Federal Civil Practice Bulletin

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

2012-03-13T05:19:00.001-04:00

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

2012-02-29T12:29:00.002-05:00

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.

Is Judge Peck the First to Require a Predictive Coding Protocol for Automated Doc Review?

2012-02-16T10:51:00.001-05:00

From the ABA Journal:

An unusual decision by a federal magistrate judge to require a so-called predictive coding protocol for automated e-discovery in an employment discrimination class action is both good news and bad news for young attorneys.

The bad news: A number of their jobs could be at risk, if what may be a first-of-its-kind ruling by U.S. Magistrate Judge Andrew J. Peck in the Southern District of New York case becomes commonplace.

The good news: A number of lawyers could be freed from the drudgery of document review if the predictive coding protocol becomes a trend.

Designed to allow documents obtained through electronic discovery to be categorized without having a set of human eyes review each page, predictive coding is expected to be used in Da Silva Moore v. Publicis Groupe et al. to deal with some 3 million documents. A human review team will initially go through about 15,000 to 20,000 documents to determine an appropriate protocol for using Recommind's Axcelerate product, Law Technology News reports.

http://www.abajournal.com/mobile/article/is_federal_magistrate_the_first_to_require_computerized_predictive_coding_p/

Sant'Ambrogio and Zimmerman Post Article on Agency Class Actions on SSRN

2012-02-16T10:18:00.002-05:00

Michael D. Sant'Ambrogio (Michigan State) and Adam S. Zimmerman (St. John's) have posted The Agency Class Action on SSRN. Here is the Abstract:

The number of claims languishing on administrative dockets has become a new “crisis” — producing significant backlogs, arbitrary outcomes and new barriers to justice. Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal the same kinds of administrative decisions that frequently result in reversal. Refugees seeking asylum from the same country play a dangerous game of “roulette” before arbitrary decisionmakers. Defrauded consumers and investors miss out on fair compensation, as agencies settle the same claims with wrongdoers without victim participation or meaningful judicial oversight.

Reformers have called for new resources, more administrative law judges and improved attorney fee arrangements. But surprisingly, commentators have largely ignored tools long used by courts to resolve common claims raised by large groups of people: class action and complex litigation procedures. Almost no administrative law process allows groups to aggregate and resolve common claims for relief. As a result, in a wide variety adjudicatory proceedings, administrative agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for the same kinds of claims, and (3) deny individuals access to the affordable representation that aggregate procedures otherwise promise. Moreover, procedural and substantive hurdles — including exhaustion of administrative remedies and judicial deference to agency expertise — often prevent federal courts from providing class-wide relief to parties in agency adjudications.

We argue that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims raised by large groups of people. After surveying the current tools by which agencies could promote more efficiency, consistency and legal access — including rulemaking, stare decisis, attorneys fees and federal court class actions — we find agency class action rules more effectively resolve common disputes by: (1) efficiently creating ways to pool information about recurring problems and enjoin systemic harms; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process. In this way, The Agency Class Action represents a new kind of decision-making for administrative agencies — a blend of adjudication and rulemaking for large groups of people who similarly depend upon the administrative state for relief.

The Article may be downloaded at http://ssrn.com/abstract=1997421.

SDNY Rejects KPMG's E-Discovery Appeal

2012-02-06T19:05:00.001-05:00

Above the Law is reporting on an SDNY decision in Pippin v. KPMG, ruling that KPMG has to preserve a larger set of computer hard drives than it had wanted to preserve: http://abovethelaw.com/2012/02/kpmg-recieves-an-e-discovery-smackdown/

Congress Passes Federal Courts Jurisdiction and Venue Clarification Act

2011-12-02T11:07:00.001-05:00

Congress has passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (JVCA) and sent it to the President for his signature. The bill cleans up matters in the area of subject matter jurisdiction and venue that needed to be cleared up relating to permanent resident aliens and diversity jurisdiction, the remand of unrelated state law claims removed to federal court, the determination of venue generally, and other matters. The text of the bill is available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr394enr/pdf/BILLS-112hr394enr.pdf.

Washburn Law Journal Seeking Contributions

2011-11-22T10:02:00.001-05:00

The Washburn Law Journal is constructing its Spring 2012 issue around the topic of resource allocation and the law. Specifically, the issue will focus on how attempts to conserve resources during the economic recession may impact the justice system. Several authors are already committed to the issue and will discuss topics including prosecutorial discretion as a vehicle to conserve state resources, questions surrounding the use of prison labor, and how new procedural rules may inhibit the ability of plaintiffs to access the court system. The Journal is seeking proposals from additional scholars that would like to contribute to the issue. Please contact the Articles Editor, Andrew Newcomer at andrew.newcomer@washburn.edu with any proposals or questions.

Glover Posts Article on Federal Civil Settlements on SSRN

2011-11-18T10:11:00.001-05:00

Maria Glover, a Climenko Fellow and Lecturer on Law at Harvard, has recently posted an article entitled The Federal Rules of Civil Settlement on SSRN. Here is the abstract:

The Federal Rules of Civil Procedure were based upon a straightforward model of adjudication: Resolve the merits of cases at trial, and use pre-trial procedures to facilitate accurate trial outcomes. However appealing in principle, this model has less relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article argues that we need a new vision of civil procedure for a world of settlement.

This Article begins by providing a systemic analysis of why the Federal Rules are inadequate to prevent settlement outcomes from being distorted relative to the underlying merits of a given dispute, as defined by reference to substantive law, and further explains how the Rules can actually amplify these distortions. Indeed, notwithstanding the well-worn adage that settlement occurs “in the shadow of the law,” scholars have shown that non-merits factors exert significant influence on settlement outcomes. Less attention has been given, however, to the ways in which the influence of these factors on settlement outcomes is a product of basic structural features of the Federal Rules themselves. Because of the way in which the Rules were set up to operate, the “shadow of the law” that is cast on settlements is fading. Further, litigants’ increased reliance on prior settlements as “precedent” for future settlement decisions may move settlement even further out of the “shadow of the law” and into the “shadow of settlement” itself.

This Article then traces these problems to three foundational assumptions underlying the Federal Rules, all of which have been undermined by a world of settlement. In rethinking these assumptions, it considers procedural reform proposals that have been offered as discrete solutions to some of these issues, and provides a new conceptual account of these proposals as challenges to these foundational assumptions. This Article also posits that these reform efforts ought to be refined and extended with a specific view toward more systematically redesigning the basic model and operation of the Federal Rules for a world of settlement. This Article then sets forth for further consideration examples of proposals that seek to reorient current rules expressly toward the goal of aligning settlement outcomes with the merits of underlying claims. What emerges is a new vision of procedure — one in which pre-trial procedural rules do not merely facilitate trial but rather are designed to provide litigants guidance about the merits of claims for purposes of more meaningfully aligning settlement outcomes with the dictates of the substantive law. In so doing, this Article begins to lay the conceptual groundwork for the design of a new Federal Rules of Civil Settlement.

You can download this piece by visiting http://ssrn.com/abstract=1958615.

New Book on Civil Justice in International Perspective

2011-11-15T10:58:00.001-05:00

New Book: Failures of American Civil Justice in International Perspective

About the book:

Few lawyers today would say that American civil justice works well. Some say that it is oppressive and unjust. Many have given up getting it to work. America's reformers have run out of ideas. They have not proven models for fixing what they know is broken.

This book provides a comparative critical introduction to civil justice systems in the United States, Germany, and Korea. It shows shortcomings of the American system and compares them with German and Korean successes. The book shows foreign systems as a source of ideas that are proven to work. Civil justice can be just and civil.

The book is available at www.cambridge.org/9781107009936 with a 20% discount until December 31 with the discount code at checkout: S11MAXEINER.

Fifth Circuit Weighs in on Split Re Stay Pending Arbitrability Appeal

2011-11-03T10:34:00.001-04:00

Per Weingarten Realty Investors v. Miller, --- F.3d ----, 2011 WL 5142183(5th Cir. Nov. 1, 2011):

Whether an appeal from a denial of a motion to compel arbitration divests the district court of jurisdiction to proceed to the merits is the subject of a circuit split. The Second and Ninth Circuits have held that a stay is not automatic. In Britton, the court pointed out that normally, appellate review of a collateral order does not deprive the district court of jurisdiction to proceed to the merits. The court cited the determination in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 21, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), that because arbitrability is an issue easily separable from the merits of the underlying dispute, the district court could address the merits while the appellate court reviewed arbitrability. Additionally, the Britton court noted that an automatic stay would allow litigants to delay resolution of the matter by filing frivolous appeals. In the absence of an automatic stay, the district court nonetheless retains the power to determine, on a case-by-case basis, whether proceedings should be stayed until the appeal regarding arbitrability has been resolved.

The Seventh Circuit, later joined by the Third, Fourth, Tenth, and Eleventh, has held that a notice of appeal automatically stays proceedings in the district court. The Seventh Circuit reasoned in Bradford–Scott Data Corp. v. Physician Computer Network, 128 F.3d 504 (7th Cir.1997), that the underlying claims before the district court are not collateral to the issue presented by an appeal, because the appeal is to determine whether the matter should be litigated in the district court at all. The court was worried about inconsistent handling of the case by the two courts and was concerned that allowing simultaneous proceedings would defeat the speed and cost benefits parties seek from arbitration. Id. at 505. These courts analogize arbitrability appeals to appeals regarding double jeopardy, sovereign immunity, and qualified immunity, see id. at 506, reasoning that because a district court cannot proceed past these issues when there are interlocutory appeals, it similarly cannot proceed when arbitrability is appealed.

The legal debate turns on Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). Although appeals transfer jurisdiction from the district court to the appellate court concerning “those aspects of the case involved in the appeal,” id. at 58, the district court is nonetheless free to adjudicate matters that are not involved in that appeal, see Alice L. v. Dusek, 492 F.3d 562 (5th Cir.2007). At issue here is whether the merits of an arbitration claim are an aspect of a denial of an order to compel arbitration.

The Ninth Circuit interpreted Griggs narrowly, holding that because answering the question of arbitrability does not determine the merits of the case, the merits are not an aspect of the case that is involved in the appeal on arbitrability. To the contrary, the Seventh Circuit interpreted Griggs broadly, holding that because an appeal on arbitrability concerns whether the case will be heard in the district court at all, the merits in district court are an aspect of the case that is involved in the appeal.

The narrower interpretation better comports with our precedents and the nature of arbitration. “How broadly a court defines the aspects of the case on appeal depends on the nature of the appeal.” Alice L. v. Dusek, 492 F.3d 563, 565 (5th Cir.2007) (per curiam). The facts of Griggs suggest a narrow interpretation is normally appropriate.

Third Circuit Joins Majority on Time for Removal

2011-10-19T09:55:00.001-04:00

From BNA's U.S. Law Week, Oct. 17, 20100:

The 30-day period under 28 U.S.C. § 1446(b) for filing of the notice of removal of a civil action begins to run separately for each defendant after service upon them of the initial pleading setting forth the claim, the U.S. Court of Appeals for the Third Circuit held Oct. 12. The court, which had not previously addressed the issue in a precedential opinion, noted that Section 1446(b) specifies that the notice be filed “within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting for the claim for relief[.]” Although the Fourth and Fifth Circuits have adopted variations of the” first-served” defendant rule, under which removal by any defendant must occur within 30 days of service on the first-served defendant, the court aligned itself with the Sixth, Eighth, Ninth, and Eleventh circuits, which follow the “later-served” rule under which “each defendant individually has thirty days to file a notice of removal beginning when the particular defendant is served.” Quoting Destfino v. Reiswig, 630 F.3d 952,(79 U.S.L.W. 1965 (9th Cir. 2011) the court favored the “later-served” rule “for reasons grounded in statutory construction, equity and common sense.” Delalla v. Hanover Insurance, 3d Cir., No. 10-3933, 10/12/11.

Judicial Conference Approves Standards & Procedures for Sealing Civil Cases

2011-09-21T13:57:00.002-04:00

At its September meeting, the Judicial Conference adopted a national policy that encourages federal courts to limit those instances in which they seal entire civil case files.

The policy emphasizes that “an entire civil case file should only be sealed when . . . sealing . . . is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives, such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort.”

Any order sealing an entire civil case should contain findings justifying the sealing, and the seal should be lifted when the reason for sealing has ended, the policy says. The Conference also endorsed modifying the Judiciary’s Case Management/Electronic Case Files system to include a mechanism “that would remind judges to review cases under seal annually.”

In separate action, the Conference responded to inflationary pressures by increasing, effective November 1, certain miscellaneous fees for federal courts. The newly approved court fee schedule, the first inflationary increase in eight years, is expected to result in an estimated $10.5 million in additional fee revenue for fiscal year 2012. Fees in appeals, district, and bankruptcy courts are affected. The income the Judiciary receives through miscellaneous fees allows it to reduce its annual appropriations request to Congress.

The Conference also authorized an increase in the Judiciary’s electronic public access fee in response to increasing costs for maintaining and enhancing the electronic public access system. The increase in the electronic public access (EPA) fee, from $.08 to $.10 per page, is needed to continue to support and improve the Public Access to Court Electronic Records (PACER) system, and to develop and implement the next generation of the Judiciary’s Case Management/Electronic Case Filing system.

The EPA fee has not been increased since 2005. As mandated by Congress, the EPA program is funded entirely through user fees set by the Conference. Implementation of the two-cent per page increase will take a minimum of
six months.

The Conference was mindful of the impact such an increase could have on other public entities and on public users accessing the system to obtain information on a particular case. For this reason, local, state, and federal government agencies will be exempted from the increase for three years. Moreover, PACER users who do not accrue charges of more than $15 in a quarterly billing cycle would not be charged a fee. (The current exemption is $10 per quarter.) The expanded exemption means that 75 to 80 percent of all users will still pay no fees.

At its September session, the Judicial Conference also adopted a courtroom sharing policy for bankruptcy judges in new courthouse and courtroom construction. In court facilities with three or more bankruptcy judges, one courtroom will be provided for every two bankruptcy judges. In those facilities with an odd number of bankruptcy judges, the number of courtrooms allotted will remain at the next lower whole number. (The Conference in 2008 adopted a courtroom sharing policy for senior district judges in new construction, and in 2009, adopted a courtroom sharing policy for magistrate judges in new construction.)

The Conference also was briefed on the current budget situation facing the federal courts. To date, the only action by Congress on the Judiciary’s fiscal year 2012 budget is a bill approved by the House Appropriations Committee on June 23, 2011. The proposed funding levels in this bill, if enacted, would result in the loss of thousands of clerk’s office staff and probation officers and would have a significant negative impact on court operations. The Conference is hopeful that final action by the Congress will result in a more favorable budget for the Judiciary.

Homes Group Fix for Patent Jurisdiction Becomes Law

2011-09-19T10:28:00.001-04:00

From Prof. Arthur Hellman (Pittsburgh):

Buried in the patent bill that President Obama signed into law Friday (Pub. L. No. 112-29, the “America Invents Act”) is a set of amendments to Title 28 dealing with jurisdiction in intellectual-property cases. These amendments are known as the “Holmes Group fix” because they address issues raised by the Supreme Court’s decision in Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002).

In Holmes Group, the Court held that the appellate jurisdiction of the Court of Appeals for the Federal Circuit does not encompass cases in which claims under the patent laws are raised in a responsive pleading (e.g., as a counterclaim) rather than in the plaintiff’s complaint. The Court reached this result through interpretation of the two governing sections of the Judicial Code. Section 1295(a)(1) has provided that the Federal Circuit shall have exclusive jurisdiction over appeals from the district courts “if the jurisdiction of [the district court] was based, in whole or in part, on section 1338 of this title.” Section 1338(a), in turn, has vested original jurisdiction in the district courts “of any civil action arising under any Act of Congress relating to patents . . .”

