WEBVTT
1
00:00:00.000 --> 00:00:03.000
SJC-3419.
2
00:00:03.000 --> 00:00:04.830
Michael Hanley and another
3
00:00:04.830 --> 00:00:07.293
v New England AutoMax Inc and another.
4
00:00:18.570 --> 00:00:21.020
Okay, attorney Aaronson, whenever you're ready.
5
00:00:24.180 --> 00:00:25.080
Good morning, your honors.
6
00:00:25.080 --> 00:00:25.973
May it please the court.
7
00:00:25.973 --> 00:00:28.792
Mark Aronson, I represent the petitioner's appellants
8
00:00:28.792 --> 00:00:29.836
in this case.
9
00:00:29.836 --> 00:00:32.493
With me is attorney William Raven.
10
00:00:32.493 --> 00:00:36.240
I've been referring to them in the brief as defendants
11
00:00:36.240 --> 00:00:38.570
and I will continue to do so today.
12
00:00:38.570 --> 00:00:41.218
We submit, this is an important case,
13
00:00:41.218 --> 00:00:43.620
not just to the parties here,
14
00:00:43.620 --> 00:00:46.950
but also to other litigants in the District Court
15
00:00:46.950 --> 00:00:49.350
who have rights created by statute
16
00:00:49.350 --> 00:00:52.560
to have cases of a certain value heard,
17
00:00:52.560 --> 00:00:55.546
either in the District Court or the Superior Court.
18
00:00:55.546 --> 00:00:59.195
Now, this appeal presents two main issues.
19
00:00:59.195 --> 00:01:03.090
One, should this court hear this appeal on the merits
20
00:01:03.090 --> 00:01:05.930
pursuant to general laws 2-11-3.
21
00:01:05.930 --> 00:01:09.090
And if so, did the District Court air in denying
22
00:01:09.090 --> 00:01:14.050
a rule 12B10 motion arguing improper amount of damages.
23
00:01:14.050 --> 00:01:17.220
I'd like to start with the first issue.
24
00:01:17.220 --> 00:01:18.330
As far as I can see it,
25
00:01:18.330 --> 00:01:20.743
my burden is to prove a substantial claim
26
00:01:20.743 --> 00:01:23.369
of a violation of a substantive right,
27
00:01:23.369 --> 00:01:28.080
an irremediable error, i.e error that cannot be remedied
28
00:01:28.080 --> 00:01:30.242
in the normal appellate process.
29
00:01:30.242 --> 00:01:32.730
And I'd like to start with the appellate process
30
00:01:32.730 --> 00:01:36.526
because that was the basis for the single justices denial.
31
00:01:36.526 --> 00:01:41.193
Excuse me, denial of the petition.
32
00:01:42.230 --> 00:01:47.230
In 2004 when general laws 21819 was enacted,
33
00:01:48.150 --> 00:01:52.500
the then chief judge of the District Court said, in a memo,
34
00:01:52.500 --> 00:01:56.460
denial of a rule 12B10 motion appears to be immune
35
00:01:56.460 --> 00:01:58.140
from appellate review.
36
00:01:58.140 --> 00:01:59.910
And that appears to be the case.
37
00:01:59.910 --> 00:02:01.910
This is an extraordinary situation
38
00:02:01.910 --> 00:02:05.343
and I recognize 2-11-3 relief is extraordinary.
39
00:02:06.180 --> 00:02:09.330
First, there's no direct appeal, that is foreclosed.
40
00:02:09.330 --> 00:02:12.647
We submit by the plain language of section 19.
41
00:02:12.647 --> 00:02:15.420
Otherwise, in terms of an interlocutory appeal,
42
00:02:15.420 --> 00:02:18.810
there is no statute or rule that would authorize one.
43
00:02:18.810 --> 00:02:21.507
Can you please address 230-108.
44
00:02:21.507 --> 00:02:25.980
230-108, that is, as I understand it, the enabling statute
45
00:02:25.980 --> 00:02:29.210
that creates appellate division jurisdiction.
46
00:02:29.210 --> 00:02:33.435
It references interlocutory appeals in two ways.
47
00:02:33.435 --> 00:02:36.847
But before I get there, in terms of a right to an appeal,
48
00:02:36.847 --> 00:02:39.149
it says an aggrieved litigant
49
00:02:39.149 --> 00:02:42.303
shall have the right to an appeal pursuant to the rules.
50
00:02:42.303 --> 00:02:45.840
And what is absolutely clear is the rules only permit
51
00:02:45.840 --> 00:02:48.120
a conventional post-judgment appeal.
52
00:02:48.120 --> 00:02:49.710
Sorry, can we just slow down and read the sentence
53
00:02:49.710 --> 00:02:52.248
because it's sort of important.
54
00:02:52.248 --> 00:02:56.150
Any party to a cause brought in the municipal court
55
00:02:56.150 --> 00:02:58.582
of the city of Boston or in any District Court,
56
00:02:58.582 --> 00:03:02.677
aggrieved by any ruling on a matter of law,
57
00:03:02.677 --> 00:03:06.593
by a trial court justice, may as of right,
58
00:03:06.593 --> 00:03:09.240
appeal the ruling for determination
59
00:03:09.240 --> 00:03:10.268
by the appellate division
60
00:03:10.268 --> 00:03:12.942
pursuant to the applicable rules of court.
61
00:03:12.942 --> 00:03:15.703
Do you think that that can reasonably read to say
62
00:03:15.703 --> 00:03:20.205
that they may appeal aggrieved by any ruling,
63
00:03:20.205 --> 00:03:22.609
they may as of right appeal
64
00:03:22.609 --> 00:03:26.250
unless the court decides to enact rules
65
00:03:26.250 --> 00:03:28.368
that preclude them from appealing?
66
00:03:28.368 --> 00:03:31.781
I think the answer is appellate jurisdiction
67
00:03:31.781 --> 00:03:34.890
is defined by the court rules.
68
00:03:34.890 --> 00:03:37.650
And the court rules are abundantly clear here.
69
00:03:37.650 --> 00:03:41.464
I would invite the court to District Court rule four
70
00:03:41.464 --> 00:03:43.749
and compare that with mass rule
71
00:03:43.749 --> 00:03:46.560
of appellate procedure rule four.
72
00:03:46.560 --> 00:03:48.911
Unlike its appeals court counterpart,
73
00:03:48.911 --> 00:03:53.911
rule four only permits a conventional post judgment.
74
00:03:53.940 --> 00:03:56.490
What about rule three of the BMC and District Court rules,
75
00:03:56.490 --> 00:03:59.744
which specifically refers to orders as well as judgments?
76
00:03:59.744 --> 00:04:01.902
I don't have rule three.
77
00:04:01.902 --> 00:04:05.859
I don't have it on the top of my head right now,
78
00:04:05.859 --> 00:04:08.670
but what I think Your Honor is getting at
79
00:04:08.670 --> 00:04:11.490
is probably a right to an interlocutory appeal
80
00:04:11.490 --> 00:04:14.040
pursuant to the present execution doctrine,
81
00:04:14.040 --> 00:04:17.704
which my friends over here rely heavily on.
82
00:04:17.704 --> 00:04:19.530
Well, why do we have to resort
83
00:04:19.530 --> 00:04:20.973
to the present execution doctrine
84
00:04:20.973 --> 00:04:23.880
when admittedly quite unusually,
85
00:04:23.880 --> 00:04:28.822
we have a statute that seems to give litigants as of right
86
00:04:28.822 --> 00:04:30.832
at least where there's a question of law,
87
00:04:30.832 --> 00:04:33.120
a right to go to the appellate division.
88
00:04:33.120 --> 00:04:34.920
Why do we need to resort to the doctrine
89
00:04:34.920 --> 00:04:36.240
present execution in that case?
90
00:04:36.240 --> 00:04:38.070
Because the statutes conflict.
91
00:04:38.070 --> 00:04:42.060
The as of right incorporates the rules.
92
00:04:42.060 --> 00:04:44.610
The rules don't permit an interlocutory,
93
00:04:44.610 --> 00:04:46.560
at least that's my reading of the rule.
94
00:04:46.560 --> 00:04:49.010
So you said earlier that court rules
95
00:04:49.010 --> 00:04:51.180
create causes of action.
96
00:04:51.180 --> 00:04:53.020
I thought statutes create causes of action.
97
00:04:53.020 --> 00:04:54.270
Well, the statute here-
98
00:04:54.270 --> 00:04:55.103
Or sorry, appeals.
