Jottings By An Employer's Lawyer

Monday, October 20, 2008

5th Circuit Declines to Be Forum Shopped Under NLRA


Honoring one thing that stuck with me from Bernie Ward's federal court class, "federal courts are courts of limited jurisdiction," the 5th Circuit rejected an attempt to have it decide an appeal from a ruling by the NLRB in Bally's Park Place v. NLRB (5th Cir. 10/17/08).

The 5th Circuit noted the honesty of Bally's Park reason for wanting to be in the 5th Circuit, they thought it had a favorable precedent that might help them in trying to overturn their challenge to a union certification by refusing to bargain. Unfortunately, this subsidiary of Harrah's has no physical presence in Texas, Louisiana or Mississippi and their attempt to "borrow" their parent company's presence did not work, nor did the fact it did internet advertising, had an on line reservation system or that 5th Circuit residents traveled to New Jersey to visit their casinos.

The panel decision also honored something else I learned from Professor Ward, that courts should not decide unnecessary questions. Here the Court noted that Bally's had no physical presence in the 5th Circuit, but also noted that it was not necessary to decide whether that was an absolute requirement.

Judge Southwick was on the panel that issued the memorandum opinion and though he was in law school with me I can't remember if he was in my federal courts class or not. If he was, he did Bernie Ward proud.

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