The Court held that § 1338(a) must be interpreted in accordance with the “well-pleaded complaint” rule long established for § 1331 general federal-question jurisdiction cases—and of course under that rule, a counterclaim does not support “arising under” jurisdiction. The Court’s result was criticized for contravening Congress’s intent to create a uniform body of patent law by having all patent appeals heard by the Federal Circuit (however justified the Court’s reasoning, for a seven-Justice majority, may have been as a matter of interpreting the text of the existing jurisdictional statutes). And because the exclusive jurisdiction of federal courts in patent and copyright cases is tied to original jurisdiction, the decision also had the effect of allowing state courts to hear counterclaims under the patent and copyright laws.

The “Holmes Group fix” (contained in § 19 of Pub. L. No. 112-29), applicable to civil actions commenced on or after the date of enactment, addresses these concerns by amending two existing sections of the Judicial Code and adding one new section.

First, the new law overrules the specific holding of Holmes Group by defining the appellate jurisdiction of the Federal Circuit to include an appeal from a final decision of a district court “in any civil action arising under, or in any civil action in which a party has asserted a compulsory counterclaim under, any Act of Congress relating to patents or plant variety protection.”

Second, the second sentence of § 1338(a) is deleted and replaced with: “No State court shall have jurisdiction over any claim for relief arising from any Act of Congress relating to patents, plant variety protection, or copyrights,” with “State” defined broadly to include the District of Columbia, Puerto Rico, and territories.

Finally, the act adds a new section (28 U.S.C. § 1454) authorizing removal of “[a] civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights.”

The Public Law is not yet on line, but the new statutory language can be found at pp. 48-49 of the enrolled bill:

http://www.gpo.gov/fdsys/pkg/BILLS-112hr1249enr/pdf/BILLS-112hr1249enr.pdf

The authoritative legislative history of the “America Invents Act” is the House Report on H.R. 1249, the bill that became Pub. L. No. 112-29. That report has little to say about the Holmes Group fix. It notes: “The Act clarifies the jurisdiction of the US District Courts and stipulates that the US Court of Appeals for the Federal Circuit has jurisdiction over appeals involving compulsory patent counterclaims. The legislative history of this provision, which we reaffirm and adopt as our own, appears in the Committee Report accompanying H.R. 2955 from the 109th Congress” in 2006. That Committee Report, No. 109-407, can be found at this link:

http://www.gpo.gov/fdsys/pkg/CRPT-109hrpt407/pdf/CRPT-109hrpt407.pdf

The version of the “fix” enacted by Congress yesterday differs in a few respects, not worth detailing now, from the version reported by the House Judiciary Committee in 2006.

FIU College of Law Junior Faculty Federal Court Workshop

2011-09-13T11:57:00.003-04:00

FIU College of Law will host the Fourth Annual Junior Faculty Federal Court Workshop on February 2-4, 2012. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Five senior scholars have confirmed participation this year: Susan Bandes (University of Miami), Lee Epstein (USC), Theodore Eisenberg (Cornell University), Martin Redish (Northwestern University), and Suzanna Sherry (Vanderbilt University).

This year, we are spreading the conference out over two days (meaning an extra day in Miami in February, not a bad thing). It begins with a dinner on Thursday, February 2, then panels on Friday and Saturday. Each panel will consist of 4-5 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.

The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, and associated topics, often including Civil Procedure. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2012 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee.

The complete announcement with submission details is here: http://prawfsblawg.blogs.com/prawfsblawg/2011/09/fourth-annual-junior-faculty-federal-courts-workshop.html

Howard M. Wasserman
Professor of Law
FIU College of Law
University Park, RDB 2065
Miami, Florida 33199
(305) 348-7482
(786) 417-2433
howard.wasserman@fiu.edu

Call for Papers: Vanderbilt Law School Civil Justice Scholarship Workshop

2011-08-24T14:29:00.001-04:00

VANDERBILT LAW SCHOOL • BRANSTETTER LITIGATION & DISPUTE RESOLUTION PROGRAM CALL FOR PAPERS

Vanderbilt Law School and the Cecil D. Branstetter Litigation & Dispute Resolution Program announce the 2012 New Voices in Civil Justice Scholarship Workshop to be held at Vanderbilt on April 20, 2012, and invite submissions for the workshop.

The Branstetter Litigation & Dispute Resolution Program draws on a multimillion‐dollar endowment to support research and curriculum in civil litigation and dispute resolution. The idea for the Branstetter “New Voices” workshop is to draw together scholars on civil justice issues who are in the first seven years of their academic careers. Four to six scholars will be chosen by anonymous review of the submitted papers. The audience will include invited junior scholars, Vanderbilt faculty, and invited guests. Previous participants include Nora Freeman Engstrom (Stanford), Maria Glover (Harvard), Margaret Lemos (Cardozo), Jonathan Mitchell (George Mason), Myriam Gilles (Cardozo), Donna Shestowsky (UC Davis), Benjamin Spencer (Washington & Lee), Amanda Tyler (George Washington), and Tobias Wolff (Pennsylvania).

The format for the workshop is designed to maximize collegial interaction and feedback. All participants will have read the selected papers. A senior faculty member will provide a brief overview and commentary on the paper, and then we are off and running with interactive discussion. Paper authors thus do not deliver prepared “presentations” as such. Rather, the overwhelming majority of each session is devoted to collective discussion of the paper involved.

Submission requirements.

1. Subject matter. Submitted papers should address an aspect of civil justice. Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decisionmaking, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, we are very receptive to the full range of scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.

2. Author qualifications. To be eligible to submit a paper, scholars must currently hold a permanent faculty position. In addition, scholars may not have held a position at assistant professor or higher (including visiting assistant professor) prior to 2004.

3. Format. Papers may be sent in either Microsoft Word or Adobe Acrobat format. To maintain the anonymity of the process, please remove any self‐identifying information from the submission.

4. Deadline. Submissions should be e‐mailed to Branstetter.Program@vanderbilt.edu no later than January 13, 2011. Please include your name, current position, and contact information in the e‐mail accompanying the submission. We will contact you with our decision by February 15.
The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. If you have any questions, please email Professor Tracey George, Branstetter Program Director, at Branstetter.Program@vanderbilt.edu

Prof. Coleman Posts The Vanishing Plaintiff on SSRN

2011-08-16T09:57:00.002-04:00

Professor Brooke D. Coleman (Seattle) has just posted an article entitled The Vanishing Plaintiff on SSRN. Here is the abstract:

What if restrictive procedural rules kept cases like Bakke v. Regents of the Univ. of Cal., Monell v. Dept. of Soc. Servs., and Hopkins v. Price Waterhouse from making it past a motion to dismiss and on to the Supreme Court? A case like Bakke is well-known for its holding about the use of race in admissions policies. But imagine that Alan Bakke was never able to get his original trial court complaint past a motion to dismiss, through discovery, and on to a final, appealable judgment. While reasonable people can disagree about the merits of Bakke, it is fair to say that our collective legal consciousness would be altered had he not been able to have his paradigmatic day in court. Yet, that world - the one without Bakke and his legal claim - is exactly the world in which our civil justice system increasingly finds itself. Plaintiffs like Bakke are simply vanishing, and the restrictive procedural regime is largely to blame. Over the past thirty years, Congress, the Supreme Court, and the civil rule-making bodies have responded to the argument that litigation is burdensome by restricting access to the system itself through changes to procedural doctrine. These institutions are concerned about the effect that merit-less litigation has on defendants. Yet, both the institutions responsible for formulating procedure and the scholars that critique the same have failed to carefully consider one critical issue: the identity of the plaintiffs whose meritorious claims are sacrificed under a restrictive procedural regime. We already know the identity of the defendants that most benefit under this regime - they are corporations, government bodies, and other organizations. But, the identity of the plaintiffs whose meritorious claims are lost is unknown and unstudied. This article constructs an identity for these plaintiffs by arguing that recent restrictive procedural changes, like those to pleading and summary judgment, interact differently with some plaintiffs’ distinctive characteristics, like race, economic status, and/or gender. The result is that these plaintiffs - who the article calls vanishing plaintiffs - are less able to bring their claims. They are either barred from pursuing their claims by operation of a particular procedural rule or they are unable to get their claims into the system at all because of the regime’s overall chilling effect. The loss of these claims comes at a high systemic cost. Litigation by vanishing plaintiffs has historically created new bodies of law and has served to enforce that law when other enforcement mechanisms have failed. With the exclusion of the vanishing plaintiff and her claims comes the loss of these critical path-breaking and enforcement mechanisms. Thus, in order to regain this benefit, the institutions responsible for crafting procedural doctrine should carefully consider how changes in procedure impact vanishing plaintiffs. This article argues that such a consideration will often require a retreat from the current restrictive procedural regime.

This article may be downloaded by visiting http://ssrn.com/abstract=1908359.

Ninth Circuit Notes Intracircuit Split Re Compatability of Rule 23 Class Actions and Collective Actions under FLSA

2011-08-10T09:11:00.001-04:00

Per Pitts v. Terrible Herbst, Inc. --- F.3d ----, 2011 WL 3449473 (9th Cir. Aug. 9, 2011):

Aside from dismissing Pitts's entire action for lack of subject matter jurisdiction, the district court alternatively dismissed Count 2 of the complaint because, in its view, a Rule 23 class action could not co-exist with a related collective action under the FLSA. Although the question has divided district courts in our circuit, compare Misra v. Decision One Mortg. Co., LLC, 673 F.Supp.2d 987, 994 (C.D.Cal.2008) (holding that “an opt-out class under Rule 23 is not inherently incompatible with an FLSA opt-in class”), with Williams v. Trendwest Resorts, Inc., 2007 WL 2429149, at *4 (D.Nev. Aug. 20, 2007) (holding that “the class action mechanisms of the FLSA and Rule 23 are incompatible”), we need not address this issue because Pitts has told us—as he told the district court—that he will not pursue his FLSA claims.^FN6 Because Pitts has abandoned these claims, any alleged incompatibility between a Rule 23 class action and an FLSA collective action is not present in this case.

FN6. The only circuit that has addressed this issue has held that Rule 23 class actions and FLSA collective actions may peacefully co-exist. See Ervin v. OS Rest. Servs., 632 F.3d 971, 976–79 (7th Cir.2011).

Oregon's Miller Symposium Call for Papers

2011-08-09T14:10:00.001-04:00

Symposium Call for Papers: Miller’s Courts: Media, Rules, Policy, and the Future of Access to Justice
April 13, 2012 University of Oregon White Stag Building Portland, Oregon

Oregon Law Review is currently accepting submissions for the forthcoming Miller Symposium and special issue of our 90th volume. The Miller Symposium will provide a forum for a comprehensive inquiry into questions of access to justice in civil law with special emphasis on the areas within which Professor Arthur Miller has worked throughout his career: rulemaking, class actions, media and the law, technology and privacy, legal pedagogy, and procedural policy.
The symposium will include a panel discussion involving some of the nation’s most distinguished scholars, judges, and practitioners. Panelists will examine Professor Miller’s influence in civil procedure and his contributions to the current civil law landscape. Panelists will also discuss, more generally, current and future trends relating to access to the civil courts.
Submissions may focus on specific contributions of Professor Miller with respect to access to justice inside and outside of the legal academy, or they may speculate as to future trends and possible issues relating to access in the civil system.

Submissions should follow these guidelines:
• Papers of any length will be considered, but OLR’s editors will give preference to articles under 25,000 words.
• Submissions should include a cover letter and a copy of the author’s curriculum vitae. In the cover letter, the author should describe generally the purpose (e.g., tribute, essay, substantive analysis, etc.) of the article. OLR will give preference to substantive articles within the areas described above.
• Submissions may be mailed to our editorial office or may be e-mailed to the Articles Editors at olrarticles@lists.uoregon.edu.
• Submissions must be in MS Word format. • Submissions must be received by Monday, January 2, 2012.

Thank you for your interest.

Nadia Dahab Editor in Chief, Oregon Law Review ndahab@uoregon.edu

Call for Papers from the AALS Section on Civil Procedure

2011-08-08T09:02:00.001-04:00

The Executive Committee of the AALS Section on Civil Procedure invites the submission of papers for presentation at the Annual Meeting of the AALS January 4-8, 2012, in Washington, D.C.

The topic of our panel will be "Procedural Reform: Rulemaking v. Legislation." Procedural reform has enjoyed (or suffered from, depending on one’s point of view) considerable attention in recent years. Procedural topics are in the mainstream media. Supreme Court cases have reformed bedrock principles. Rulemakers regularly debate amendments to an ever-expanding corpus of rules. And the legislative branch seeks to undo some reforms while initiating still others.

Papers presented by the panel will put this constellation of procedural reforms into a broader perspective. The debate about whether procedural reform is more properly the province of rulemakers or lawmakers is neither new nor, perhaps, even resolvable. Yet it remains relevant-urgent, even, given the stakes. We invite the submission of papers that address this topic in whole or in part. Papers that address the topic in whole might, for example, consider the use of empirical evidence as an engine for procedural reform. Or institutional choice theory might be applied to the procedural landscape. Even if your work addresses the topic only in part, we encourage you to submit it; we will be selecting papers so that the panel, considered as a whole, will generate a dialogue to explore the broader issues.

Drafts of the papers submitted for consideration must be received by September 1, 2011. Submissions should be sent to tmain@pacific.edu. Papers already accepted for publication will be considered.

Fifth Circuit Declines to Weigh in on Split Re Authority to Issue Injunction Pending Arbitration

2011-07-25T14:18:00.001-04:00

Per Janvey v. Alguire --- F.3d ----, 2011 WL 2937949 (5th Cir. July 22, 2011):

The circuit split concerns the power of a district court to issue an injunction while arbitration is pending. The Fifth Circuit acknowledged the circuit split in RGI, Inc. v. Tucker & Associates, Inc., 858 F.2d 227, 229 (5th Cir.1988), but did not enter the fray.^FN6 The Employee Defendants contend that once again we may avoid the fray and still decide the issue in their favor because both the Eighth Circuit, on one side of the split, and the Seventh Circuit, on the other side of the split, would not permit an injunction here. The Eighth Circuit held that “where the [Federal Arbitration Act (“FAA”) ] is applicable to the dispute between the parties and no qualifying language has been alleged, the district court errs in granting injunctive relief” because the judicial inquiry required to determine “the propriety of injunctive relief necessarily would inject the court into the merits of issues more appropriately left to the arbitrator.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Hovey, 726 F.2d 1286, 1292 (8th Cir.1984). The Seventh Circuit held that the district court may only issue injunctive relief that is effective only until the arbitration panel is able to address whether the equitable relief should remain in effect. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Salvano, 999 F.2d 211, 215–16 (7th Cir.1993).

. . .

The RGI Court found that “[t]he crux of the problem [in the circuit split] is whether the commands of the [FAA] require that a federal court immediately divest itself of any power to act to maintain the status quo once it decides that the case before it is arbitrable.” RGI, 858 F.2d at 228–29 (emphasis added). Here, however, the district court has not yet decided whether the case is arbitrable and thus the circuit-split cases are not applicable.
. . .

FN7. Given that the facts at issue here do not require us to enter the circuit split, we reserve for another day the issues of whether a district court divests itself of the discretion to maintain the status quo once it decides the case before it is arbitrable and, if not, what the limits of that discretion may be.

