Removal Tip # 2 – Repleading After Removal

The Federal Rules of Civil Procedure do not require parties to replead following removal. FRCP 81(c)(2). But Judge Jordan notes in this order that the parties should note the different pleading standards in state and federal court, including: (1) FRCP 8(b) mandates that a defending party admit or deny each allegation; and (2) FRCP 9 sets forth heightened pleading requirements for certain matters. “In the interest of efficient management of its docket,” the court ordered the parties “to replead as necessary to comply with the Federal Rules of Civil Procedure and the Court’s Local Rules” noting helpfully that Local Rule CV-7 renders moot all motions urged prior to removal. But there’s an exception to all this. In the event that Plaintiff files a timely motion for remand, the deadlines set forth in the order are suspended pending resolution of the motion. If the Court denies the motion to remand, Plaintiff’s amended complaint will be due thirty (30) days from the date on which the order denying remand is signed.

Removal Tip #1 – Jurisdictional Pleadings

In the Moreno v. Florida Gator Flower Mound case, Judge Jordan was confronted with a notice of removal which did not allege facts establishing diversity of citizenship. The problem in this case was the not uncommon failure of lawyers to distinguish between a party’s “residence” and their “citizenship.” The plaintiff was alleged to “reside” in Texas. But it wasn’t alleged that the plaintiff was a “citizen” of Texas. No, we’re not passing out state ID cards yet. What the Court is looking for is the affirmative allegation that the plaintiff is a “citizen” of Texas, which also requires “the purpose to make the place of residence one’s home.” Mere residence isn’t enough.

Department of Labor Minimum Salary Rule Enjoined

Picking up where Judge Mazzant left off in 2017, Judge Jordan enjoined a Department of Labor regulation which raises the minimum salary at which executive, administrative, and professional (“EAP”) employees are exempt from overtime pay under the Fair Labor Standards Act (“FLSA”). He found that the 2024 rule “reflects a return to the unlawful approach [the Department] adopted in the 2016 Rule” and was likely unlawful as exceeding the Department’s authority under the FLSA.

Motion for Summary Judgment Denied; Claims Dismissed

No, that’s not a typo. Plaintiff sought summary judgment on all the claims in the case – both against her and as to her counterclaims. After requesting supplemental briefing on the viability of the counterclaims, Judge Jordan denied the motion as to her counterclaims under the Stored Communications Act (“SCA”), 18 U.S.C. § 2701, et seq., and the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, et seq., and then dismissed them under FRCP 56(f) because both failed as a matter of law.

Post-Trial Motions

Yes, post-trial motions and collections of World War II carrier aircraft are both favorite topics of mine, but that’s not why you’re seeing a collection of TBD-1s at the top of this post. You’re seeing it because the process of researching and building multiple iterations of the same subject but each with its own variations is analogous to Judge Sean Jordan’s order resolving multiple post trial motions in this 10-plaintiff employment discrimination case, which required careful analysis of the evidence adduced at trial as to each claim against each defendant.