99
00:04:55.103 --> 00:04:57.120
The enabling statute here
100
00:04:57.120 --> 00:05:00.120
incorporates the court rules by reference.
101
00:05:00.120 --> 00:05:01.440
And I would also point the court,
102
00:05:01.440 --> 00:05:03.420
the enabling statute for the appeals court,
103
00:05:03.420 --> 00:05:05.277
by the way, 211(A),
104
00:05:05.277 --> 00:05:08.460
that says the appeals court's jurisdiction
105
00:05:08.460 --> 00:05:09.293
is a little different.
106
00:05:09.293 --> 00:05:12.990
It's bound by rules and the common law principles,
107
00:05:12.990 --> 00:05:14.580
that's something, for example,
108
00:05:14.580 --> 00:05:17.553
the present execution doctrine is a common law doctrine.
109
00:05:17.553 --> 00:05:19.080
And I would just like to add,
110
00:05:19.080 --> 00:05:21.873
I have researched this extensively.
111
00:05:22.876 --> 00:05:26.040
I can find one case from this court
112
00:05:26.040 --> 00:05:30.194
that involves interlocutory appeal from the District Court
113
00:05:30.194 --> 00:05:32.220
arguing present execution.
114
00:05:32.220 --> 00:05:33.510
That's fabre.
115
00:05:33.510 --> 00:05:37.500
That's a 2-11-3 case just like this one.
116
00:05:37.500 --> 00:05:40.140
Then comes Van Lew, which was related,
117
00:05:40.140 --> 00:05:41.316
and they basically said,
118
00:05:41.316 --> 00:05:44.940
Anti-SLAPP appeal shall go to the appeals court
119
00:05:44.940 --> 00:05:46.860
rather than the appellate division.
120
00:05:46.860 --> 00:05:48.150
Well, isn't it interesting though
121
00:05:48.150 --> 00:05:53.150
that 231-97, considering the Superior Court is very clear,
122
00:05:53.360 --> 00:05:55.860
it uses the word judgment.
123
00:05:55.860 --> 00:05:58.860
So it's very clear that when the legislature
124
00:05:58.860 --> 00:06:01.892
only wants to provide for a right of appeal
125
00:06:01.892 --> 00:06:05.610
following judgment, it can do so.
126
00:06:05.610 --> 00:06:08.160
And in fact this isn't addressed in the briefs of the party.
127
00:06:08.160 --> 00:06:10.532
But if you look at the annotated laws,
128
00:06:10.532 --> 00:06:14.010
the language here we have now about, you know,
129
00:06:14.010 --> 00:06:18.213
may as of right appeal the ruling, any ruling of law.
130
00:06:20.274 --> 00:06:23.365
It formerly until 1975 said
131
00:06:23.365 --> 00:06:28.230
once it's ripe for appeal at judgment approximately,
132
00:06:28.230 --> 00:06:32.417
and the legislature removed that language in 1975.
133
00:06:32.417 --> 00:06:35.820
So now we are faced with a situation where
134
00:06:35.820 --> 00:06:39.060
the District Court's statute says
135
00:06:39.060 --> 00:06:41.800
anyone aggrieved can appeal as of right
136
00:06:42.648 --> 00:06:46.844
any ruling on which they're aggrieved,
137
00:06:46.844 --> 00:06:48.780
which is quite different from what it says
138
00:06:48.780 --> 00:06:49.930
for the Superior Court.
139
00:06:50.869 --> 00:06:53.610
And I'm curious about this question
140
00:06:53.610 --> 00:06:55.590
about the applicable rules of court
141
00:06:55.590 --> 00:06:58.380
because I agree there's a little bit of a limitation there
142
00:06:58.380 --> 00:07:00.690
that pursuant to the applicable rules of court.
143
00:07:00.690 --> 00:07:04.515
So is you have any case law
144
00:07:04.515 --> 00:07:06.864
standing for the proposition that
145
00:07:06.864 --> 00:07:11.117
where the legislature seems to have given a right to appeal
146
00:07:11.117 --> 00:07:15.330
the rules of court can take that away
147
00:07:15.330 --> 00:07:17.070
as opposed just conditioning it.
148
00:07:17.070 --> 00:07:18.660
Our argument is based on
149
00:07:18.660 --> 00:07:20.220
the plain language of the statute.
150
00:07:20.220 --> 00:07:23.220
It appears as though the legislature authorized
151
00:07:23.220 --> 00:07:24.990
the appellate division in a way
152
00:07:24.990 --> 00:07:28.878
to define its appellate jurisdiction by crafting rules.
153
00:07:28.878 --> 00:07:30.210
And what is clear,
154
00:07:30.210 --> 00:07:31.470
and I can't get inside the heads
155
00:07:31.470 --> 00:07:33.241
of the drafters of the rules,
156
00:07:33.241 --> 00:07:36.540
but they don't seem to authorize an interlocutory appeal.
157
00:07:36.540 --> 00:07:38.940
And perhaps what they were thinking is-
158
00:07:38.940 --> 00:07:40.530
Well actually, so rule four
159
00:07:40.530 --> 00:07:41.880
is what you're heavily relying on,
160
00:07:41.880 --> 00:07:43.684
and that is the rule that pertains
161
00:07:43.684 --> 00:07:46.381
to when you file the notice of appeal?
162
00:07:46.381 --> 00:07:51.270
The real rule about how to appeal is in rule three.
163
00:07:51.270 --> 00:07:54.540
And that rule does say order as well as judgment.
164
00:07:54.540 --> 00:07:56.240
Can I make one response to that?
165
00:07:58.230 --> 00:08:01.230
In a typical appeal, you are certainly appealing orders
166
00:08:01.230 --> 00:08:02.520
that are made along the way.
167
00:08:02.520 --> 00:08:05.061
You just need to wait for final judgment
168
00:08:05.061 --> 00:08:07.560
and you need to establish prejudicial error
169
00:08:07.560 --> 00:08:09.090
under those circumstances.
170
00:08:09.090 --> 00:08:12.390
So perhaps that's what the drafters were getting at.
171
00:08:12.390 --> 00:08:15.990
But what is clear is rule four plainly dictates
172
00:08:15.990 --> 00:08:18.270
when an appeal may be taken
173
00:08:18.270 --> 00:08:21.120
and it seems to say only post judgment.
174
00:08:21.120 --> 00:08:22.770
And one more point I wanted to get,
175
00:08:22.770 --> 00:08:25.440
I have access to appellate division rules
176
00:08:25.440 --> 00:08:29.550
or appellate division cases going back five decades.
177
00:08:29.550 --> 00:08:34.230
I was only able to find two cases in five decades
178
00:08:34.230 --> 00:08:36.780
applying the interlocutory appeal
179
00:08:36.780 --> 00:08:39.360
as of right under present execution.
180
00:08:39.360 --> 00:08:41.010
But neither court addressed the,
181
00:08:41.010 --> 00:08:42.963
I guess the preliminary question
182
00:08:42.963 --> 00:08:45.731
of whether it was appropriate in the first place.
183
00:08:45.731 --> 00:08:50.731
And one more point on that, appeals of 12B10 motions,
184
00:08:51.630 --> 00:08:53.730
there's only been three of them.
185
00:08:53.730 --> 00:08:57.060
All three of them were 2-11-3 cases.
186
00:08:57.060 --> 00:09:00.000
That's Sperounes, that's Langone,
187
00:09:00.000 --> 00:09:01.260
and then there is Torah,
188
00:09:01.260 --> 00:09:04.860
which was a single justice opinion by Justice Botsford.
189
00:09:04.860 --> 00:09:07.320
I recognize it's single justice that's not binding.
190
00:09:07.320 --> 00:09:09.990
I read the brief unfortunately at the last minute.
191
00:09:09.990 --> 00:09:12.264
What does Justice Botsford say in Torah?
192
00:09:12.264 --> 00:09:14.707
Why does she grant relief?
193
00:09:14.707 --> 00:09:17.040
I would urge the court to read it very carefully
194
00:09:17.040 --> 00:09:19.231
because it is squarely on point.
195
00:09:19.231 --> 00:09:22.778
In fact, I'm having a hard time distinguishing it frankly.
196
00:09:22.778 --> 00:09:27.778
It's a proposed class action alleging wage act violations.