U.S. Law Week Summarizes SCOTUS Civil Litigation Cases

2011-07-19T09:17:00.003-04:00

U.S. Law Week (7/19/11) has published a summary analysis of the Supreme Court's civil litigation cases from this term. Here is an excerpt:

Court Reins in Class Actions

Wal-Mart Stores Inc. v. Dukes: Avoided employment discrimination “Armageddon” for national corporations by rejecting certification of largest class action in history.

AT&T Mobility LLC v. Concepcion: Allows companies to contract around the threat of consumer class actions by upholding an arbitration agreement containing a class action waiver.

Honorable Mention: PLIVA Inc. v. Mensing

Preemption, Immigration Cases Deliver Blow

Chamber of Commerce v. Whiting: Arizona may administer the “business death penalty” to employers who hire illegal immigrants.

Williamson v. Mazda Motor of America Inc.: By providing a choice in safety features, federal regulations do not automatically preempt state tort claims against manufacturers.

Honorable Mentions: Thompson v. North American Stainless LP; Kasten v. Saint-Gobain Performance Plastics Corp.

Cases Every Lawyer Should Study.

Wal-Mart Stores Inc. v. Dukes: By emphasizing commonality considerations under Rule 23(a), the opinion is terra nova for arguments over how much “glue” is needed to hold class actions together.

J. McIntyre Machinery Ltd. v. Nicastro: Plaintiffs’ lawyers must consider the decision when choosing the proper forum for product liability suits against foreign companies.

Honorable Mention: AT&T Mobility LLC v. Concepcion

More Questions Than Answers

J. McIntyre Machinery Ltd. v. Nicastro: The court's failure to definitively address the questions left open by Asahi will lead to more litigation and confusion over personal jurisdiction.

PLIVA Inc. v. Mensing: The decision could signal a turning point in the court's preemption jurisprudence that may cause lower courts to struggle with its application.

Honorable Mentions: Global-Tech Appliances Inc. v. SEB S.A.; Turner v. Rogers

Little Fanfare but Significant Impact

Sorrell v. IMS Health Inc.: In an area of commercial speech increasingly regulated by states, a bold First Amendment holding should be a warning to legislatures to tread lightly.

Stern v. Marshall: Despite “soap opera facts,” ruling could dramatically burden the dockets of state and federal district courts.

Prison Relief and Unanimity Shock Observers

Brown v. Plata: The court's endorsement of broad injunctive relief, particularly in the area of prison management, was out of character.

Honorable Mention: Unanimous holdings in Ashcroft v. al-Kidd, American Electric Power v. Connecticut, and Wal-Mart Stores Inc. v. Dukes (on the Rule 23(b)(2) issue), were unexpected.

Got Our Attention, But Earth Didn't Move

Microsoft Corp. v. i4i Limited Partnership: Although Microsoft asked the court to invalidate the long-established clear and convincing evidence standard for patent validity challenges, the court remained steadfast and left the current standard alone.

Flores-Villar v. United States: One of the two cases affirmed by an equally divided court, the decision illustrates the minimal impact Justice Elena Kagan's recusals had on the term.

Honorable Mentions: Snyder v. Phelps; Brown v. Entertainment Merchants Association

More SCOTUS Action on Personal Jurisdiction via Summary Dispositions

2011-06-29T09:02:00.003-04:00

Professor Charles Campbell at Faulkner University, Jones School of Law was kind enough to share the following information:

Yesterday, the Supreme Court granted certiorari, vacated, and remanded one personal jurisdiction case, Dow Chemical Canada ULC v. Fandino, No. 10-250, to the California 2nd District Court of Appeals, for reconsideration in light of Nicastro. The Court denied certiorari in four other personal jurisdiction cases:

Roberts v. Kauffman Racing Equipment, L.L.C., No. 10-617;
Clemens v. McNamee, No. 10-966;
Pirelli Pneus LTDA v. Gunn, No. 10-1004; and
Abbyy Production, LLC v. Nuance Communications, Inc., No. 10-1019.

Roberts and Clemens both involved alleged defamation and Calder v. Jones. Pirelli was a stream-of-commerce case involving an allegedly defective motorcycle tire. In Abbyy, the Federal Circuit upheld personal jurisdiction over a Russian software developer based on the developer electronically shipping a master copy of software to a nonexclusive licensee in California.

Today’s order list is here. SCOTUSblog has a bit more information in its most recent “hold and relist watch” post, if anyone is interested.

SCOTUS Decides Goodyear

2011-06-28T15:23:00.003-04:00

The Supreme Court has issued a unanimous opinion in Goodyear Dunlop Tires Operations v. Brown, rejecting the claim that general jurisdiction can be asserted over a foreign corporation whose product caused harm outside of the forum state but who also has products that reach the forum state through the stream of commerce. Here is an excerpt from the Syllabus:

Held: Petitioners were not amenable to suit in North Carolina on claims unrelated to any activity of petitioners in the forum State. Pp. 6–14.

(a) The Fourteenth Amendment ’s Due Process Clause sets the outer boundaries of a state tribunal’s authority to proceed against a defendant. The pathmarking decision of International Shoe Co. v. Washington, 326 U. S. 310 , provides that state courts may exercise personal jurisdiction over an out-of-state defendant who has “certain minimum contacts with [the State] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. , at 316. Endeavoring to give specific content to the “fair play and substantial justice” concept, the Court in International Shoe classified cases involving out-of-state corporate defendants. First, the Court recognized that jurisdiction could be asserted where the corporation’s in-state activity is “continuous and systematic” and gave rise to the episode-in-suit. Id., at 317. It also observed that the commission of “single or occasional acts” in a State may be sufficient to render a corporation answerable in that State with respect to those acts, though not with respect to matters unrelated to the forum connections. Id. , at 318. These two categories compose what is now known as “specific jurisdiction.” Helicopteros Nacionales de Colombia, S. A. v. Hall , 466 U. S. 408 , n. 8. International Shoe distinguished from cases that fit within the “specific jurisdiction” categories, “instances in which the continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities.” 326 U. S., at 318. Adjudicatory authority so grounded is now called “general jurisdiction.” Helicopteros, 466 U. S., at 414, n. 9. Since International Shoe , this Court’s decisions have elaborated primarily on circumstances that warrant the exercise of specific jurisdiction. In only two decisions postdating International Shoe has this Court considered whether an out-of-state corporate defendant’s in-state contacts were sufficiently “continuous and systematic” to justify the exercise of general jurisdiction over claims unrelated to those contacts: Perkins v. Benguet Consol. Mining Co. , 342 U. S. 437 ; and Helicopteros , 466 U. S. 408 . Pp. 6–9.

(b) Petitioners lack “the kind of continuous and systematic general business contacts” necessary to allow North Carolina to entertain a suit against them unrelated to anything that connects them to the State. Helicopteros , 466 U. S., at 416. The stream-of-commerce cases on which the North Carolina court relied relate to exercises of specific jurisdiction in products liability actions, in which a nonresident defendant, acting outside the forum, places in the stream of commerce a product that ultimately causes harm inside the forum. Many state long-arm statutes authorize courts to exercise specific jurisdiction over manufacturers when the events in suit, or some of them, occurred within the forum State. The North Carolina court’s stream-of-commerce analysis elided the essential difference between case-specific and general jurisdiction. Flow of a manufacturer’s products into the forum may bolster an affiliation germane to specific jurisdiction, see, e.g. , World-Wide Volkswagen Corp. v. Woodson , 444 U. S. 286 ; but ties serving to bolster the exercise of specific jurisdiction do not warrant a determination that, based on those ties, the forum has general jurisdiction over a defendant. A corporation’s “continuous activity of some sorts within a state,” International Shoe instructed, “is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” 326 U. S., at 318.

The opinion of the Court is available here.

SCOTUS "Decides" Nicastro

2011-06-28T15:17:00.002-04:00

The Supreme Court has decided J. McIntyre Machinery, Ltd. v. Nicastro, No. 09-1343. Unfortunately, the Court did not resolve the issue left unresolved in Asahi, namely what is required of a defendant who places a product in the stream of commerce to subject it to jurisdiction in a state where the product causes harm. Justice Kennedy authored an opinion in which only three other Justices joined, embracing the O'Connor approach from Asahi. Breyer and Alito agreed that there could be no jurisdiction in the case but declined to join Kennedy's opinion.

Here is an excerpt from the Syllabus of the case:

Justice Kennedy , joined by The Chief Justice, Justice Scalia , and Justice Thomas , concluded that because J. McIntyre never engaged in any activities in New Jersey that revealed an intent to invoke or benefit from the protection of the State’s laws, New Jersey is without power to adjudge the company’s rights and liabilities, and its exercise of jurisdiction would violate due process. Pp. 4–12.

(a) Due process protects the defendant’s right not to be coerced except by lawful judicial power. A court may subject a defendant to judgment only when the defendant has sufficient contacts with the sovereign “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington , 326 U. S. 310 . Freeform fundamental fairness notions divorced from traditional practice cannot transform a judgment rendered without authority into law. As a general rule, the sovereign’s exercise of power requires some act by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla , 357 U. S. 235 . In cases like this one, it is the defendant’s purposeful availment that makes jurisdiction consistent with “fair play and substantial justice” notions. No “stream-of-commerce” doctrine can displace that general rule for products-liability cases.

The rules and standards for determining state jurisdiction over an absent party have been unclear because of decades-old questions left open in Asahi. The imprecision arising from Asahi , for the most part, results from its statement of the relation between jurisdiction and the “stream of commerce.” That concept, like other metaphors, has its deficiencies as well as its utilities. It refers to the movement of goods from manufacturers through distributors to consumers, yet beyond that descriptive purpose its meaning is far from exact. A defendant’s placement of goods into commerce “with the expectation that they will be purchased by consumers within the forum State” may indicate purposeful availment. World-Wide Volkswagen Corp. v. Woodson , 444 U. S. 286 . But that does not amend the general rule of personal jurisdiction. The principal inquiry in cases of this sort is whether the defendant’s activities manifest an intention to submit to the power of a sovereign. See, e.g., Hanson , supra , at 253. In Asahi , Justice Brennan’s concurrence (joined by three other Justices) discarded the central concept of sovereign authority in favor of fairness and foreseeability considerations on the theory that the defendant’s ability to anticipate suit is the touchstone of jurisdiction. 480 U. S., at 117. However, Justice O’Connor’s lead opinion (also for four Justices) stated that “[t]he ‘substantial connection’ between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.” Id., at 112. Since Asahi, the courts have sought to reconcile the competing opinions. But Justice Brennan’s rule based on general notions of fairness and foreseeability is inconsistent with the premises of lawful judicial power under this Court’s precedents. Today’s conclusion that the authority to subject a defendant to judgment depends on purposeful availment is consistent with Justice O’Connor’s Asahi opinion. Pp. 4–10.

(b) Nicastro has not established that J. McIntyre engaged in conduct purposefully directed at New Jersey. The company had no office in New Jersey; it neither paid taxes nor owned property there; and it neither advertised in, nor sent any employees to, the State. Indeed, the trial court found that petitioner did not have a single contact with the State apart from the fact that the machine in question ended up there. Neither these facts, nor the three on which Nicastro centered his jurisdictional claim, show that J. McIntyre purposefully availed itself of the New Jersey market. Pp. 10–12.

The opinions in the case may be downloaded by clicking here

Sixth Circuit Notes Split Re Subclassing and Bifurcation

2011-06-13T11:21:00.001-04:00

Civil Procedure—Class Actions

Randleman v. Fidelity National Title Insurance Co.  (79 U.S.L.W. 2590) (May 2011)

Issue: May subclassing and bifurcation be used to remedy predominance issues in class actions? The Sixth Circuit, declining to take sides, notes that the Second and Ninth circuits allow the practices so long as common issues predominate, while the Fifth and Eleventh Circuits do not permit them.

Second Circuit Weighs in on Split Re Meaning of "Otherwise Defend" in FRCP 55(a)

2011-06-13T11:20:00.001-04:00

Civil Procedure—Default Judgment

City of New York v. Mickalis Pawn Shop LLC  (79 U.S.L.W. 2511) (May 2011)

Does a defendant's withdrawal from a suit after initially defending on personal jurisdiction constitute a failure to “otherwise defend” the suit under Fed. R. Civ. P. 55(a)? The Second Circuit holds that it does, agreeing with the First, Third, Fourth, Eighth, and Ninth circuits' broad reading of Rule 55;the Fifth and Eleventh circuits have read the rule more narrowly.

Seventh Circuit Clarifies Standards for 28 U.S.C § 1782 Discovery Requests

2011-05-04T13:04:00.001-04:00

From the ABA's Litigation News, April 20, 2001:

Foreign litigants are increasingly using federal district courts to obtain discovery from U.S. companies through a federal statute designed to encourage other countries to liberalize their discovery procedures. A recent opinion from the U.S. Court of Appeals for the Seventh Circuit provides an overview of the considerations and analysis applicable to discovery requests under 28 U.S.C. § 1782. Applications of Heraeus Kulzer, Gmbh v. Biomet, Inc. [PDF].

To read the rest of this article, click here.

W.D. Va. Judge grants default for discovery ‘misdeeds’

2011-05-02T11:26:00.001-04:00

From the Virginia Lawyers Weekly (May 2, 2011):

A Charlottesville federal judge last month found a defendant mortgage lender had withheld evidence and made false claims in a lawsuit over alleged fraud in a home loan. He reached the boiling point and hit the defendant with default judgment for “misdeeds and misrepresentations.”

The decision by U.S. District Judge Norman K. Moon is the latest of several cases that have lawyers asking what’s going on to make judges so angry. Lawyers complain regularly that judges are reluctant to penalize bad conduct by lawyers and litigants. Judges, in turn, practice forbearance and patience because they see that conduct provoking to a trial court may look different in the cold light of an appellate court.

Moon’s April 13 decision in Scott v. GMAC Mortgage LLC (VLW 010-3-440), follows on the heels of a Norfolk Circuit Court’s March 4 sanctions against an auto-accident plaintiff for omitting information about past treatment and employment from his discovery responses, a Richmond federal judge’s March 29 award of sanctions against SunTrust Mortgage Inc. for its “willful blindness” about an employee’s altered email, and an April 18 opinion from the 4th U.S. Circuit Court of Appeals upholding sanctions by a Newport News federal court for a lawyer’s late motion for recusal.

AALS Civil Procedure Section Call for Papers

2011-04-25T13:46:00.002-04:00

AALS Section on Civil Procedure
Call for Papers

The Executive Committee of the AALS Section on Civil Procedure invites the submission of papers for presentation at the Annual Meeting of the AALS January 4-8, 2012, in Washington, D.C.

The topic of our panel will be "Procedural Reform: Rulemaking v. Legislation." Procedural reform has enjoyed (or suffered from, depending on one's point of view) considerable attention in recent years. Procedural topics are in the mainstream media. Supreme Court cases have reformed bedrock principles. Rulemakers regularly debate amendments to an ever-expanding corpus of rules. And the legislative branch seeks to undo some reforms while initiating still others.

Papers presented by the panel will put this constellation of procedural reforms into a broader perspective. The debate about whether procedural reform is more properly the province of rulemakers or lawmakers is neither new nor, perhaps, even resolvable. Yet it remains
relevant-urgent, even, given the stakes. We invite the submission of papers that address this topic in whole or in part. Papers that address the topic in whole might, for example, consider the use of empirical evidence as an engine for procedural reform. Or institutional choice theory might be applied to the procedural landscape. Even if your work addresses the topic only in part, we encourage you to submit it; we will be selecting papers so that the panel, considered as a whole, will generate a dialogue to explore the broader issues.

