in Re Haynes and Boone, LLP and Patrick L. Hughes

liability which health care All outstanding deadline Methodist. motions are abide, claimants must overruled as moot.

the abatement could continue at until sixty days leisure after

[claimant’s] provide chooses to [claimant] provider] care with an authoriza-

[health

tion. It interpret is reasonable to which meant provide speedy

statute resolution meritorious health care lia- BOONE, In re AND HAYNES LLP bility quick claims and dismissal of non- Hughes, and Patrick L. meritorious lengthy claims to allow a or Relators. delay indefinite of the resolution of a No. 01-12-00341-CV. liability health care claim. Texas, Appeals

Court of (1st Dist.). Houston abatement has a use in situations [T]he tolling provision which the is not at July provided issue. If notice is without an authorization well within the statute of

limitations, and the case could be filed

sixty days later and still fall within the period,

limitations care pro- [health statutory remedy is to pro-

vider’s] halt

ceedings until an authorization form is

received. Here, at 73-74. provi-

Id. the abatement application

sion has no because the Mitch-

ells’ suit could not have been abated and

still filed within the period. limitations reasons, foregoing

For all of the we

conclude that the trial court did not err in

granting summary Methodist’s motion for

judgment because Methodist established

as a matter of two-year law that the stat-

ute of peri- limitations was not tolled for a seventy-five days.

od of We overrule the appeal.

Mitchells’ issue on

Conclusion liability

The Mitchells’ health care

claims are time-barred because the Mitch-

ells did not file their within claims

applicable limitations period properly seventy-five-day

invoke section tolling pro-

vision. Consequently, we affirm the trial summary judgment

court’s rendition of Beck, Jr., Douglas

David Pritchett Mi- Richardson, Benjamin E. chael Alex Rob- erts, Secrest, Craig Smys- Beck Redden & er, L.L.P., Smyser, Kaplan & Veselka Houston, TX, for Relators. Marable, III, Webb, L. Paul

Vincent Wharton, P.C., TX, Hagans, F. Williams Burdine, & Hagans, Montgomery Rustay, P.C., Jamail, Kolius, Joseph D. Jamail & TX, Houston, Party Real Interest. Panel consists Justices MASSENGALE, BROWN, and HUDDLE.

OPINION MASSENGALE, MICHAEL Justice. original concerns a proceeding This relating to the handling relators, an antitrust The matter.1 L.L.P., Laminack, 1. At the time filed their mandamus Richard M. W. relators Titomas Pir L.L.P., petition, underlying styled tle, Boone, Rx. case was Haynes & and Patrick com, Inc. Joe v. John S. Rosson M. Hughes, No. in the 80th Judicial O’Quinn Associates, & PLLC d/b/a County, respon Harris District of Texas. The O'Quinn Firm, O'Quinn Law M. & Asso John Larry dent is the Weiman. Honorable ciates, Martines, L.L.P., Laminack, Pirtle & Boone, Solutions, Haynes Inc., LLP Patrick L. Medco Health 322 Fed. (5th Cir.2009). Hughes, malpractice Appx. are defendants interest, Rx.com, parties The real suit. parties The real in interest sued Rx.. Rosson, Inc. and its founder Joe S. filed lawyers, corn’s former including the rela- (and alleging the suit the relators tors, in connection others) by failing timely harmed them timely with the failure to file the antitrust file antitrust suit within the limitations petition suit. The originally was in a filed period. Texas state district court. The defendants The relators contend that pres- the suit court, removed the case to federal arguing ents federal in embedded issues the form that federal-question jurisdiction applied Act Sherman claims which must be to the legal malpractice claims because of proved prevail malpractice on the cause questions embedded federal relating to the of action and thus constitute a within “case original RX.com, antitrust claims. See Inc. the case.” These federal are the issues O’Quinn, 766 F.Supp.2d basis for relators’ invocation of exclusive (S.D.Tex.2011). The federal district court subject-matter jurisdiction over the analyzed question legal whether the malpractice They claim. argue thus that malpractice claims were ones “arising un- subject-matter ju- Texas state courts lack law, § der” federal apply- U.S.C. risdiction to entertain such claims. These ing the standard articulated the United arguments presented were in plea States in Grable & Sons jurisdiction, which the trial court denied. Products, Metal Engineer- Inc. v. Darue The petition relators then filed a for writ ing & Manufacturing, 545 U.S. of mandamus to seek review of that ruling. (2005), 162 L.Ed.2d 257 We conclude that the trial court correct- considering whether the malpractice ly plea denied the and that Texas courts claims “necessarily raise a stated federal may exercise over mal- actually issue disputed [that is] sub- practice claims related to antitrust mat- stantial, which a federal forum enter- Accordingly, ters. we deny petition. tain disturbing any without congressionally approved balance of federal judi- and state

Background RX.com, cial responsibilities.” filing Prior to the F.Supp.2d suit (quoting 2368). in original issue this proceeding, Rx.com at 125 S.Ct. at Relying filed an complaint antitrust in federal significant upon dis- measure the Fifth Cir- against trict court pharmacy various bene- application cuit’s of the Grable standard to fit manager defendants. In addition to a legal malpractice claim in Singh v. LLP, (5th state-law claims that were later aban- Duane Morris 538 F.3d 334 doned, Cir.2008), the complaint included three causes the federal court concluded that of action under the agree- Sherman Act: necessary two elements —a substan- ment in restraint of trade in violation of tial federal disrup- interest and a lack of 1; conspiracy Section monopolize vio- tion to the balance of federal. state 2; lation of Section attempted monop- judicial responsibilities present. not —were olization in violation of Section 2. Accordingly, See 15 the federal district court §§ U.S.C. 2. The antitrust suit was dis- federal-question jurisdiction found that did exist, missed on grounds, limitations and the and the case was remanded RX.com, Fifth Circuit Appeals Court of affirmed F.Supp.2d state court. See that judgment appeal. See Rx.com v. at 797. (U.S. 2012). court, two The Minton remand Mar.

