practice due diligence when handling someone’s credit rating and score. Credit score has become one of the single most important tools used in the financial world today. Deciding whether to file in state or federal court is a major decision when handling these types of cases. If you have been a victim of identity theft and your credit rating has been negatively affected, contact me today for a free case evaluation.

ALABAMA SUPREME COURT SHORTENS STATUTE OF LIMITATIONS FOR WANTONNESS CLAIMS

In a move that is more symbolic than practical, the Alabama Supreme Court issued an opinion earlier this month effectively holding that the statute of limitations for a wantonness claim is two years and not six years. The case, Ex parte Capstone Building Corporation, No. 10900966, overruled the holding in McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004). The Court found that McKenzie was wrongly decided and that there should be a return to the historical position of the two-year period. Chief Justice Cobb was the lone dissentor.

The Court’s ruling will be prospective only and will apply to any existing claims that would expire more than two years from the date of the decision. The Court ruled that, “litigants whose causes of action have accrued on or before [June 3, 2011] shall have two years from today’s date [June 3, 2011] to bring their action unless and to the extent that the time for filing their action under the six-year limitations period announced in McKenzie would expire sooner.” For example, if someone was injured in Alabama on June 3, 2006, they would only have until June 3, 2012, and not June 3, 2013, to file a claim.

The change has little practical effect because almost all wantonness claims are paired with negligence claims. The statute of limitations for a negligence claim in Alabama is currently two years.

DePuy Pinnacle MDL News

Our firm has four of the first Pinnacle cases filed in the DePuy Pinnacle MDL and anticipates filing more in the coming months. We are seeing rapid failures of the device due to high cobalt levels in blood tests. Excessive levels of cobalt in the blood stream is a sign of metallosis, which can cause rashes, soft-tissue damage, peripheral neuropathy and pseudo-tumors.

The DePuy Pinnacle cases have been consolidated in the U.S. District Court for the Northern District of Texas under Judge James E. Kinkeade. Judge Kinkeade is currently presiding over at least one of the cases, and the Panel determined his current caseload will accommodate the litigation. There are approximately 57 DePuy Pinnacle hip lawsuits currently pending in federal courts nationwide and that number is expected to rise over the next few months. 

DePuy is a subsidiary of Johnson & Johnson, one of the largest corporations in the world. DePuy recalled the ASR XL Acetabular hip system last August, after researchers found 13 percent of patients needed a repeat operation to fix problems with the implant. The company took a $280 million charge in the fourth quarter to pay for the recall. The company faces more than 500 lawsuits by patients who had the hip implants, most of which are consolidated in a separate MDL dealing only with ASR hips. There has been no recall of the DePuy Pinnacle hip.

Johnson & Johnson’s DePuy Orthopaedics division, a maker of artificial prosthetics such as hips and knees, has struggled with product recalls and lawsuits over faulty implants lately. It was announced earlier this year that the worldwide president would leave the company in March. The executive, David Floyd, has been president of the unit since 2007. He is leaving to pursue interests outside the company, a spokesman on behalf of the company, Lorie Gawreluk, said, declining to be more specific.

Our firm is currently investigating claims for those people who have been implanted with the DePuy hip replacement devices, both ASR and Pinnacles. If you would like a free case evaluation, please contact Booth Samuels at toll free 1-866-515-8880 or at booths@pittmandutton.com.