Drafts of the papers submitted for consideration must be received by September 1, 2011. Submissions should be sent to tmain@pacific.edu. Papers already accepted for publication will be considered.

Prof. Singer on Proportionality in Discovery

2011-04-21T12:02:00.002-04:00

Prof. Jordan Singer (New England School of Law) has recently posted an article entitled Proportionality's Cultural Foundation on SSRN. Here is the abstract:

Since the 1980s, a variety of provisions designed to prevent excessive pretrial discovery have been incorporated into the Federal Rules of Civil Procedure. By almost all accounts, however, these “proportionality” rules have not met their stated goals. The percentage of cases with high levels of discovery has not changed in decades, and concerns about disproportionate discovery are as pronounced as ever. I argue that the failure of the proportionality rules stems from a disconnect between the rules and the prevailing litigation culture. The rules incorrectly assume that excessive discovery is caused by attorneys abusing their discretion during the discovery process, and accordingly seek to limit that discretion. But attorney discretion is not the problem, and in fact attorneys and judges rely on the broad exercise of attorney discretion to create efficient, predictable, and fair resolutions to civil cases. Because the rules directly conflict with cultural norms, they are largely ignored in practice. I therefore propose a radically different approach to combating excessive discovery, by removing the existing restrictions on attorney discretion and implementing new procedures designed to emphasize the cultural values of civil litigation that naturally promote controlled discovery.

The article is available for download here.

Civil Rules Advisory Committee Decides to Hold Mini-Conference on Spoliation and Preservation

2011-04-21T11:20:00.001-04:00

Per Thomas Allman (formerly of the Sedona Conference): At the April 4-5, 2011 meeting of the Civil Rules Advisory Committee held at the University of Texas Law School in Austin, the Committee decided to schedule a mini-conference on preservation and spoliation in September, 2011. The purpose of the Conference will be to resolve uncertainty about preservation problems and explore the issue of whether rules would really provide significant relief.

FJC study on post-Twombly motions to dismiss released

2011-03-29T10:58:00.002-04:00

The Federal Judicial Center has released its report on post-Twombly motions to dismiss. It is available here.

SCOTUS Issues Opinion in Matrixx Initiatives v. Siracusano (Securities Fraud Pleading Case)

2011-03-22T15:11:00.003-04:00

The U.S. Supreme Court issued an opinion today in Matrixx Initiatives v. Siracusano, No. 09-1156, a case addressing the sufficiency of the pleading in a securities fraud case. Here is an excerpt from the Syllabus:

Respondents filed this securities fraud class action, alleging that petitioners (hereinafter Matrixx) violated § 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5 by failing to disclose reports of a possible link between Matrixx's leading product, Zicam Cold Remedy, and loss of smell (anosmia), rendering statements made by Matrixx misleading. Matrixx moved to dismiss the complaint, arguing that respondents had not pleaded the element of a material misstatement or omission and the element of scienter. The District Court granted the motion, but the Ninth Circuit reversed. It held that the District Court erred in requiring an allegation of statistical significance to establish materiality, concluding instead that the complaint adequately alleged information linking Zicam and anosmia that would have been significant to a reasonable investor. It also held that Matrixx's withholding of information about reports of adverse effects and about pending lawsuits by Zicam users gave rise to a strong inference of scienter.

Held: Respondents have stated a claim under § 10(b) and Rule 10b-5.

Congress Considering Lawsuit Abuse Reduction Act, Again

2011-03-15T11:20:00.001-04:00

Per BNA's U.S. Law Week, March 15, 2011, Vol. 79, no. 34:

A House Judiciary subcommittee recently held hearings on the Lawsuit Abuse Reduction Act, which would amend Federal Rule of Civil Procedure 11 to make it more like the 1983 version of the rule, which lacked a safe harbor provision and was generally more strict than the current 1993 version of the rule by mandating sanctions for rule violations.

A full article on these hearings is available to BNA subscribers here.

Discovery Sanctions: Default Judgment, $1M Fine

2011-03-15T10:40:00.001-04:00

Per BNA's U.S. Law Week, March 15, 2011, Volume 79 No. 34:

A patent case plaintiff's discovery misconduct elicited sanctions of a default judgment and a $1 million fine from the U.S. District Court for the Northern District of Illinois Feb. 23. The court initially sanctioned the plaintiff when its witness made statements during his deposition that contradicted the statements made in the plaintiff's motion for summary judgment. The same witness subsequently admitted that he turned back the clock on source code on zip disks at issue in the case, as well as “wiping” USB drives, which makes deleted files unrecoverable even with advanced equipment. The court also found that the plaintiff's responses to numerous discovery orders were excessively delayed. The court said that a “party's failure to preserve evidence alone constitutes bad faith, [and] the additional destruction of evidence is beyond sufficient to warrant a default judgment against that party.” It also imposed a $1 million fine on the plaintiff, and required counsel to pay costs and attorneys' fees related to the sanctions motion. Rosenthal Collins Group LLC v. Trading Technologies International Inc., N.D. Ill., No. 05 C 4088, 2/23/11.

Younger Bars Federal Relief for Juror on Facebook

2011-03-15T10:32:00.003-04:00

Per BNA's U.S. Law Week, March 15, 2011, Volume 79 No. 34:

The U.S. District Court for the Eastern District of California Feb. 14 declined to issue a temporary restraining order to a juror seeking to enjoin a California trial court judge from enforcing an order requiring him to issue a consent with Facebook to provide updates he made during a criminal trial. The juror noted on his Facebook account that he was “still” on jury duty and “bored” during the case, and left other comments regarding evidence in the case. The court became alert to these comments when another juror became friends with the original juror on Facebook and noted the comments to defense counsel. The California trial court judge ordered the juror to issue a consent to Facebook to supply those comments after Facebook declined to provide the information, feeling it was constrained by the Stored Communications Act. The juror, having lost an appeal to an intermediate state court, was seeking review with the California Supreme Court when he also filed the TRO request with a federal court, noting he did not feel the state supreme court would rule in time. The federal court declined to issue a TRO under the Younger abstention doctrine. It found that the juror did not show “state law either procedurally or substantively bars presentation of his claims to the California Supreme Court” and that the juror did not contest the other two prongs of the Younger doctrine in that there was a pending state court proceeding that implicated important state interests. Juror Number One v. California, E.D. Cal., No. Civ. 2:11-397, 2/14/11.

Class Action Waiver Unenforceable If Individual Suits Too Costly

2011-03-15T10:29:00.001-04:00

A class action waiver in an arbitration agreement is unenforceable when it would effectively preclude plaintiffs from enforcing their statutory rights, the U.S. Court of Appeals for the Second Circuit held March 8 (In re American Express Merchants' Litigation, 2d Cir., No. 06-1871-cv, 3/8/11).

BNA subscribers can read a story about this case here.

Eleventh Circuit Determines Proper Vehicle for Enforcing Forum-Selection Clauses

2011-03-09T10:33:00.002-05:00

Per Slater v. Energy Services Group Intern. Inc., --- F.3d ----, 2011 WL 782023 (11th Cir. Mar. 8, 2011):

Slater contends that the district court abused its discretion by dismissing her claims for improper venue pursuant to Rule 12(b)(3) rather than applying the transfer analysis under 28 U.S.C. 1404(a). Slater claims that because § 1404(a) is the only proper procedural mechanism for enforcing a forum-selection clause which designates venue in another United States District Court, the district court erred by applying Rule 12(b)(3) instead of § 1404(a).

Our sister circuits disagree regarding the appropriate vehicle for enforcing forum-selection clauses. Lipcon v. Underwriters at Lloyd's, London, 148 F.3d 1285, 1289 (11th Cir.1998) (recognizing circuit split); see e.g., Kerobo v. Sw. Clean Fuels, Corp., 285 F.3d 531, 539 (6th Cir.2002) (holding that the proper analysis is under 28 U.S.C. § 1404(a)); Richards v. Lloyd's of London, 135 F.3d 1289, 1292 (9th Cir.1998) (applying Rule 12(b)(3) to an international forum-selection clause); Lambert v. Kysar, 983 F.2d 1110, 1112 n.1 (1st Cir.1993) (applying Rule 12(b)(6)); AVC Nederland B.V. v. Atrium Inv. P'ship, 740 F.2d 148, 153 & n.8 (2d Cir.1984) (applying Rule 12(b)(1) to an international forum-selection clause).

. . .

[W]e conclude that § 1404(a) is the proper avenue of relief where a party seeks the transfer of a case to enforce a forum-selection clause, while Rule 12(b)(3) is the proper avenue for a party's request for dismissal based on a forum-selection clause.

Judge: Don’t remove Medicare lien dispute to federal court

2011-02-17T12:29:00.000-05:00

Per Virginia Lawyers Weekly, February 17, 2011:

Federal courts are not the place to resolve disputes over personal injury settlements held up by a Medicare lien, a Roanoke federal judge has ruled.

In a Feb. 14 opinion, U.S. District Judge Samuel G. Wilson not only remanded a motion to enforce a personal injury settlement, he expressly retained jurisdiction to consider an award of sanctions for improper removal.

The decision marks the latest flare-up from the smoldering tension between insurance companies and personal injury lawyers as both sides seek to protect themselves from unexpected liability for Medicare liens.

In this case, Erie Insurance Exchange refused to pay a $45,000 settlement until Medicare provided final notice of the amount of reimbursement it sought for medical care for a woman injured in a 2008 Augusta County accident. Wilson’s decision leaves the decision on whether to force payment to a state circuit court judge.

The opinion is Hensley v. Marion, VLW 011-3-102.

E.D. Va. Dismisses Patent Infringement Claims under Twombly/Iqbal

2011-02-04T11:22:00.001-05:00

Per Adiscov LLC v. Autonomy Corp. PLC (Smith, J.):

This court finds plaintiff’s conclusory allegations in the complaint neither give defendants notice of the substance of the suit against them, nor raise the right to relief above the speculative level.

This court is persuaded by the precedent in this district and from other district courts to consider the issue that plaintiff has not met its burden under Rule 8. First, plaintiff never identifies any particular products or services that are alleged to be infringing. Rather, with regard to each defendant, the complaint merely states, defendant manufactures, uses and sells “products and services’ that infringe plaintiff’s ‘760 patent, including “legal discovery software and services…”

Nowhere does the complaint further identify what legal discovery software or services are alleged to be infringing with regard to any defendant. Further, the complaint does not provide sufficient detail about the defendants and their products such that defendants would be on notice as to which products or services are the subject of the suit.

Moreover, plaintiff fails the plausibility test set forth in Iqbal. The court is left with a “sheer possibility” that one of defendants’ numerous products or serves infringes the ‘760 patent in one way or another.

Sixth Circuit Dismisses Case for Falling One Penny Short of 1332's Amount-in-Controversy Requirement

2011-02-04T11:15:00.003-05:00

The Sixth Circuit has issued an opinion dismissing a case for lack of subject matter jurisdiction because the amount in controversy was one penny short. The case is Freeland v. Liberty Mutual Fire Ins. Co., no. 10-3038 (6th Cir. Feb.4, 2011) and is available for download here.

SCOTUS Issues Opinion in Ortiz v. Jordan

2011-02-02T13:08:00.002-05:00

The Supreme Court decided Ortiz v. Jordan last week, a case in which it held that denials of summary judgment after a full trial on the merits may not be appealed. Here is an excerpt from the Syllabus of the case:

A party may not appeal a denial of summary judgment after a district court has conducted a full trial on the merits. A qualified immunity plea, not upheld at the summary judgment stage, may be pursued at trial, but at that stage, the plea must be evaluated in light of the character and quality of the evidence received in court. Ordinarily, orders denying summary judgment are interlocutory and do not qualify as “final decisions” subject to appeal under 28 U. S. C. §1291. Because a qualified immunity plea can spare an official not only from liability but from trial, this Court has recognized a limited exception to the categorization of summary judgment denials as non- appealable orders. Mitchell v. Forsyth, 472 U. S. 511, 525–526. The exception permits an immediate appeal when summary judgment is denied to a defendant who urges that qualified immunity shelters her from suit. Id., at 527. Such an immediate appeal is not available, however, when the district court determines that factual issues genu- inely in dispute preclude summary adjudication. Johnson v. Jones, 515 U. S. 304, 313. Here, Jordan and Bright sought no immediate appeal from the denial of their summary judgment motion. Nor did they avail themselves of Rule 50(b), which permits the entry of judg- ment, postverdict, for the verdict loser if the court finds the evidence legally insufficient to sustain the verdict. Absent such a motion, an appellate court is “powerless” to review the sufficiency of the evidence after trial. Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U. S. 394, 405. This Court need not address the officers’ argument that a qualified immunity plea raising a “purely legal” issue is pre- served for appeal by an unsuccessful summary judgment motion even if the plea is not reiterated in a Rule 50(b) motion. Cases fitting that bill typically involve disputes about the substance and clarity of pre- existing law. In this case, however, what was controverted was not the pre-existing law, but the facts that could render Jordan and Bright answerable under §1983, e.g., whether Jordan was adequately informed, after the first assault, of the assailant’s identity and of Ortiz’s fear of a further assault. Because the dispositive facts were disputed, the officers’ qualified immunity defenses did not present “ ‘neat abstract issues of law.’ ” Johnson, 515 U. S., at 317. To the ex- tent that Jordan and Bright urge Ortiz has not proved her case, they were, by their own account, obliged to raise that sufficiency-of-the- evidence issue by postverdict motion for judgment as a matter of law under Rule 50(b). They did not do so. The Sixth Circuit, therefore, had no warrant to upset the jury’s decision on their liability.

E.D. Va. Judge Rules No "Twiqbal" For Affirmative Defenses

2011-01-24T10:26:00.002-05:00

Visit the VLW Blog for an article on Lopez v. Asmar’s Mediterranean Food Inc., in which the judge held that the plausibility standard announced in Twombly and Iqbal does not apply to the pleading of affirmative defenses. A PDF of the opinion is available here.

Prof. Bales and Melanie Goff Post Article on the Applicability of Twombly to Affirmative Defenses on SSRN

2011-01-19T10:30:00.003-05:00

Professor Richard A. Bales (N. Kentucky) and Melanie Goff have recently published an article entitled A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses on SSRN. Here is the abstract:

The U.S. Supreme Court’s 2007 and 2009 decisions in Twombly and Iqbal radically altered the environment in which federal complaints are filed by creating a “plausibility” requirement where the Federal Rules before required only a “short and plain statement” providing “notice” of a claim. The lower federal courts have just now begun to deal with the Twombly-Iqbal fallout. One of the issues that has arisen – the issue addressed by this article – is whether the new plausibility pleading standard applies only to plaintiffs’ complaints, or whether it applies also to affirmative defenses raised in defendants’ answers. This article argues that, regardless of whether the Twombly-Iqbal departure from notice pleading was wise, the new standard should be applied uniformly to all pleadings, because to do otherwise would even further uniquely and unfairly disadvantage plaintiffs.

The article may be downloaded at http://ssrn.com/abstract=1737805.

Prof. Welsh Posts Article on Summary Jury Trials and Twombly

2011-01-19T06:33:00.003-05:00

Prof. Nancy Welsh recently posted an article entitled on SSRN. Here is the abstract.