Following the to state cases, was originated in state court and opinions were issued in other case new summary judg super- on a motion for provided which the contend dismissed relators However, in support conten- ment. See id. at 638. addi vening authority to their jurisdiction over belongs granting court. tion to tion that the case USPPS, arising Avery In Ltd. v. Dennison cases 1338(a) specifically subject- prohibits in which also Corp. case U.S.C. —a exercising jurisdiction undis- courts from apparently matter was category diversity parties— over same cases.4 puted due to the subject-matter ju thus a test to claimant raised applied the Fifth the Grable Circuit objection that malprac- appeal, legal that a state-law risdiction determine ultimately law the patent argument under was vindicated tice claim arose concluded, Court, “based appellate Supreme to the which so as invoke exclusive case,”5 Ac- of this that upon specific the the facts jurisdiction of Féderal Circuit.2 question cordingly, “triggered was trans- the embedded federal appeal the USPPS jurisdiction,” re patent exclusive federal ferred the Federal Circuit.3 the case con quiring of without dismissal held, Then Texas Supreme the Court of sidering its S.W.3d merits. Gunn, in federal courts Minton v. the at 646-47. subject-matter jurisdiction have exclusive arising Relying primarily a claim out of on USPPS and Min- malpractice over ton, infringe re-urged arguments in a the their legal representation patent relators 634, by filing plea ment 646 in the trial court action. See S.W.3d (Tex.2011), pre- No. 11- petition filed, jurisdiction. part argument cert. As for statute, USPPS, Corp., Avery patents....”). expressly This de- 2. See Ltd. v. Dennison (5th Cir.2011); jurisdiction priving state of over claims F.3d 277-82 courts 1295(a)(1) (“The arising patent § amend- U.S.C. States Court under federal was United Sept. Appeals have ed in 2011. See Act of of for the Federal Circuit shall 19(a), prior § appeal ... from a 125 Stat. 331. The version of exclusive of an provided: statute "The courts final of a district court of the United the district decision any arising original jurisdiction any have civil States ... civil under shall of action any any Congress relating pat- arising Congress ... action Act of re- Act of under ...”). lating patents.... ents. Such shall exclusive the courts of the states in be of USPPS, ... Act of June ch. Notably, two cases.” 3. See 647 F.3d Stat. judges subsequently the Federal Circuit judgment affirming the concurred in the trial disagree noting court in while USPPS their specifically 5.The Court disavowed a precedents applying ment interpretation with their court’s broad of its such that they turning legal arising pat- which characterized as malpractice "all suits out of 'clearly wrong' what be litigation” might “would otherwise fall ent be considered “to ” 'plausible,' transfer decision into one that is under the exclusive Gunn, accept the requiring thus their court “to the courts.” Minton v. (Tex.2011), appeal.” petition transfer and resolve merits of cert. J., (O'Malley, (U.S. 9, 2012). concurring) (quoting Id. at filed, No. 11-1118 Mar. Corp., Operating "any litigant v. Colt Christianson Indus. assert indicated 2178- ing legal action to recover for (1988)). damages resulting patent attorney’s L.Ed.2d 811 from his negligence litigation patent prosecution 1338(a) ("No satisfy 4. See 28 State court must also all four of the Gra U.S.C. elements place any for re- claim shall have over ble test his under exclusive relating arising any Congress jurisdiction.” lief Act Id. court, the relators con- sented to the trial state-law cause of action “arises under” “determining whether Rx.com federal law tended because of embedded feder- prevailed litigation would have will entail al issue. full of factual and panoply below, explained As argu- relators’ attending to a Sherman Act claim.”

