Transportation Newsletter by Smith Moore Leatherwood

SPRING 2012

Attorneys at Law

TRANSPORTATION NEWSLETTER

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Transportation News: Available Online Zeŵeŵďer to ǀisit sŵlƉersƉecƟǀes͘ coŵ͕ Sŵith Moore >eatherwood͛s online legal ŵagaǌine that Ɖresents ŵaƩers of law as they relate to you͘ ll arƟcles contained within our Ƌuarterly transƉortaƟon newsleƩers are Ɖosted online͕ and you are liŬely to Įnd an arƟcle or two not contained within the newsleƩer as well͘ ;Don͛t worry͕ we͛re sƟll ƉrinƟng hardcoƉiesͿ͘ zou can also suďscriďe to our TransƉortaƟon ZSS feed to receiǀe uƉͲtoͲtheͲŵinute news froŵ our TransƉortaƟon teaŵ ďetween newsleƩers͘ te encourage you to leaǀe your thoughts and coŵŵents on the arƟcles͘ te loǀe to hear froŵ you͘

Spoliation and Preservation:

ARE YOU SURE YOU DOWNLOADED THAT ECM? The United States District Court for the Middle District of Florida recently handed doǁn a decision concerninŐ sƉoliaƟon of eǀidence as it related to the failure to Ɖreserǀe data froŵ a trucŬ͛s lectronicͬ nŐine Control Module ; CMͿ folloǁinŐ a fatal collision͘ WlainƟī ʹ asserƟnŐ that the defendants failed to Ɖreserǀe CM data͕ ǁhich ǁould Ɖroǀide inforŵaƟon concerninŐ the ǀehicle͛s ǁheel sƉeed͕ accelerator ƉosiƟon͕ ďraŬinŐ͕ enŐine ZWM͕ and other data ;͞SnaƉshot data͟ͿͿ ʹ ŵoǀed for conteŵƉt Ɖ and sancƟons aŐainst the defendants on the ground sƉoliated eǀi eǀidence ďy failing ound that they to retain ƉerƟnent inforŵaƟon͘ Defendants ŵaintained that nforŵaƟon͘ they aƩeŵƉted to caƉture the CM data iŵŵediately folloǁing the accident͕ ďut did not ďecoŵe dent͕ aǁare unƟl later that a full at f download had not occurred͘ Kn March ϵ͕ ϮϬϭϬ͕ a ϮϬϬϬͲŵodel Kenworth tractorr was ttrailer inǀolǀed in a collision with a ϭϵϵϱ Dodge sion ƉicŬͲuƉ trucŬ in County͕ n >ee County Florida͕ which resulted in the death ƉicŬͲuƉ͛s driǀer͘ Counsel th of the was retained ďy thee defendant trucŬing coŵƉany along with coŵ an accident reconstrucƟon within hours of the collision͘ n trucƟon eǆƉert CM download was Ɖerforŵed ďy a ƋualiĮed serǀice center͖ howeǀer͕ the technician downloading the CM failed to oďtain the SnaƉshot data froŵ the incident YuicŬStoƉ ;a YuicŬStoƉ occurs any Ɵŵe the ǀehicle decelerates ƋuicŬer than ϴ ŵƉhͬsecondͿ͘ The coŵƉany͛s aƩorney͕ not ďeing ƋualiĮed to interƉret CM data͕ did not recogniǌe the download was incoŵƉlete and siŵƉly Ɖlaced the results in his Įle͘ TesƟŵony Ɖroǀided that technicians at the engine dealer do not norŵally download SnaƉshot inforŵaƟon in the norŵal course͘ Thus͕ it would ďe Ɖrudent for counsel to sƉeciĮcally direct that this inforŵaƟon is included in any ƉostͲaccident CM download͘ Eearly a year later͕ uƉon discoǀering the data download to ďe incoŵƉlete͕ the aƩorneys again tried to access the CM data on the ǀehicle͖ howeǀer͕ any SnaƉshot data for the incident YuicŬStoƉ had ďeen oǀerwriƩen ďy a ŵore recent YuicŬStoƉ eǀent͘ TesƟŵony ďy the aƩorneys inǀolǀed was that there was no intent to sƉoliate eǀidence or ďlocŬ ƉlainƟī froŵ accessing the ǀehicle CONTINUED ON PAGE 2>>

