Hostname: page-component-76fb5796d-9pm4c Total loading time: 0 Render date: 2024-04-30T06:05:28.712Z Has data issue: false hasContentIssue false
  • English
  • Français

Why Do In-State Plaintiffs Invoke Diversity Jurisdiction?

Published online by Cambridge University Press:  30 June 2023

Scott Dodson Open the ORCID record for Scott Dodson [Opens in a new window]
Scott Dodson*
Affiliation:
James Edgar Hervey Chair in Litigation, Geoffrey C. Hazard Jr. Distinguished Professor of Law, and Director of the Center for Litigation and Courts, University of California Law, San Francisco, United States dodsons@uchastings.edu
Get access Rights & Permissions [Opens in a new window]

Abstract

The traditional rationale of federal diversity jurisdiction is to protect out-of-state parties from the risk of an appearance of state-court bias in favor of an in-state adversary. Yet a strikingly high percentage—more than 50 percent—of original domestic-diversity cases are filed by in-state plaintiffs. Why these in-state plaintiffs invoke diversity jurisdiction is a question that has largely been ignored in the literature. Drawing on docket data and an original dataset based on responses to a survey sent to more than twelve thousand attorneys who represented in-state plaintiffs in domestic-diversity cases, I find that these plaintiffs can be grouped into roughly three categories. The first category is composed of tort cases, filed by individual plaintiffs against corporate defendants, that are eligible for consolidation with an existing federal multi-district litigation. The second category is composed of in-state corporate plaintiffs represented by attorneys who tend to represent defendants in federal court and who invoke diversity jurisdiction primarily based on perceptions of advantages of federal procedure, efficiencies and conveniences of federal practice, and superior quality of federal court. The third category is composed of in-state plaintiffs represented by attorneys who tend to represent plaintiffs in state court and who invoke diversity jurisdiction to preempt the defendant’s likely removal of the case. My findings offer grounds for reforming diversity jurisdiction in more tailored and nuanced ways than have previously been proposed.

Type
Articles
Information
Law & Social Inquiry , First View , pp. 1 - 44
Copyright
© The Author(s), 2023. Published by Cambridge University Press on behalf of the American Bar Foundation

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

Thanks to Hadar Aviram, Josh Davis, Ben Depoorter, Jared Ellias, Jonah Gelbach, Deborah Hensler, William Hubbard, Emery Lee, Rick Marcus, Roger Michalski, Jonathan Remy Nash, Tom Rowe, Jodi Short, and others. This project benefited from comments received at the 2021 Civil Procedure Workshop, the 2021 University of California Hastings Law Summer Workshop, the 2022 Bay Area Procedure Forum, the 2022 Law and Society Annual Conference, the 2022 Brooklyn Law School colloquium series, and the 2023 Civil Procedure Workshop. Data gathering was supported by grants from the American Association for Justice Robert L. Habush Endowment and the University of California Law Chip Robertson Fund. Four anonymous referees made outstanding suggestions for improvement. Elodie Chervin, Claire Arnaiz, Justine Chang, George Morris, and Isha Varazini provided excellent research assistance.