issues wrongly ment assumes the relevance in plea,6 The trial court denied the and the this circumstance the “arising under” petition, relators filed their mandamus applied standard as prog- Grable and its seeking relief from the trial court’s con- eny. Because there is no nexus between tinuing subject-matter jurisdic- exercise of “arising under” ques- standard and the tion over the case. tion of whether federal courts have exclu- sive over the embedded federal Analysis issues, antitrust reject sugges- we relators’ A party requesting mandamus tion provides that the Grable standard First, requirements. relief must meet two appropriate analysis. Instead, frame of clearly it must show that the trial court applying the standard of Co. Gulf Offshore In abused its discretion. re Prudential Corp., v. Mobil Oil S.Ct. (Tex.2004) Co., Ins. 148 S.W.3d (1981), 69 L.Ed.2d 784 we conclude Second, (orig. proceeding). it must show legal that the authorities establishing fed- remedy by that it has no adequate appeal. eral to decide federal antitrust carry Id. at The relators 135-36. the bur preclude claims do not state courts from demonstrating right den of their to manda exercising jurisdiction over state-law mal- Helicopters mus relief. See Canadian practice claims with embedded federal an- (Tex. Ltd. v. Wittig, titrust issues. 1994) (orig. proceeding). Grable specific application I. its analysis our on We will focus the rela- relating patent law tors’ contention that the trial court has Grable, subject- its discretion In exercising abused the United States legal malprac- analyzed present- matter over this whether the claim arguments rely tice case. The relators’ in that case “arising ed was one under the Constitution, laws, USPPS and as well as other cases or treaties of the Unit- involving legal malpractice patent- purposes federal-question in the ed States” for context,7 precedents applying jurisdiction provided as for as in 28 U.S.C. § Grable standard determine when a 1331. The claim at issue was a suit to petition. 6. The relators filed a motion in the trial court merits of the Rule 52.8 does not stay proceedings pending our resolution of suggest provides otherwise—that rule petition, the mandamus and in that context opinion the court is of the tentative “[i]f parties disputed significance of our sought relator is entitled to the relief or that a request response petition. for a to the relators’ question concerning serious the relief re- relief) (other temporary Mandamus relief than quires further consideration ... the court granted cannot be unless the court receives or request response must a if one has not been requests response. Tex.R.App. P. 52.4. But 52.8(b)(1) (emphasis sup- filed.” P. Tex.R.App. regardless prelimi- whether the court has plied). narily petition may decided that be meritori- ous, response often aids efficient use of Techs., E.g., Air Measurement Inc. v. Akin judicial by inviting party resources the real Feld, L.L.P., Gump Strauss Hauer & 504 F.3d legal analysis interest to offer its own (Fed.Cir.2007); Immunocept, LLC v. perspective challenged action. Accord- Jaworski, LLP, Fulbright & 504 F.3d 1281 ingly, request response the mere for a does (Fed.Cir.2007). any preliminary judgment imply about the Thus, court, the Unit- 1331.8 of section purposes filed in state originally title quiet the Federal Appeals States Court to feder- ed subsequently removed it was standard to the Grable applied has pre- that the case Circuit grounds al court on embed- whether issues determine tax law. Gra- of federal question sented a legal malpractice within state-law If ded ble, at 2366. law, so claims arose under originally could have been the case exercise courts to court, permit then re- as district brought in federal The Federal the claims.9 jurisdiction over court to fed- the case from state moval of have con- in this area precedents Circuit proper under U.S.C. eral court was courts could exer- 1441(a). whether federal cerned id. at over the subject-matter cise in order for a state- 2366. Under claims, ques- state-law with an embedded law claim directly concerned with Constitution, not been they have “aris[e] tion courts could exercise the state laws, States” whether treaties of the United such claims. over such ju- concurrent subject-matter have that federal courts to sec- pursuant that claim risdiction over court to exercise authority of a state (1) claim must tion the state-law over a (2) a stated federal issue raise is- issues was the central involving patent (3) substantial, which actually disputed and in Minton v. Min- presented Gunn. sue may entertain without dis- a federal forum from distinguishable procedurally ton is approved bal- any congressionally turbing it precedents because the Federal Circuit responsi- judicial and state ance of federal deciding Texas state courts involved 314, 125 at 2368. See id. at S.Ct. bilities. claim arose legal malpractice a whether law, not to determine patent an application Because Grable is ju- court could exercise whether a federal standard of 28 U.S.C. “arising under” claim, but to determine risdiction over the articulated in that case § the rule were the state courts forbidden respect pat- whether special application with has exercising jurisdiction over the claim. cases, from as federal courts have exclusive ent merely In to section which “arising under” contrast over all cases grant power an affirmative 28 describes pursuant U.S.C. patent jurisdiction over 1338(a), courts to exercise “arising lan- § under” law,10 section “arising cases under” interpreted of that statute has been guage 1338(a) for federal grants power both way in the same that it does for apply Christianson, was affirmed. See fusal to remand the case 486 at 108 8. See U.S. 2173-74; Measurement, 1273; 1447(c) ("If § F.3d Air also 28 U.S.C. S.Ct. id. at see at 1271. judgment appears any final it time before subject court lacks matter that the district Technologies, Inc. In Air Measurement remanded.”). jurisdiction, be the case shall L.L.P., Feld, Gump Strauss Hauer & Akin that 28 Similarly, the Federal Circuit found was removed from claim 1338(a) jurisdiction § could be exer U.S.C. court, plaintiffs appealed the state legal malpractice claim over another cised interlocutory deny remand back decision to patent involving federal issues Immuno (Fed. state court. See 504 F.3d Jaworski, LLP, cept, Fulbright & LLC v. Cir.2007). applied The federal district court (Fed. Cir.2007). F.3d legal mal to determine that the Grable test patent law for practice claim arose under ("The § district courts 10.See 28 U.S.C. 1338(a). § id. at purposes of 28 U.S.C. original jurisdiction all civil ac- shall have agreed the Federal Circuit 1267. Because laws, Constitution, arising or under the tions jurisdiction could be exercised that federal States.”). 1338(a), United § re treaties of the pursuant to the district court's straightforward: over cases laws is courts to exercise subject-matter law11and also has a “arising patent may juris- under” courts assume jurisdiction of state converse effect on the diction over a federal cause of action ab- courts, which are forbidden specifically provision by sent Congress contrary exercising jurisdiction from over the same disabling or incompatibility between the scope present- Thus the issue claims.12 adjudication.” federal claim and state-court merely ined Minton was not whether the Corp., Co. v. Mobil Oil Gulf Offshore federal courts were authorized exercise 473, 477-78, 2870, 2875, U.S. That over the claim. issue had (1981). begin L.Ed.2d 784 our analy- We considered, only a necessary to be but as with presumption sis “the that state courts of whether part analysis the state enjoy jurisdiction.” concurrent Id. at 1338(a) by section prohibited courts were 101 S.Ct. at 2875. Jurisdiction be exercising jurisdiction from over the claim. exclusively confined to the federal courts applied Texas by explicit Congressional either or implicit test and Minton that the Grable held Thus, directive. See the Supreme id. particular legal malpractice at issue Court of the has United States held that arose under federal law. Because “the presumption jurisdic- of concurrent exclusive over claims is tion explicit can be by rebutted statuto- arising under federal 28 U.S.C. directive, ry by implication unmistakable 1338(a), the state courts could not exer- legislative from history,- clear in- subject-matter jurisdiction. cise compatibility jurisdic- between state-court original proceeding The relators in this Id.; tion and federal interests.” see also present yet scenario. a different Their Levitt, 455, 459-60, Tafflin argument presented the issue similar to (1990). 107 L.Ed.2d 887 we are insofar as asked to no produced Relators have authori decide courts are whether the state forbid- ty that Congress granted federal explicitly exercising den from over a jurisdiction courts exclusive of all cases state-law claim because “arising under” the antitrust laws. federal question. of an Howev- embedded federal Congress grant did federal district courts er, the issue in embedded federal this case “original jurisdiction any civil of action or involves instead of antitrust any Act of proceeding arising under Con law. Accordingly, analysis the Grable is gress regulating protecting commerce or if, only proceeding relevant to as in this trade and commerce restraints and against the context of courts are 1337(a). § monopolies.” 28 In ad U.S.C. jurisdiction any forbidden to exercise over dition, Clayton private the Act authorizes a “arising claims federal antitrust under” pursued cause of action to be in federal law. court for or injury property to “business jurisdiction II. Presumed concurrent anything reason of forbidden the of state courts laws,” 15(a), § antitrust 15 includ U.S.C. ing seek specific right “injunctive the to principle

