Summary Judgment Symposium Papers Published

The Loyola University Chicago Law Journal has just published papers from last fall's symposium on Summary Judgment.  The articles are available at http://www.luc.edu/law/activities/publications/lljdocs/vol43_no3/llj_vol43_no3.html.

Announcing the Stanford Journal of Complex Litigation

Here is the announcement:

Dear Authors:

We are proud to announce the founding of the Stanford Journal of Complex Litigation (SJCL). Beginning in the 2012-2013 academic year, SJCL will publish articles and essays that are timely and make a significant, original contribution to the field of complex litigation. We are currently seeking article and essay manuscripts on a range of topics including the rules of civil procedure, aggregate litigation, mass torts, jurisdictional disputes, complex litigation reform, actions by private attorneys general, and transnational litigation.

We review and accept articles year-round on a rolling basis. SJCL strongly prefers electronic submissions through the ExpressO submission system, which can be found online at http://www.law.bepress.com/expresso. You may also e-mail your manuscript to sjcl_submissions@lists.stanford.edu. We do not accept submissions in hard copy.
SJCL is also seeking faculty with expertise in areas such as civil procedure or complex litigation to serve as reviewers. If you are interested, please contact sjcl_editors@lists.stanford.edu.
A website with more information is forthcoming. For the time being please refer to our Stanford Law School site: http://www.law.stanford.edu/publications/journals/sjcl/.

Please contact us with any questions. We look forward to working with you.

Regards,

Nick Landsman-Roos & Matt Woleske
Editors-in-Chief, Stanford Journal of Complex Litigation
sjcl_editors@lists.stanford.edu

Fourth Circuit Rejects Sufficiency of Evidence Appeal Absent JMOL Renewal

The Fourth Circuit has applied Unitherm to rejects a sufficiency of evidence appeal in absence of post-verdict renewal of JMOL motion.  The case is Belk, Inc. v. Meyer Corp., No. 10-1664 (May 9, 2012).  The opinion is available at http://pacer.ca4.uscourts.gov/opinion.pdf/101664.P.pdf.

E.D. Va. Imposes Spoliation Sanctions for Failure to Suspend Document Destruction Policy

Per Toys "R" Us-Delaware, Inc. v. Tots in Mind, Inc., Slip Copy, 2012 WL 529595 (E.D. Va. Feb. 17, 2012):

TRU's Motion for Sanctions is based on Tots' alleged spoliation of evidence. During his deposition, Mr. LaMantia, Tots' Fed.R.Civ.P. 30(b)(6) witness, testified that Tots never altered its seven-year document destruction policy during either this, or the underlying Blanco, litigation. Following LaMantia's deposition, Tots filed affidavits correcting LaMantia's alleged misstatement. The affidavits indicate that a policy suspending document destruction has been in place as to relevant documents since the time of the Blanco litigation. Seemingly as an excuse for the inconsistencies, Mr. LaMantia's affidavit also states that he previously suffered a stroke, which has affected his memory.

“Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.2001). The trial court's discretion for choosing the appropriate sanction for spoliation is broad. Id. In addition to sanctioning improper conduct, the district court may also impose sanctions for the purpose of leveling the evidentiary playing field. Id.

The Court is not persuaded that subsequent affidavits alone should be permitted to wholly contradict Mr. LaMantia's prior deposition testimony. See Russell v. Acme–Evans Co., 51 F.3d 64, 68 (7th Cir.1995) (“We have been highly critical of efforts to patch up a party's deposition with his own subsequent affidavit.”). Defendants failed to file a notice of errata subsequent to the damning deposition; Defendants failed to provide any internal documentation evidencing a suspension of its document destruction policy; and Defendants failed to provide any medical documentation evidencing (a) Mr. LaMantia's stroke or (b) that the alleged stroke impacted Mr. LaMantia's memory.

After careful consideration, the Court finds that sanctions for spoliation are appropriate. The Court will instruct the jury that no retention policy was put in place at Tots during the relevant time period. The Court will also instruct the jury that they may infer that but for Tots' spoliation, TRU would have been able to prove (1) that Tots did in fact receive the MPO; (2) that Tots retained printed copies of Shipment Set Details predating 2004 on file; and (3) that the paper purchase orders exchanged between Tots and TRU, prior to the electronic purchase orders, contained indemnification and warranty provisions printed on the reverse side of the orders. However, the Court will further instruct the jury that they are not required to so find, and in making their decision, they should consider all of the relevant evidence presented. In sum, the jury will be instructed that it may find that Tots' seven-year document destruction policy is the reason Tots was unable to produce the relevant documents.

