Court Called Judicial Hellhole; Defenders Blast Complaints

by Mark Friedman  on Monday, Mar. 25, 2013 12:00 am  

Kirk Johnson

“Cutting off discovery is but one step away from barring the courthouse door,” he wrote.


It’s unclear exactly when Miller County became a magnet for class-action cases. But in the weeks before Congress passed the Class Action Fairness Act of 2005, a law designed to curb some abuses of class-action cases in state court, Keil & Goodson filed “a bunch” of potential class-action lawsuits in Miller County Circuit Court so the lawsuits wouldn’t be subject to the new federal law, said Frank, of the Center for Class Action Fairness.

Once in Miller County, defendants face a variety of frustrations, starting with immediate discovery demands.

Take, for example, the case of 21st Century Casualty Cos. It was named along with dozens of other insurance companies in a lawsuit brought by Keil & Goodson, Nix Patterson and Crowley Norman. The plaintiffs’ discovery demands included 189 requests for production of documents and a request to inspect its data storage facilities and computer system, the insurer’s attorney, Thomas Rogers of Austin, Texas, said in a brief to the Supreme Court.

“This discovery was outrageously overbroad, burdensome and oppressive, seeking all manner of records and information pertaining to the activities of unspecified officers, agents, employees and representatives, not only in Arkansas but across the country, since 1990,” Rogers said in the brief.

Moreover, 21st Century said it didn’t insure Arkansas residents during the time of the alleged abuses alleged in the lawsuit.

Still, as other defendants found, when 21st Century filed a motion to be dismissed from the case, Judge Johnson wouldn’t rule.

“Class-action defendants filed dispositive threshold motions only to have them deferred time and again,” Rogers wrote. “Absent a reviewable ruling, defendants have no avenue by which to vindicate their rights.”

Johnson explained his reasons for not ruling on defendants’ motions in a letter to Little Rock attorney Elizabeth Fletcher, whose client couldn’t receive a hearing on motions to dismiss for several years.

He said in the Oct. 25, 2011, letter that it’s up to him “to make decisions regarding the management of any case including the setting of dispositive motions. In complex litigation, such as class action with multiple defendants, chaos would reign if any other interpretation were allowed. Piecemeal determination of Motion’s [sic] to Dismiss filed by each of multiple defendants at different times would be prohibitively expensive for the parties, essentially dominate the court’s schedule for months and would render the court incapable of maintaining it’s [sic] regular docket.”

But Greenberg, the former counsel for the Center for Class Action Fairness, finds it “highly, highly unusual” that Johnson wouldn’t hear the defense motions sooner. “People are under extraordinary burden before they ever have a chance to have their argument heard in court.”



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