“The of state- general ... loss or jurisdiction arising against court over cases under relief threatened dam- 1338(a) ("The ("No juris- § See id. shall have 11. See 28 U.S.C. district 12. State court jurisdiction original any arising courts shall of any have relief diction over claim under arising any Congress civil action Act of any relating Congress patents, plant to Act of relating patents, plant variety protection, variety protection, copyrights.”). trademarks.”). copyrights and 846 laws,” does not jurisdiction 15 to a federal court by a of the antitrust

age violation § specific 26. With reference concur- operate U.S.C. to oust a state court from Clayton injunc- the Act’s authorization of of action.” rent over the cause “any from court tive relief be obtained 479, 101 S.Ct. Offshore, 453 U.S. at Gulf having jurisdiction of the United States 2875-76; California, also v. see Martinez parties,” the has over 7, 100 553, 277, n. 444 283 n. 558 U.S. S.Ct. ... right grant- that to sue is “[t]his stated (1980). 7, 62 481 L.Ed.2d it that is to be ed terms which show anti principle that “federal only in a ‘court of the exercised United ” juris are within exclusive trust claims v. Lake & States.’ Gen. Inv. Co. Shore only has been diction of the federal courts” Co., 261, 287, 43 S.Ct. Ry. M.S. 260 U.S. suggested in connection with actual (1922). 117, 106, Subsequent 244 L.Ed. action, relators causes of and the antitrust cases have relied on General Investment rule example have us no provided proposition for the that antitrust universe being applied ever to the broader claims are within the exclusive “arising all anti of claims under” federal courts,13 despite sugges- the federal of trust Nor have relators demon law.15 that rule to be at odds appears tions this inferring any alternative basis for strated understanding with modern that “[i]t law ... that of exclusive grant scope black letter mere E.g., Orthopaedic the federal v. Am. Acad. within the exclusive Marrese 373, 379, 1327, courts,” Surgeons, 470 noting "[a]lthough U.S. S.Ct. anti- 1331, (1985); see Miller 84 L.Ed.2d 274 also jurisdic- trust are within the exclusive claims Granados, 393, (5th Cir.1976) 529 F.2d [citing tion General In- courts ("[T]he jurisdiction by Congress on conferred ], Appeals that the the Court of ruled vestment ex federal courts under the Sherman Act is petitioners’ complaints in state dismissal clusive.”). bringing court barred them from based on the same facts under the Sherman Levitt, See, e.g., Tafflin Act”); Lovorn, Hathorn v. 457 U.S. S.Ct. L.Ed.2d 887 n. 72 L.Ed.2d 2429 n. (1990) (Scalia, J., concurring) (characterizing (1982) (in context of that state analysis "less in General Investment as are authorized to decide whether courts Bolingbrook compelling”); than Vill. v. Cit- applies Voting Rights proposed Act Co., (7th Utils. 864 F.2d 484-85 izens Cir.1988) ("One change voting procedures, noting "al light doubt whether in Corp. Chrysler- though of Mitsubishi v. Soler state courts lack to enter [Motors Inc., Plymouth, brought pursuant Clay tain 4 of the suits (1985)] L.Ed.2d Act, 15, 87 444 antitrust is still § they ton decide 15 U.S.C. often courts.”). province exclusive of the federal concerning the federal antitrust laws issues Co., contexts”); other v. Bee Mach. Freeman provided by All of the case law us 450, 1147, 448, 1146, 319 63 87 U.S. S.Ct. specific relators involved or otherwise made (after (1943) claim was L.Ed. 1509 contract reference to antitrust causes action. court, "respondent moved removed to federal 462, Tafflin, 493 at at 796- S.Ct. by adding to amend its declaration a com (in holding context of that state courts damages § plaint treble 4 of the under jurisdiction have concurrent over civil RICO Act”); Clayton Advertising Blumenstock Bros. actions, noting that the has 436, Co., 441, Agency v. Curtis Pub. 252 U.S. § "interpreted Clayton 4 of the Act to confer (in (1920) 64 L.Ed. 649 jurisdiction exclusive federal courts” § damages suit for treble context of Inv., (citing Gen. 260 U.S. Act, observing that "the con the Sherman 116-17)); Marrese, subject-matter by troversy limited (in concerns S.Ct. 1327 feder- context that a law, recovery had for which can be preclusive al must "the court consider effect courts”). only judgment subsequent in a state court in the federal involving lawsuit federal antitrust claims upon implication an “unmistakable in preventing based restraints on free competi- tion. history,” or “a clear incom legislative from