or data͕ and that there was no ďad faith on the Ɖart of the defendants ʹ the defendants did eǀerything Ɖossiďle to retain and Ɖreserǀe the CM data and͕ uƉon realiǌing soŵe of the data was ŵissing͕ did eǀerything Ɖossiďle to recoǀer it͘ It was not disputed that the defendants did not preserǀe the Snapshot data froŵ the CM download iŵŵediately following the accident or the data froŵ their suďseƋuent access ;it allegedly ďeing apparent that it was an oǀerwrite and not related to the suďũect accidentͿ͘ In its analysis͕ the Court speciĮcally noted that the aƩorneys were not eǆperts in CM downloads and were not iniƟally aware that data was ŵissing͘ >iŬewise͕ the defendants͛ eǆpert was unaware

addiƟonal inforŵaƟon was oďtainaďle or ŵissing͘ ccordingly͕ the Court held the defendants did not intenƟonally destroy the inforŵaƟon and their acƟons or inacƟons did not consƟtute spoliaƟon͘ There were howeǀer seǀeral addiƟonal factors that ŵay haǀe played a role in the Court͛s decision͘ There was eǀidence that the CM data ŵay not haǀe ďeen reliaďle and there was addiƟonal ͞roadway͟ eǀidence aǀailaďle ;sŬid ŵarŬs͕ etc͘Ϳ to allow plainƟī͛s eǆperts to reconstruct the accident͘ lthough the Court did not Įnd spoliaƟon occurred͕ it did note that “the facts of this case point out the changes to the pracƟce of law that are occurring as inforŵaƟon technologies eǀolǀe͘͟ To that end͕ “΀i΁t

is incuŵďent on the Court and counsel to understand the raŵiĮcaƟons of technology͕ and ŵost iŵportantly͕ to deterŵine what it is that we ŵay haǀe and how do we preserǀe it͘͟ ccordingly͕ it is increasingly iŵportant for counsel and eǆperts to stay aďreast of deǀelopŵents in the technology of our Įeld and understand how to direct proper preserǀaƟon of electronic data and eǀidence͘ s a side note͕ up unƟl recently͕ only U͘S͘Ͳďased auto ŵaŬers included “ďlacŬ ďoǆ͟ technology in their ǀehicles͘ ,oweǀer͕ oĸcials haǀe ŵandated that all ǀehicles eƋuipped with ďlacŬ ďoǆ technology ŵanufactured aŌer Septeŵďer ϭ͕ ϮϬϭϮ ďe in coŵpliance with ϰϵ C͘F͘Z͘ Wart ϱϲϯ goǀerning how and what data ŵust ďe recorded͘

DQG WKH 1HZ 0HGLFDO &HUWLÀFDWLRQ 5HTXLUHPHQWV eginning on :anuary ϯϬ͕ ϮϬϭϮ͕ a coŵŵercial driǀer͛s ŵedical cerƟĮcaƟon will ďecoŵe part of hisͬ her coŵŵercial driǀer͛s license driǀing record͘ Kne of the purposes of the new regulaƟon is to enaďle roadside law enforceŵent to electronically conĮrŵ that the coŵŵercial driǀer has a ǀalid ŵedical cerƟĮcaƟon ďy linŬing that inforŵaƟon with the Coŵŵercial Driǀer͛s >icense InforŵaƟon Systeŵ͘ ny holder of a coŵŵercial driǀer͛s license͕ who is suďũect to the physial ƋualiĮcaton reƋuireŵents of the Federal Motor Carrier Safety ZegulaƟons ;“FMCSZs͟Ϳ͕ will ďe reƋuired to proǀide a current original or copy of his or her ŵedical eǆaŵiner͛s cerƟĮcate ;“Medical Card͟Ϳ to the driǀer͛s issuing State Driǀer >icensing gency ;“SD> ͟Ϳ͘ The reƋuireŵent to present one͛s Medical Card will ďe triggered upon one of the following eǀents͗ a driǀer applies for a CD>͖ renews a CD>͖ applies for a higher class of CD>͖ applies for a new endorseŵent on a CD>͖ or transfers a CD> froŵ another State͘ Ϯ

The new regulaƟon disƟnguishes ďetween four types of driǀers͖ the holder of a CD> will ďe reƋuired to noƟfy their respecƟǀe SD> as to which type of driǀer heͬshe is or eǆpects to ďe͘ The four types of driǀers are as follows͗ interstate nonͲeǆcepted͖ interstate eǆcepted͖ intrastate nonͲeǆcepted͖ or intrastate eǆcepted͘ n interstate nonͲ eǆcepted driǀer ŵust ŵeet the Federal

