Sutherland v. DCC Litigation Facility, Inc. (In re Dow Corning Corporation)

(Sixth Circuit Feb. 20, 2015)

The Sixth Circuit reverses the district court’s dismissal of the plaintiff’s claims based on a Michigan statute of limitations. The plaintiff’s claims were originally filed in federal court in North Carolina, and was then transferred to an Alabama federal court to join a multidistrict litigation panel (Dow Corning silicone breast implant litigation). The plaintiff opted out of the class settlement, and her claims were then transferred to Michigan when Dow Corning filed bankruptcy there, pursuant to 28 U.S.C. § 157(b)(5). When her claims were eventually set for trial, the defendant filed a motion to dismiss the claims under Michigan’s statute of limitations, because the plaintiff had failed to file the original case within three years of her surgery. The district court granted that motion and dismissed the claims. The Sixth Circuit holds that the venue transfer should not alter which state law applies, and North Carolina’s statute of limitations arguably was satisfied. While an issue of first impression in the Sixth Circuit, the court relies on a Second Circuit opinion with a similar holding—a transfer of venue should not change the applicable state law, whether the transfer is of a case filed pursuant to diversity jurisdiction or resting on “related to” bankruptcy jurisdiction. Opinion below.

2015-02-20 – sutherland v dcc litigation facility

Author: Matt Lindblom

Roach v. Barcus (In re Bolen)

(N.D. Ind. Feb. 18, 2015)

The district court denies the request to withdraw the reference to the bankruptcy court. The defendants requested a jury trial in the bankruptcy court and then received an adverse ruling on their motion to dismiss. Then the defendants requested that the reference be withdrawn. The court denies the request based on the request being untimely and to discourage the apparent forum shopping. A motion to withdraw the reference should be made at the time of the jury demand. Opinion below.

2015-02-18 – roach v barcus

Author: Matt Lindblom