References

REFERENCES

American Law Institute. 1969. “Study of the Division of Jurisdiction Between State and Federal Courts.” Philadelphia: American Law Institute.Google Scholar
Anonymous. 1965. “The Choice Between State and Federal Court in Diversity Cases in Virginia.” Virginia Law Review 51, no. 1: 178–97.CrossRefGoogle Scholar
Ball, George W. 1933. “Revision of Federal Diversity Jurisdiction.” Illinois Law Review 28: 356–78.Google Scholar
Bradt, Andrew D., and Theodore Rave, D.. 2018. “Aggregation on Defendants’ Terms: Bristol-Myers Squibb and the Federalization of Mass-Tort Litigation.” Boston College Law Review 59, no. 4: 1251–97.Google Scholar
Bumiller, Kristin. 1980. “Choice of Forum in Diversity Cases: Analysis of a Survey and Implications for Reform.” Law & Society Review 15, no. 3: 749–74.CrossRefGoogle Scholar
Burbank, Stephen B. 2008. “The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View.” University of Pennsylvania Law Review 156, no. 6: 1439–1551.Google Scholar
Burbank, Stephen B., and Farhang, Sean. 2014. “Litigation Reform: An Institutional Approach.” University of Pennsylvania Law Review 162, no. 6: 1543–1618.Google Scholar
Burch, Elizabeth Chamblee, and Williams, Margaret S.. 2017. “Repeat Players in Multidistrict Litigation: The Social Network.” Cornell Law Review 102, no. 6: 1445–1538.Google Scholar
Clermont, Kevin M., and Eisenberg, Theodore. 2000. “Anti-Plaintiff Bias in the Federal Appellate Courts.” Judicature 84, no. 3: 128–34.Google Scholar
Clopton, Zachary D. 2018. “Procedural Retrenchment and the States.” California Law Review 106, no. 2: 411–80.Google Scholar
Dodson, Scott. 2016. “The Gravitational Force of Federal Law.” University of Pennsylvania Law Review 164, no. 3: 703–53.Google Scholar
Dodson, Scott. 2018. “Personal Jurisdiction and Aggregation.” Northwestern University Law Review 113, no. 1: 1–45.Google Scholar
Dodson, Scott. 2019a. “Beyond Bias in Diversity Jurisdiction.” Duke Law Journal 69, no. 2: 267–322.Google Scholar
Dodson, Scott. 2019b. “Plaintiff Personal Jurisdiction and Venue Transfer.” Michigan Law Review 117, no. 7: 1463–86.CrossRefGoogle Scholar
Eisenberg, Theodore, and Schlanger, Margo. 2003. “The Reliability of the Administrative Office of the US Courts Database: An Initial Empirical Analysis.” Notre Dame Law Review 78, no. 5: 1455–96.Google Scholar
Federal Courts Study Committee. 1990. “Report of the Federal Courts Study Committee.” Rockville, MD: Federal Courts Study Committee.Google Scholar
Federal Judicial Center. 2021. Federal and State Forum Preferences: A Survey of Attorneys in Recently Closed Diversity Jurisdiction Cases. Washington, DC: Federal Judicial Center.Google Scholar
Flanders, Steven. 1980. The 1979 Federal District Court Time Study. Washington, DC: Federal Judicial Center.Google Scholar
Flango, Victor E. 1991. “Attorneys’ Perspectives on Choice of Forum in Diversity Cases.” Akron Law Review 25, no. 1: 41–122.Google Scholar
Flango, Victor E. 1995. “Litigant Choice between State and Federal Courts.” South Carolina Law Review 46, no. 5: 961–77.Google Scholar
Frank, John P. 1979. “The Case for Diversity Jurisdiction.” Harvard Journal on Legislation 16, no. 2: 403–14.Google Scholar
Friendly, Henry J. 1973. Federal Jurisdiction: A General View. New York: Columbia University Press.Google Scholar
Gohn, Jack L. B., and Oliver, Michael D.. 1993. “In Pursuit of the Elusive TRO.” Litigation 19, no. 4: 25–30.Google Scholar
Goldman, Jerry, and Marks, Kenneth S.. 1980. “Diversity Jurisdiction and Local Bias: A Preliminary Empirical Inquiry.” Journal of Legal Studies 9, no. 1: 93–104.CrossRefGoogle Scholar
Hadfield, Gillian. 2004. “Where Have All the Trials Gone? Settlements, Nontrial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal Civil Cases.” Journal of Empirical Legal Studies 1, no. 3: 705–34.CrossRefGoogle Scholar
Jones, Robert L. 2007. “Finishing a Friendly Argument: The Jury and the Historical Origins of Diversity Jurisdiction.” New York University Law Review 82, no. 4: 997–1101.Google Scholar
Judicial Conference of the United States. 1977. Report of the Proceedings of the Judicial Conference of the United States. Washington, DC: Judicial Conference of the United States.Google Scholar
Kramer, Larry. 1990. “Diversity Jurisdiction.” Brigham Young University Law Review 1990, no. 1: 97–129.Google Scholar
Kritzer, Herbert M. 2022. “COVID-19 and the Multiple Worlds of Litigation.” DePaul Law Review 71, no. 2: 393–416.Google Scholar
Kopko, Kyle C., and Devine, Christopher J.. 2023. “Home Court Advantage? An Empirical Analysis of Local Bias in US District Court Diversity Jurisdiction Cases.” West Virginia Law Review 125, no. 2: 543–90.Google Scholar
Miller, Neal. 1992. “An Empirical Study of Forum Choices in Removal Cases under Diversity and Federal Question Jurisdiction.” American University Law Review 41, no. 2: 369–452.Google Scholar
National Center for State Courts. 1989. “How Would Proposed Changes in Federal Diversity Jurisdiction Affect State Courts?” Williamsburg, VA: National Center for State Courts.Google Scholar
Perlstein, Jolanta Juszkiewicz. 1981. “Lawyers’ Strategies and Diversity Jurisdiction.” Law and Policy Quarterly 3, no. 3: 321–40.CrossRefGoogle Scholar
Posner, Richard A. 1985. The Federal Courts: Crisis and Reform. Cambridge, MA: Harvard University Press.Google Scholar
Purcell, Edward A. Jr. 1992. Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958. New Haven, CT: Yale University Press.Google Scholar
Purcell, Edward A. Jr. 2000. Brandeis and the Progressive Constitution: Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America. New Haven, CT: Yale University Press.Google Scholar
Rosenblatt, Joel. 2019. “Uber Gambled on Driver Arbitration and Might Have Come Up the Loser.” Los Angeles Times, May 8.Google Scholar
Rowe, Thomas D. Jr. 1979. “Abolishing Diversity Jurisdiction: Positive Side Effects and Potential for Further Reforms.” Harvard Law Review 92, no. 5: 963–1012.CrossRefGoogle Scholar
Rowe, Thomas D. Jr., and Sibley, Kenneth D.. 1986. “Beyond Diversity: Federal Multiparty, Multiplatform Jurisdiction.” University of Pennsylvania Law Review 135, no. 1: 7–58.CrossRefGoogle Scholar
Sabino, Anthony Michaerl, Sabino, Michael A., and Sabino, James N.. 2017. “ Americold, Diversity Jurisdiction, and Modern Business Entities.” Journal of International Business and Law 16, no. 2: 165–213.Google Scholar
Shapiro, David L. 1977. “Federal Diversity Jurisdiction: A Survey and a Proposal.” Harvard Law Review 91, no. 2: 317–55.CrossRefGoogle Scholar
Summers, Marvin R. 1961–62. “Analysis of Factors that Influence Choice of Forum in Diversity Cases.” Iowa Law Review 47, no. 4: 933–40.Google Scholar
Courts, US. 2019. Federal Judicial Caseload Statistics. Washington, DC: US Courts.Google Scholar
US Joint Panel on Multidistrict Litigation. 2022. Pending MDLs. Washington, DC: US Joint Panel on Multidistrict Litigation.Google Scholar
Zambrano, Diego A. 2019. “Federal Expansion and the Decay of State Courts.” University of Chicago Law Review 86, no. 8: 2101–92.Google Scholar