DKT ŵedical card reƋuireŵents͘ If eǆcepted͕ a driǀer will not haǀe to ŵeet the physial ƋualiĮcaton reƋuireŵents of the FMCSZs͘ The saŵe is true for the intrastate nonͲeǆcepted and eǆcepted categories͘ If a driǀer is suďũect to FMCSZ ŵedical card reƋuireŵents͕ heͬshe should proǀide a copy of each new ŵedical

card to hisͬher SD> prior to the eǆpiraƟon of the hisͬher current ŵedical card͘ ,olders of a CD> reƋuired to haǀe a ŵedical card͕ ďut who fail to proǀide or Ŭeep current their ŵedical card with their SD> ͕ will haǀe their license downgraded or ŵay lose their CD> all together͘ The prograŵ is to ďe fully iŵpleŵented ďy each state ďy :anuary ϯϬ͕ ϮϬϭϰ͘

UnƟl that Ɵŵe͕ an interstate driǀer suďũect to the CD> regulaƟons and the FMCSZs regarding physical ƋualiĮcaƟon reƋuireŵents ŵust retain paper copies of their ŵedical eǆaŵiner͛s cerƟĮcate͘ Interstate ŵotor carriers are siŵilarly reƋuired to retain copies of their driǀers͛ ŵedical cerƟĮcates in their driǀer ƋualiĮcaƟon Įles through :anuary ϯϬ͕ ϮϬϭϰ͘ s a pracƟcal ŵaƩer͕ it would ďe wise for a

coŵŵercial driǀer to conƟnue to carry hisͬher ŵedical card͕ whether reƋuired to or not͘ ConƟnuing to carry one͛s ŵedical card is a sŵall price to pay to Ŭnow that heͬshe will will ďe aďle ǀerify that they haǀe ŵeet the FMCSZs physical ƋualiĮcaƟon reƋuireŵents in the eǀent ŵodern technology fails͘

Employee Entitled to Unemployment Benefits Following Termination for Failure to Maintain Driver’s License recent opinion ďy the astern District of the Missouri Court of ppeals reǀersed a decision of the >aďor and Industrial ZelaƟons Coŵŵission ;the “Coŵŵission͟Ϳ that denied uneŵployŵent ďeneĮts to an eŵployee who was terŵinated aŌer his driǀer͛s license was suspended͘ See >entǌ ǀ͘ ,oŵe Security of ŵ͕͘ ϮϬϭϮ Mo͘ pp͘ > yIS ϭϴϵ ;Ct͘ pp͘ Mo͘ ϮϬϭϮͿ͘ The Coŵŵission͕ ďasing its deterŵinaƟon on oard of duc͘ Kf City of St͘ >ouis ǀ͘ >aďor and Indus͘ ZelaƟons Coŵ͛n͕ ϲϯϯ S͘t͘Ϯd ϭϮϲ ;Mo͘ pp͘ t͘D͘ ϭϵϴϮͿ͕ found that the eŵployee “ǀoluntarily͟ leŌ eŵployŵent ďy failing to ŵaintain a driǀer͛s license that was a reƋuired condiƟon under his ũoď descripƟon͘ ddiƟonally and with respect to “good cause͟ on the part of the eŵployer͕ the Coŵŵission deterŵined that “΀t΁hrough no fault of the eŵployer the claiŵant did not ŵaintain a reasonaďle condiƟon that was clearly essenƟal to ďeing eligiďle for his ũoď͘͟ The Coŵŵission deterŵined that “all criƟcal eǀents were set in ŵoƟon ďy the loss of the ΀driǀer͛s΁ license͘͟ ,oweǀer͕ the eŵployee was not a professional driǀer ʹ rather he was a licensed ŵaster pluŵďer͘ The Court of ppeals͕ adopƟng the reasoning of the single dissenƟng opinion of the Coŵŵission͕ deterŵined that the eŵployee had not ǀoluntarily Ƌuit his posiƟon and ŵade parƟcular