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive marginalized claimants - and our society - of alternative, effective avenues for the airing and resolution of disputes with powerful institutional players. Ironically, it was just this sort of deprivation that led the Supreme Court to announce its expansive vision of notice pleading in Conley v. Gibson. Conley foretells the need for our courts to maintain a robust public forum for those who are marginalized by the default procedures of normal life - not only to provide redress to the parties directly involved in particular disputes but because the viability of such a forum has the indirect and salutary effect of forcing institutional players to find a way to sufficiently approximate the fair dialogue and resolution modeled in our courts. In an attempt to acknowledge legitimate concerns regarding the inefficiency and costs of today’s civil litigation process in some cases, while still protecting the courts’ essential role in providing a forum for marginalized parties, this Article will suggest that courts take a second look at the summary jury trial, an expedited form of trial conducted before an advisory jury and followed by negotiation or mediation between the parties and their lawyers. Relatively early and appropriate use of this process could effectively prompt resolution and dialogue - i.e., private dialogue between the parties before the process is to occur; a stylized form of public dialogue during the trial phase of the process itself; and another private dialogue, potentially with assistance from a judge or mediator, after the advisory jury has been dismissed.

This article may be downloaded by visiting http://ssrn.com/abstract=1660637.

Prof. Meier Posts Pleading Article on SSRN

2011-01-14T10:51:00.002-05:00

Professor Luke Meier (Baylor) has posted an article entitled “Why Twombly is Good Law (But Poorly Drafted) and Why Iqbal Will Be Overturned,” on SSRN. Here is part of the abstract:

In the attempt to decipher what is required to plead a claim for relief in federal court after the Supreme Court’s decisions in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal, commentators have usually combined these two cases as being part of the same "revolution" in pleading. The Iqbal case is often credited for clearing up lingering questions regarding the scope of the "plausibility" analysis introduced in Twombly. Apart from this issue, however, Twombly and Iqbal have usually been discussed as a cohesive pair. They have been jointly criticized. Occasionally, they have been jointly praised.
The tendency to view Twombly and Iqbal as a collective unit has, unfortunately, interfered with efforts to understand pleading doctrine. The cases have dissimilar analytical foundations. In short, the Twombly decision can be justified as merely an application of preexisting principles regarding pleading; the Iqbal case, however, was wrongly decided and is destined to be overruled. To jointly criticize both opinions is to throw the baby (Twombly) out with the bathwater (Iqbal); to jointly praise both opinions, to continue the analogy, is to miss how dirty the bath water is in which the baby is sitting. Until Twombly and Iqbal are decoupled and considered as separate entities, pleading jurisprudence will continue in a state of disarray.

It is not necessarily surprising that academic commentators have treated Twombly and Iqbal as one-in-the-same. The Court’s Iqbal opinion reads as though it is a simple application of the Twombly decision. It is likely that the Iqbal Court even thought as much. The underlying problem is the Twombly opinion.

The Twombly opinion is muddled on three critical points. All three of these points are necessary to an understanding of the Twombly case. The inarticulate manner in which these points were discussed in Twombly is largely responsible for the confused status of pleading doctrine; it is also the source of the erroneous decision in Iqbal. Because of the ambiguity in the Twombly opinion, it was interpreted by the Iqbal Court in a manner that was inconsistent with prior Supreme Court precedent.

This Article can be downloaded at http://ssrn.com/abstract=1734791.

Prof. Tidmarsh Posts Article on Procedure, Substance, and Erie on SSRN

2010-11-29T06:35:00.002-05:00

Professor Jay Tidmarsh (Notre Dame) has recently posted an article entitled Procedure, Substance, and Erie on SSRN. Here is the abstract:

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that “procedure” should be understood in terms of process - in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of “procedure” and “substance change with the context - a pillar on which present Erie analysis is based - is wrong. Finally, it suggests a single process-based principle that reconciles all of the Supreme Court’s “procedural Erie” cases: that federal courts can apply their own rules to process a claim as long as, in a costless and outcome-neutral world, those rules do not affect the ex ante value of a claim at the time of its filing.

This article may be downloaded by visiting http://ssrn.com/abstract=1708183.

AALS Newsletter Call for Conference Information

2010-11-20T09:38:00.001-05:00

Each year the Civil Procedure Section of the AALS prepares a newsletter that aggregates various bits of information for the benefit of Civil Procedure teachers and scholars. One regular feature of that newsletter is “Upcoming Conferences.” If you have planned (or are otherwise aware of) a conference for calendar year 2011 and would like this newsletter to list the event, please send us the details—web links, calls for papers, etc. Even conferences with tentative plans and dates can be listed. Please send the details by December 5 to Thom Main at tmain@pacific.edu.

EDVA Transfers Case Under First-Filed Rule

2010-11-03T11:42:00.002-04:00

Judge Rebecca Beach Smith (EDVA) applied the "first-filed" rule to transfer a patent infringement case to a New York federal court. Although the patent infringement action was properly filed in the Eastern District of Virginia, the adversary had previously filed a declaratory judgment action on the same issue in the Southern District of New York. As the first filed claim, Judge Smith concluded that it had precedence and thus the EDVA action had to be transferred to New York. The opinion is available here.

E.D. Va. Denies Remand in Diversity Case Removed More than 1 Year after Commencement of Action

2010-10-31T17:34:00.003-04:00

Senior Judge Payne (E.D. Va.) recently issued an opinion in a case that was removed from state court based on diversity more than one year after the case was filed in state court, notwithstanding section 1446(b)'s seeming prohibition on such removals. His rationale was that 1446(b) only applies when the removed action was initially non-removable, and that in this case the action was initially removable based on diversity. Because the complaint was not served until more than one year after filing, and the defendants then removed the case within 30 days, the removal was proper and remand was denied. The case, Pair v. Welco-CGI Gas Technologies, Inc. may be downloaded at http://valawyersweekly.com/wp-files/pdf/010-3-554.pdf.

Prof. Spencer Posts Article on Pre-Litigation Preservation Obligation on SSRN

2010-10-26T08:36:00.001-04:00

Professor A. Benjamin Spencer (W&L) has recently posted an article entitled The Preservation Obligation: Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court on SSRN. Here is the abstract:

The issue of discovery misconduct, specifically as it pertains to the pre-litigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Bank of America Securities, Judge Shira Scheindlin - of the Zubulake e-discovery cases - penned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches of that duty. Not long afterwards, Judge Lee Rosenthal - Chair of the Judicial Conference Committee on the Rules of Practice and Procedure (the Standing Committee) and former Chair of the Civil Rules Advisory Committee - issued an opinion (Rimkus Consulting Group, Inc. v. Cammarata ) describing her understanding of many of the same issues touched on in Pension Committee. Both of these opinions have come at a time when the legal community is looking for better and more consistent guidance regarding the preservation obligations attendant to prospective litigation in the federal courts. Unfortunately, although other courts may draw some guidance from these two opinions, the fact is that variation among district courts and among the circuits will persist as long as policing pre-litigation preservation obligations remains largely the product of common law regulation via the inherent power of the courts.

Given this state of affairs, the time is ripe for a uniform federal approach to the pre-litigation duty to preserve and sanctions for spoliation. After reviewing the existing frameworks for determining the duty to pre-serve and imposing sanctions that prevail among the federal courts, this Article will explore how the Federal Rules of Civil Procedure might be amended to define and enforce pre-action preservation obligations more effectively and consistently across jurisdictions.

This article may be downloaded at http://ssrn.com/abstract=1696526.

The Seventh Circuit Notes Rejection of Zippo Approach to Personal Jurisdiction in the Internet Context

2010-10-19T21:27:00.002-04:00

Per Illinois v. Hemi Group LLC, --- F.3d ----, 2010 WL 3547647, (7th Cir.Sept. 14, 2010):

We wish to point out that we have done the entire minimum contacts analysis without resorting to the sliding scale approach first developed in Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997). This was not by mistake. Although several other circuits have explicitly adopted the sliding scale approach, see Tamburo v. Dworkin, 601 F.3d 693, 703 n. 7 (7th Cir.2010) (collecting cases), our court has expressly declined to do so. In Tamburo, we said that we were hesitant “to fashion a special jurisdictional test for Internet-based cases.” Id. That case dealt specifically with an intentional tort (defamation) committed over the Internet and through e-mail. Long before the Internet became a medium for defamation, the Supreme Court in Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), had decided the relevant jurisdictional standard for intentional torts that cross state lines. We concluded that “the principles articulated [in Calder ] can be applied to cases involving tortious conduct committed over the Internet.” Tamburo, 601 F.3d at 703.

We reach the same conclusion here. Zippo's sliding scale was always just short-hand for determining whether a defendant had established sufficient minimum contacts with a forum to justify exercising personal jurisdiction over him in the forum state. But we think that the traditional due process inquiry described earlier is not so difficult to apply to cases involving Internet contacts that courts need some sort of easier-to-apply categorical test. See Jennings v. AC Hydraulic A/S, 383 F.3d 546, 550 (7th Cir.2004) (“[A]lthough technological advances may alter the analysis of personal jurisdiction, those advances may not eviscerate the constitutional limits on a state's power to exercise jurisdiction over nonresident defendants.”).

Prof. Nagareda Posts Article on Litigation-Arbitration Dichotomy

2010-10-19T12:53:00.000-04:00

UPDATE: I was unaware at the time of this post that Professor Nagareda recently passed away. This is a tragic loss for the legal academy and all proceduralists. He made significant and lasting contributions to civil procedure and complex litigation and will be sorely missed.

Professor Richard Nagareda recently posted an article entitled The Litigation-Arbitration Dichotomy Meets the Class Action on SSRN. Here is the abstract:

Courts and commentators often conceive of litigation and arbitration as dichotomous regimes for civil dispute resolution. Two new decisions from the Supreme Court provide the occasion to rethink this conventional view. In Shady Grove v. Allstate Insurance, the Court acknowledges that a class action often alters dramatically the incidence of claiming but, for purposes of the Rules Enabling Act, the Court deems this effect to be merely “incidental.” In Stolt-Nielsen v. AnimalFeeds, however, the Court deems the use of class-wide arbitration to be such a “fundamental” change as to lie outside the authority of arbitrators in the face of contractual silence as to class treatment.

This Article – for the annual Federal Courts, Practice & Procedure issue of the Notre Dame Law Review – urges a more synthetic understanding of litigation and arbitration. For all their differences, the Court’s accounts of class treatment under the Rules Enabling Act and the Federal Arbitration Act (FAA) evidence a deep, but undertheorized, convergence. Shady Grove is the latest of the Court’s efforts to map the proper relationship between federal and state law under the Erie and Hanna doctrines. This Article explains how the Court’s arbitration jurisprudence has come to replicate key structural features of the Erie and Hanna doctrines in litigation. The Article then underscores the transnational dimensions of arbitration in our modern world of globalized commerce – one that frames in a new light the holding in Stolt-Nielsen within the context of the Court’s thinking about extraterritoriality and transnational recognition of judgments in litigation.

The Article then turns to a case now before the Court – AT&T Mobility v. Concepcion – concerning an arbitration clause that would waive the opportunity for consumers to participate in either a class action or a class arbitration. The Article explains how the approach of the lower courts in Concepcion presents the Supreme Court with the counterpart, in the arbitration setting, to the mistaken application of state law rightly overturned in Shady Grove under the Hanna doctrine. Such a view nonetheless would afford ample latitude for contextual, Erie-like analysis of other arbitration clauses with class waivers tantamount to exculpatory clauses. The Article concludes by situating its synthetic conception of litigation and arbitration within ongoing debate over the proposed Arbitration Fairness Act.

The article may be downloaded by visiting http://ssrn.com/abstract=1670722.

Eleventh Circuit Reverses Its Previous (Erroneous and Widely Criticized) Interpretation of CAFA

2010-10-19T09:59:00.002-04:00

Per Cappuccitti v. DirecTV, Inc., --- F.3d ----, 2010 WL 4027719 (11th Cir. Oct. 15, 2010):

“On July 19, 2010, we issued an opinion in this case. Cappuccitti v. DirecTV, Inc., No. 09-14107, slip op. (11th Cir. July 19, 2010). We based our decision on our interpretation of the jurisdictional requirements of the Class Action Fairness Act of 2005 (“CAFA”), Pub.L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C.), which we have elsewhere called a “statutory labyrinth.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1199 (11th Cir.2007). Subsequent reflection has led us to conclude that our interpretation was incorrect. Specifically, CAFA's text does not require at least one plaintiff in a class action to meet the amount in controversy requirement of 28 U.S.C. § 1332(a). Accordingly, we construe both parties' petitions for rehearing en banc to include petitions for panel rehearing, FN1 vacate our earlier opinion, and replace it with this one.” Cappucciti v. DirecTV, Inc., 2010 WL 4027719 (11th Cir. Oct. 15, 2010).

Prof. Reinert Posts Article on Costs of Heightened Pleading

2010-10-14T15:22:00.003-04:00

Professor Alex Reinert (Cardozo-Yeshiva) has posted an article entitled The Costs of Heightened Pleading on SSRN. Here is the abstract:

In Conley v. Gibson, 355 U. S. 41 (1957), the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts. Thus, from 1957 until a few years ago, most litigants could count on surviving a motion to dismiss a complaint for failure to state a claim so long as their pleading provided some minimal notice to the defendant of the nature of their claim. Enter Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Iqbal and Twombly, on many accounts, two-stepped the Court from notice to heightened “plausibility” pleading for all civil cases. And it garnered applause and withering criticism. No one seems willing to defend the process that the Court used to abandon fifty years of pleading law — shorn as it was of any attention to the procedures contemplated by the Rules Enabling Act — but as a substantive matter, heightened pleading has many adherents. For heightened pleading advocates, it promises to reduce crowded dockets, make discovery available only to worthy litigants, and generally improve the quality of litigation to which attorneys and federal courts devote their attention. And at the bottom of it all lies a fundamental assumption — notice pleading lets in too many worthless cases and heightened pleading will keep them out. Despite this assumption, however, there has been almost no empirical analysis of the connection between merit and pleading.

This Article critically intervenes in this discussion by providing empirical data to question the widespread assumption about the benefits and costs of heightened pleading. The data reported here show that pleadings that would get by under a notice pleading standard but not a heightened pleading standard — what I refer to as “thin” pleadings — are just as likely to be successful as those cases that would survive heightened pleading. Indeed, the research summarized in this Article, gathered through a novel retrospective analysis of appellate and trial court decisions from 1990-1999, suggest that there is no correlation between the heft of a pleading and the ultimate success of a case.

This Article certainly does not end the debate, but it is better to begin on solid empirical footing than on supposition alone. Although there are limitations to the data reported here, they are more than we have had before, and they call attention to the costs of heightened pleading even as they suggest avenues for further research. As Congress, the judiciary, and the academy are engaged in a critical discussion as to how to respond to the Supreme Court’s most recent alteration of pleading jurisprudence, relevant empirical data should be part of the conversation.

The full version of the article may be downloaded by visiting http://ssrn.com/abstract=1666770.

SCOTUS Grants Cert in Personal Jurisdiction Case

2010-09-29T09:19:00.002-04:00

The SCOTUS granted cert yesterday in a case presenting this question:

"Whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant."

http://www.scotusblog.com/case-files/cases/goodyear-luxembourg-tires-sa-v-brown/

The review will be of a North Carolina Supreme Court case that upheld the assertion of general jurisdiction based on the defendant's injecting their product into the stream of commerce without limiting its reach into North Carolina. Based on current understandings of general jurisdiction, it is hard to imagine the Supreme Court upholding this decision, which uses Justice Brennan's stream of commerce analysis from Asahi to uphold jurisdiction in a case having nothing to do with the forum state contacts. Look for a unanimous reversal of the North Carolina decision and a helpful clarification of the standards governing the assertion of general jurisdiction.

