(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Alison Frankel

Dec 5 (Reuters) - I bring you today a debate over

accusations of forum shopping: Is it fair to attribute improper

motives to plaintiffs' lawyers trying to return their cases to

state court after defendants have removed them to federal court?

I'm not talking, of course, about a plain vanilla remand

motion. Obviously, plaintiffs' lawyers can ask for cases to be

remanded without being accused of forum shopping. And

plaintiffs' lawyers also have a right under federal procedural

rules to dismiss cases in the preliminary stages of litigation,

even if the dismissal leaves defendants grumbling about

jurisdictional gamesmanship.

Today's story, which arises from litigation over the blowout

of a door plug on an Alaska Airlines flight last January,

involves considerably more complicated facts - or else I

wouldn't bother telling you about it.

So, to start at the beginning, plaintiffs' lawyers at

Stritmatter Kessler Koehler Moore filed a class action against

Boeing ( BA ) in state court in King County, Washington, within

days of the Alaska Airlines blowout. A couple of weeks later,

Boeing ( BA ) cited the Class Action Fairness Act to remove the product

liability case, which by then had been amended to include Alaska

Air Group's ( ALK ) Alaska Airlines Inc as a defendant, to

federal court in Seattle.

Stritmatter Kessler did not include a jury demand in the

state court pleadings because Washington state rules allow

plaintiffs plenty of leeway to make that request. After the case

was first removed to federal court, plaintiffs' lawyers did not

say anything about a jury trial. They also did not move for a

remand to state court.

Over the next several months, plaintiffs' lawyers filed an

amended complaint alleging that the aircraft and the door were

defectively constructed. The complaint added Spirit as a

defendant, dropped class claims and narrowed the case to 38

plaintiffs. Stritmatter Kessler asserted a fraud claim against

Boeing ( BA ) but dropped it after Boeing ( BA ) moved to dismiss the claim.

Both sides responded to initial disclosure demands. The

defendants filed answers to the amended complaint.

Plaintiffs' lawyers also moved to consolidate their

litigation with a case brought by a different team of

plaintiffs' lawyers representing about a dozen other Alaska Air ( ALK )

plaintiffs. Those lawyers, like Stritmatter Kessler, had filed

their lawsuit in state court. It was not removed by the

defendants, but plaintiffs' lawyers voluntarily dismissed the

state-court case in order to re-file their lawsuit in federal

court and team up with Stritmatter Kessler lawyers.

In October, U.S. District Judge Ricardo Martinez of Seattle

entered an order setting a consolidated briefing schedule and a

consolidated trial date in September 2026. The judge ordered a

bench trial.

Then came a surprise: Stritmatter Kessler filed a motion on

Nov. 12 for court approval of the voluntarily dismissal of the

case. (Plaintiffs need court approval under the federal rules of

procedure because defendants already filed answers to the

complaint.) The firm was entirely transparent about its

reasoning: It told Martinez that it intended to file the

litigation in state court and to ask for a jury trial.

The law firm also said it expected to add additional

plaintiffs and possibly additional defendants but had been

stymied by the long-running government investigation of the door

plug incident, which had stalled discovery from the defendants.

Stritmatter noted that the original justification for

removal to federal court - the Class Action Fairness Act - was

no longer relevant because the lawsuit no longer asserted

classwide claims. And it argued that the defendants would not be

disadvantaged by a do-over in state court because no substantive

discovery or motions practice had taken place and no dispositive

motions were pending.

"Defendants have no valid basis to be in federal court other

than a procedural posture that no longer applies," the dismissal

motion said. "Plaintiffs later deciding to demand a jury trial

on some or all issues is hardly exotic or prejudicial."

As you have no doubt guessed, Boeing ( BA ), Alaska Air ( ALK ) and Spirit

disagreed quite strenuously. In a joint brief filed on Tuesday,

the defendants accused plaintiffs' lawyers of improperly

shopping for a forum in which they could try their case to a

jury. Defense counsel from Perkins Coie (for Boeing ( BA )), Fox

Rothschild (for Spirit) and Stokes Lawrence (for the airline)

exhorted Martinez not to grant a state-court redo after nearly a

year of litigation to plaintiffs' lawyers who failed to ask for

a timely remand or a jury trial.

"Plaintiffs' attempt to avoid the consequences of their

failure to request a jury trial by dismissing and refiling in

another jurisdiction is thus both improper under the federal

rules and also would cause 'plain legal prejudice' to

defendants," the joint motion said. Boeing ( BA ) and Spirit declined

to comment; Alaska Air ( ALK ) did not respond to a query.)

The defendants also said it would be unfair to the other

plaintiffs' lawyers - who voluntarily dismissed their state

court case in order to litigate alongside Stritmatter Kessler -

to allow Stritmatter to return to state court after their cases

were ordered to be consolidated for a bench trial.

In a phone interview on Thursday, plaintiffs' lawyer Karen

Koehler took grave exception to defendants' forum shopping

assertion.

"This case started in King County, and we're just trying to

get back to King County," she said.

Koehler acknowledged that plaintiffs' lawyers should have

asked for a jury trial early on but said that error could have

been corrected. She said her team decided instead to ask for a

return to state court because that's the proper forum for a case

that no longer includes class allegations.

Koehler and Ari Friedman of Wisner Baum, who represents the

other set of plaintiffs appearing before Seattle federal judge

Martinez, both said the two groups of plaintiffs' lawyers expect

to continue to work together regardless of where the Stritmatter

firm's clients end up litigating.

Ultimately, Koehler said, her team is confident in its case,

whether it ends up as a bench trial in federal court or a jury

trial in state court.

"That's procedural," she said. "It's not going to

meaningfully change the fact that Boeing ( BA ) is going to get

hammered."

Read more:

NTSB, Boeing ( BA ) have not been able to identify who removed 737

MAX 9 door plug

Boeing ( BA ) to make design changes to prevent future 737 MAX 9

door panel blowout

Boeing ( BA ) faces multiple probes after mid-air MAX door plug

blowout