Last year, a federal judge in South Texas imposed a rule for plaintiffs: They might need to demonstrate a “factual nexus” to why their case belonged in his court.
“In any case with no obvious factual nexus to the Galveston Division, the court will order the plaintiff, within 14 days, to explain the case’s connection to the division,” U.S. District Judge Jeff Brown wrote, giving defendants a week to respond before he decided whether to transfer the case to “a more appropriate division.”
Brown’s rule for his single-judge division was clear: Judge shoppers aren’t welcome in Galveston.
However, across the state in Amarillo, which is another single-judge division, judge-shopping remains very much in vogue as District Judge Matthew Kacsmaryk’s court has become a favored jurisdiction for conservative legal causes and plaintiffs seeking to counter Biden administration policies on abortion, immigration and other divisive issues.
The latest judge-shopping Amarillo litigant is Donald Trump, who filed a civil complaint against CBS on Oct. 31 accusing the network of violating the Texas Deceptive Trade Practices-Consumer Protection Act. CBS harmed Trump’s campaign by editing a 60 Minutes interview with Vice President Kamala Harris a certain way, according to the complaint.
The lawsuit says the interview’s distortion “damaged President Trump’s fundraising and support values by several billions of dollars, particularly in Texas.”
Trump — set to reassume office in January — is a Florida resident while CBS is based in New York, where Trump also has significant business interests. But Trump says Amarillo is nevertheless the proper venue “by virtue of the Interview being transmitted by CBS into this District (and elsewhere) and because CBS is subject to this Court’s personal jurisdiction with respect to this action,” according to the complaint.
Kacsmaryk declined to comment on the matter, an official with the Northern District of Texas told Legal Dive in an email.
Plaintiffs generally control the district in which their complaint is heard, subject to laws guiding whether a court has jurisdiction.
“Historically, we have this rule that the plaintiff is the master of the complaint, so the plaintiff gets to pick where to sue as long as they comply with the law,” said Esther Slater McDonald, a partner with Seyfarth Shaw in Atlanta. “What seems to lately be more concerning to the public is not as much forum shopping but judge-shopping.”
Texas center stage
Judge-shopping drew national headlines in late 2021 when a Texas federal judge — a former patent litigator — amassed a full quarter of all U.S. patent lawsuits in his single-judge division in Waco, Texas. The situation drew the attention of U.S. senators Patrick Leahy and Thom Tillis, who wrote to Chief Justice John Roberts seeking an inquiry and reforms.
The Judicial Conference responded with a series of reforms to randomize the assignment of civil claims in district courts, culminating in the March 2024 policy guidance to end judge-shopping by imposing random case assignment across a full judicial district and not just a division.
That quickly ignited a political uproar among conservative-leaning judges. Some districts have declined to follow the policy, and District Judge Reed O’Connor offered public criticism at a Federalist Society dinner in September. The Conference bowed to “political pressure” and targeted single-judge divisions, said O’Connor, who sits in Fort Worth, Texas.
“Appearing to cave to criticism from commentators and political officials, this Judicial Conference proposal rejects the idea that there are no partisan judges — only judges doing their level best to faithfully apply the law to reach the correct decision,” he said.
The problem with judge-shopping lies with the appearance it creates, Stephen Vladeck, a law professor at Georgetown Law, has said. “The issue isn’t whether the judges are in fact predisposed toward the plaintiffs who have carefully selected them; it’s the visual, to the public at large, that the plaintiffs are carefully selecting them,” Vladeck wrote in a response to O’Connor’s comments.
Plaintiffs also tend to choose a particular judge when they’re seeking an injunction, lawyers noted. In Congress, politicians of both political parties have decried how a district court ruling can apply nationwide, equating to a universal legislative action.
Earlier this year, legislation from three Republican senators proposed to limit judges’ injunction rulings to the court’s jurisdiction. That effort “would reduce the incentives for a party to seek out a particular judge,” McDonald said. “Part of the incentive (to judge shop) is to obtain a favorable ruling that applies nationwide.”
In Congress, politicians of both political parties have decried how a district court ruling can apply nationwide, equating to a legislative action for everyone arising from a dispute. A separate bill from Senator Chuck Schumer of New York targeted judge-shopping by making the Judicial Conference rule on randomly assigning cases a mandate and not a recommendation.
Transfer motions
Defendants can respond by seeking to have the case moved to another district, with various arguments about why a venue isn’t appropriate. And federal judges are careful to weigh jurisdiction and venue arguments, aiming to “get the right answer” most of the time, said Matthew Wright, managing partner at McCarter & English.
In the Trump lawsuit, CBS is likely to argue for a transfer because neither party is in Texas and the witnesses and people who made decisions in the case were in New York, said Ephraim “Fry” Wernick, a defense litigator at Vinson & Elkins.
Judge-shopping likely isn’t “much of a problem in the grand scheme of civil litigation because you can’t just arbitrarily pick a judicial district because you think you might be advantaged by that,” Wright said. “Defendants are not just powerless and stuck or trapped in a particular court.”
Additionally, plaintiffs court risks by seeking a particular judge frequently, seeking to ascribe some type of ideological affinity by that court to a cause or political view, Wernick said.
“People are too frequently presuming the political leaning based purely on who appointed that person,” said Wernick, a former U.S. prosecutor. “The vast majority of judges are approaching it by dealing with facts and trying to apply the law to those facts.
“Plaintiffs should be mindful of judges feeling like they’re being used. If they continue to see cases end up in their courtroom that don’t naturally fit there, I think you can expect that at some point you’re going to see a reaction.”