197
00:09:27.870 --> 00:09:31.697
The plaintiff there said under general laws 21819(A),
198
00:09:34.230 --> 00:09:37.020
the district judge was bound by a statement of damages
199
00:09:37.020 --> 00:09:39.750
that said $10,000 in damages.
200
00:09:39.750 --> 00:09:40.950
Justice Botsford said,
201
00:09:40.950 --> 00:09:43.770
I'm gonna look at the operative complaint.
202
00:09:43.770 --> 00:09:44.910
The plaintiffs there are asking
203
00:09:44.910 --> 00:09:47.100
for more than $10,000 in damages.
204
00:09:47.100 --> 00:09:49.680
They're asking for another 25 in lost wages
205
00:09:49.680 --> 00:09:51.300
plus attorney's fees.
206
00:09:51.300 --> 00:09:54.604
And she granted relief essentially saying that
207
00:09:54.604 --> 00:09:56.273
the lower court-
208
00:09:56.273 --> 00:09:59.040
Is that because it was patently obvious
209
00:09:59.040 --> 00:10:00.930
that it was above the amount.
210
00:10:00.930 --> 00:10:04.740
While this one is not patently above it,
211
00:10:04.740 --> 00:10:06.192
right now, it's below it,
212
00:10:06.192 --> 00:10:09.981
may very well grow to a hundred times the amount.
213
00:10:09.981 --> 00:10:11.730
She didn't use the anything
214
00:10:11.730 --> 00:10:13.200
to the effect of painfully obvious,
215
00:10:13.200 --> 00:10:16.860
I believe it was 25 plus 10 plus attorney's fees.
216
00:10:16.860 --> 00:10:20.543
And admittedly at that time the statutory threshold was 25.
217
00:10:20.543 --> 00:10:22.500
Can can I ask you?
218
00:10:22.500 --> 00:10:26.368
If we look at the appellate division statute
219
00:10:26.368 --> 00:10:29.193
and then rule three and rule four
220
00:10:29.193 --> 00:10:33.015
of the District Court rules and say that
221
00:10:33.015 --> 00:10:35.121
there's a remedy there,
222
00:10:35.121 --> 00:10:37.974
which means there's no 2-11-3 jurisdiction
223
00:10:37.974 --> 00:10:42.456
or we decide this present execution,
224
00:10:42.456 --> 00:10:45.485
you lose either way, right?
225
00:10:45.485 --> 00:10:49.103
Well here's the problem with present execution.
226
00:10:49.103 --> 00:10:51.030
What about that question?
227
00:10:51.030 --> 00:10:52.250
I'm sorry, could you repeat the question, your Honor.
228
00:10:52.250 --> 00:10:53.553
It was both ways.
229
00:10:54.451 --> 00:10:58.260
If there is no adequate remedy
230
00:10:58.260 --> 00:10:59.880
in the normal appellate process,
231
00:10:59.880 --> 00:11:01.200
I'd urge the court to hear the case
232
00:11:01.200 --> 00:11:03.843
just like Justice Botsford did in the Torah case.
233
00:11:03.843 --> 00:11:04.936
With all due respect,
234
00:11:04.936 --> 00:11:08.643
we're all single justices and we make our own calls.
235
00:11:10.320 --> 00:11:15.150
But if we have either appellate division jurisdiction
236
00:11:15.150 --> 00:11:18.180
through the statute plus the rules
237
00:11:18.180 --> 00:11:22.650
and or present execution under the common law,
238
00:11:22.650 --> 00:11:25.410
there is an available remedy, so no 2-11-3.
239
00:11:25.410 --> 00:11:26.610
I agree. Yes.
240
00:11:26.610 --> 00:11:30.933
Is there also a third way you lose, which is,
241
00:11:32.191 --> 00:11:35.628
so right now there's only one plaintiff
242
00:11:35.628 --> 00:11:39.000
and the amount is under the threshold.
243
00:11:39.000 --> 00:11:40.050
It's two plaintiffs actually.
244
00:11:40.050 --> 00:11:41.100
Two plaintiffs.
Yes.
245
00:11:41.100 --> 00:11:44.130
But isn't this gonna,
246
00:11:44.130 --> 00:11:47.250
if he starts getting a bunch of new plaintiffs
247
00:11:47.250 --> 00:11:48.633
with new demands,
248
00:11:50.220 --> 00:11:52.920
the case is gonna move to Superior Court anyway.
249
00:11:52.920 --> 00:11:57.920
So is this kind of like, not the kind of extraordinary stuff
250
00:11:58.170 --> 00:11:59.790
that requires us to be doing this?
251
00:11:59.790 --> 00:12:01.740
This is gonna work itself out
252
00:12:01.740 --> 00:12:03.930
in the ordinary course of litigation.
253
00:12:03.930 --> 00:12:05.549
I'm not sure if you accept
254
00:12:05.549 --> 00:12:08.220
the District Court judge's ruling.
255
00:12:08.220 --> 00:12:09.900
I'm not sure it's gonna make its way
256
00:12:09.900 --> 00:12:11.330
to Superior Court anyway.
257
00:12:11.330 --> 00:12:13.020
The District Court's gonna hear
258
00:12:13.020 --> 00:12:15.720
a hundred person class action suit
259
00:12:15.720 --> 00:12:18.546
with damages of a couple million dollars.
260
00:12:18.546 --> 00:12:21.870
Maybe if they don't shift it then,
261
00:12:21.870 --> 00:12:23.310
maybe we have to do something.
262
00:12:23.310 --> 00:12:26.850
But right now, isn't that gonna work itself out?
263
00:12:26.850 --> 00:12:29.340
I think Your Honor is making my point for me
264
00:12:29.340 --> 00:12:31.799
as to the importance of this case
265
00:12:31.799 --> 00:12:35.070
and a defendant's right to have a class action
266
00:12:35.070 --> 00:12:36.000
in the Superior Court.
267
00:12:36.000 --> 00:12:36.870
But here's the problem.
268
00:12:36.870 --> 00:12:40.262
The District Court read a section 19(A)
269
00:12:40.262 --> 00:12:43.170
as limiting the judge's analysis
270
00:12:43.170 --> 00:12:45.840
to the initial statement of damages.
271
00:12:45.840 --> 00:12:50.490
So that's what the denial of the 12B10 motion was based on.
272
00:12:50.490 --> 00:12:53.839
And that's not gonna change if a class is certified.
273
00:12:53.839 --> 00:12:55.260
And that's why we're here.
274
00:12:55.260 --> 00:12:57.840
I think this case presents a very significant issue.
275
00:12:57.840 --> 00:13:01.551
And I'm running low on time, I would urge this court,
276
00:13:01.551 --> 00:13:06.551
even if it does find that there's no right to 2-11-3 review,
277
00:13:07.461 --> 00:13:09.870
I'd urge this court to take this case
278
00:13:09.870 --> 00:13:12.360
under the second paragraph of 2-11-3
279
00:13:12.360 --> 00:13:13.770
because we submit it...
280
00:13:13.770 --> 00:13:16.020
It is necessary to address and resolve
281
00:13:16.020 --> 00:13:18.780
what I see as a systemic issue
282
00:13:18.780 --> 00:13:21.484
that really matters to litigants in the District Court.
283
00:13:21.484 --> 00:13:24.453
There are very different rules and processes,
284
00:13:24.453 --> 00:13:27.810
time standards, number of jurors
285
00:13:27.810 --> 00:13:30.090
attorney conducted voir dire.
286
00:13:30.090 --> 00:13:34.255
And what was eye-opening for me are the respective caseloads
287
00:13:34.255 --> 00:13:37.139
of district versus Superior Court judges.
288
00:13:37.139 --> 00:13:39.240
It's in footnotes in our brief,
289
00:13:39.240 --> 00:13:42.420
but something like 2,700 cases
290
00:13:42.420 --> 00:13:44.400
per judge in the District Court.
291
00:13:44.400 --> 00:13:47.250
And going back to Justice Kafker's point,
292
00:13:47.250 --> 00:13:48.984
a case like this could present-
293
00:13:48.984 --> 00:13:52.393
These are rather routine matters, with all due respect,
294
00:13:52.393 --> 00:13:54.360
as a Superior Court judge,
295
00:13:54.360 --> 00:13:56.880
we would get remand requests all the time
296
00:13:56.880 --> 00:13:59.130
and we'd have to sort through the addendum
297
00:13:59.130 --> 00:14:00.090
and to see whether or not
298
00:14:00.090 --> 00:14:02.610
they were appropriate for jurisdiction.
