X hits on this document





6 / 13

In this case, the Committee has chosen the federal court as its preferred forum, as is its

right. Federal courts generally will respect this right, and even speak of a “duty to sit” so as to

afford the plaintiff the forum that the plaintiff first selected (so long as jurisdiction exists and

there is no obvious abuse). See e.g., Berthelot v. Boh Bros. Const. Co. L.L.C., 431 F.3d 639,

651 (E.D. La. 2006). Some courts speak of permissive abstention as an appropriate antidote for

“forum shopping,” see, e.g., In re Encompass Servs. Corp., 337 B.R. 864 (Bankr. S.D. Tex.

2006), but the evil is often in the eye of the beholder. All plaintiffs who have a choice of forums

in which to bring litigation engage in de facto “forum shopping” as soon as they pick one

available forum over the other. All defendants who have the ability to do so similarly engage in

“forum shopping” when they remove state court litigation to federal court, or when they invoke a

particular remedy (such as a jury demand) in order to get out of the bankruptcy court and into the

district court. In all these situations, however, the parties are simply exercising rights afforded

them under the law – rights which can serve their interest in selecting the forum they deem most

favorable, but which are no less rights entitled to vindication regardless the motivation behind

their use.

For forum shopping to become a significant factor in the abstention calculus, it must rise

to a level demonstrating an attempt to abuse or manipulate the judicial process. The Fifth Circuit

has said (albeit in the context of a declaratory judgment action brought by insurance company)


[T]he fact that federal forums are sought by some [plaintiffs] in an attempt to avoid the state court system, does not necessarily demonstrate impermissible forum selection when the declaratory judgment out-of-state plaintiff invokes diversity. Rather it states the traditional justification for diversity jurisdiction, to protect out-of-state defendants. Sherwin-Williams, 343 F.3d at 399 (internal citation and quotation marks omitted). Instead, a court is more likely to find a plaintiff engaged in impermissible forum shopping where the federal action would change the applicable law. See id. at 397, 399; Mission Ins. Co. v. Puritan Fashions Corp., 706 F.2d 599, 602 n. 3 (5th Cir. 1983).


Document info
Document views13
Page views13
Page last viewedSun Oct 23 12:44:56 UTC 2016