;ϭͿ the eŵployer did not iŵŵediately terŵinate the eŵployee upon discoǀering that he no longer ŵaintained the reƋuired ǀalid driǀer͛s license͕ ďut rather “accoŵŵodated͟ hiŵ ďy Įnding other tasŬs for hiŵ to perforŵ and assisƟng hiŵ in the process of haǀing his license reinstated͖ and

note of the fact that the eŵployer conƟnued to eŵploy the claiŵant for a period of weeŬs upon discoǀering that his license was suspended͘ In fact͕ the eŵployer eǀen paid for courses that the eŵployee was reƋuired to taŬe as a condiƟon of haǀing his license reinstated͕ and accoŵŵodated the situaƟon ďy Įnding eŵployee worŬ to perforŵ that did not reƋuire that he driǀe͘ It was only when the eŵployer discoǀered that it would taŬe nearly a ŵonth ʹ as opposed to seǀeral days ʹ for the eŵployee to haǀe his license reinstated that the eŵployer decided to terŵinate hiŵ͘ So how ŵight this decision aīect an eŵployer of professional licensed driǀers͍ There are two signiĮcant facts that appear priŵary in the Court of ppeals decision reǀersing the Coŵŵission͗

;ϮͿ ďecause perforŵance of the eŵployee͛s priŵary tasŬ ʹ that of a licensed ŵaster pluŵďer ʹ was not aīected ďy the loss of a driǀer͛s license͕ the eŵployer was not prohiďited ďy law froŵ conƟnuing to eŵploy hiŵ in that role͘ Ŭey disƟncƟon ŵay ďe found with respect to the second eleŵent ʹ with professional driǀers͕ they cannot perforŵ their duƟes aďsent a ǀalid driǀer͛s license͘ Thus͕ an eŵployer is prohiďited ďy law froŵ perŵiƫng a driǀer to conƟnue to worŬ when his license has ďeen suspended͘ That does not ŵean the eŵployer cannot Įnd other teŵporary worŬ for an eŵployee while the license is ďeing reinstated͖ howeǀer͕ if an eŵployer does so and then suďseƋuently ŵaŬes the deterŵinaƟon to terŵinate the eŵployŵent on the ďasis of the lacŬ of a ǀalid license͕ the eŵployee will liŬely ďe enƟtled to receiǀe uneŵployŵent ďeneĮts͘

Erik Albright

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Kevin McCarrell

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Atlanta, GA

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Georgia | North Carolina | South Carolina 4

The Road Ahead ͻ ͻ ͻ ͻ ͻ ͻ

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Zoď will ďe one of the speaŬers for a T> sponsored weďinar relaƟng to changes in insurance forŵs on pril 4͕ at Ϯ T͘ For ŵore inforŵaƟon͕ see hƩp͗ͬͬwww͘translaw͘orgͬWagesͬteďinars͘aspǆ͘ Marc TucŬer conƟnues to aƩend the ŵonthly ŵeeƟngs of the ECT Safety Council Down ast Chapter͘ Zoď MoseleyΖs neǆt TransportaƟon Contracts Seŵinar͕ presented ďy SMCϯ͕ will ďe in CincinnaƟ on pril ϭϳ͘ SMCϯΖs linŬ for registraƟon is hƩp͗ͬͬwww͘sŵcϯ͘coŵͬsŵcϯͬacadeŵyͬcl͘htŵ͘ nter the code ΗMoseleyΗ during online registraƟon and saǀe Ψϭ4ϱ͘ Zoď Moseley and Fredric MarcinaŬ will aƩend the TransportaƟon >awyers ssociaƟon nnual MeeƟng in May ϮϬϭϮ in Eaples͕ Florida͘ Zoď will ďe coͲchairing the Freight Claiŵs CoŵŵiƩee ŵeeƟng͘ Kurt ZoǌelsŬy will ďe presenƟng at TrucŬing oot Caŵp Is on May ϭϱ in tlanta͕ ' ͕ on May ϭϲ in Dallas͕ Ty͕ on :une ϲ in Krlando and :une ϳ in Chicago͘ Kn May ϭϳ͕ Zoď Moseley will ďe speaŬing on a Wanel with >aura FredricŬson of EIC on issues inǀolǀing the WreScreening Wrograŵ for driǀer ďacŬground checŬs at the sirginia TrucŬing ssociaƟonΖs Safety Manageŵent Conference in sirginia each͘ zou would thinŬ that the people who are responsiďle for ďacŬground checŬs would haǀe checŬed Zoď out a liƩle closer͘ Zoď Moseley is aƩending the T >eadership MeeƟng in St͘ Wetersďurg͕ F>͕ May ϮϬͲϮϯ. The Moseleys will ďe aƩending the SCT nnual MeeƟng at ,ilton ,ead on :une ϳͲϭϬ͘ Fredric MarcinaŬ and Zoď Moseley will ďe aƩending the Conference of Freight Counsel ŵeeƟng in alƟŵore :une Ϯ4ͲϮϱ͘ :acŬ Ziordan will spearhead the TrucŬing >aw CoŵŵiƩee reaŬout Session at the Suŵŵer MeeƟng of the SCDT in sheǀille͕ EC during :uly ϮϲͲϮϴ͕ ϮϬϭϮ͘

