by Wilton H. Strickland

I began my career as an attorney in a tall office building in downtown Miami, Florida. It was an exciting time for me as a young man eager to prove myself while also enjoying everything Miami had to offer. Like so many freshly-minted associates, I knew precious little about the practice of law, something only experience can teach. One such experience landed on my desk late one Friday afternoon. A partner who was leaving town for the weekend instructed me to prepare a reply in support of a motion to dismiss a federal complaint. He wanted a draft by Monday even though I never had worked on the case and knew nothing about it. Before I could review the file or ask questions, he had vanished (along with my own weekend plans).

The complaint asserted various claims by a Florida corporation against our client, an Ohio insurance company undergoing liquidation. It appeared the partner had filed a motion to dismiss the complaint on the basis of a ruling by an Ohio state court mandating that all claims against the insurance company be brought before that court, a ruling that was entitled to “full faith and credit” under the U.S. Constitution. Not much authority was cited, whereas the opposition memorandum — which I was tasked with refuting — argued quite thoroughly that the Constitution did not bar a federal proceeding in Florida because there was no final judgment yet.

Clueless about how to reply, I set to retrieving and reviewing all of the authorities cited in the opposition memorandum, praying that an argument would reveal itself. Lo and behold, I found a loose thread and began tugging at it.

I found a federal statutory scheme known as the McCarran Ferguson Act (15 U.S.C. §§ 1101-1105) recognizing that state governments have broad discretion to regulate the insurance industry. Many decisions interpreting the Act — including decisions cited in the opposition memorandum I was reviewing — held that state law trumps federal law in this area. This is unusual because ordinarily federal law is said to trump or “pre-empt” state law whenever the two come into conflict. Here, however, was a species of “reverse pre-emption” that gave primacy to state law. Better yet, many authorities held that an order by a state court concerning the liquidation of an insurance company must be honored by the federal courts, who lack jurisdiction or should abstain from exercising jurisdiction. The order from the Ohio court indeed concerned liquidation of the insurance company, so the federal complaint in Florida was clearly improper and should be dismissed.

Unfortunately, the partner’s motion to dismiss mentioned none of this, so I had to make the argument from scratch in the reply. Toiling through the wee hours of the weekend, I prepared a draft and dropped it on the partner’s desk bright and early on Monday morning. Shortly after that the reply was filed under both our names, though of course he got top billing.

Within days the plaintiff filed an outraged motion to strike my reply, arguing it was procedurally improper for raising new matters beyond the scope of the motion and the opposition. The partner, somewhat perturbed now, again tossed it on my desk and told me to draft an opposition to the motion to strike.

Rolling up my sleeves, I found some devastating arguments that turned this into an opportunity to illustrate even further how the plaintiff was wrong.

• First, I showed that the reply arguments had roots in the very authorities cited by the plaintiff, meaning that it would be ridiculous to conclude that such matters were beyond the scope of prior submissions.

• Second, I showed that arguments concerning federal jurisdiction and abstention can never be waived or procedurally barred, since they stem from the U.S. Constitution and transcend all competing concerns.

• And third, I noted that even if there was something improper about my reply, this could be remedied by allowing the plaintiff to file a sur-reply, which I invited the plaintiff to do.

The partner again filed my arguments, and a few days later the plaintiff voluntarily dropped its complaint. This was a stunning victory. Not only had I salvaged a half-baked motion to dismiss in a matter I was unfamiliar with, but I had won the entire case without having to take it to trial.

My final lesson was the most memorable, though. The partner took credit for the whole thing and, in private, expressed annoyance that the matter had been closed before it could generate more billing. It was then that I realized I would have to be my own boss someday, and I’m happy to have accomplished that mission as well.