Associates’ Corner: Opposing the Transfer of a Case to the Complex Business Litigation Section – Can You Stop It?
By Kluger Kaplan January 28, 2013
By Meredith A. Nelson
Rule 1.201 of the Florida Rules of Civil Procedure governs the types of cases that qualify as “Complex Litigation” for the purpose of being transferred to a Complex Business Litigation division section (“CBL”). While parties may agree, by stipulation, to transfer a case into the CBL, oftentimes, the parties do not agree. It is not uncommon for one party to propose a transfer after a series of court orders that hurt that party’s case.
When deciding whether to transfer a case to CBL, the presiding judge must evaluate the following factors:
(A) numerous pretrial motions raising difficult or novel legal issues or legal issues that are inextricably intertwined that will be time-consuming to resolve;
(B) management of a large number of separately represented parties;
(C) coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court;
(D) pretrial management of a large number of witnesses or a substantial amount of documentary evidence;
(E) substantial time required to complete the trial;
(F) management at trial of a large number of experts, witnesses, attorneys, or exhibits;
(G) substantial post-judgment judicial supervision; and
(H) any other analytical factors identified by the court or a party that tend to complicate comparable actions and which are likely to arise in the context of the instant action.
Fla. R. Civ. P. 1.201(a)(2). Among the other factors that may be considered by the court are the impact on the parties’ business and whether the case requires a high degree of management and would benefit from the services of a magistrate.
However, what happens when the motion to transfer the case comes after a series of adverse rulings against the moving party? What if a judge has previously dismissed two (or more) versions of the complaint? When does a motion to transfer a case to CBL amount to mere forum shopping?
The court will hear arguments and evaluate the factors set forth in Rule 1.201(a)(2). If you are opposing a transfer because you believe the movant is simply forum shopping, here are some arguments to consider making (where applicable):
1) If the moving party is claiming there are multiple parties, are the parties in fact all related? Are they represented by the same counsel? If so, the “numerous parties” factor may be a red herring.
2) If the moving party is claiming there are complex legal issues to resolve but is facing a third or fourth motion to dismiss the complaint, consider whether the plaintiff is attempting to manufacture complexity by adding improper claims or through cleaver or intentionally confusing pleading. Perhaps there are no complex legal issues, but rather a plaintiff who is trying to create complex legal issues where none exist as a means of getting the case moved to what the plaintiff hopes will be a more favorable judge. If a trial court judge has already evaluated the claims and dismissed the complaint more than once, the case may not be complex simply because the plaintiff’s complaint is confusing.
3) Where the moving party claims that there will be substantial discovery and significant management of experts, witnesses, and exhibits, consider whether such an argument is premature. If you have not yet begun discovery, it may be inappropriate to move the case to the complex business litigation division based upon speculative concerns regarding future discovery issues.
These are only some arguments to consider when opposing a motion to transfer. The specific facts of each case will help to guide the opposing party in crafting his or her argument against transfer to CBL.