Making Tracks ͻ

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s Chairŵan of the South Carolina Defense Trial ƩorneyΖs ssociaƟon ;SCDT Ϳ TrucŬing >aw CoŵŵiƩee͕ :acŬ Ziordan led the reaŬout Session at the SCDT nnual MeeƟng in ŵelia Island͕ Florida on Eoǀeŵďer ϱ͕ ϮϬϭϭ͘ thile at the nnual MeeƟng͕ :acŬ was elected to the oard of Directors for SCDT ͕ a terŵ which will eǆpire in ϮϬϭ4͘ In addiƟon to his conƟnued duƟes as Chairŵan of the TrucŬing >aw CoŵŵiƩee͕ :acŬ will serǀe on the MarŬeƟng and Defense>ine ;SCDT EewsleƩerͿ CoŵŵiƩees for ϮϬϭϮ͘ Kn Deceŵďer ϭϲ͕ ϮϬϭϭ͕ :acŬ Ziordan was the sole defense aƩorney on the panel of the S͘C͘ ar C> ͗ Motor Carrier Claiŵs͗ Froŵ trecŬ to Trial͘ ,eld at the S͘C͘ ar Conference Center in Coluŵďia͕ SC͕ :acŬΖs session was enƟtled͗ Defending a Target Defendant to serdict͘ Zoď Moseley and Fredric MarcinaŬ aƩended the Conference of Freight Counsel tinter MeeƟngs in :anuary ϮϬϭϮ in Eew Krleans͘ :oseph Zohe accoŵpanied Zoď to the T> Zegional Seŵinar in Chicago on :anuary ϮϬ͘ :oseph is sƟll undergoing frostďite treatŵent ďecause Moseley is so cheap that he wouldnΖt let theŵ taŬe a caď froŵ the train staƟon͘ Zoď Moseley aƩended the Θ T Capital MarŬets Seŵinar in Miaŵi͕ Florida Ͳ Feďruary ϭϱͲϭϲ͕ ϮϬϭϮ Ͳ as Steǀe Farrar is oŌen heard to say͕ ΗZoď gets all the good trips͘Η Kurt ZoǌelsŬy͕ as Chair of the DZI TrucŬing >aw CoŵŵiƩee͕ led the ϮϬϭϮ DZI TrucŬing >aw Seŵinar in ScoƩsdale͕ Feďruary ϭϱͲϭϳ͘ riŬ lďright ;'reensďoroͿ and Marc TucŬer ;ZaleighͿ also aƩended the ŵeeƟng and seǀeral panel counsel ŵeeƟngs͘ Zoď led a discussion on Suspected ut Unproǀen Freight Daŵage at the TID SŬills Seŵinar in Teŵpe͕ on March ϵ͘ That was followed ďy a ΗSuspected ďut UnproǀenΗ spring training ďaseďall gaŵe͘ Zoď Įnished on the second place teaŵ at the recent SCT TrucŬpac 'olf Tournaŵent at Myrtle each͘ ,e played with clients ndy 'ianouŬos͕ TS >ogisƟcs͕ and MaƩ 'riŵŵ͕ 'reat test Casualty Coŵpany͘ MaƩ and ndy would haǀe Įnished Įrst ďy theŵselǀes͘