299
00:14:02.610 --> 00:14:05.850
These are kind of things that District Court judges
300
00:14:05.850 --> 00:14:07.881
and Superior Court judges do every day.
301
00:14:07.881 --> 00:14:09.344
I don't know if-
302
00:14:09.344 --> 00:14:10.307
Do you want us to do it?
303
00:14:10.307 --> 00:14:12.000
I don't know if they do
304
00:14:12.000 --> 00:14:14.850
50 person class action cases every day-
305
00:14:14.850 --> 00:14:15.683
but I understand-
306
00:14:15.683 --> 00:14:17.580
We look at those jurisdictional amounts every day.
307
00:14:17.580 --> 00:14:21.150
And the problem is the right to be in Superior Court
308
00:14:21.150 --> 00:14:23.640
really wouldn't matter all that much.
309
00:14:23.640 --> 00:14:25.920
Can I ask you where that right stems from.
310
00:14:25.920 --> 00:14:27.743
I get that there is a District Court
311
00:14:27.743 --> 00:14:30.810
jurisdictional amount in controversy
312
00:14:30.810 --> 00:14:33.944
that's procedural according to Sperounes.
313
00:14:33.944 --> 00:14:38.430
Why does that translate into a right to the litigant
314
00:14:38.430 --> 00:14:41.592
to a particular forum, either superior or district?
315
00:14:41.592 --> 00:14:44.880
You said that at the beginning of your argument
316
00:14:44.880 --> 00:14:46.830
and I don't really understand why.
317
00:14:46.830 --> 00:14:49.577
So well first off, rights can be created by statute,
318
00:14:49.577 --> 00:14:50.410
and I think-
319
00:14:50.410 --> 00:14:53.430
Right, but this statute says the jurisdictional limit,
320
00:14:53.430 --> 00:14:55.522
which we've now interpreted as procedural
321
00:14:55.522 --> 00:14:58.920
is now 50K for the District Court.
322
00:14:58.920 --> 00:15:02.340
I don't understand why that creates a right in your client.
323
00:15:02.340 --> 00:15:04.500
Oh, well my response to that, Your Honor,
324
00:15:04.500 --> 00:15:06.210
I'd say that's apples and oranges
325
00:15:06.210 --> 00:15:08.910
to use an expression that I've heard Justice Lowe say.
326
00:15:13.461 --> 00:15:16.091
(indistinct)
327
00:15:16.091 --> 00:15:19.110
Procedural versus substantive for purposes
328
00:15:19.110 --> 00:15:21.390
of subject matter jurisdiction,
329
00:15:21.390 --> 00:15:23.100
I submit is not on point here.
330
00:15:23.100 --> 00:15:24.930
In fact, I cannot find a case
331
00:15:24.930 --> 00:15:26.310
and I don't think my brothers could either
332
00:15:26.310 --> 00:15:27.252
'cause I didn't see it in their brief,
333
00:15:27.252 --> 00:15:31.120
but explaining what is a substantial substantive right
334
00:15:31.120 --> 00:15:34.020
for purposes of 2-11-3.
335
00:15:34.020 --> 00:15:35.190
I see I'm out of time,
336
00:15:35.190 --> 00:15:37.237
but if the court will just indulge me one more sentence.
337
00:15:37.237 --> 00:15:40.170
It seems as though what the judges do
338
00:15:40.170 --> 00:15:41.760
is they look at the importance of it
339
00:15:41.760 --> 00:15:44.670
and then single justices anyway, make a judgment call.
340
00:15:44.670 --> 00:15:47.080
But where does your right come from?
341
00:15:47.080 --> 00:15:49.413
So from section 19.
342
00:15:50.940 --> 00:15:52.428
So the jurisdictional limit
343
00:15:52.428 --> 00:15:56.959
of the amount of controversy of the District Court,
344
00:15:56.959 --> 00:16:01.680
in your opinion, creates a right in the litigant
345
00:16:01.680 --> 00:16:03.180
to a particular forum.
346
00:16:03.180 --> 00:16:07.080
To have cases of a certain value heard in a certain form.
347
00:16:07.080 --> 00:16:08.460
And I see I'm outta time,
348
00:16:08.460 --> 00:16:09.900
so unless the court has any questions,
349
00:16:09.900 --> 00:16:11.100
I will rest on my brief.
350
00:16:11.100 --> 00:16:12.360
Okay. Thank you.
351
00:16:12.360 --> 00:16:13.193
Thank you.
352
00:16:15.390 --> 00:16:17.253
Okay, attorney Richardson.
353
00:16:18.120 --> 00:16:19.260
Yes. Attorney Robert Richardson
354
00:16:19.260 --> 00:16:24.260
on behalf of Plaintiff's Appellees with attorney Abor Cumb.
355
00:16:24.751 --> 00:16:26.013
May I please the court?
356
00:16:28.470 --> 00:16:29.313
Yes, please.
357
00:16:30.540 --> 00:16:31.373
Sure.
358
00:16:31.373 --> 00:16:33.407
We're easy to please on that.
359
00:16:33.407 --> 00:16:36.060
I think this is a pretty straightforward case
360
00:16:36.060 --> 00:16:37.770
and you know, we were hitting on it earlier
361
00:16:37.770 --> 00:16:39.420
with respect to rule three.
362
00:16:39.420 --> 00:16:43.800
So under 2-11-3, there must be
363
00:16:43.800 --> 00:16:46.410
a substantial substantive right implicated,
364
00:16:46.410 --> 00:16:49.230
and there must not be an alternative adequate remedy
365
00:16:49.230 --> 00:16:50.740
in the normal appellate process.
366
00:16:50.740 --> 00:16:53.970
And as we step through, you know,
367
00:16:53.970 --> 00:16:57.930
we step through 218 or 230-108,
368
00:16:57.930 --> 00:17:00.240
it's not just limited to final judgements.
369
00:17:00.240 --> 00:17:03.360
It says, any party by any ruling of law
370
00:17:03.360 --> 00:17:05.187
has a right to appeal to the appellate division.
371
00:17:05.187 --> 00:17:06.900
And in fact, in that enabling statute,
372
00:17:06.900 --> 00:17:08.460
it talks about the appellate division
373
00:17:08.460 --> 00:17:11.251
being created essentially to hear questions of law.
374
00:17:11.251 --> 00:17:13.865
And that's exactly what occurred here.
375
00:17:13.865 --> 00:17:18.240
But there's two elements there, and it's substantive, right?
376
00:17:18.240 --> 00:17:20.638
And as many justices pointed out,
377
00:17:20.638 --> 00:17:24.240
this court has said that that's a procedural right.
378
00:17:24.240 --> 00:17:26.640
So on the first element it fails.
379
00:17:26.640 --> 00:17:28.740
So 211 is not proper.
380
00:17:28.740 --> 00:17:30.840
2-11-3 is not proper under that.
381
00:17:30.840 --> 00:17:32.974
But even under the second element,
382
00:17:32.974 --> 00:17:35.370
it's clear that there is an alternative remedy
383
00:17:35.370 --> 00:17:36.691
and possibly two.
384
00:17:36.691 --> 00:17:39.570
Counsel, on that point,
385
00:17:39.570 --> 00:17:41.997
I think that it's fair to say
386
00:17:41.997 --> 00:17:45.987
that even if you're right,
387
00:17:45.987 --> 00:17:48.740
that 230-108 does provide a right
388
00:17:48.740 --> 00:17:51.483
as of right to an interlocutory appeal here.
389
00:17:52.341 --> 00:17:54.614
This court has on a number of occasions
390
00:17:54.614 --> 00:17:59.614
suggested or arguably held that 2-11-3 is the appropriate,
391
00:17:59.665 --> 00:18:02.430
is the appropriate avenue here.
392
00:18:02.430 --> 00:18:05.490
Sperounes is fairly clear on this point.
393
00:18:05.490 --> 00:18:08.220
And I think interestingly referred to the quote,
394
00:18:08.220 --> 00:18:11.468
uncertainty regarding appellate rights
395
00:18:11.468 --> 00:18:13.583
in the District Court and BMC.
396
00:18:13.583 --> 00:18:17.100
So are you aware of how this court
397
00:18:17.100 --> 00:18:18.600
has dealt with the question of
398
00:18:18.600 --> 00:18:20.760
is there an alternative standard of review,
399
00:18:20.760 --> 00:18:22.023
or alternative avenue of review
400
00:18:22.023 --> 00:18:26.010
where perhaps a litigant may have had very good reason
401
00:18:26.010 --> 00:18:29.550
to believe there was not an alternative avenue for review
402
00:18:29.550 --> 00:18:31.863
based on this court's own cases.