patibility between state-court The claims at issue in this are case claims, state-law malpractice Offshore, they and federal interests.”16 are Gulf not causes of action created or specifically 453 U.S. at 101 S.Ct. at 2875. To the authorized federal antitrust laws.18 An contrary, legal scholarship suggests that analysis applying Grable and Minton legislative history of Sherman “[t]he would inform the question of whether the Act indicates that exclusive malpractice “arise under” feder- Note, was not intended.” Exclusive Juris al antitrust law pursuant to 28 U.S.C. diction the Federal Courts Private 1337(a) and therefore be a candidate for Actions, Civil 70 Harv. L.Rev. 510 n. concurrent federal subject-matter jurisdic- (1957) (citing S. Doc. No. 57th tion. But authority absent that state 311-13, 317, 320-21, Cong., 2d Sess. 334 courts prohibited are from exercising juris- (1903)). we perceive And no clear incom “arising diction over all claims under” fed- eral analysis antitrust patibility between state-court Grable does not determine whether the malpractice over the malpractice claim at issue claim subject to exclusive federal juris- policy and federal interests. The cardinal diction. The relators thus have made no undergirding the Sherman Act is maximiz showing over ing through consumer welfare the pro these claims is exclusive to federal courts competition.17 By motion of economic con to the exclusion presumed of otherwise trast, policy undergirding the state-law jurisdiction. concurrent state-court legal malpractice compensate tort of is to We conclude the relators have an injured private party for its losses. See failed to demonstrate a clear abuse of the Akin, Strauss, Feld, Gump, Hauer & trial court’s discretion. See Canadian L.L.P. v. Nat’l Dev. Corp., & Research 305; Helicopters, Walker, 876 S.W.2d at (Tex.2009). State-court 827 S.W.2d at 837. To the contrary, we adjudication alleging injuries of claims re conclude that properly trial court is sulting from does not exercising jurisdiction over the state-law threaten to undermine the federal malpractice interest claim.19 petition 16. The Riffe, relators’ focuses on the Grable Wilshire Oil Co. v. 409 F.2d Cf. (10th Cir.1969) test and its (distinguishing consideration of whether the exer- overlying of federal employer’s cise over an antitrust claim from common-law "any congres- right employees state-law claim would disturb to recover antitrust fine from sionally approved fine). balance of and state whose conduct occasioned the judicial responsibilities.” 545 U.S. at 2368; Minton, 125 S.Ct. at 355 S.W.3d 19. We also note that a conclusion that federal Accordingly, arguments at 640. their are ori- subject-matter jurisdic courts have exclusive justifying ented the federal towards interest in tion over this claim would be adjudicating the appropri- claim. The more diametrically opposed prior ruling in question ate is whether state courts exer- dispute question juris same this that "federal presumed jurisdiction cise their concurrent case, diction does not in exist this and remov offending without some federal interest. RX.com, proper al was not on this basis.” O'Quinn, 790, 793, F.Supp.2d Inc. v. See, Needle, (S.D.Tex.2011). e.g., granted Am. Inc. Nat’l Football If we the relief U.S. —, relators, League, sought by parties — 130 S.Ct. the the real in (2010); Leegin 176 L.Ed.2d 947 Creative interest would face the circumstance of hav Prods., Inc., PSKS, ing Leather Inc. v. 551 U.S. to re-file their claims in federal district 877, 886, 2705, 2713, judge 127 S.Ct. 168 L.Ed.2d court after one federal district has al (2007); generally ready subject- see Robert H. ruled that there is no federal Bork, The (1993 ed.). jurisdiction Paradox 50-71 matter the claim. A federal over Antitrust embedded-federal-question juris

Conclusion test for diction). federal courts do not Because not that courts are conclude Texas We case, they jurisdiction have over this nec jurisdiction prohibited exercising from jurisdiction. not essarily do have exclusive legal malpractice claims over the state-law Because that no this case. we conclude Embedded-Federal-Question shown, of discretion has been clear abuse Jurisdiction opinion what circum- express we no about jurisdictional provisions The Unit- permit litigant to private stances would a grant States Code federal district ed review of the denial of a plea obtain original courts over “civil ac- jurisdiction by petition means a for writ of Constitution, laws, arising tions under the inadequa- of alleged mandamus due remedy a treaties of the States.” This is cy appeal of from final or United judgment. question juris- often referred as “federal “arising jurisdiction.” diction” or we Accordingly, deny petition § 1331. An action under” “aris[es] U.S.G. mandamus. writ of (1) law when federal law creates BROWN, (2) of in some concurring. Justice the cause action or rare cases, by when cause of action created BROWN, concurring. HARVEY state law nevertheless turns on substan- join opinion I Court’s question tial law. See juris do not federal courts have exclusive (not- at 2366-67 125 S.Ct. holds, diction over this case. The Court ing federal-question jurisdiction over of whether agree, regardless and I common); state-law is less see also courts have over cases Assur., Empire Healthchoice Inc. one, relators like this have established McVeigh, exclusive that such would be (2006) (describing 165 L.Ed.2d 131 of, with, rather than concurrent state and category “special cases as small” jurisdiction. separately courts’ I write “slim”); Hoffman, Lonny S. Intersec- only approach to address another tions State and Federal Power: State Specifically, issue. like the federal district Law, Federal Judges, and the “Reliance us,1 court that considered this issue before (2006) Principle” 81 Tul. L.Rev. that, I existing would hold under the rec (“routine efforts this to come within statu- ord, pre relators have not two established rejected tory head of should be juris requisites to the existence of federal allowing apply in favor of the state court to (1) this case: diction over the existence of law”). interpret applicable (2) question “substantial” federal type federal-question The second juris- harmony with careful balance between often diction is referred as embedded- & federal and courts. See Grable federal-question jurisdiction. Prods., Eng’g Sons Metal Inc. v. Darue & questions in this Mfg., 545 U.S. (2005) four-part arising prosecution forth out (setting