A bonus would be if the Court resolved the unsettled question of which approach from Asahi is the appropriate stream of commerce test; but I don't expect that to happen given that such an analysis is (or should be) wholly irrelevant to whether a court may assert general jurisdiction over a defendant, as opposed to specific jurisdiction.

Good Amount-In-Controversy Case in Virginia

2010-09-23T17:49:00.003-04:00

Here is an excerpt from a posting by Paul Fletcher, the publisher of Virginia Lawyers Weekly:

A veterinary supplies company says that a vet named Rasnic owes it $74,139.24 and wants to sue to collect. Can the company, Merial Ltd., sue in federal court?

It’s a contract action and there’s no federal statute involved, so the plaintiff has to rely on diversity of citizenship under 28 U.S.C. § 1332(a) to get into federal court. Company is based in Georgia, defendant is from Scott County. Check. The magic number for diversity jurisdiction, any one-L will tell you, is $75,000. So Merial is about 800 bucks short.

Wait, Merial also wants interest of about 15 grand and $2,500 in attorney’s fees, based on language in its invoices. However, the federal rule says $75K, “exclusive of interest and costs.” Rasnic asked that the claim be dismissed.

Merial still can go forward in federal court, according to U.S. Magistrate Judge Pamela Meade Sargent in Merial Ltd. v. Rasnic. The judge provides a handy primer on what to argue when you’re oh-so-close to that 75K figure.

The full post with details of the ruling can be found here. A PDF of the opinion can be found here.

Boyd & Hoffman Post Article on Litigating Toward Settlement on SSRN

2010-09-15T06:16:00.003-04:00

Professors Christina L. Boyd (SUNY Pol. Sci.) and David A. Hoffman (Temple) have posted and article on SSRN entitled Litigating Toward Settlement. Here is the abstract:

What is the relationship between litigation and settlement? Previous research assumes that the factors influencing settlement are exogenous to the parties: once the complaint is filed, the die is cast. We hypothesize, by contrast, that the parties are active participants in the process by which they come to understand their cases and agree to private resolutions. This active and reflexive process of learning through litigation is likely to be just as important in determining when a case will settle as are the litigation characteristics – managerial judging, fee structure, case type, court congestion – that have dominated previous research.

Using detailed federal district court data to analyze how the filing and resolution of motions influences the timing of compromise, we find that the mere filing of a motion speeds case settlement. As theory predicts, motions which are granted are more immediately important to the settlement rate than motions denied, plaintiff victories are more important than defendant victories, motions about unclear areas of law are more important than motions about settled law, and motions later in cases are more important that motions earlier in cases. Our results open up a new area of research into the pro-social effects of litigation. We question the common assumption that litigators simply add cost and that settlement must be midwifed by active judging. Rather, the parties can force information from each other (and the court) by filing motions at appropriate moments in the case.

The article may be downloaded at http://ssrn.com/abstract=1649643.

Prof. Ides Posts Article on Shady Grove Debate between Stevens and Scalia

2010-09-07T11:22:00.003-04:00

Prof. Allan Ides (Loyolla LA) has just posted a piece entitled The Standard for Measuring the Validity of a Federal Rule of Civil Procedure: The Shady Grove Debate between Justices Scalia and Stevens on SSRN. Here is the abstract:

In Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Company, Justices Scalia and Stevens offered alternative interpretations of §2072(b) of the Rules Enabling Act (“REA”). The focus of this essay is on that disagreement. The author argues that both the text of the REA and judicial precedent support the Stevens interpretation.

The article may be downloaded at http://ssrn.com/abstract=1667228.

Prof. Nagareda Posts Essay on Class Certification

2010-08-31T00:06:00.000-04:00

Professor Richard Nagareda (Vanderbilt) has recently posted an Essay entitled Common Answers for Class Certification. Here is the abstract:

This Essay for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. focuses on new developments in the law of class action certification. Prior to Dukes, the federal appellate courts had been gravitating toward a consensus on the parameters for judicial rulings on class certification. Under this emerging consensus view, the court is obligated to determine – under a preponderance-of-the-evidence standard and with no preclusive effect on the merits – whether the pertinent requirements for class certification have been satisfied. But the court has no authority to conduct a free-floating inquiry into the plaintiffs’ likelihood of success on the merits, unrelated to a class certification requirement. Dukes unsettles this emerging consensus, positing that courts may not withhold class certification as long as plaintiffs put forward a triable case as to the existence of a common, class-wide course of misconduct by the defendant. Under this view, the court may not determine whether the alleged class-wide course of misconduct more likely than not exists – even for the limited purpose of ruling on class certification – for fear of intrusion into the role of the fact finder at trial.

This Essay first explains why Supreme Court review is warranted in Dukes, above and beyond the usual concern over splits among the federal appellate courts. The Essay then observes that Dukes is part of a larger category of cases in recent years that involve class certification disputes centered on aggregate proof – in Dukes, primarily an analysis of Wal-Mart’s hourly work force, said to reveal statistically significant differences in pay and promotions across male-female lines.

The bulk of the Essay spotlights the crucial conceptual error in Dukes: the majority’s confusion between motions for class certification and the motion that really does regulate the relationship between the court and the fact finder (summary judgment). Drawing on illustrations from class certification decisions in securities fraud, antitrust, and RICO litigation, the Essay explains how confusion between class certification and summary judgment can lead to both judicial underreach (as in Dukes) and judicial overreach (as in some decisions from other circuits). Supreme Court reversal in Dukes would lend clarity and consistency to the law of class certification, but in a way that would not cut uniformly for or against either plaintiffs or defendants across the gamut of civil law.

The Essay may be downloaded at http://ssrn.com/abstract=1662620.

Prof. Erbsen Posts Article on Impersonal Jurisdiction on SSRN

2010-08-30T09:56:00.002-04:00

Professor Allan Erbsen (Minnesota) has recently posted an Article entitled Impersonal Jurisdiction on SSRN. Here is the abstract:

Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation. Courts and commentators recognize the issue’s importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent. This Article seeks to reorient the discussion by developing a framework for thinking about why and how the Constitution regulates personal jurisdiction. It concludes that principles animating the emerging field of horizontal federalism—the constitutional relationship between states—should guide jurisdictional rules and instigate sweeping reevaluation of modern jurisprudence. The Article proceeds in three steps: it strips away layers of history and doctrine to present a model for thinking about why constitutional limits on personal jurisdiction may be necessary, shows how the model places personal jurisdiction within a broader context of constitutional law governing horizontal federalism, and considers how analyzing personal jurisdiction within this context challenges pivotal assumptions underlying modern doctrine and canonical understandings of how civil procedure and constitutional law intersect. In particular, the Article questions two pillars of the Supreme Court’s jurisprudence. First, it considers whether the Constitution makes Congress rather than the judiciary the primary institution for regulating jurisdiction in state courts, and thus whether the prospect of diversity jurisdiction and removal to federal court should preempt judicially created due process remedies against jurisdictional overreaching by state courts. Second, it challenges the coherence of the multifactored reasonableness test that courts use to implement due process limits on state authority. More generally, the Article creates a framework for thinking about personal jurisdiction that ties the subject into analogous debates about ostensibly distinct areas of constitutional law and provides a foundation for testing competing normative critiques of modern doctrine. The Article thus generates insights that can reshape a much maligned area of law that routinely confounds courts and scholars.

The Article may be downloaded at http://ssrn.com/abstract=1664173.

En Banc Petition Filed in Cappuccitti v. DirecTV, Inc.

2010-08-18T13:50:00.002-04:00

An en banc petition has been filed in Cappuccitti v. DirecTV, Inc., the Eleventh Circuit case in which the panel interpreted the Class Action Fairness Act as not eliminating the requirement that at least one plaintiff have a claim of more than $75,000. The petition is available here.

EDVA Judge Denies Request for Confidential Settlement Terms During DIscovery

2010-08-18T13:45:00.002-04:00

An identity theft victim need not disclose to defendant credit company her settlement agreements with three credit reporting agencies and a separate debt collection agency on related claims under the FDCPA and the FCRA, an Alexandria U.S. District Court says. Pennington v. Midland Credit Mgmt. Inc., No. 1:10cv112 (E.D. Va. Aug. 9, 2010).

Second Circuit Finds Personal Jurisdiction Over Online Handbag Counterfeit Seller

2010-08-15T20:50:00.003-04:00

Here is the Westlaw synopsis of a recent Second Circuit decision on personal jurisdiction based on Internet contacts, Chloe v. Queen Bee of Beverly Hills, LLC, --- F.3d ----, 2010 WL 3035495 (2d Cir. Aug. 5, 2010):

Background: Trademark owner, a fashion company that sold women's clothing and accessories, brought action against competitor and competitor's employees for violations of the Trademark Act and common law trademark infringement and unfair competition. The United States District Court for the Southern District of New York, Holwell, J., granted employee's motion to dismiss for lack of personal jurisdiction, 571 F.Supp.2d 518, and granted trademark owner's motion to certify the dismissal as final, 630 F.Supp.2d 350. Trademark owner appealed.

Holding: The Court of Appeals, Hall, Circuit Judge, held that employee's single act of shipping a handbag to New York, combined with his employer's extensive business activity involving New York, gave rise to personal jurisdiction over the employee.

Panel of Judges and Practitioners Propose Federal Rule Governing Preservation and Spoliation

2010-08-12T19:24:00.002-04:00

ABA's Litigation News contains an article entitled "Is It Time for a Federal Rule on Preservation?" and discusses an proposal by judges and practitioners who served on a panel at the 2010 Civil Rules Advisory Committee Litigation Conference at Duke.

According to the article, the elements of the proposal include:

- general and specific triggers for attachment of the obligation to preserve information, including electronically stored information;
- the scope of the preservation duty, including both time frame and the types of covered data and data sources;
- the form or format in which data subject to preservation should be maintained;
- limitations and guidance for determining the individual database users and data custodians for - whom detailed data must be captured and preserved;
- preservation standards applicable to non-parties;
- limitations as to the duration of preservation duties and their applicability to post-suit records and data;
- the contours of a safe harbor for organizations utilizing formal litigation hold procedures;
- the extent to which internal efforts to ensure and accomplish proper preservation should be protected as work product; and
- the consequences and related procedural requirements applicable in instances of alleged breaches of the preservation duty.

The proposal is available here.

Fourth Circuit Reverses Denial of Motion to Set Aside Default

2010-08-11T13:30:00.002-04:00

The case is Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc., --- F.3d ----, 2010 WL 3042441 (4th Cir. Aug. 5, 2010). Here is Virginia Lawyers' Weekly's summary of the case:

A corporation's registered agent failed to forward suit papers, and the 4th Circuit says a district court abused its discretion when it refused to vacate entry of default against the corporation, sued by a private school for roof damage allegedly caused by the company's fire-retardant materials.

Download the PDF of the opinion here.

JPML Sends BP Oil Spill Cases to New Orleans Federal District Court

2010-08-10T17:07:00.003-04:00

Here is a copy of the order from today: http://www.jpml.uscourts.gov/Panel_Orders/Recent_Orders/MDL-2179-Transfer_Order.pdf.

EDVA Judge Holds Email Not Protected by "Common Interest" Rule

2010-07-28T11:00:00.003-04:00

Per In re: OutsideWall Tire Litigation (E.D. Va. July 6, 2010):

In their motion to compel, plaintiffs sought testimony from Harjeev Kandhari, a managing agent of the Al Dobowi defendants, concerning an e-mail exchange between nonparty Sam Vance and Harjeev Kandhari, In an e-mail dated March 10, 2007, Vance—who then as now worked as a consultant for the Al Dobowi defendants—-informs Surender Kandhari that he is required to submit answers to interrogatories in connection with then-pending litigation against him in a Florida court, and asks, "Have you heard anything from the Attorneys?" and, further, "Is it O.K. to turn in the answers??" The e-mail chain reflects that the message thereafter is forwarded to Harjeev Kandhari, and he states, "We are still waiting for our attorneys who have all the files," but he also says, M] only noticed one thing—please do not mention the names of Al Dobowi or any of the family members anywhere in your deposition. He has not [sic] right to ask anything about us." The final e-mail in the chain is from Vance to his attorney, Scott Peterson, in which Vance forwards the underlying e-mail correspondence with the note, "FYI."

. . .

It follows from these conclusions [that the communications were not privileged in the first instance and that they were not protected work product] that the so-called "common interest privilege"does not protect the e-mail communication betwen Vance and Kandhari. This is so because it "is 'more properly identified as the common interest rule,'" for it does not create a privilege where one does not otherwise exist. In re Grand Jury Subpoenas 89-3 & 89-4, 902 F.2d 244, 249 (4th Cir. 1990) (quoting United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989)). Instead, the rule is an exception to the ordinary principle that a privilege is waived when the confidential information is shared with a third party in circumstances where the third party "'shares] a common interest about a legal matter.'" Id (quoting Schwnmmer, 892 F.2d at 243-44). Thus, the common interest rule "presupposes the existence of an otherwise valid privilege," id., the absence of which is fatal to a claim that evidence is privileged and therefore inadmissible.

Eleventh Circuit Holds That CAFA Cases Require At Least One Plaintiff with $75K+ Claim

2010-07-21T12:38:00.002-04:00

Per Cappuccitti v. DirecTV, Inc., --- F.3d ----, 2010 WL 2803093 (11th Cir. July 19, 2010)

We hold that in a CAFA action originally filed in federal court, at least one of the plaintiffs must allege an amount in controversy that satisfies the current congressional requirement for diversity jurisdiction provided in 28 U.S.C. § 1332(a). Such a conclusion is compelled by the language of § 1332 as well as the general principle that federal courts are tribunals of limited jurisdiction whose power to hear cases must be authorized by the Constitution and by Congress. See, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994). If we held that § 1332(a)'s $75,000 requirement for an individual defendant did not apply to § 1332(d)(2) cases, we would be expanding federal court jurisdiction beyond Congress's authorization. We would essentially transform federal courts hearing originally-filed CAFA cases into small claims courts, where plaintiffs could bring five-dollar claims by alleging gargantuan class sizes to meet the $5,000,000 aggregate amount requirement. While Congress intended to expand federal jurisdiction over class actions when it enacted CAFA, surely this could not have been the result it intended.

Nor does it require analytical acrobatics to apply § 1332(a)'s jurisdictional requirement in the CAFA class action context. While § 1332(d) may have altered § 1332(a) to require only minimal diversity in CAFA actions, Lowery, 483 F.3d at 1193 n. 24, there is no evidence of congressional intent in § 1332(d) to obviate § 1332(a)'s $75,000 requirement as to at least one plaintiff.FN11 Moreover, the $75,000 requirement expressly applies in actions removed under CAFA, 28 U.S.C. § 1332(d)(11)(B)(i),FN12 and we can think of no reason why Congress would have intended the requirement in the context of CAFA removal jurisdiction but not CAFA original jurisdiction. Holding otherwise would cause a nonsensical result: a case in which a plaintiff claimed less than $75,000 in controversy in state court could not enter federal court by removal (defeating Congress's purposes in enacting CAFA), but could, if the plaintiff chose, be brought in federal court under CAFA original jurisdiction (assuming the case met all of CAFA's other requirements). Again, we highly doubt that Congress intended this result.

