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Forum Shopping Is Bad--Or Is It???

By Steve Sather

Judge Leif Clark recently wrote a very brief opinion with regard to jury demands and forum shopping. He ruled that the defendant's good or bad faith was not relevant to whether a jury could be demanded. Osherow v. Clonch Industries, Adv. No. 06-5200 (Bankr. W.D. Tex. 2/5/07). He stated:

"Congress has authorized bankruptcy courts to adjudicate matters involving trial by jury, but only with the consent of all the parties. A party can thus easily obtain a change of fourm by the fiat of first demanding a jury then refusing to consent to the bankruptcy court's conduct of the trial. (citation omitted). A pleading filed for the purpose of forum shopping is potentially sanctionable. Then again, it might not be (citation omitted)."

In support of the proposition that forum shopping might not be bad, Judge Clark cited this wonderful comment from Judge Rubin of the Fifth Circuit:

"Forum-shopping is sanctioned by our judicial system. It is as American as the Constitition, peremptory challenges to jurors, and our dual system of state and federal courts."

McCuin v. Texas Power & Light Co., 714 F.2d 1255, 1261 (5th Cir. 1983).

So, the next time someone hurls the charge of forum-shopping, be sure to point out that you are defending the Constitition and the American way (although you might still want to have an argument as to why you are engaging in good forum-shopping as opposed to the other kind).

Full post as published by A Texas Bankruptcy Lawyer's Blog on March 19, 2007 (boomark / email).