52 RI Bar J., No. 6, Pg. 9 (May, 2004). Duplicative Litigation.

• Author: Brian C. Newberry, Esq.

Rhode Island Bar Journal

Volume 52.

52 RI Bar J., No. 6, Pg. 9 (May, 2004).

Duplicative Litigation

Duplicative LitigationBrian C. Newberry, Esq.Brian C. Newberry is a partner in Noel & Gyorgy LLP in Providence specializing in commercial and civil litigation in Rhode Island and Massachusetts.Every lawyer who has ever filed a lawsuit eventually encounters a defendant who chooses to file a separate complaint in a separate jurisdiction based upon the same set of facts in lieu of, or perhaps in addition to, a counterclaim in the original case. At first, this tactic appears underhanded, but forum shopping has always been a prominent part of a litigator's job. No competent attorney would fail to consider the best location in which to file on behalf of his client. Further, in situations with claims and counterclaims, the mere fact that one party beat the other to the courthouse door should not necessarily preclude the second party from doing what it can to address the situation; for example, perhaps the quick filer has chosen an improper venue. Nevertheless, a question remains: as a plaintiff's attorney how does one react to such tactics and as a defense attorney what can one expect from such gamesmanship?

The answer may depend upon the court, state or federal in which the actions lie. The federal court system is unified and merely broken down into districts for ease of administration. There exists only one sovereign entity. Consequently, the federal courts are more apt to simply transfer and consolidate cases where appropriate. See Pumpelly v. Cook, 106 F.R.D. 238 (D.D.C. 1985) (dismissing without prejudice and with leave to refile in proper forum counterclaim that should properly have been brought in pending suit in Eastern District of Virginia). 28 U.S.C. § 1404 also provides a mechanism for transferring cases to a more appropriate district in relatively smooth fashion.

The situation grows more complicated when the two actions have been filed in two different state court systems or a state system and a federal court in another state. (fn1) In these situations there exist two different sovereigns that have equal claim to hearing the matter before them. Indeed, the respective courts might feel an obligation to hear the case because presumably the plaintiffs in both suits have properly invoked the court's jurisdiction and...