Prolix Brief Rejected by 3d Circuit

2010-07-21T10:28:00.000-04:00

Although in a criminal, not civil appeal, I thought this was interesting. The Third Circuit instructed prosecutors to cut their brief because it was much too long, 53,000 words rather than the ordinarily allowed 14,000: http://www.abajournal.com/news/article/3rd_circuit_orders_prosecutors_to_cut_brief_by_20_percent_after_moby_dick_o/

Prof. Bone Publishes Twombly/Iqbal Article

2010-07-15T08:33:00.002-04:00

The Notre Dame Law Review has just published Professor Robert Bone's latest article on Twombly/Iqbal entitled Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal. The piece may be downloaded at the Notre Dame Law Review website: http://www.ndlawreview.org/current/index.php.

Prof. Fitzpatrick Posts Article on Class Action Settlements on SSRN

2010-07-14T00:56:00.000-04:00

Professor Brian Fitzpatrick (Vanderbilt) has recently posted an article entitled An Empirical Study of Class Action Settlements and Their Fee Awards on SSRN. Here is the Abstract:

This article is a comprehensive empirical study of class action settlements in federal court. Although there have been prior empirical studies of federal class action settlements, these studies have either been confined to securities cases or have been based on samples of cases that were not intended to be representative of the whole (such as those settlements approved in published opinions). By contrast, in this article, I attempt to study every federal class action settlement from the years 2006 and 2007. As far as I am aware, this study is the first attempt to collect a complete set of federal class action settlements for any given year. I find that district court judges approved 688 class action settlements over this two-year period, involving nearly $33 billion. Of this $33 billion, roughly $5 billion was awarded to class action lawyers, or about 15% of the total. Most judges chose to award fees by using the highly discretionary percentage-of-the-settlement method, and the fees awarded according to this method varied over a broad range, with a mean and median around 25%. Fee percentages were strongly and inversely associated with the size of the settlement. The age of the case at settlement was positively associated with fee percentages. There was some variation in fee percentages depending on the subject matter of the litigation and the geographic circuit in which the district court was located, with lower percentages in securities cases and in settlements from the Second and Ninth Circuits. There was no evidence that fee percentages were associated with whether the class action was certified as a settlement class or with the political affiliation of the judge who made the award.

The article may be downloaded by visiting http://ssrn.com/abstract=1442108.

Prof. Tidmarsh Posts Essay on Resolving Cases "On the Merits"

2010-07-13T10:27:00.003-04:00

Professor Jay Tidmarsh has recently posted an essay entitled "Resolving Cases 'On the Merits'" on SSRN. Here is the abstract:

Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.

This piece may be downloaded at http://ssrn.com/abstract=1607729.

E.D.Va. Holds that Removed Diversity Case with Lowered Ad Danum Cannot Be Remanded

2010-06-24T11:15:00.003-04:00

Senior U.S. District Judge Henry Coke Morgan recently issued an opinion in Hatcher v. Lowe's Home Centers, Inc., in which he held that a post-removal amendment of the amount in controversy to less than $75,000 does not divest the district court of jurisdiction such that a remand is required. The opinion can be viewed here.

FJC Researchers Post Report on Attorney Views of Litigation Costs

2010-06-21T10:14:00.002-04:00

Thomas Willging and Emery Lee (Federal Judicial Center) recently posted a report entitled In Their Words: Attorney Views About Costs and Procedures in Federal Civil Litigation on SSRN. It may be downloaded by visiting http://ssrn.com/abstract=1606866.

SCOTUS Decides that EAJA Awards Are Payable to Litigants

2010-06-16T22:30:00.002-04:00

The Supreme Court recently decided Astrue v. Ratliff, a case concerning fees awarded under the Equal Access to Justice Act. Here is an excerpt from the Syllabus:

Respondent Ratliff was Ruby Kills Ree’s attorney in Ree’s successful suit against the United States Social Security Administration for Social Security benefits. The District Court granted Ree’s unopposed motion for attorney’s fees under the Equal Access to Justice Act (EAJA), which provides, inter alia, that “a court shall award to a prevailing party … fees and other expenses … in any civil action … brought by or against the United States.” 28 U. S. C. §2412(d)(1)(A). Before paying the fees award, the Government discovered that Ree owed the United States a debt that predated the award. Accordingly, it sought an administrative offset against the award under 31 U. S. C. §3716, which subjects to offset all “funds payable by the United States,” §3701(a)(1), to an individual who owes certain delinquent federal debts, see §3701(b), unless, e.g., payment is exempted by statute or regulation. See, e.g., §3716(e)(2). The parties to this case have not established that any such exemption applies to §2412(d) fees awards, which, as of 2005, are covered by the Treasury Department’s Offset Program (TOP). After the Government notified Ree that it would apply TOP to offset her fees award against a portion of her debt, Ratliff intervened, challenging the offset on the grounds that §2412(d) fees belong to a litigant’s attorney and thus may not be used to satisfy the litigant’s federal debts. The District Court held that because §2412(d) directs that fees be awarded to the “prevailing party,” not to her attorney, Ratliff lacked standing to challenge the offset. The Eighth Circuit reversed, holding that under its precedent, EAJA attorney’s fees are awarded to prevailing parties’ attorneys.

Held: A §2412(d)(1)(A) attorney’s fees award is payable to the litigant and is therefore subject to an offset to satisfy the litigant’s pre-existing debt to the Government. Pp. 3–11.

Thomas, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Stevens and Ginsburg, JJ., joined.

Profs. Woolhandler and Collins Post Article on Holmes and Federal Question Jurisdiction

2010-06-11T10:32:00.003-04:00

Professors Ann Woolhandler and Michael Collins (both of UVA) have recently posted their forthcoming Article entitled Federal Question Jurisdiction and Justice Holmes on SSRN. Here is the Abstract:

Smith v. Kansas City Title (1921), and other cases in which a federal ingredient is part of the plaintiff’s well-pleaded state law complaint, are treated as second class citizens for original federal question jurisdiction under § 1331. This second class status is partly due to Justice Holmes’s pronouncement that, 'A suit arises under the law that creates the cause of action.' This article suggests, however, that cases along the model of Smith were quite familiar to the federal courts historically and may even have been the primary focus of the 1875 federal question statute. Indeed, Holmes’s dissent in Smith was itself something of a novelty, not the majority’s opinion. Holmes’s view may have been the product of his jurisprudential attempts to dispense with the concept of 'primary rights.' What is more, Holmes’s own test for jurisdiction may not have represented the simple rule it is now thought to embody.

This Article, which will be published in the Notre Dame Law Review, may be downloaded by visiting http://ssrn.com/abstract=1441974.

SCOTUS Decides FRCP 15(c) Relation Back Case: Krupski v. Costa Crociere

2010-06-07T10:33:00.004-04:00

The Supreme Court has issued its opinion in Krupski v. Costa Crociere, No. 09-337, a case that refines our understanding of the meaning of the term "mistake" in FRCP Rule 15(c), the rule governing the relation back of amendments. The lower courts had held that the plaintiff had not made a mistake regarding the identity of the proper party to be sued because she knew or should have known the identity of the proper party and delayed amending her complaint for months.

The Supreme Court reversed, holding that the amending party's knowledge is irrelevant to the 15(c) mistake analysis. What matters, rather, whether the party to be added knew or should have known that it should have been the party named in the action.

SCOTUS Holds FSIA Does Not Immunize Foreign Government Officials

2010-06-03T15:51:00.002-04:00

The Supreme Court recently decided Samantar v. Yousuf, No. 08-1555, in which it held that the Foreign Sovereign Immunities Act does not apply to the immunity claims of foreign officials. Here is an excerpt from the Syllabus of the case:

Respondents, who were persecuted by the Somali government during the 1980’s, filed a damages action alleging that petitioner, who then held high level government positions, exercised command and control over the military forces committing the abuses; that he knew or should have known of these acts; and that he aided and abetted in their commission. The District Court concluded that it lacked subject-matter jurisdiction and granted petitioner’s motion to dismiss the suit, resting its decision on the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), which provides that a “foreign state shall be immune from the jurisdiction” of both federal and state courts except as provided in the Act, 28 U. S. C. §1604. The Fourth Circuit reversed, holding that the FSIA does not apply to officials of a foreign state.

Held: The FSIA does not govern petitioner’s claim of immunity. Pp. 4–20.

. . .

(b) Reading the FSIA as a whole, there is nothing to suggest that “foreign state” should be read to include an official acting on behalf of that state. The Act specifies that a foreign state “includes a political subdivision … or an agency or instrumentality” of that state, §1603(a), and specifically delimits what counts as an “agency or instrumentality,” §1603(b). Textual clues in the “agency or instrumentality” definition—“any entity” matching three specified characteristics, ibid. —cut against reading it to include a foreign official. “Entity” typically refers to an organization; and the required statutory characteristics— e.g ., “separate legal person,” §1603(b)(1)—apply awkwardly, if at all, to individuals. Section 1603(a)’s “foreign state” definition is also inapplicable. The list set out there, even if illustrative rather than exclusive, does not suggest that officials are included, since the listed defendants are all entities. The Court’s conclusion is also supported by the fact that Congress expressly mentioned officials elsewhere in the FSIA when it wished to count their acts as equivalent to those of the foreign state. Moreover, other FSIA provisions— e.g., §1608(a)—point away from reading “foreign state” to include foreign officials. Pp. 7–13.

Eleventh Circuit Dismisses RICO Class Action under Twombly/Iqbal

2010-05-18T22:46:00.001-04:00

From the National Law Journal:

High Court Rulings on Pleading Standards Trip Up Dentists' Class Action
Leigh Jones

05-18-2010

A federal appeals court has scotched a multibillion-dollar RICO class action launched by the American Dental Association and its members against major insurance companies for their alleged failure to pay providers.

A three-judge panel of the 11th U.S. Circuit Court of Appeals threw out that the purported class action, finding that the complaint did not meet the controversial heightened pleading standards required under two recent U.S. Supreme Court decisions.

The court upheld the suit's dismissal in favor of Cigna Corp. and MetLife Inc. and their subsidiaries.

The May 14 decision, written by Circuit Chief Judge Joel Dubina, found that the Racketeer Influenced and Corrupt Organizations Act case could not survive the pleading standards under the U.S. Supreme Court's Twombly and Iqbal decisions. In Bell Atlantic Corp. v. Twombly, the Court in 2007 required plaintiffs to show the plausibility, not just possibility, of relief based on claims made in a complaint. Last year, in Ashcroft v. Iqbal, the high court required plaintiffs to present more than conclusory facts in their pleadings and instead to present claims that reasonably supported an inference of liability.

The defense bar has lauded both Twombly and Iqbal as a way to filter out meritless claims, while plaintiffs' attorneys have asserted that the higher standards preclude clients with limited resources or access to information from having their day in court.

The lawsuit was filed in 2003 by three dentists and the American Dental Association in the U.S. District Court for the Southern District of Florida on behalf of potentially hundreds of other dentist in the insurers' networks. Related to so-called "deny, reduce and delay" multidistrict litigation there involving physicians with similar claims against insurers, the lawsuit alleged that the insurers violated the RICO Act by "bundling" dental services rendered. Such bundling, the dentists alleged, resulted in reimbursement for a smaller number of services at a lower price. After the U.S. Supreme Court issued the Twombly decision, the plaintiffs amended their complaint under the new standard. In 2008, the district court dismissed the case without prejudice, finding that it did not meet that new standard.

In affirming the lower court, Dubina wrote that the "present case reflects the concerns that motivated the Supreme Court to adopt a new pleading standard in Twombly and Iqbal." It found that not only did the dentists fail to meet the Twombly and Iqbal standard, but they also did not establish their claims under procedural rules pertaining to RICO allegations. "[W]e cannot infer a scheme-driven deception from a complaint that provides no details of fraud or conspiracy," Dubina wrote.

Representing the individual plaintiffs was G. Robert Blakey, a professor at the University of Notre Dame Law School. He said that he sensed defeat during oral arguments.

"It was clear from the minute I opened my mouth," he said. "The Court of Appeals was a buzzsaw." Blakey estimated damages at between $5 billion and $6 billion.

James Griffith Jr., a partner in the Philadelphia office of Akin Gump Strauss Hauer & Feld, represented MetLife. Jamie Zysk Isani, an associate in the Miami office of Hunton & Williams, represented Cigna. Neither attorney was immediately available for comment. MetLife provided a written statement. "MetLife has long believed that the allegations made by the ADA were without merit, and we were confident that the court would rule in our favor."

The other judges on the appeals panel were Peter Fay and Harold Albritton, who was sitting by designation from the U.S. District Court for the Middle District of Alabama.

Second Circuit States that Pleading Allegations on "Information and Belief" Acceptable under Twombly

2010-05-12T10:09:00.001-04:00

Per Arista Records, LLC v. Doe 3, --- F.3d ----, 2010 WL 1729107 (2d Cir. April 29, 2010):

The Twombly plausibility standard, which applies to all civil actions, see Iqbal, 129 S.Ct. at 1953, does not prevent a plaintiff from “pleading facts alleged ‘upon information and belief” where the facts are peculiarly within the possession and control of the defendant, see, e.g., Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir.2008), or where the belief is based on factual information that makes the inference of culpability plausible, see Iqbal, 129 S.Ct. at 1949 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). The Twombly Court stated that “[a]sking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal[ity].” 550 U.S. at 556.

Junior Faculty Federal Courts Workshop

2010-05-07T20:20:00.000-04:00

THE THIRD ANNUAL

JUNIOR FACULTY FEDERAL COURTS WORKSHOP

October 7-8, 2010

The University of Illinois College of Law is pleased to announce that the Third Annual Junior Faculty Federal Courts Workshop will take place at the Club Quarters, Central Loop, 111 W. Adams St., Chicago, IL on October 7-8, 2010. Last year’s workshop, held in October 2009 at the Michigan State University College of Law, was a resounding success attended by junior scholars from 30 law schools, resulting in publications in numerous preeminent journals. We aim to continue this tradition.

The workshop pairs junior and senior, federal courts scholars in a day-long, works-in-progress workshop. Senior scholars who have confirmed their attendance for this year’s workshop are Richard Freer (Emory School of Law), Jim Pfander (Northwestern Law School), Martin Redish (Northwestern Law School), and Louise Weinberg (University of Texas School of Law).

Workshop Agenda

Drafts of papers will be distributed to participants prior to the workshop, which begins with dinner on Thursday, October 7. On Friday, October 8, following breakfast, two panels of junior scholars, composed of three to four persons each, will present papers in the morning. After lunch, two panels of junior scholars will present papers in the afternoon. Each panel will be assigned a senior scholar who will provide commentary on the paper and lead the group discussion.

The workshop is open to non-tenured, or newly tenured, academics who teach Federal Courts (or an equivalent course) or whose scholarly agenda encompasses topics ordinarily associated with such a course. Those who do not currently hold a faculty appointment but expect that they will during the 2011-2012 academic year are also welcome. There is no registration fee for this workshop.

Meals and Accommodations

The University of Illinois College of Law is pleased to provide all the attendees with meals while attending the workshop. Additionally, the College of Law has arranged for the Club Quarters to provide a block of rooms for workshop attendees at a discounted rate. Please see the workshop website listed below for more information.

Registration and Abstract Submissions

Those who plan to attend the workshop are asked to fill out the workshop’s online registration form, which is located at http://www.law.uiuc.edu/faculty-admin/federal-court-workshop.asp no later than July 31, 2010.