L.Ed.2d of relators’ suit— perhaps tendency even public tire federal district able due to its to "undermine same court— judiciary" "squander judge might then be exercise confidence our forced to either — Christianson, public private and effectively parties resources.” leave the real homeless, 486 U.S. at 108 S.Ct. at 2179. judicially shunned both state refusing juris and federal courts exercise RX.com, O'Quinn, to resolve their the F.Supp.2d diction claims on merits. 1. Inc. (S.D.Tex.2011). "jurisdictional ping-pong” Such is undesir 795-97 merely by asserting they Act claim in federal court—are a Sherman are contest- jurisdiction exists question whether federal ing the real-party plaintiffs whether could so, and, state-law action if wheth over this prevailed have their underlying Sher- jurisdiction is exclusive. Under er that They man Act claim. characterize this record, I in question answer the first this being “absolutely dispositive.” fact as But need to negative, the and therefore do not that conclusion is not compelled by Minton question (although join second I reach the First, for several reasons. while Minton question). in the Court’s answer to that meaningful involved a and factual Answering requires the first question dispute over doc- intersecting patent law (1) inquiry: plain four-part real-party do trines, have not relators demonstrated reso require tiffs’ claims the federal issues here require anything lution of issue of antitrust law under application more than the of established so, Act; the Sherman if is that antitrust federal law to factually-disputed claims. (2) (3) actually disputed substan issue and Second, the Minton court limit- expressly (4) tial; will dis and federal case, ed its to the facts of that and judi turb the balance of federal and state the favoring juris- circumstances federal Grable, 545 responsibilities. cial present diction in Minton are hot here. 2366-68; S.Ct. at see also substantial, 1. turned Minton on a Gunn, (Tex. Minton 355 S.W.3d factually legally disputed issue 2011), 11-1118 petition filed, cert. No. for patent 2012). (U.S. an affir Requiring March inqui answer to each of four mative these Minton, In the Texas Court necessary ries to ensure that reference is ju- held that federal courts had exclusive not “a to an embedded federal issue is a legal malpractice risdiction over lawsuit opening courts” to password the arising out of defendants’ of a handling malpractice “embracing a any state action Minton, patent claim. 640- point of federal law.” U.S. at construe sea- Relators Minton as a 314, 125 change in the doctrine of embedded-feder- plea fails to Relators’ al-question jurisdiction, essentially elimi- First, satisfy two of these elements. nating “actually disputed” Grable’s before us does not record establish requirements “substantial” federal issue ques- of a existence “substantial” federal when issue the federal arises from an area Second, tion. relators have not demon- in which Congress of federal law has creat- juris- that affording strated federal courts may originate only ed claims that in feder- over malpractice diction like this actions al courts. But Minton Court did upset one would not the careful balance presume question “substantial” between federal and state courts. be- merely because the action require applica- fore the would Court substan- A. The record does not show a law; instead, tion of federal tial, disputed federal issue determined that the federal issue Court prem- petition Relators’ in this was, fact, substantial actu- ease interpreta- ised on their broad primarily ally disputed. application tion of Minton and its issue in Minton was wheth- Relators standards articulated Grable. “experimental exception er the use” would that, they have contend have Minton’s claim from excused presence “actually disput- shown the of an (the statutory against patents on-sale bar “substantial” issue ed” and Grable) year one patent- second third factors under filed more than after the 850 (stating Id. that legal dispute.2 at The at 644 is Id. 638.

ed invention sold. that federal “experimental plaintiff required prove was to patent of law’s application viable”); factually “legally of issue and dispositive Minton’s was use” doctrine was (“the and legal action: Minton’s sole assertion at 642-43 factu- see also id. “clearly on attor- in negligence premised viability” was his al of federal issue was of timely plead to the neys’ failure brief the dispute”). It is construction in exception use the federal experimental is often left application, law—not its which Id. at 642. The Court patent litigation. of fed- expertise to the which the jury —in having interest in “strong the recognized and uni- judges particularly helpful eral is Id. applied uniformly.” law A over the formity dispute is needed. 1295(a) (vest- 645; at see also 28 U.S.C. law facts of application of the to the the jurisdic- with exclusive ing federal circuit to case to the doors the open is insufficient Despite all of appeals). tion over Grable, 545 U.S. federal courthouse. See depended en- state-law claim that this—a (“meaning of the at 125 S.Ct. 2363 the between a federal tirely on interaction dispute); actually must be in federal [law]” excep- and a statute federal-common-law (observing id. at 125 S.Ct. that 2363 that in an area law in tion to statute of the in Merrell Dow Pharmaceuti recognized strong which the courts have Thompson, cals Inc. U.S. in interpretation interest uniform federal (1986), S.Ct. “as L.Ed.2d application Minton Court ex- —the have to that federal law would be sumed the noted that whether federal is- pressly applied to resolve the claim” but neverthe sufficiently justify to sue was substantial that less determined was a “close” exclusive unavailable). was Court re The Grable at close call. Id. 643. If Minton was a jected mere “expansive the view that need call, easy this is an one. in a state-law claim apply 2. Relators a sub- have not shown open ‘arising will the under’ suffice legally that is both stantial issue door.” at factually disputed Instead, it that twice stated the dispute issue whether there is a “re in for a

Minton instructs that order validity, specting the construction effect disputed federal issue to be substantial Id. (quoting law.” Shulthis v. [federal] factual disputes there must be more than regarding application McDougal, the of the federal (1912)). to the must be a 56 laws case—there also L.Ed. forming intended its dispute purpose In there was a factual re its intended applicability experimental garding the The court Id. 712 n. 46. environment.” patentabili exception to use the on-sale bar appeals disagreed testing that the held appeals' ty of the invention. The court of patent must relate to claimed feature of also, however, opinion reveals that there was standard, Applying ed invention. this Gunn, legal dispute. a 702, Minton testing that the appeals court of concluded 2010), (Tex.App.-Fort Worth rev’d on “not, evidence offered the inventor did as a (Tex.2011) grounds, other S.W.3d 634 law, support experimental use.” Id. matter of (noting dispute “predominately was one appeals 712. Because court of af fact”). appeals, parties In the court summary judgment firmed a no-evidence disagreed applies on the standard basis, disputed legal this issue was critical determining testing con when is sufficient to contrast, ultimate issue the case. In experimental plaintiff use. stitute case, signifi there is no evidence of this sup "experimental use is contended cant, plea disputed issue in the any ported by testing needed convince jurisdiction. capable per inventor that the invention is 2007) (“What rely on certain defenses assert-

