Pat Riley Would Rather Not Be Deposed.

So Dwyane Wade and his Bilzin attorney Mike Kreitzer are gearing up for a big mediation tomorrow before Bill Hearon that may resolve a number of lawsuits pending against the Heat megastar:

Wade attorney Michael Kreitzer said the Heat star wants all issues on the table. The mediation session was ordered by a federal judge in an antitrust case accusing Wade of seeking a South Florida monopoly on his sports memorabilia, the sales of which were to be a cornerstone of the failed D. Wade's Place restaurant chain.

"We simply suggested, and the other side agreed, that if there was going to be a discussion about settlement, it made sense for the discussion to encompass all of the cases," Kreitzer said in an e-mail. "If a resolution could be reached, the resolution would be final as to all matters."

Wade also was sued by his former partners, Mark Rodberg and Richard von Houtman, for breach of contract in the restaurant venture. A similar case brought by Rodberg accuses Wade of walking away from obligations to the charter schools, now known as Mavericks in Education Florida LLC. Wade has accused von Houtman of defaming him in e-mails to Heat president Pat Riley, and von Houtman has filed a countersuit to that.

Without a deal, Wade could find himself in courtrooms and law offices for months instead of focusing on the Heat season that begins with training camp on Sept. 27.

"This has got to hang like the sword of Damocles over his head," said Washington attorney Bruce Fein, who represents the plaintiffs in the memorabilia case.

Among the pending issues is a subpoena served on Heat President Pat Riley in the antitrust case before Judge Marra. Riley, represented by Alan Fein, has so far refused to appear for his deposition.

Reading the plaintiff's motion to compel Riley's deposition is a hoot. Here's their framing of the dispute:

Plaintiff has strong reason to believe that Pat Riley’s deposition could lead to the discovery of admissible evidence, which is the Rule 26 standard for witness depositions under the Federal Rules of Civil Procedure. Defendant Henry Thomas has stated under oath in a deposition that Pat Riley spoke to him twice about Wade’s involvement in the JVA and Riley’s concern over Wade’s business partners, i.e., Plaintiff. Wade may have spoken directly to Mr. Riley or vice versa about the JVA. The Miami Heat had a clear incentive to conspire with Wade to destroy the JVA because the latter was a competitor in the retail sale of personalized Wade sports memorabilia and in demands on Wade’s advertising availability and time. Wade may have informed Riley of why he was abandoning the JVA. Defendant Andrews or Defendant Case 9:09-cv-80607-KAM Document 41 Entered on FLSD Docket 09/10/2009 Page 3 of 7.

Thomas might also have done so. As President and former head coach of the Miami Heat, Pat Riley would be knowledgeable of Wade’s unique market niche as an NBA superstar and the value of Wade’s name, likeness, and image in promoting the Miami Heat. In summary, Pat Riley inarguably is a proper person for Plaintiff to depose under Rule 26.

Plaintiff’s attorney, Bruce Fein, spoke by telephone with Mr. Riley’s attorney, Alan Fein, on August 25, 2009, in an attempt to discuss the issued raised by Ms. Melchiondo and to set a deposition date. Mr. Fein, however, insisted that Pat Riley would not agree to any deposition at any time. The reasons given by Mr. Fein were at least fourfold: Plaintiff’s antitrust claims gave legal frivolity a bad name; Plaintiff should have named the Miami Heat as a Defendant if it were surmised that the Heat were implicated in Wade’s alleged antitrust violations; Mr. Riley knew of no “smoking gun” that would conclusively prove Wade guilty of an antitrust infraction; and, Mr. Riley did not track retail sales of sports memorabilia by the Miami Heat.

The plaintiff says these arguments are "frivolous" and "amateurly misconstrue the discovery standard under Rule 26."

It's one thing to misconstrue the discovery standard, but come on, at least do it like a professional!

The motion seems like a stretch, however, and even though it's not technically an APEX depo I think the equities are not in the plaintiff's favor here, at least not before other discovery is taken first.

Wade, my advice is to settle these suckers tomorrow.

Michael Kreitzer Wants Plaintiffs To Be Diligent.

Every so often I guess I have to write something about, you know, the law or the legal profession or something boring like the rules that actually govern what we do. I know I know -- snooze city. But it's the only way dear readers in big firms can justify their 4.6 hours of daily billing on "professional matters" or "legal development" or "wasting most of the day acting like you are working on something important at your computer."

So here's a news flash on a burning issue that has consumed our profession since those randy barons tried to serve the Magna Carta Libertatum on King John, yes, it's the dreaded Last Served Defendant Rule:

Weighing in on a long-standing circuit split over when the time for removal runs in a multidefendant suit, the Eleventh Circuit in Bailey v. Janssen Pharmaceutica, Inc. [PDF] has adopted the so-called last-served defendant rule, suggesting that the U.S. Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. supports that rule.

In Bailey, the plaintiff served the last of four defendants over 30 days after service on the other three defendants. The last-served defendant filed a notice of removal 30 days from the date it was served. Both the district court and the Eleventh Circuit held that the notice of removal was timely because it was filed 30 days after last defendant was served.

This holding is at odds with the Fifth Circuit’s decision in Brown v. Demco, Inc. There, the Fifth Circuit held that the time for removal expires 30 days after the first defendant is served, regardless of whether other defendants have been served. The Fifth Circuit reasoned that the first-served defendant rule was appropriate because removal requires the unanimous consent of all defendants. Once the first-served defendant decides against removal, removal is impossible.

The Fifth Circuit is in the minority on this issue. The Bailey case follows more recent decisions in the Sixth and Eighth Circuits (Brierly v. Alusuisse Flexible Packaging, Inc. and Marano Enterprises of Kansas v. Z-Teca Restaurants, LP [PDF]), which conclude that equity requires that each defendant have 30 days from the date it was served to file a notice of removal. Otherwise, later-served defendants could lose their statutory right to removal before ever receiving process.

The Eleventh Circuit based its Bailey decision in part on its view that the last-served defendant rule is supported by the U.S. Supreme Court’s decision in Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. In Murphy Brothers, the Court held that the removal period does not begin until the defendant receives formal process. The Eleventh Circuit reasoned that the Fifth Circuit’s first-served defendant rule is inconsistent with the Murphy Brothers holding because it obligates a defendant to seek removal prior to receiving formal process.

Now I know what you're thinking. It's probably the same thing I first thought when I heard about this dramatic 11th Circuit development:

What is Michael Kreitzer's reaction? For gosh sakes get me handsome Mike Kreitzer on the horn and tell me what he thinks of all this! Seriously, I need to know what Michael thinks NOW!

Thankfully, Michael was indeed available for comment:

“A plaintiff who cries foul because its case, which had been litigated in state court for some time, is surprisingly removed to federal court by a later-served defendant may only have itself to blame,” states Michael Kreitzer, Miami, cochair of the Federal Rules Revision Subcommittee of the Section’s Pretrial Practice and Discovery Committee. “The plaintiff is the master of choosing the defendants and the order in which they are served, and if the plaintiff is diligent in identifying potential defendants presuit, then the plaintiff likely would not face the late arrival of a defendant with removal rights.”

Sounds reasonable and all Michael, but that's a low blow -- everyone knows plaintiffs don't think that far ahead.