403
00:18:32.838 --> 00:18:36.353
And so sought to 113 pursuant to
404
00:18:36.353 --> 00:18:38.235
all extent appellate authority
405
00:18:38.235 --> 00:18:40.380
about how to go about contesting this?
406
00:18:40.380 --> 00:18:41.370
Sure.
407
00:18:41.370 --> 00:18:42.630
With respect to that case,
408
00:18:42.630 --> 00:18:44.700
I think if you look at, you know,
409
00:18:44.700 --> 00:18:46.470
kind of the background of the statute, right?
410
00:18:46.470 --> 00:18:50.365
Essentially, and this predates my practice, but 2004,
411
00:18:50.365 --> 00:18:52.290
you know, the statute changed
412
00:18:52.290 --> 00:18:54.840
where essentially the legislature sought
413
00:18:54.840 --> 00:18:58.620
to essentially get rid of the removal remand system, right?
414
00:18:58.620 --> 00:18:59.760
The one trial system.
415
00:18:59.760 --> 00:19:01.185
And in doing that they invested,
416
00:19:01.185 --> 00:19:03.563
you know, money jurisdiction
417
00:19:03.563 --> 00:19:07.125
in both the Superior Court and in the District Court.
418
00:19:07.125 --> 00:19:08.967
Essentially they wanted to get rid of this,
419
00:19:08.967 --> 00:19:11.936
you know, removal and remand, removal, remand process.
420
00:19:11.936 --> 00:19:16.936
And I think if you look at that case in particular,
421
00:19:17.460 --> 00:19:19.557
this court and you know,
422
00:19:19.557 --> 00:19:21.570
you're the court, so you know,
423
00:19:21.570 --> 00:19:24.664
but my take on it was that it was a relatively new issue.
424
00:19:24.664 --> 00:19:29.040
The issue there was the definition of the term plaintiff
425
00:19:29.040 --> 00:19:30.735
and whether that included a defendant
426
00:19:30.735 --> 00:19:32.635
who brought a compulsory counterclaim.
427
00:19:33.619 --> 00:19:36.069
And I think that's very analogous to the situation here.
428
00:19:36.069 --> 00:19:39.420
However, I also think that was done at that time
429
00:19:39.420 --> 00:19:41.820
because of the newness of the statute.
430
00:19:41.820 --> 00:19:44.520
And I think the court wanted some clarity on that point
431
00:19:44.520 --> 00:19:45.547
that the plaintiff,
432
00:19:45.547 --> 00:19:47.820
there's some real analysis in the Langone case
433
00:19:47.820 --> 00:19:52.820
about section 104 and essentially section 104 was repealed.
434
00:19:52.965 --> 00:19:55.650
And that essentially a walkthrough the iterations
435
00:19:55.650 --> 00:19:58.680
where before you could remove the case to Superior Court.
436
00:19:58.680 --> 00:20:00.990
And the court in Langone,
437
00:20:00.990 --> 00:20:02.596
this court in Langone essentially said,
438
00:20:02.596 --> 00:20:05.880
you know, that's no longer the case.
439
00:20:05.880 --> 00:20:09.603
One of the issue presented in Langone was one of the,
440
00:20:11.280 --> 00:20:13.435
you know, situations under 104
441
00:20:13.435 --> 00:20:14.700
where that was repealed
442
00:20:14.700 --> 00:20:17.070
and the legislature specifically wanted
443
00:20:17.070 --> 00:20:19.380
the District Court to proceed so.
444
00:20:19.380 --> 00:20:21.270
And that dovetails with what Judge Coven did here
445
00:20:21.270 --> 00:20:22.350
in District Court.
446
00:20:22.350 --> 00:20:24.667
And that's essentially looking at the term plaintiff
447
00:20:24.667 --> 00:20:27.273
at the time of the filing of the complaint.
448
00:20:27.273 --> 00:20:30.060
And that's the statement of damages piece to this.
449
00:20:30.060 --> 00:20:32.759
So I think although the court pulled it up at that point,
450
00:20:32.759 --> 00:20:34.590
I don't think that's the normal course,
451
00:20:34.590 --> 00:20:36.992
and quite frankly as been mentioned,
452
00:20:36.992 --> 00:20:40.650
I don't think this court should use
453
00:20:40.650 --> 00:20:43.620
its limited resources and time to review whether,
454
00:20:43.620 --> 00:20:45.690
you know, a defendant's not happy
455
00:20:45.690 --> 00:20:46.740
because we're in District Court
456
00:20:46.740 --> 00:20:49.800
because they'd rather file 9-8 you know, motions, right?
457
00:20:49.800 --> 00:20:51.510
Like I don't think that that's an appropriate use
458
00:20:51.510 --> 00:20:52.500
of this court's time.
459
00:20:52.500 --> 00:20:54.678
And I think that's gonna essentially open up,
460
00:20:54.678 --> 00:20:59.130
you know, defendants to doing this, right?
461
00:20:59.130 --> 00:21:00.903
If we could have filed in Superior Court,
462
00:21:00.903 --> 00:21:03.090
you know, we could have filed in District Court.
463
00:21:03.090 --> 00:21:04.890
We do it based off of the information we have
464
00:21:04.890 --> 00:21:06.210
at the time of the filing.
465
00:21:06.210 --> 00:21:07.890
We haven't engaged in full discovery.
466
00:21:07.890 --> 00:21:09.811
We don't have, you know, all-
467
00:21:09.811 --> 00:21:11.729
Have at least two clients.
468
00:21:11.729 --> 00:21:13.421
We did not have two clients at the time.
469
00:21:13.421 --> 00:21:14.254
No, no, no, at the time.
470
00:21:14.254 --> 00:21:16.080
But now before you served the defendants,
471
00:21:16.080 --> 00:21:18.540
you actually had two clients, isn't that right?
472
00:21:18.540 --> 00:21:20.965
I think we filed the amended complaint after,
473
00:21:20.965 --> 00:21:22.978
but it was three months later.
474
00:21:22.978 --> 00:21:24.660
So, but the statement of damage
475
00:21:24.660 --> 00:21:27.780
was submitted in the first original complaint
476
00:21:27.780 --> 00:21:29.043
and there's nothing that requires
477
00:21:29.043 --> 00:21:31.592
a second statement of damages.
478
00:21:31.592 --> 00:21:35.220
Did the defendant submit their own estimate?
479
00:21:35.220 --> 00:21:37.620
No, and they have the right to do that
480
00:21:37.620 --> 00:21:38.850
and they did not do that.
481
00:21:38.850 --> 00:21:40.328
Now I don't think that necessarily
482
00:21:40.328 --> 00:21:42.420
waives the right to raise it in an answer
483
00:21:42.420 --> 00:21:43.710
because I think in one of the cases
484
00:21:43.710 --> 00:21:45.253
it talks about their ability to do that,
485
00:21:45.253 --> 00:21:46.086
but they did not dispute it.
486
00:21:46.086 --> 00:21:47.940
Doesn't inform our analysis
487
00:21:47.940 --> 00:21:49.740
of Judge Coven's decision, right.
488
00:21:49.740 --> 00:21:51.420
If he is looking at one set of numbers
489
00:21:51.420 --> 00:21:52.990
and on the other side he's got nothing.
490
00:21:52.990 --> 00:21:56.074
Yeah, but they could have submitted some calculations
491
00:21:56.074 --> 00:21:57.954
and they had access to data files-
492
00:21:57.954 --> 00:21:58.890
And they didn't.
And they did not.
493
00:21:58.890 --> 00:21:59.970
Yeah, absolutely. Absolutely.
494
00:21:59.970 --> 00:22:01.987
So I think that support Judge Covens.
495
00:22:01.987 --> 00:22:05.070
I appreciate that the first sentence of 19(A)
496
00:22:05.070 --> 00:22:07.110
does refer to the statement of damages,
497
00:22:07.110 --> 00:22:09.815
but later 19(A) goes on to talk about
498
00:22:09.815 --> 00:22:13.920
a hearing and additional potential written submissions
499
00:22:13.920 --> 00:22:15.720
by the parties at that hearing.
