The Percy Program

It is a fight to level the playing field to be able to compete for jobs and careers on the basis of skills and make available apprentice training to all. In 1973 Al Percy launched a class action lawsuit to give workers like him a chance to better their lot in life. It would also ensure the availability of skilled workers to build the infrastructure of the future. Who is Al Percy? What is the lawsuit?

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13 months ago

US Court of Appeals Second Circuit Case 21-1564, Doc 6, Pre-Argument Statement on Appeal 07-12-2021

  • Text
  • Oriska
  • Plaintiff
  • Kernan
  • Defendants
  • Pageid
  • Removal
  • Corporation
  • Percy
  • Representatives
  • Plaintiffs
  • Appeals
  • Circuit

ong>Caseong> ong>Caseong> 1:ong>21ong>-cv-01366-NGG-SJB 1:ong>21ong>-cv-014ong>21ong>-NGG ong>Caseong> ong>Caseong> MDL ong>21ong>-ong>1564ong>, No. 3011 ong>Docong>ument ong>Docong>ument 6, 2407/12/20ong>21ong>, 11 25-32 Filed Filed 06/25/ong>21ong> Filed 05/27/ong>21ong> 3135847, 06/24/ong>21ong> Page Page94 18 17 ong>ofong> ong>ofong> 28 ong>ofong> 17 27 PageID 104 ong>ofong> 27 #: #: 2355 1357 Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979). To carry its burden, the removing party must “demonstrate[e] both the existence ong>ofong> subject-matter jurisdiction and compliance with the relevant procedural requirements.” St. Vincent’s Hosp. ong>ofong> Staten Island v. Taylor, No. 07-cv-967 (ILG) (JO), 2007 WL 2325073, at *2 (E.D.N.Y. Aug. 10, 2007). “If the removing party cannot demonstrate federal jurisdiction by competent proong>ofong>, the removal was in error and the district court must remand the case to the court in which it was filed.” Hill v. Delta Int’l Mach. Corp., 386 F. Supp. 2d 427, 429 (S.D.N.Y. 2005). B. Discussion The Healthcare Employer defendants seek to remand the eighteen Removed ong>Caseong>s. 5 6 They argue that remand is necessary because the Class Defendants violated the rule ong>ofong> unanimity, one ong>ofong> the procedural requirements for removal; because the Class Representatives attempted to remove the actions to an improper federal venue; and because the operative complaints do not provide a basis for federal jurisdiction. (See, e.g., Oriska v. Avalon, ong>21ong>-cv-2040, Mem. in Support ong>ofong> Mot. to Remand (Dkt. 8-1) at 1- 2.) 7 5 Individual defendant Ira Lipsius also seeks remand. See Bay Park Ctr. For Nursing & Rehab., 20-cv-6291, Mot. to Remand (Dkt. 9) (E.D.N.Y. Jan. 19, 20ong>21ong>). 6 At the time ong>ofong> publication, these defendants have either moved to remand or requested leave to do so in each ong>ofong> the Removed Actions. Because ong>ofong> the redundancies among the cases, and in the interests ong>ofong> judicial efficiency and economy, this court decides the remand issue sua sponte in the cases where it has not yet been briefed. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (District courts have the inherent authority “to manage their own affairs so as to achieve the orderly and expeditious disposition ong>ofong> cases”.). 7 In certain actions, the remanding parties additionally argue that removal was untimely. (See, e.g., Oriska v. Hodge, ong>21ong>-cv-1999, Mem. in Support ong>ofong> 17

ong>Caseong> ong>Caseong> 1:ong>21ong>-cv-01366-NGG-SJB 1:ong>21ong>-cv-014ong>21ong>-NGG ong>Caseong> ong>Caseong> MDL ong>21ong>-ong>1564ong>, No. 3011 ong>Docong>ument ong>Docong>ument 6, 2407/12/20ong>21ong>, 11 25-32 Filed Filed 06/25/ong>21ong> Filed 05/27/ong>21ong> 3135847, 06/24/ong>21ong> Page Page95 19 18 ong>ofong> ong>ofong> 28 ong>ofong> 18 27 PageID 104 ong>ofong> 27 #: #: 2356 1358 1. The Rule ong>ofong> Unanimity A removing party must obtain the consent ong>ofong> all “properly joined and served” defendants for a federal court to exercise jurisdiction over the action. Williams v. Connell, No. 12-cv-3593 (SLT), 2017 WL 2829686, at *3 (E.D.N.Y. June 29, 2017), quoting 28 U.S.C. § 1446(b)(2)(A). This rule ong>ofong> unanimity is “strictly interpreted and enforced.” Burr ex rel. Burr v. Toyota Motor Credit Co., 478 F. Supp. 2d 432, 437 (S.D.N.Y. 2006). If it is not satisfied, then “the petition is defective and the case must be remanded.” Snakepit Auto., Inc. v. Superperformance Int’l, LLC, 489 F. Supp. 2d 196, 201 (E.D.N.Y. 2007). The rule ong>ofong> unanimity “advances the congressional purpose ong>ofong> giving deference to a plaintiff’s choice ong>ofong> a state forum and ong>ofong> resolving doubts against removal in favor ong>ofong> remand.” Bedminster Fin. Grp., Ltd. v. Umami Sustainable Seafood, Inc., No. 12-cv-5557 (JPO), 2013 WL 1234958, at *5 (S.D.N.Y. Mar. 26, 2013). There are three exceptions to the rule ong>ofong> unanimity. Id. at *6. “A party asserting proper removal may raise an exception to the unanimity rule when: (1) the non-joining defendants have not been served with service ong>ofong> process at the time the removal petition is filed; (2) the non-joining defendants are merely nominal or formal parties; or (3) the removed claim is a separate and independent claim as defined by 28 U.S.C. § 1441(c).” Snakepit Automotive, 489 F. Supp. 2d at 201-02. In the Nassau County Action, where Oriska is a party via intervention, Oriska and the Class Representatives contend that the service exception to the rule ong>ofong> unanimity applies and is satisfied here. (See Bay Park Ctr. for Nursing & Rehab., 20-cv-6291, Class Representatives’ Opp. to Remand (“Class Opp.”) (Dkt. 40) at 7; Oriska Opp. to Remand (“Oriska Opp.”) (Dkt. 38) at 11.) They Mot. to Remand (Dkt. 10-1) at 8-9.) Given the other independent grounds for remand, the court declines to address that question. 18

Tag-along Lawsuits against Putative Class Defendant Members: Decision Appealed, Response and Complaint