E.D.Va. Rejects $50 Million Civil Penalty in FCA Case as Unconstitutionally Excessive

Per U.S. ex rel. Bunk v. Birkart Globistics GmbH & Co., Slip Copy, 2012 WL 488256 (E.D.Va. Feb. 14 2012):

Presently pending before the Court is the Plaintiffs' post-trial motion for an award of civil penalties under the False Claims Act with respect to the DPM claim. For the reasons stated herein, the Court concludes that the mandatory civil penalty of at least $50,248,000 constitutes an unconstitutionally excessive fine in violation of the Eighth Amendment and, having made that determination, further concludes that it does not have the discretion to fashion some other civil penalty that would be within constitutional limits; and therefore no civil penalty will be imposed.

D. Colo. Notes Split Re Whether FRCP 9(b) Applies to Negligent Misrepresentation Claims

Per Denver Health and Hosp. Authority v. Beverage Distributors Co., LLC --- F.Supp.2d ----, 2012 WL 400320 (D.Colo. Feb. 8, 2012):

Beverage contends that Rule 9(b), not Rule 8(a), applies to the negligent misrepresentation claim and that the claim cannot meet Rule 9(b). Rule 8(a) prescribes the pleading requirements for most claims. It requires a pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”Fed.R.Civ.P. 8(a)(2). By contrast, Rule 9(b) requires that “a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b) (emphases added). This standard requires the complaint to “set forth the time, place and contents of the false representation, the identity of the party making the false statements and the consequences thereof.” Schwartz v. Celestial Seasonings, Inc., 124 F.3d 1246, 1252 (10th Cir.1997)(citation omitted). The rule's purpose is “to afford defendant fair notice of plaintiff's claims and the factual ground upon which [they] are based ...” Id. (quoting Farlow v. Peat, Marwick, Mitchell & Co., 956 F.2d 982, 987 (10th Cir.1992)).

As the parties note, whether Rule 9(b) applies to negligent misrepresentation claims divides the circuit courts of appeals. Compare, e.g., Trooien v. Mansour, 608 F.3d 1020, 1028 (8th Cir .2010) (concluding that Rule 9(b)applies to the claim), and Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 583 (2d Cir.2005) (same);with Tricontinental Indus., Ltd. v. PricewaterhouseCoopers, LLP, 475 F.3d 824, 833 (7th Cir.2007) (holding Rule 9(b) does not apply to claim), and Baltimore Cnty. v. Cigna Healthcare, 238 Fed. App'x 914, 921–22 (4th Cir.2007)(same). The issue similarly splits this district court. Compare Gunningham v. Std. Fire. Ins. Co., No. 07–cv–02538–REB–KLM, 2008 WL 4377451, at *2 (D.Colo. Sept.18, 2008) (applying Rule 9(b) to claim), with Conrad v. Educ. Res. Inst., 652 F.Supp.2d 1172, 1182–83 (D.Colo.2009) (concluding Rule 9(b) does not apply to claim). The Tenth Circuit has not decided the issue.

I conclude that Rule 9(b) does not apply to the negligent misrepresentation claim before me. The crux of the claim is that Beverage failed to use reasonable care or competence in obtaining and communicating information concerning Hood's eligibility. This rings not of fraud but negligence.

Prof. Wasserman on the Roberts Court and the Civil Procedure Revival

Prof. Howard Wasserman (FIU) has just posted an Article entitled The Roberts Court and the Civil Procedure Revival on SSRN.  Here is the Abstract:

In the six terms since John G. Roberts became Chief Justice in September 2005, the Supreme Court has decided numerous, significant, and potentially far-reaching cases on core civil procedure subjects, including pleading, summary judgment, personal jurisdiction, subject matter jurisdiction, class actions, and the Erie/Hanna Doctrine. This renewed interest in civil procedure and the Federal Rules is an important, but little-discussed, jurisprudential theme of the early years of the Roberts Court. This essay explores the Court’s emerging reengagement with civil procedure; it identifies several organizing themes in the recent cases and examines the existing ambivalence and hostility among the competing rulemaking institutions — the Supreme Court, Congress, the Rules committees, and the lower courts. The essay concludes that, with four Justices (including three of the Court’s newest members) sharing backgrounds and interest in civil procedure and with several procedure cases already decided or coming up in the October 2011 Term, we can expect this revived Court engagement in and focus on civil procedure to continue.

This Article is available for download at http://ssrn.com/abstract=1997233.