500
00:22:15.720 --> 00:22:18.870
And then there's the fact that 19 refers to
501
00:22:18.870 --> 00:22:20.640
this entire thing is supposed to be an assessment
502
00:22:20.640 --> 00:22:22.140
of this action,
503
00:22:22.140 --> 00:22:24.000
which to me seems like
504
00:22:24.000 --> 00:22:25.618
you should look at the operative complaint.
505
00:22:25.618 --> 00:22:27.296
Can you give us your strongest argument
506
00:22:27.296 --> 00:22:29.969
for why the court should blind itself
507
00:22:29.969 --> 00:22:32.434
to literally the operative complaint
508
00:22:32.434 --> 00:22:34.768
when making an assessment of the damages?
509
00:22:34.768 --> 00:22:36.510
Or is that not your position?
510
00:22:36.510 --> 00:22:37.980
Well, I think it goes back
511
00:22:37.980 --> 00:22:39.750
to this one trial court system, right?
512
00:22:39.750 --> 00:22:42.210
So the District Court does have concurrent jurisdiction
513
00:22:42.210 --> 00:22:43.043
for money damages.
514
00:22:43.043 --> 00:22:44.160
And at some point you have to,
515
00:22:44.160 --> 00:22:45.060
if you're gonna get away
516
00:22:45.060 --> 00:22:47.190
from this removal and remand system,
517
00:22:47.190 --> 00:22:49.560
you have to draw a line of where you analyze this.
518
00:22:49.560 --> 00:22:51.540
And I would suggest that that line
519
00:22:51.540 --> 00:22:52.650
is that the statement of damages
520
00:22:52.650 --> 00:22:53.591
and when the complaint filed-
521
00:22:53.591 --> 00:22:54.973
Are you saying that your case
522
00:22:54.973 --> 00:22:56.758
is gonna stay in District Court?
523
00:22:56.758 --> 00:23:00.087
Are you suggesting that this case
524
00:23:00.087 --> 00:23:02.850
is going to stay in District Court
525
00:23:02.850 --> 00:23:04.080
and be heard in District Court
526
00:23:04.080 --> 00:23:05.580
and resolved in District Court.
527
00:23:05.580 --> 00:23:06.413
Yeah, absolutely.
528
00:23:06.413 --> 00:23:07.246
And I will tell you this-
529
00:23:07.246 --> 00:23:12.246
If you get 20 more plaintiffs, you think this belongs.
530
00:23:12.540 --> 00:23:14.730
I mean, judge Coven wrote based,
531
00:23:14.730 --> 00:23:17.172
there's been no class certification.
532
00:23:17.172 --> 00:23:20.970
He's careful, he didn't write that
533
00:23:20.970 --> 00:23:25.093
you get to stay indefinitely if you get 30 clients, right?
534
00:23:25.093 --> 00:23:26.935
He didn't say we didn't either so.
535
00:23:26.935 --> 00:23:30.330
You think we can, the District Court's the right place
536
00:23:30.330 --> 00:23:33.541
for a hundred person class?
537
00:23:33.541 --> 00:23:35.493
Yeah, I absolutely do.
538
00:23:37.318 --> 00:23:39.058
The legislature specifically-
539
00:23:39.058 --> 00:23:40.991
This important case and-
540
00:23:40.991 --> 00:23:42.600
Did the legislature,
541
00:23:42.600 --> 00:23:44.868
I mean, the legislature granted money jurisdiction.
542
00:23:44.868 --> 00:23:48.216
They didn't limit it to say, Hey, if it's too complicated-
543
00:23:48.216 --> 00:23:51.600
If you're gonna be seeking $2 million
544
00:23:51.600 --> 00:23:54.630
or $3 million or $5 million in damages
545
00:23:54.630 --> 00:23:56.231
and triple attorney's fees,
546
00:23:56.231 --> 00:23:59.790
you know, we're familiar with wage act class actions.
547
00:23:59.790 --> 00:24:00.623
Sure.
548
00:24:00.623 --> 00:24:02.996
They're not $50,000 cases.
549
00:24:02.996 --> 00:24:05.220
Are you saying that this,
550
00:24:05.220 --> 00:24:06.539
because initially this is filed
551
00:24:06.539 --> 00:24:09.660
as a one person potential class action,
552
00:24:09.660 --> 00:24:11.370
it stays in District Court?
553
00:24:11.370 --> 00:24:15.150
I would suggest that under the legislature passing
554
00:24:15.150 --> 00:24:16.500
the one trial court system
555
00:24:16.500 --> 00:24:18.870
that invested money jurisdiction
556
00:24:18.870 --> 00:24:20.520
with the District Court hear all matters.
557
00:24:20.520 --> 00:24:21.720
I don't see why it wouldn't.
558
00:24:21.720 --> 00:24:23.377
Under $50,000.
559
00:24:23.377 --> 00:24:26.241
Unless it's reasonably likely to,
560
00:24:26.241 --> 00:24:29.070
unless the plaintiff's reasonably likely to recover $50,000.
561
00:24:29.070 --> 00:24:30.480
And that's the heart of this case.
562
00:24:30.480 --> 00:24:32.040
What does the term plaintiff mean?
563
00:24:32.040 --> 00:24:33.720
And we briefed this
564
00:24:33.720 --> 00:24:36.840
and this court in Langone said essentially
565
00:24:36.840 --> 00:24:41.010
a compulsory counterclaim can't ruin that jurisdiction.
566
00:24:41.010 --> 00:24:42.600
There are any cases out there
567
00:24:42.600 --> 00:24:44.800
that have said in this context,
568
00:24:44.800 --> 00:24:47.976
'cause maybe this does present an important legal issue
569
00:24:47.976 --> 00:24:49.912
that I wasn't familiar with,
570
00:24:49.912 --> 00:24:54.063
but are there any cases that say that in District Court,
571
00:24:55.435 --> 00:24:57.570
before a class action is certified,
572
00:24:57.570 --> 00:25:00.780
that's the issue on the amount of damages,
573
00:25:00.780 --> 00:25:03.000
even if this could be a, you know,
574
00:25:03.000 --> 00:25:05.986
a billion dollar cigarette case, you know?
575
00:25:05.986 --> 00:25:08.640
Again, I don't think there's anything that limits that.
576
00:25:08.640 --> 00:25:11.886
In fact, the legislature invested concurrent jurisdiction
577
00:25:11.886 --> 00:25:13.792
for all cases involving money damages.
578
00:25:13.792 --> 00:25:17.053
We just settled the case in Quincy District Court,
579
00:25:17.053 --> 00:25:21.480
a class action with approximately 70 class members
580
00:25:21.480 --> 00:25:23.970
for just under a million dollars.
581
00:25:23.970 --> 00:25:25.976
So I don't think that's something that's prohibited
582
00:25:25.976 --> 00:25:28.323
in the District Court at all.
583
00:25:28.323 --> 00:25:30.619
And in that case, you know-
584
00:25:30.619 --> 00:25:32.520
Challenge the jurisdiction
585
00:25:32.520 --> 00:25:35.190
No one challenged the jurisdiction in that one.
586
00:25:35.190 --> 00:25:36.105
Lucky.
587
00:25:36.105 --> 00:25:38.476
Again, I think if you read the statute
588
00:25:38.476 --> 00:25:42.180
and you look at the analysis that Judge Coven provided
589
00:25:42.180 --> 00:25:44.310
and this court's ruling in Langone-
590
00:25:44.310 --> 00:25:48.120
With the issue of what happens if the class is certified
591
00:25:48.120 --> 00:25:51.196
and the amount of damages goes over $50,000, right.
592
00:25:51.196 --> 00:25:55.050
He says there's been no class certification here, right?
593
00:25:55.050 --> 00:25:56.820
He does say that. Yeah.
594
00:25:56.820 --> 00:25:59.190
But does that ruin money jurisdiction?
595
00:25:59.190 --> 00:26:00.600
I'm not sure what would be the grounds
596
00:26:00.600 --> 00:26:02.338
for that to ruin money jurisdiction because,
597
00:26:02.338 --> 00:26:04.047
and I know what you're gonna say,
598
00:26:04.047 --> 00:26:06.030
but if you step through it, right,
599
00:26:06.030 --> 00:26:07.350
and that's what Langone said.
600
00:26:07.350 --> 00:26:08.923
Essentially at some point,
601
00:26:08.923 --> 00:26:11.507
if we're gonna implement a one trial system,
602
00:26:11.507 --> 00:26:12.960
you know, what do you do?