Relators Court said about Grable the antitrust defendants in the un- ed in Empire Healthchoice can be said here Act lawsuit as derlying Sherman establish- too. We have a fact-specific application of ing a substantial federal issue.3 Even if rules that come from both federal and we were to look at its defenses in the state law rather than a context-free inqui lawsuit,4 original relators have not demon- law”). ry meaning into the of a federal on this record that strated those defenses expressly 3. Minton is an limited va- implicate legal dispute involving the lidity or construction federal antitrust case, Although this like is a opposed as to the mere application of arising action out of the prose such to the facts of this case. The action, cution of a federal cause of that fact mere fact within that the “case the case” is not, alone, does establish a substantial fed based on Sherman Act claims supports eral rejected issue. The may fair inference that federal issues arise that kind of sweeping displacement of in the litigation. may course of the These state-law claims in Grable. See include the issues identified in relators’ (reject 125 S.Ct. at 2368 plea may to the include ing “single, precise, all-embracing” test for disputes primarily legal that are in nature determining embedded jurisdic disputes are more fact-oriented. tion) (quoting Christianson v. Colt Indus. But at point only speculate; this we can Operating Corp., 486 U.S. the record does not establish that these 2166, 2180, (1988) S.Ct. 100 L.Ed.2d 811 require anything defenses would other (Stevens, J., concurring)); id. at than a situation-specific” “fact-bound and at 2370 (describing S.Ct. Merrell Dow analysis generic principles of anti- disclaiming “any as bright-line rule” Healthchoice, litigation. Empire trust explaining that “questions (stating 547 U.S. at at 2137 over state-law claims require judg ‘careful situation-specific” “fact-bound and ” ments’ and a questions enquiry”); are' insufficient to create “contextual Mer Dow, 808, 106 arising-under jurisdiction); rell Bennett v. Sw. U.S. at S.Ct. at 3232 Co., (7th Airlines 484 F.3d (rejecting “single, precise Cir. use of a defini rely expert reports Real-party plaintiffs To the extent relators on contend that we cannot they provided argument, this Court after oral well-pleaded consider this evidence under the we not consider evidence not before rule, complaint a federal standard that limits plea trial court at the time of to the subject-matter-jurisdiction inquiries to the jurisdiction hearing. Taylor, See In re plaintiffs complaint. face of the See Fran (Tex.App.-Houston [1st Dist.] Bd. chise Tax Cal. v. Constr. Laborers Vaca that, orig. proceeding) (stating man- Cal., 1, 10, tion Trust S. proceedings, damus we "focus on the record ("the (1983) 77 L.Ed.2d 420 that was before the trial court” and exclude plaintiff's complaint establishes that the case filings from our consideration "that were not law”). Arguably, under’ federal 'arises part of the trial court record at the time of the inquiry governed by here could be the Texas hearing subject on the motion that is the procedure permits challenges to the exis original proceeding.”). Even if I were to jurisdictional plea tence of facts in a to the reports, consider these it is still not clear to jurisdiction. Dep’t See Tex. Parks & Wild question; me that there ais substantial federal Miranda, (Tex. 133 S.W.3d 226-27 summary judgment life relators’ motion for 2004). Because the on which re- documents (which real-party plaintiffs filed after oral ar- substantial, rely do lators not demonstrate gument ruling and was filed after also on issue, disputed I plea jurisdiction) need not decide this is not based any arguments under the Sherman Act. issue. of action—the failure to arising-under crum the Minton jurisdic tion” to determine tion). plead “experimen- ex brief the Consistently, properly the Minton Court and scope holding, the of its of pressly negli- limited tal use” was the sole act doctrine legal it would not “cause all stating that Minton gence pleaded, alleged Minton and arising out liti patent malpractice suits failure, alone, him to lose his that caused gation patent under the exclusive to fall was patent brought claim—and that issue courts,” the and jurisdiction of federal law through to a head in the trial court sum- only opinion that the “should be cautioning Minton, mary proceedings. judgment conferring as exclusive federal construed Here, negligent the 355 S.W.3d at 642. upon specific based the patent jurisdiction failure to file un- pleaded conduct is Minton, S.W.3d at of this case.” 355 facts timely; derlying litigation Sherman Furthermore, noted that (which identify Act defenses relators were asserting mal litigant “any state by underly- in the pleaded the defendants damages to recover for re practice action action) record, are, ing only under this patent negli attorney’s from his sulting that be relevant some the issues prosecution gence patent litigation in element of proving to the causation real- satisfy all four elements of the must also party plaintiffs’ malpractice claim. id.Cf. his claim exclu place test to Grable (favorably citing at 646-47 Tech. Roof and jurisdiction,” sive federal that “[i]n Servs., Hill, F.Supp.2d v. 679 Inc. legal malpractice context of state-based (N.D.Tex.2010) (explaining 754 state claims, will not plaintiffs always be able legal malpractice involving action attor Id. a burden.” meet such ney’s “failure to meet deadlines and com to the absence from the rec- In addition municate client” and in with which [his] legal dispute of a substantial over fed- ord “[p]atent merely floating are on the issues law, key eral several other facts favorable exclusive periphery” trigger did not feder in are not federal Minton patent jurisdiction), al and Genelink Bios First, present law here. antitrust does ciences, Colby, F.Supp.2d 722 Inc. present heightened uni- the same need for (D.N.J.2010) (holding that where 601 state formity predictability presented malpractice claim was based missed See, questions patent validity. e.g., deadlines, validity not on the USPPS, Avery Corp., Ltd. v. Dennison itself, patent no patent actual there was (5th Cir.2011) (observ- 274, 284 647 F.3d patent triggering issue exclusive federal in special exists ing interest jurisdiction)). body developing patent uniform on the Conclusion “substantial protected by interest is “Con- element issue” gress’s grant appellate juris- of exclusive cases to cir- patent diction over [federal A substantial contested issue is court.”); USPPS, see also Ltd. cuit] one that involves “a serious federal inter Avery Corp., Dennison 676 F.3d thought in claiming advantages est (Fed.Cir.2012) (Prost, J., concurring) forum” be inherent in a federal and “an (contending ap- that Federal Circuit’s important issue of federal law” that proach cases com- ... dispositive “both of the case con ports because with Grable “substantive Grable, trolling in other cases.” numerous implicated law issues” cases such 2367-68; at 545 U.S. at substantial). necessarily are Healthchoice, at Empire U.S. central

