When strategizing about a potential lawsuit, an attorney has to consider many factors in deciding how the case should proceed. One of the first questions an attorney planning a lawsuit should always ask is where to file it. Generally speaking, there are two basic court systems to file in — federal courts and state courts — each of which has its own advantages and disadvantages depending on the nature of the case and the parties involved. In the cannabis world, litigation gets really tricky and special strategic considerations must be made in light of the fact that the federal government still classifies marijuana as a Schedule 1 controlled substance.
This post analyzes a recent judicial opinion from a cannabis-related employment lawsuit that highlights common issues regarding where cannabis-related lawsuits should be filed. The case involves a former Amazon employee who was fired for his weed use, despite being a qualified medical marijuana patient. A federal judge’s recent opinion in the case highlights the strong reasons why plaintiffs in cannabis-related lawsuits will often want their cases in state court, whereas defendants, like Amazon in this case, will often prefer federal court.
This lawsuit stems from the termination of an Amazon employee named “D.J.C.” (his actual name is not publicly known, so we’ll just call him DJ) from his job at an Amazon warehouse in New Jersey. According to court documents, DJ was working at Amazon for about eight months when he was given a drug test on July 11, 2018 and tested positive for cannabis. He was fired about a month later, and his attempts to demonstrate that he was a valid medical patient with valid conditions did not change anything.
Not only was DJ fired from his job, he was also apparently blacklisted from Amazon-related jobs such as Whole Foods. When he applied for a job with Whole Foods, he was told that he would not be considered for the position due to his termination from Amazon. Although he was eventually able to find other employment, he contends that those opportunities do not provide the same benefits, opportunity, or enjoyment of work.
New Jersey employment law provides for many protected classes against whom discrimination is prohibited. These include race, religion and gender, but also against other things such as age, breastfeeding, familial status and disabilities. The law provides that employers cannot discriminate in any way, including termination, against individuals based on their disability, unless “the nature of the disability reasonably precludes the performance of the particular employment.” N.J.S.A. 10:5-4.1.
Certainly, if the plaintiff was using cannabis on the job, and it was affecting his performance, it would not be discrimination for him to be fired. However, DJ was not using cannabis on the job. If he was using illegal drugs at home it becomes a trickier question, but generally employers are allowed to terminate an employee for illegal conduct. Importantly, however, DJ was not using cannabis illegally. He was a medical patient with a qualifying diagnosis, and had a doctor’s prescription which allowed him to use medical cannabis. As such, he believed that his termination amounted to discrimination against him for his medical condition, and he filed suit.
Once the lawsuit was filed, Amazon’s first move was to request that the case be removed, or transferred, to federal court. Removal to federal court is quite common in litigation. But it is especially common in cannabis cases, because defendants know that federal courts will often choose to stay out of disputes or refuse to enforce contracts that relate to or arise out of illegal activity.
Here, because the federal government considers cannabis to be an illegal substance, Amazon’s defense attorneys were presumably strategizing that a federal judge would be more likely to determine DJ’s firing to not have been discrimination. If the law says that all cannabis use is illegal, then that would be a valid basis for the termination, and the plaintiff would surely lose.
However, in order for a case to be validly heard in federal court, there has to be a legal basis for the court’s jurisdiction. There are several ways for a federal court to have jurisdiction, including when the parties have complete diversity of citizenship. A full understanding of “diversity jurisdiction” requires attending a law school class, but the simple version is that a federal court will have what is called “subject matter jurisdiction” over a case if the plaintiff legally resides in a different state (or country) from all of the defendants. In the Amazon case, DJ is a New Jersey resident, while Amazon legally resides in both Delaware and Washington, but not New Jersey. As such, the court had diversity jurisdiction over the parties and Amazon was successful in getting the case removed from state to federal court.
However, the plaintiff responded with a shrewd maneuver. The plaintiff used the process of “joinder” to add his immediate supervisor, who was intimately involved in the firing process, as an additional defendant in the case. Like DJ, the supervisor was a New Jersey resident. By pointing the finger at his supervisor as well, DJ ensured that one of the defendants resided in the same state as himself, and therefore destroyed complete diversity. With complete diversity defeated, the federal court acknowledged that it no longer had jurisdiction over the case, and sent the case back to state court.
Back in state court, the plaintiff is looking pretty strong. As Marijuana Moment’s Kyle Jaeger thoughtfully points out, a recent New Jersey Supreme Court decision greatly improved DJ’s arguments. In March, the Supreme Court announced its decision in Justin Wild v. Carriage Funeral Holdings, Inc. That case was a fascinating struggle involving a funeral director who was fired after his medical marijuana use came to the attention of his employer. The New Jersey high court in that case declared for the first time that New Jersey’s medical marijuana laws created discrimination protections for employees who are valid medical patients.
As DJ’s whole claim is that his termination violated his rights because he was a legitimate medical patient, his case back in state court seems to be all but decided. Amazon is likely to want to settle the case soon, and quickly.
This case is remarkable for a couple of reasons. First, the entire lawsuit highlights one of the most dynamic tensions in cannabis employment. There continues to be a struggle between the rights of employees to consume cannabis and the rights of employers to maintain a sober workforce. The trend is certainly toward giving employees more rights, provided that their cannabis use does not interfere with their job duties. Also, notice the difference between the state of the law in New Jersey in 2018, and the law today. Just two years ago, Amazon had no problem firing DJ for his cannabis use, while now that firing is clearly wrong. These laws continue to change as more states create legal cannabis regimes, and as employees and labor groups continue to assert their rights against employers. The National Conference of State Legislatures maintains a state by state database of the laws that protect employees’ ability to use cannabis.
Second, this case highlights the importance of creative thinking as well as the importance of having an experienced attorney on your side. DJ’s attorneys creatively maneuvered the rules of civil procedure to their advantage by using the rule of joinder to get the case where they wanted it. My law school civil procedure professor would truly be proud. Always remember that there are many ways to successfully end a dispute, and not all of them may be obvious at first glance. Be sure you have competent counsel on your side, and that you are getting the absolute best result for every issue that may arise.