603
00:26:12.960 --> 00:26:14.280
You go through discovery and then you say,
604
00:26:14.280 --> 00:26:15.990
you know what, the damages are gonna go up.
605
00:26:15.990 --> 00:26:17.793
So now we're gonna have to move it to,
606
00:26:17.793 --> 00:26:19.470
we're gonna have to remove it to Superior Court.
607
00:26:19.470 --> 00:26:21.829
Where along that path of litigation
608
00:26:21.829 --> 00:26:23.370
after the complaint is filed-
609
00:26:23.370 --> 00:26:25.500
Langone says, 'cause I haven't read it in a long time,
610
00:26:25.500 --> 00:26:26.790
what does Langone say?
611
00:26:26.790 --> 00:26:29.031
Langone essentially says, the term plaintiff
612
00:26:29.031 --> 00:26:31.996
means that the party who brings the complaint,
613
00:26:31.996 --> 00:26:34.050
the original complaints.
614
00:26:34.050 --> 00:26:34.920
And when-
615
00:26:34.920 --> 00:26:36.410
Well, it doesn't say original, does it?
616
00:26:36.410 --> 00:26:37.743
It says who brings the complaint.
617
00:26:37.743 --> 00:26:39.480
Right, and in this case,
618
00:26:39.480 --> 00:26:41.739
you've got two people bringing the complaint.
619
00:26:41.739 --> 00:26:43.590
Well, but in that same regard,
620
00:26:43.590 --> 00:26:45.000
if someone were bringing a counterclaim,
621
00:26:45.000 --> 00:26:46.770
that's also a complaint as well.
622
00:26:46.770 --> 00:26:50.102
And the court said you can't ruin jurisdiction on that
623
00:26:50.102 --> 00:26:52.440
in that iteration.
624
00:26:52.440 --> 00:26:54.960
And I think that's very similar to the situation here
625
00:26:54.960 --> 00:26:58.169
where you have a second plaintiff who's coming in later.
626
00:26:58.169 --> 00:26:59.583
And again, there's nothing that says
627
00:26:59.583 --> 00:27:01.148
that the court can't proceed
628
00:27:01.148 --> 00:27:03.780
if the parties are gonna,
629
00:27:03.780 --> 00:27:05.970
or if the plaintiff's gonna recover more than $50,000.
630
00:27:05.970 --> 00:27:08.300
And that's why the legislature, you know,
631
00:27:08.300 --> 00:27:11.580
granted concurrent jurisdiction because they didn't want
632
00:27:11.580 --> 00:27:13.620
this inefficient use of judicial resources.
633
00:27:13.620 --> 00:27:15.840
Right, and that really acts a premium
634
00:27:15.840 --> 00:27:20.840
on the reasonableness of the District Court judge
635
00:27:20.927 --> 00:27:23.132
or the BMC judge's determination
636
00:27:23.132 --> 00:27:25.253
as to the amount and controversy,
637
00:27:25.253 --> 00:27:28.590
which makes this as Justice Kafker was saying,
638
00:27:28.590 --> 00:27:30.060
an important case.
639
00:27:30.060 --> 00:27:33.450
Sure. So here, I think that's a different issue.
640
00:27:33.450 --> 00:27:35.400
So if we, you know, I don't think there's any way
641
00:27:35.400 --> 00:27:36.700
you can argue that 2-11-3.
642
00:27:36.700 --> 00:27:37.830
I mean, you can argue,
643
00:27:37.830 --> 00:27:40.623
but I think that the 230-108 is clearly
644
00:27:40.623 --> 00:27:43.020
that that provides a remedy here.
645
00:27:43.020 --> 00:27:45.120
That wasn't taken under rule three and four,
646
00:27:45.120 --> 00:27:45.953
I think they had 10 days to file.
647
00:27:45.953 --> 00:27:48.000
Right, I guess my point was more about
648
00:27:48.000 --> 00:27:50.070
second paragraph of 2-11-3
649
00:27:50.070 --> 00:27:52.993
on whether or not it makes sense for this court
650
00:27:52.993 --> 00:27:57.410
to analyze this very important issue
651
00:27:57.410 --> 00:28:01.170
of upfront determinations of a mountain controversy
652
00:28:01.170 --> 00:28:04.563
and where the particular suit should take place.
653
00:28:06.390 --> 00:28:09.150
as we did in Sperounes.
654
00:28:09.150 --> 00:28:12.046
I mean, you know, this court could do that.
655
00:28:12.046 --> 00:28:15.540
It's, you know, it's your right, obviously.
656
00:28:15.540 --> 00:28:18.690
But I don't think that was before presented here.
657
00:28:18.690 --> 00:28:21.554
I think that the question was whether there was a right
658
00:28:21.554 --> 00:28:25.230
to have this heard by any defendant,
659
00:28:25.230 --> 00:28:27.780
whether a defendant should be allowed to pursue this,
660
00:28:27.780 --> 00:28:29.395
you know, 2-11-3 path.
661
00:28:29.395 --> 00:28:31.530
And I don't think that issue
662
00:28:31.530 --> 00:28:33.240
is anything other than no, they should not.
663
00:28:33.240 --> 00:28:35.760
And I think that's because there is an alternative remedy.
664
00:28:35.760 --> 00:28:37.110
So if there's a separate issue
665
00:28:37.110 --> 00:28:38.130
of whether a class action
666
00:28:38.130 --> 00:28:39.810
should ever be heard in District Court,
667
00:28:39.810 --> 00:28:41.580
I don't think that's here before the court today,
668
00:28:41.580 --> 00:28:42.413
and I don't-
669
00:28:42.413 --> 00:28:47.390
Well, but it is because that's the complicated issue here,
670
00:28:49.440 --> 00:28:51.750
which is you've brought this as a class action,
671
00:28:51.750 --> 00:28:54.091
but the class hasn't been certified.
672
00:28:54.091 --> 00:28:57.480
The amount right now is under $50,000.
673
00:28:57.480 --> 00:29:01.620
But you yourself envision this
674
00:29:01.620 --> 00:29:06.620
to be a class of many with much more at stake.
675
00:29:06.690 --> 00:29:08.430
So it starts to sound like
676
00:29:08.430 --> 00:29:10.679
this is the kind of thing we should be dealing with.
677
00:29:10.679 --> 00:29:12.420
Well, again, one, we don't know that
678
00:29:12.420 --> 00:29:13.998
because discovery hasn't taken place yet.
679
00:29:13.998 --> 00:29:17.313
So they're contesting whether, you know,
680
00:29:18.878 --> 00:29:21.937
they're contesting many aspects of the rule 23.
681
00:29:21.937 --> 00:29:24.060
I thought you were okay
682
00:29:24.060 --> 00:29:28.170
because if you actually did add people and a class,
683
00:29:28.170 --> 00:29:30.090
it became clear where really dealing with the class,
684
00:29:30.090 --> 00:29:31.975
the judge would've another opportunity to say,
685
00:29:31.975 --> 00:29:34.080
oh, this belongs in Superior Court,
686
00:29:34.080 --> 00:29:37.110
but you're saying, nope, we gotta do this up front.
687
00:29:37.110 --> 00:29:39.630
And that's what you're gonna be arguing to the judge.
688
00:29:39.630 --> 00:29:42.330
So that makes it a little harder.
689
00:29:42.330 --> 00:29:44.400
Well, again, we're not there yet, first off,
690
00:29:44.400 --> 00:29:47.490
but to the extent that we're, again,
691
00:29:47.490 --> 00:29:48.990
looking at the intent of the legislature
692
00:29:48.990 --> 00:29:50.850
in enacting the statute,
693
00:29:50.850 --> 00:29:53.820
it was to get rid of this removal and remand.
694
00:29:53.820 --> 00:29:55.620
So I think with all due respect,
695
00:29:55.620 --> 00:29:56.453
and under the (indistinct),
696
00:29:56.453 --> 00:29:58.800
you're suggesting where, hey, you know what,
697
00:29:58.800 --> 00:30:00.390
if at some point during discovery
698
00:30:00.390 --> 00:30:01.713
it looks like this may be more,
699
00:30:01.713 --> 00:30:03.060
then the judge can remove it.
700
00:30:03.060 --> 00:30:06.150
I think that just goes right back to the problem
701
00:30:06.150 --> 00:30:08.430
with the removal and remand system and the inefficiency.