CONGRATULATIONS The following lawyers of the Sŵith Moore >eatherwood TransportaƟon Teaŵ were recently selected ďy their peers for inclusion in The Best Lawyers in America® ϮϬϭϮ ;Copyright ϮϬϭϮ ďy toodwardͬthite͕ Inc͕͘ of iŬen͕ SCͿ͗ ͻ ͻ

riŬ lďright͗ Coŵŵercial >iƟgaƟon͕ Wersonal Inũury >iƟgaƟon :onathan ͘ erŬelhaŵŵer͗ Coŵŵercial >iƟgaƟon͕ Wersonal Inũury >iƟgaƟon ;DefendantsͿ͕ Wroduct >iaďility >iƟgaƟon͕ Wroduct >iaďility >iƟgaƟon ;DefendantsͿ Steǀen ͘ Farrar͗ etͲtheͲCoŵpany >iƟgaƟon͕ Coŵŵercial >iƟgaƟon͕ >egal MalpracƟce >aw ;DefendantsͿ͕ ConstrucƟon >iƟgaƟon͕ Wrofessional MalpracƟce >aw ;DefendantsͿ

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Zoďert D͘ Moseley͕ :r͗͘ Insurance >aw͕ Wersonal Inũury >iƟgaƟon :acŬ Ziordan͗ Wersonal Inũury >iƟgaƟon Kurt M͘ ZoǌelsŬy͗ Wersonal Inũury >iƟgaƟon ;DefendantsͿ͕ Wroduct >iaďility >iƟgaƟon͕ Wroduct >iaďility >iƟgaƟon ;DefendantsͿ :ulianna C͘ Theall͗ ŵployŵent >aw ;ManageŵentͿ͕ >aďor Θ ŵployŵent >iƟgaƟon

Changes to Federal Jurisdiction and Procedure The recently enacted Federal Courts :urisdicƟon and senue ClariĮcaƟon ct of ϮϬϭϭ͕ W͘>͘ ϭϭϮͲϲϯ ;Deceŵďer ϳ͕ ϮϬϭϭͿ͕ signiĮcantly aŵends the federal ũurisdicƟonal statutes͕ including proǀisions coǀering diǀersity ũurisdicƟon͕ ǀenue͕ federal ƋuesƟon ũurisdicƟon͕ and reŵoǀal͘ The ct was eīecƟǀe on :anuary ϲ͕ ϮϬϭϮ͘ The ct includes seǀeral changes that are signiĮcant for parƟes seeŬing to liƟgate in Federal Court͕ including changes that are ďeneĮcial for parƟes reŵoǀing cases to Federal Court and for oďtaining ũurisdicƟon in Federal Court͘

Removal Procedure The ct ďegins ďy codifying the longͲ standing reƋuireŵent that in order for an acƟon to ďe reŵoǀed to Federal Court there ŵust ďe unaniŵity aŵong the defendants reŵoǀing an acƟon͘ Thus͕ in Ŭeeping with prior case law͕ all defendants ŵust agree and ũoin together to reŵoǀe a case to Federal Court͘ Iŵportantly͕ howeǀer͕ the ct goes on to clarify the ŵechanics of the reŵoǀal of a case ďy ŵulƟple defendants ďy resolǀing a split aŵong the federal circuits as to the procedure ďy which such acƟons are reŵoǀed͘ Wreǀiously͕ the ŵaũority of circuits had adopted the “last serǀed defendant ϲ

rule͕͟ which proǀided that each defendant had a separate thirty ;ϯϬͿ days in which to reŵoǀe an acƟon froŵ its parƟcular date of serǀice͘ Thus͕ the last serǀed defendant could reŵoǀe within thirty ;ϯϬͿ days of its date of serǀice and preǀiously serǀed defendants could ũoin in that reŵoǀal͕

"Several changes are significant for parties seeking to litigate in Federal Court, including changes that are beneficial for parties removing cases to Federal Court and for obtaining jurisdiction in Federal Court." eǀen though these earlier serǀed defendants had not reŵoǀed the acƟon to Federal Court͘ In contrast͕ other circuits͕ including the United States Court of ppeals for the Fourth Circuit͕ adhered to the “Įrst serǀed defendant rule͘͟ Under this rule͕ the Įrst serǀed defendant had the opƟon of reŵoǀing the case within thirty ;ϯϬͿ days of its date of serǀice͘ ny defendant serǀed aŌer the iniƟal thirty ;ϯϬͿ days of serǀice froŵ the Įrst serǀed defendant had eǆpired could not reŵoǀe the acƟon to Federal Court͘ The ct adopts the “last serǀed

