Judge Shopping & Schedule A (Guest Blog Post)

By guest blogger Sarah Fackrell, Professor of Law at Chicago-Kent College of Law

Plaintiffs are often allowed to choose their own forum. But they’re not supposed to be able to choose their own judge. And yet, in the U.S. District Court for the Northern District of Illinois, some Schedule A plaintiffs appear to be doing just that.

For example, the maneuver I call “defendant pinching” generally goes like this: Plaintiffs will file Schedule A cases against some number of defendants. If they draw certain judges, they immediately amend their complaint to drop all but one of the defendants. They then refile a new case against the dropped defendants, which is randomly assigned to a new judge. Plaintiffs sometimes perform this maneuver repeatedly, amending down and refiling over and over again until they get one of a certain subset of the NDIL judges.

Some judges have called out—and even sanctioned—plaintiffs over this maneuver. When questioned, some plaintiffs have said that they using this maneuver to comply with the judges’ varying views on Schedule A joinder. Whatever the subjective intent may be, these maneuvers have the foreseeable effect of moving most of the plaintiffs’ Schedule A claims off the dockets of judges who have been skeptical (or even critical) of various parts of this litigation model and onto the dockets of the judges who have been more accommodating.

In my forthcoming article, Defendant Pinching & Pressing, I argue that this maneuver is a form of judge shopping. In doing so, I draw an analogy to roulette. Some people have analogized random judicial assignment to a game of roulette—spin the wheel, get a judge. But sometimes people cheat at roulette. They might increase their bet after they know where the ball will land (“bet pressing”) or reduce it (“bet pinching”). In either case, they’re changing the stakes of the game after the final result is known. Similarly, when Schedule A plaintiffs drop (or add) defendants, they’re changing the expected “payout” for the case. Plaintiffs shouldn’t be able to spin the judicial-assignment wheel over and over until they “win.” They don’t get to do it in other cases; I haven’t heard any compelling reason why they should get to do it in Schedule A cases.

This paper is very much still a work in progress. And it is, at least in one respect, already out of date. Since I finished the posted draft, it appears that at least some plaintiffs have switched to a new standard procedure: Upon drawing certain judges, they amend down to one defendant, wait a bit, and then voluntarily dismiss the remaining defendant. Due to all of the sealing, it’s not entirely clear whether or how the claims are being refiled. But given past practice, it would be surprising if they weren’t being refiled somewhere, somehow. If anyone out there has insights into this new maneuver—or thoughts on Schedule A judge-shopping more generally—please reach out. I’d love to hear your thoughts.