702
00:30:08.430 --> 00:30:11.160
So, you know, maybe, you know, there's cases,
703
00:30:11.160 --> 00:30:13.770
maybe the outcome here is there are cases in District Court
704
00:30:13.770 --> 00:30:16.650
that, you know, settle for or resolve
705
00:30:16.650 --> 00:30:18.810
whether through trial or settlement,
706
00:30:18.810 --> 00:30:20.250
for more than the $50,000.
707
00:30:20.250 --> 00:30:21.480
And I think that's okay.
708
00:30:21.480 --> 00:30:23.135
That's exactly why the legislature
709
00:30:23.135 --> 00:30:24.750
granted concurrent jurisdiction.
710
00:30:24.750 --> 00:30:27.750
So isn't this like an end around the statutory amount?
711
00:30:27.750 --> 00:30:29.664
I mean, aren't you just,
712
00:30:29.664 --> 00:30:33.483
what's the point of having a statutory amount?
713
00:30:34.502 --> 00:30:37.227
So again, I think the point is that
714
00:30:37.227 --> 00:30:39.720
reasonably likely to recover, right?
715
00:30:39.720 --> 00:30:43.139
So there needs to be some implementation of that standard.
716
00:30:43.139 --> 00:30:46.686
So in this case, if we don't add a second plaintiff,
717
00:30:46.686 --> 00:30:48.624
it's reasonably likely that the single plaintiff-
718
00:30:48.624 --> 00:30:50.490
But you do add a second plaintiff.
719
00:30:50.490 --> 00:30:51.323
Yeah. Three months later.
720
00:30:51.323 --> 00:30:53.070
Yes, but that's what's gonna happen.
721
00:30:53.070 --> 00:30:57.742
It's gonna be reasonably likely to go over $50,000.
722
00:30:57.742 --> 00:30:59.250
What's the point?
723
00:30:59.250 --> 00:31:03.030
I mean, you're going around that by starting with one.
724
00:31:03.030 --> 00:31:04.214
If you wanna stay in District Court,
725
00:31:04.214 --> 00:31:09.214
all you have to do is put in one plaintiff,
726
00:31:10.170 --> 00:31:13.247
put in the statement of damages, you can low ball it,
727
00:31:13.247 --> 00:31:16.950
and then you can have your trial in District Court
728
00:31:16.950 --> 00:31:19.386
where it seems you're fairly successful.
729
00:31:19.386 --> 00:31:21.810
Well, one, I would suggest, you know,
730
00:31:21.810 --> 00:31:23.520
we put in a statement of damages
731
00:31:23.520 --> 00:31:25.890
that reflect to the facts at that time, right?
732
00:31:25.890 --> 00:31:26.723
That we weren't like-
733
00:31:26.723 --> 00:31:27.556
No, that's fine.
Yeah, yeah.
734
00:31:27.556 --> 00:31:31.080
But that, it ends up being a sort of a strategy
735
00:31:31.080 --> 00:31:32.097
to stay in District Court.
736
00:31:32.097 --> 00:31:33.990
And so that's what people can do.
737
00:31:33.990 --> 00:31:36.120
You can spin that either way, right?
738
00:31:36.120 --> 00:31:38.610
I mean, you know, we could have filed in Superior Court
739
00:31:38.610 --> 00:31:39.443
and they would, you know,
740
00:31:39.443 --> 00:31:40.680
they could argue that we, you know,
741
00:31:40.680 --> 00:31:43.163
we weren't reasonably likely to exceed $50,000.
742
00:31:43.163 --> 00:31:45.168
That's something we face all the time
743
00:31:45.168 --> 00:31:46.967
on the plaintiff's bar.
744
00:31:46.967 --> 00:31:49.020
You know, you're always gonna get an argument
745
00:31:49.020 --> 00:31:50.130
one way or the other, it doesn't matter.
746
00:31:50.130 --> 00:31:52.507
So to suggest that somehow we're trying to evade,
747
00:31:52.507 --> 00:31:54.202
you know, it's just a-
748
00:31:54.202 --> 00:31:56.880
Well, I'm only saying that because you are, right,
749
00:31:56.880 --> 00:32:00.726
because you said that you shouldn't look at anything else
750
00:32:00.726 --> 00:32:04.260
except the initial statement.
751
00:32:04.260 --> 00:32:06.151
Well, that's what the statute says.
752
00:32:06.151 --> 00:32:09.320
It suggests that the plaintiff who brings the complaint
753
00:32:09.320 --> 00:32:11.689
and look at the statement of damages.
754
00:32:11.689 --> 00:32:12.522
It also then-
755
00:32:12.522 --> 00:32:13.680
Statute doesn't say
756
00:32:13.680 --> 00:32:15.600
only look at the plaintiff's statement of damages.
757
00:32:15.600 --> 00:32:16.433
It says, look at the statement of damages.
758
00:32:16.433 --> 00:32:18.300
It says, look at the statement of damages.
759
00:32:18.300 --> 00:32:19.800
And then it also says
760
00:32:19.800 --> 00:32:21.450
the defendant can also submit
761
00:32:21.450 --> 00:32:23.100
a counter statement of damages.
762
00:32:23.100 --> 00:32:24.839
And then when it comes up on appeal,
763
00:32:24.839 --> 00:32:28.680
then it can re-reassess based on the entire record.
764
00:32:28.680 --> 00:32:31.080
So it seems to me that the interpretation
765
00:32:31.080 --> 00:32:32.542
that the judge below gave
766
00:32:32.542 --> 00:32:36.290
of just looking at the statement of damages
767
00:32:36.290 --> 00:32:38.670
of the plaintiff and that alone,
768
00:32:38.670 --> 00:32:42.360
that seems to me an improper interpretation of the statute.
769
00:32:42.360 --> 00:32:45.799
And maybe we use 211 section three, paragraph two
770
00:32:45.799 --> 00:32:49.560
in order to correct that obvious misunderstanding
771
00:32:49.560 --> 00:32:50.521
because of the consequences
772
00:32:50.521 --> 00:32:52.855
that Justice Kafker is pointing out
773
00:32:52.855 --> 00:32:55.230
of being in that wrong form.
774
00:32:55.230 --> 00:32:56.153
Well, even under that scenario,
775
00:32:56.153 --> 00:32:57.810
would not the proper path have been
776
00:32:57.810 --> 00:33:00.660
to go through 231 section 108.
777
00:33:00.660 --> 00:33:01.890
That would've been the proper path so.
778
00:33:01.890 --> 00:33:02.820
That would've been the proper path.
779
00:33:02.820 --> 00:33:03.840
Yes, which didn't occur here.
780
00:33:03.840 --> 00:33:06.660
So, you know, as, as far as we sit here today,
781
00:33:06.660 --> 00:33:09.450
whatever, you know, path we should have taken,
782
00:33:09.450 --> 00:33:11.520
I think it's clear that the path should have been 108.
783
00:33:11.520 --> 00:33:13.140
That's fair.
784
00:33:13.140 --> 00:33:16.201
But there's another, as Justice Wendlandt just pointed out,
785
00:33:16.201 --> 00:33:19.590
we can decide it under paragraph two.
786
00:33:19.590 --> 00:33:23.386
I just am not sure that that issue is presented here
787
00:33:23.386 --> 00:33:24.540
with the two plaintiffs.
788
00:33:24.540 --> 00:33:26.433
I don't see how that's an issue.
789
00:33:27.658 --> 00:33:28.491
It is.
790
00:33:28.491 --> 00:33:32.040
You've now alerted us to sort of the bigger issue.
791
00:33:32.040 --> 00:33:33.000
Not you personally.
792
00:33:33.000 --> 00:33:36.060
The cases alerted us to a bigger issue so,
793
00:33:36.060 --> 00:33:38.080
which is this whole question of
794
00:33:39.030 --> 00:33:42.486
starting class actions in District Court.
795
00:33:42.486 --> 00:33:46.470
And because you only have one person at the time,
796
00:33:46.470 --> 00:33:50.400
but then the number could go staggeringly up.
797
00:33:50.400 --> 00:33:52.830
That presents an interesting legal issue.
798
00:33:52.830 --> 00:33:53.700
And again, under the,
799
00:33:53.700 --> 00:33:55.822
I would suggest, I know, you know,
800
00:33:55.822 --> 00:33:57.600
we've gone back and forth here a little bit on this,
801
00:33:57.600 --> 00:33:58.433
but you know-
802
00:33:58.433 --> 00:34:00.601
Actually we are.
803
00:34:00.601 --> 00:34:03.123
Thank you very much, we're two minutes over.