defendant rule͘͟ Thus͕ in ũurisdicƟons such as the Fourth Circuit that had adopted the “Įrst serǀed defendant rule͕͟ each party will now haǀe thirty ;ϯϬͿ days to reŵoǀe the case to Federal Court aŌer it has ďeen serǀed͘ ny earlierͲserǀed defendants ŵust ũoin in the laterͲserǀed defendants͛ noƟce of reŵoǀal so that unaniŵity is ŵaintained͘ This change also preǀents plainƟīs͛ aƩorneys froŵ ŵanipulaƟng the Ɵŵing of serǀice of process so that defendants less liŬely to reŵoǀe are serǀed Įrst͘ Instead͕ each defendant will now haǀe an eƋual opportunity to reŵoǀe to Federal Court͘ The ct also ŵaŬes ŵodiĮcaƟons to the procedure for deterŵining the aŵount in controǀersy͘ Currently͕ the aŵount in controǀersy in a parƟcular case ŵust eǆceed Ψϳϱ͕ϬϬϬ in order for the case to ďe reŵoǀaďle͘ The ct states that where a state court pleading does not specify an aŵount in controǀersy͕ or where state pracƟce perŵits a plainƟī to recoǀer ŵore than the aŵount sought͕ the defendants ŵay reŵoǀe to Federal Court and Įle docuŵentaƟon along with their EoƟce of Zeŵoǀal to deŵonstrate that the aŵount in controǀersy eǆceeds Ψϳϱ͕ϬϬϬ͘ The reŵoǀal will succeed if the defendants can show

ďy a preponderance of the eǀidence that the aŵount in controǀersy eǆceeds Ψϳϱ͕ϬϬϬ͘ lternaƟǀely͕ in this situaƟon͕ the defendants can leaǀe the acƟon in state court and can reŵoǀe the acƟon at a later Ɵŵe if a docuŵent is produced which indicates that the aŵount in controǀersy eǆceeds Ψϳϱ͕ϬϬϬ͘ In those circuŵstances͕ the defendants ŵust reŵoǀe within thirty ;ϯϬͿ days of receipt of the docuŵent indicaƟng that the aŵount eǆceeds Ψϳϱ͕ϬϬϬ͘ Kn the other hand͕ where the state court pleadings state an aŵount sought in the lawsuit͕ that aŵount can ďe used to deterŵine the aŵount in controǀersy and it will ďe conclusiǀe as to the aŵount in controǀersy͕ eǆcept in states where state law or procedure perŵits the plainƟī to recoǀer an aŵount ďeyond the aŵount naŵed in the Coŵplaint͘ In those states͕ defendants ŵay reŵoǀe the ŵaƩer to Federal Court and argue that the aŵount in controǀersy nonetheless eǆceeds Ψϳϱ͕ϬϬϬ despite the aŵount claiŵed in the Coŵplaint͘ Finally͕ the ct adds seǀeral proǀisions to aŵeliorate the harshness of the oneͲ year ďar on reŵoǀal of cases to Federal Court ďased on diǀersity ũurisdicƟon͘ Under current law͕ a party ŵay not reŵoǀe a case to Federal Court on the ďasis of diǀersity ũurisdicƟon if ŵore than one year has elapsed since the date the acƟon was Įled͘ The ct creates two eǆcepƟons͘ First͕ a party case reŵoǀe a case to Federal Court aŌer one year has passed where the plainƟī acted in “ďad faith͟ to preǀent reŵoǀal of the case͘ Second͕ the ct

proǀides that if the court Įnds that the plainƟī deliďerately failed to disclose the aŵount in controǀersy to preǀent reŵoǀal͕ such acƟon consƟtutes ďad faith͘ Currently͕ it is coŵŵon pracƟce for aƩorneys who want to preǀent reŵoǀal of a lawsuit against a ciƟǌen of a diīerent state to include a ciƟǌenͶ eǀen one whose liaďility to the plainƟī is tenuousͶof the saŵe state of the plainƟī to defeat diǀersity ũurisdicƟon͘ KŌenƟŵes͕ the inͲstate defendant will ďe disŵissed froŵ the case aŌer the oneͲyear prohiďiƟon against reŵoǀal has ďeen triggered͘ In these situaƟons͕ defendants will now ďe aďle to assert that the plainƟī has acted in ďad faith to preǀent reŵoǀal and that the acƟon should ďe reŵoǀaďle͕ the oneͲyear ďar notwithstanding͘