Second, S.Ct. at 2137. It is also “experimental law’s use” parties’ the on-sale bar exception dispute. was the ful- (disputed diction” without distorting “division courts”); labor issue was “at the heart between and federal claim”); Health see also S.W.3d at 644. Empire Spe- title state-law choice, cifically, relators ask this n. 126 S.Ct. at Court to hold U.S. at 699 traditionally that an action (describing federal-ques pursued classic belongs state court now (exclusively) “predicated tion as one issue”); court, centrality despite see federal district on the of a federal Hoffman, 645; any court’s determination that it at lacked also (much exclusive) disputed less (stating Tul. L.Rev. at 300 that over the they have case. But “may issue not be minor demonstrated federal some vital, that such a would not of rele disturb the point but instead vant, judicial responsibility Congress balance of significant range ... to a of wide issue is of has struck between federal and behavior” and “an and state persons Thus, procedural courts widespread import”).5 posture relators’ bur of this a is not a case. den to show substantial issue They one. must both

light demonstrate Federal have jurisdiction. courts limited itself and importance the issue’s in the suit expressed And federal courts have concern greater development scheme in the of the that to their the doors courts should not be carry law. to of the Relators have failed opened too wide claims that are tradi- this burden show a clear abuse by tionally handled state courts—like legal warranting trial court’s discretion manda malpractice of claims—under the doctrine relief. mus embedded-federal-question jurisdiction. Grable, 545 U.S. at 125 S.Ct. at recog- B. Relators have not shown that 2371 (finding only after deter- nizing here mining recognizing federal-question disrupt bal- would not the careful jurisdiction over actions like that before ance between federal and state affect, not materially Court “would or courts affect, threaten to the normal of currents satisfy the Relators likewise fail litigation” by introducing flood of state fourth, arguably important, courts). most claims into federal Here a federal Grable, prong Grable test. See already rejected court has relators’ conten- (stating at U.S. tion that courts have providing “the national interest in feder- Congress over this case. elected to make for the al forum” federal issue involved a federal court’s determination that a case was “sufficiently sup- generally case substantial should remanded non-review- be 1447(d); juris- port federal-question Schexnayder the exercise of able. 28 U.S.C. requirement, centrality 5. This known than do rules. Standards allow the deci- as requirement, take into sionmaker to account all relevant totality plaintiff's claim addresses whether the factors or the of the circumstances. enough” justify of "federal invocation surprised disappoint- not be We should or question jurisdiction. Centrality ed, then, centrality inquiry if the does not how ill-suited to asks much—an assessment always yield litmus-like answers. The na- a cut-and-dried rule. It a standard calls for inquiry requires ture of the nuance and decisionmaking collapse ... drat tends to balancing. application into the direct the back- back of Freer, Richard D. Rules Standards: Of principle ground policy a fact situa- Statutory “Arising Reconciling Limitations on tion. Standards allow for the decrease of Jurisdiction, Under’’ 82 Ind. L.J. errors under- over-inclusiveness (2007). giving the decisionmaker more discretion (5th La., Inc., F.3d Entergy FLEMING, Cir.2004). Appellant To a state court to sec- Mark allow already court that has ond-guess it remanded case because determined it lacked would be con- Texas, State. STATE Congress’s limiting re-

trary to -intent No. 02-09-00215-CR. If a fed- view of remand determinations. close its doors to a court decides to eral Texas, Appeals claim, a should not force the state court Fort Worth. open. federal courthouse door “[Tjhere always be assessment must Aug. disruptive exercising fed- any portent jurisdiction.” eral at 2368. Here assessment against a declaration

counsels state-court

that, contrary prior of a decision removal, court upon

courts—and federal courts alone—bear remedy providing for a state-

burden merely

law cause of because federal action applied be element of

claim.

Conclusion attempt “upset-

Courts should avoid (or line at

ting the state-federal drawn assumed) by Congress.”

least at Legal are on the

malpractice claims side of “ordinarily

line that resolved in state Healthchoice, Empire

courts.” Therefore, 126 S.Ct. at 2127. in de-

ciding grants whether 28 U.S.C. jurisdiction, courts arising-under signal

courts “should await a clear from

Congress” displace that it intends to

courts of this Id. Because no such task. here,

signal exists I would conclude that

the trial court not abuse its did discretion denying plea to

the record it. before

I in the opin- therefore concur Court’s

ion.

Case Details

Case Name: in Re Haynes and Boone, LLP and Patrick L. Hughes

Court Name: Court of Appeals of Texas

Date Published: Jul 26, 2012

Citation: 376 S.W.3d 839

Docket Number: 01-12-00341-CV

Court Abbreviation: Tex. App.