Wednesday, May 22, 2013

Certified Chutzph?

Imagine a defendant removing a case from state to federal court, and then asking the federal court of appeals to certify a question to the state supreme court. Further, imagine that the defendant's request for certification came only after an apparently lopsided oral argument where the panel appeared ready to rule against the defendant. Sound like gamesmanship? Think a court might be upset? Take a look at this reaction in a Ninth Circuit opinion published yesterday:

Hinojos v Kohl's Corp. No. 11-55793 (9th Cir. May 21, 2013):
We have long looked with disfavor upon motions to certify that are filed after the moving party has failed to avail itself of a prior opportunity to seek certification. [Citation] For example, in states that accept certification from federal district courts (unlike California), we have a held that there is a "presumption against certifying a question to a state supreme court after the federal district court has issued a decision" when the party that lost below did not mention the possibility of certification until after the district court entered summary judgment against it. Such requests for certification are generally inappropriate, we have held, because "[a] party should not be allowed 'a second chance at victory' through certification." [Ctitation] Here, Kohl's had an opportunity to suggest certification in its pre-argument brief or even at oral argument. It could have urged that, in the event that this court was not persuaded that California law clearly favored its position, the appropriate course of action would be certification to the California Supreme Court. Yet it chose at that point not to urge certification as an alternate course of action, presumably for tactical reasons—possibly because having prevailed below it greatly preferred to have the case decided by a federal court. Only after (correctly) perceiving at oral argument that we were not inclined to rule in its favor on the merits did Kohl's file its motion for certification. For reasons similar to those expressed in Thompson, we strongly disfavor a party that prevailed below requesting certification for the first time after it becomes apparent at oral argument that it is not likely to prevail in federal court.
Our court has also developed rules to ensure that a party may not manipulate the appellate system by seeking to avoid a panel it views as unlikely to accept its legal position. It is for that reason that we do not make panels public until the first working day of the week preceding oral argument and permit motions for continuances after the panel has been announced only "under exceptional circumstances." See General Order 3.5. Here, Kohl's urged certification for the first time only after it had the opportunity both to learn which members of this court would hear its appeal and to assess those judges' actual views of its case, based upon the concerns the judges expressed at oral argument. Having gained that knowledge, Kohl's sought to send this case back to state court whence it came, in light of its perception that the federal court was unlikely to rule in its favor. Kohl's conduct regarding certification violated both our rule against belated certification requests and our long-standing prohibition against a party's use of procedural motions to avoid having its appeal decided by a panel it perceives as unfavorable. Moreover, here Kohl's request would not only affect the operation of the federal court, but would unnecessarily embroil the Supreme Court of the State of California in Kohl's attempt to find a more favorable forum.

As today's DJ reports it: "[Judge] Reinhardt blasted Kohl's for attempted forum-shopping by seeing to return the case to state court after it learned that it had drawn a liberal-leaning panel at oral argument by its claims."
A black eye for Kohl's? (pun intended)