Jurisdiction tith regard to federal ƋuesƟon ũurisdicƟon͕ the ct ŵaŬes one change that͕ upon Įrst reading of the statute͕ appears to ďe ďroader than it is͘ The ct states that where a Coŵplaint asserts a claiŵ under federal law and also claiŵs under state law͕ the enƟre acƟon can ďe reŵoǀed to Federal Court ďut that a District Court “shall seǀer͟ and “shall reŵand͟ any claiŵ that is not within “the original or suppleŵental ũurisdicƟon of the District Court͘͟ Kn Įrst ďlush͕ this appears to reƋuire that any state law claiŵs that are reŵoǀed along with the federal claiŵ ŵust ďe reŵanded to District Court͘ ,oweǀer͕ the Ŭey phrase in the statute is the reference to suppleŵental ũurisdicƟon͘ Suppleŵental ũurisdicƟon͕ forŵerly Ŭnown as ancillary or pendant ũurisdicƟon͕ and currently eŵďodied in Ϯϴ U͘S͘C͘ Α ϭϯϲϳ͕ proǀides that state law claiŵs that are “so related to ΀federal΁ claiŵs in the acƟon ͘ ͘ ͘ that they forŵ a part of the saŵe case or controǀersy͟ ŵay generally ďe reŵoǀed to Federal Court along with the federal claiŵ͘ Thus͕ eǀen under the aŵendŵents ŵade ďy the new ct͕ state law claiŵs that are related to the claiŵ that is reŵoǀed on the ďasis of federal ũurisdicƟon will reŵain in

Federal Court͘ Knly unrelated state law claiŵs oǀer which there is no diǀersity ũurisdicƟon ŵust ďe reŵanded to state court͘ It is certainly unusual to Įnd a Coŵplaint that pleads ďoth related and unrelated claiŵs͕ therefore the circuŵstances in which the ct will ďe inǀoŬed to reŵand state law claiŵs to state court appear to ďe liŵited͘ ,oweǀer͕ the apparently ďroad terŵs in which the ct speaŬs are liŬely to lead to confusion in that arguŵents for reŵand of related state law claiŵs are liŬely to ďe ŵade͕ and the ct ŵust ďe carefully parsed and ďriefed to the courts so that claiŵs oǀer which suppleŵental ũurisdicƟon eǆists will ďe ŵaintained in Federal Court͘

Venue Finally͕ the ct ŵaŬes seǀeral changes to ǀenue proǀisions͘ The ŵost iŵportant of these is that District Courts now haǀe the aďility to transfer any ciǀil acƟon “to any district or diǀision to which all parƟes haǀe consented͟ for “the conǀenience of the parƟes and witnesses and in the interest of ũusƟce͘͟ This statute allows the parƟes to consent to transfer to any ǀenue that they can agree on͘ Further͕ the ct eliŵinates the disƟncƟon ďetween federal ƋuesƟon and diǀersity acƟons for purposes of ǀenue and adopts a single͕ general ǀenue statute͘

Conclusion The changes ŵade ďy the ct are liŬely to eliŵinate soŵe of the confusion surrounding the Ɵŵing and procedure for reŵoǀal of acƟons to Federal Court and ũurisdicƟon in Federal Court͘ Kǀerall͕ these changes will liŬely worŬ to the ďeneĮt of defendants who are seeŬing to haǀe acƟons reŵoǀed to Federal Court͘ These changes will ďe ďeneĮcial to parƟes who seeŬ the uniforŵity of federal policy and procedure͕ the aǀoidance of ďias in local state courts͕ and the ease and access of electronic Įling in Federal Courts͘ ϳ

Transportation Industry Team te represent ďoth large and sŵall trucŬing coŵpanies as insureds on ďehalf of nuŵerous naƟonal insurance coŵpanies and as selfͲinsureds͘ In addiƟon͕ the Įrŵ has serǀed for ŵany years as outside 'eneral Counsel for a naƟonally recogniǌed coŵŵercial ǀehicle insurer and is eǆperienced in all aspects of transportaƟon law including issues inǀolǀing federal and state statutes and regulaƟons proŵulgated ďy the forŵer Interstate Coŵŵerce Coŵŵission ;ICCͿ͕ the successor Surface TransportaƟon oard͕ the Departŵent of TransportaƟon and the Wuďlic Serǀice Coŵŵission͘ s part of the array of transportaƟon serǀices proǀided to Įrŵ clients͕ an aŌerͲhours eŵergency response teaŵ is standing ďy to serǀice clients with urgent needs following a catastrophic accident͘

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