Persons wishing to present a paper may upload an abstract to the workshop’s online registration page, or e-mail it to Jamelle C. Sharpe at jcsharpe@illinois.edu. All abstracts must be submitted by June 30, 2010. A committee of past participants will select papers no later than July 15, 2010.

Prof. Glashausser Posts Article on Article III Exceptions Clause

2010-05-05T10:40:00.003-04:00

Professor Alex Glashausser (Washburn) has recently posted an article entitled A Return to Form for the Exceptions Clause on SSRN. Here is the abstract:

This article challenges the prevailing doctrinal, political, and academic view that the Exceptions Clause – which provides that “the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” – gives Congress a license to strip the Supreme Court of jurisdiction. Properly interpreted, the facially ambiguous clause instead allows Congress to shift cases within the Court’s jurisdiction from appellate to original form. The word “Exceptions,” that is to say, applies not to “Jurisdiction” but rather to “appellate.”

In its initial draft, the clause unmistakably affected only the form, not the existence, of jurisdiction: “[T]his supreme jurisdiction shall be appellate only, except in those instances, in which the legislature shall make it original . . . .” The article traces the devolution of that clear language into the final nebulous version, explaining at each step of the editing process why the Constitutional Convention delegates tinkered with the wording. As a result of what they thought were innocuous changes, the legislative exceptions power became susceptible to the misconception that it was confiscatory. It was meant to be transformative, allowing Congress to empower the Supreme Court by shifting important cases from appellate to original form. In short, the clause was designed not to eliminate cases, but to expedite them.

This article may be downloaded by visiting http://ssrn.com/abstract=1594375.

Supreme Court Bars Class-Action Arbitration Absent Contract Agreement

2010-04-30T09:02:00.000-04:00

Per the ABA Journal:

The U.S. Supreme Court has barred class arbitration of a price-fixing claim in an opinion that scolded an arbitration panel for proceeding as if it had common-law authority.

The Supreme Court ruled in a 5-3 opinion that class arbitration may not be imposed on parties who did not agree to it in their arbitration contracts, SCOTUSblog reports. Justice Samuel A. Alito Jr. wrote the majority opinion (PDF).

An arbitration panel had concluded that the arbitration contract governing commercial maritime shippers allowed for class arbitration, although it was silent on the issue. The U.S. Supreme Court disagreed.

The case is Stolt-Nielsen S.A. v. Animalfeeds International Corp.

An arbitration contract alone should not support an inference to authorize class-action arbitration, Alito said.

SCOTUS Approves FRCP Amendments

2010-04-29T14:46:00.001-04:00

Yesterday, the Supreme Court approved the most recent federal civil rules amendments. You can view the transmittal letter by visiting http://www.supremecourt.gov/orders/courtorders/frcv10.pdf. Thanks to Prof. Brad Shannon (Florida Coastal) for this tip.

Davis & Cramer Post Article on Antitrust Class Certification on SSRN

2010-04-28T09:56:00.003-04:00

Professor Joshua Davis (San Francisco) and Eric Cramer (Berger & Montague) have recently posted an article entitled Antitrust, Class Certification, and the Politics of Procedure on SSRN. Here is the abstract:

This Article develops two arguments against a possible trend in federal appellate courts toward imposing a new, heightened standard for class certification in antitrust cases. Recent case law can be read to imply that trial judges may make findings of fact on the merits in deciding class certification, including about whether plaintiffs will be able to show with class-wide evidence that every class member was harmed by allegedly anticompetitive conduct. The first argument is that the potential new standard would require a showing at class certification on an issue – whether all class members were injured – that plaintiffs need not, and typically do not, address at trial. Under the traditional understanding of Rule 23, and specifically the predominance prong of Rule 23(b)(3), requiring plaintiffs to show they can prove something with class-wide evidence that they need not prove on the merits is artificial and conflicts with the logic of class certification. The second argument is that courts applying the potential new standard may find facts in a way that violates the Seventh Amendment. The avowed policy rationale behind this possible legal innovation is a concern that class certification coerces large corporate defendants into settling meritless cases, a concern that finds an insufficient basis in theory or empirical evidence. Without that basis, courts risk distorting class certification law and Seventh Amendment doctrine in a way that is political in the pejorative sense.

This article may be downloaded by visiting http://ssrn.com/abstract=1578459.

SCOTUS Permits Vioxx Suit to Go Forward

2010-04-27T15:15:00.003-04:00

Per Jurist.com:

The US Supreme Court on Tuesday allowed a suit to proceed against drug maker Merck & Co. over the safety record of its painkiller Vioxx. The court ruled unanimously in Merck & Co. v. Reynolds that the statute of limitations in a securities fraud lawsuit begins to run once the plaintiff actually discovered or a reasonably diligent plaintiff would have discovered the violation - whichever comes first. Investors brought the class action suit against Merck in 2003, alleging that it had deliberately concealed information about Vioxx. The case was dismissed by a federal judge in April 2007 after he determined that investors were on "inquiry notice" of the alleged fraud in September 2001 when the Food and Drug Administration (FDA) released a warning letter about the painkiller. The US Court of Appeals for the Third Circuit reinstated the case in September 2008, finding that the district judge had "acted prematurely in finding as a matter of law that [the investors] were on inquiry notice of the alleged fraud." [The Supreme Court affirmed]

Ninth Circuit Issues Opinion in Dukes v. Wal-Mart

2010-04-26T19:22:00.002-04:00

Thanks to Professor Laura Hines (Kansas) for the following case update:

The Ninth Circuit issued its opinion in the Dukes v. Wal-Mart class action this afternoon. The 6-5 majority affirmed the district court’s Rule 23(b)(2) class certification of current employees seeking injunctive and declaratory relief, as well as back pay. The court remanded, however, with respect to the class claims for punitive damages (“so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3)”), and also remanded the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed (so that the trial court could consider whether to certify separate (b)(3) class(es) for those former employees.

The full opinion can be downloaded at: http://www.ca9.uscourts.gov/opinions/

Prof. Seiner Posts Article on Disparate Impact

2010-04-26T06:54:00.002-04:00

Professor Joesph Seiner, along with co-author Benjamin Gutman, recently posted an article entitled The New Disparate Impact on SSRN. Here is the abstract:

Federal law has long prohibited not just intentional discrimination by employers, but also practices that have an unintentional disparate impact on minorities. A cryptic passage at the end of the Supreme Court’s recent decision in Ricci v. DeStefano, 129 S. Ct. 2658 (2009), signals a sea change for this disparate-impact doctrine. Ricci, a lawsuit about a civil-service exam for firefighters, received widespread attention as a case about intentional discrimination. We show that the opinion has also created a new affirmative defense for employers facing claims of disparate impact. This Article marks the first time that this new defense has been identified and explained in the legal literature.

Before Ricci, disparate impact was a purely no-fault doctrine. An employer was liable if its employment practice had an unlawful disparate impact, even if the employer did not know about the impact or intend to subject its employees to an unlawful practice. The focus of litigation was not on the employer’s state of mind, but rather on the aspects of the employment practice. After Ricci, however, in a broad category of disparate-impact cases liability now turns on what the employer knew when it took the challenged action. If the employer had no reason to think that the practice would have an unlawful disparate impact, it is immune from liability for its past actions.

This is a dramatic development, and it suggests that the Court sees disparate impact as not fundamentally different from intentional discrimination. Beyond its doctrinal importance for disparate-impact claims - which itself is considerable - the Ricci affirmative defense reflects an entirely new direction for this area of law. In this Article, we parse the language of Ricci to derive the new affirmative defense. We explain its significance for disparate-impact theory and discuss the limited safe harbor it has created for employers. We also situate the new defense within the broader context of federal employment-discrimination law, including other affirmative defenses that the Court has created for policy reasons. We thus explain how Ricci heralds a new disparate impact.

This piece may be downloaded by visiting http://ssrn.com/abstract=1564244.

SCOTUS Issues Attorney's Fee Ruling

2010-04-22T14:56:00.003-04:00

The Supreme Court recently decided Perdue v. Kenny, a case in which they held that a reasonable attorney's fee in civil rights actions must be based on the lodestar and may only be enhanced in extraordinary circumstances, leading them to reject the performance bonus granted to counsel in the case below. Here is an excerpt from the Syllabus:

Title 42 U. S. C. §1988 authorizes courts to award a “reasonable” attorney’s fee for prevailing parties in civil rights actions. Half of respondents’ $14 million fee request was based on their calculation of the “lodestar,” i.e., the number of hours the attorneys and their employees worked multiplied by the hourly rates prevailing in the community. The other half represented a fee enhancement for superior work and results, supported by affidavits claiming that the lodestar would be insufficient to induce lawyers of comparable skill and experience to litigate this case. Awarding fees of about $10.5 million, the District Court found that the proposed hourly rates were “fair and reasonable,” but that some of the entries on counsel’s billing records were vague and that the hours claimed for many categories were excessive. The court therefore cut the lodestar to approximately $6 million, but enhanced that award by 75%, or an additional $4.5 million. The Eleventh Circuit affirmed in reliance on its precedent.

Held :

1. The calculation of an attorney’s fee based on the lodestar may be increased due to superior performance, but only in extraordinary circumstances. Pp. 5–12.* * *

2. The District Court did not provide proper justification for the 75% fee enhancement it awarded in this case. * * *

532 F. 3d 1209, reversed and remanded.

Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., and Thomas, J., filed concurring opinions. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Stevens, Ginsburg, and Sotomayor, JJ., joined.

The opinions in this case are available from Cornell's Legal Information Institute.

Seventh Circuit Blocks Class Action from Returning to Kansas Court

2010-04-08T12:44:00.003-04:00

The ABA Journal's Litigation News is reporting on a Seventh Circuit case involving an interpretation of the home-state exception to the Class Action Fairness Act:

In a decision further shaping the landscape for class action jurisdictional issues, the U.S. Court of Appeals for the Seventh Circuit recently overruled a decision by the U.S. District Court for the Northern District of Illinois that would have sent a class action back to Kansas state court. In re Sprint Nextel Corp. . . .

After receiving the case, the district court accepted the plaintiffs’ argument that the home-state exception required it be remanded. . . .

The Seventh Circuit reversed. . . . The Seventh Circuit agreed with Sprint Nextel—and disagreed with the district court—on the evidentiary issue. “Once Sprint Nextel established that CAFA jurisdiction exists, the burden fell on the plaintiffs, who were seeking remand, to show that the home-state exception applies,” the court said.

The plaintiffs had to establish by a preponderance of the evidence that two-thirds of the proposed class members were Kansas citizens, the court ruled. The plaintiffs did not submit any evidence regarding citizenship. Nevertheless, the district court held that the class definition itself—focusing on Kansas cell phone numbers and mailing addresses—made it more likely than not that two-thirds of the class were Kansas citizens.

Although the Seventh Circuit admitted that the district court’s approach “has some appeal,” the court ultimately disagreed with that analysis, characterizing it as ‘[s]ensible guesswork, based on a sense of how the world works, but guesswork nonetheless.”

Prof. Nagareda Posts Essay on Pre-Trial as Trial on SSRN

2010-04-05T11:12:00.002-04:00

Professor Richard Nagareda (Vanderbilt) recently posted an Essay, for the DePaul Clifford Symposium, entitled 1938 All Over Again? Pre-Trial as Trial in Complex Litigation. Here is the Abstract:

This Essay for the Sixteenth Annual Clifford Symposium analyzes the transformation of the pre-trial process for complex civil litigation. Settlement, rather than trial, has emerged as the dominant endgame. As a result, in functional terms, the pre-trial phase effectively operates as the trial. Over the past quarter-century, doctrinal developments have shifted steadily backward within the pre-trial phase the major checkpoints for judicial scrutiny of claims. The key developments consist of the Supreme Court’s summary judgment “trilogy” (1986), the rise of Daubert scrutiny for the admissibility of expert testimony (1993), the elaboration of a distinctive law of class action certification (circa 2006) and, most recently, the invigoration of pleading standards in the Court’s Twombly and Iqbal decisions (2007 and 2009).

During the same period, an equally dramatic transformation has taken place with respect to litigation scholarship. Insights from economics, cognitive psychology, and finance – among other non-law disciplines – have broadened the vocabulary now available for analysis. Two big-picture points emerge from this literature: first, costs (especially, the ability to impose costs on one’s opponent) matter greatly to the choice whether to continue litigation or to settle; and, second, risk (or, more specifically, variance) matters in the pricing of civil claims via settlement, above and beyond calculations of expected value.

The emergence of judicial checkpoints in the pretrial phase has elicited considerable debate – most strikingly, today, over the Court’s pleading decisions. At one level, those decisions are rightly seen as pushing against the ethos of the 1938 reforms that put into place our modern notice-pleading regime. Yet, in a deeper historical sense, we actually find ourselves today in much the same position as the 1938 reformers. Today, as then, there is a lingering – but, often, undertheorized – sense that procedure itself is having an undue and even deleterious effect on the pricing of claims via settlement. It is just that the procedure now suspected to be distortive consists of the 1938 reforms. This Essay explains, in particular, how the Court’s attention to pleading standards in recent years marks a shift of emphasis from the regulation of variance in the litigation process to a concern over cost imposition.

The various pretrial checkpoints today exhibit a similar structural feature. They seek to manage variance or cost imposition by way of third-party judicial regulation – specifically, court rulings that signal “stop” or “go” on the road to trial. Evaluation of procedural doctrine as an enterprise of regulation opens up inquiry to the existence of other potential regulatory modes. This Essay concludes with examination of alternatives in the nature of first-party regulation (e.g., cost shifting) and regulation in the form of judicial action that would not be dispositive vis-à-vis trial but, rather, would seek to inform directly the pricing of claims in the settlement endgame.

This Essay may be downloaded at here.

SCOTUS Issues Decision in Shady Grove

2010-03-31T17:17:00.002-04:00

The Supreme Court has issued its decision in Shady Grove Orthopedic Associates v. Allstate Insurance, a case making a fresh contribution to the Erie/Hanna line of cases. Here is an excerpt from the Syllabus:

After respondent Allstate refused to remit the interest due under New York law on petitioner Shady Grove’s insurance claim, Shady Grove filed this class action in diversity to recover interest Allstate owed it and others. Despite the class action provisions set forth in Federal Rule of Civil Procedure 23, the District Court held itself deprived of jurisdiction by N. Y. Civ. Prac. Law Ann. §901(b), which precludes a class action to recover a “penalty” such as statutory interest. Affirming, the Second Circuit acknowledged that a Federal Rule adopted in compliance with the Rules Enabling Act, 28 U. S. C. §2072, would control if it conflicted with §901(b), but held there was no conflict because §901(b) and Rule 23 address different issues—eligibility of the particular type of claim for class treatment and certifiability of a given class, respectively. Finding no Federal Rule on point, the Court of Appeals held that §901(b) must be applied by federal courts sitting in diversity because it is “substantive” within the meaning of Erie R. Co. v. Tompkins , 304 U. S. 64 (1938) .

Held: The judgment is reversed, and the case is remanded.

Scalia, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II–A, in which Roberts, C. J., and Stevens, Thomas, and Sotomayor, JJ., joined, an opinion with respect to Parts II–B and II–D, in which Roberts, C. J., and Thomas, and Sotomayor, JJ., joined, and an opinion with respect to Part II–C, in which Roberts, C. J., and , Thomas, J., joined. Stevens, J ., filed an opinion concurring in part and concurring in the judgment. Ginsburg, J., filed a dissenting opinion, in which Kennedy, Breyer, and Alito, JJ., joined.

Federal Judge Tosses $100 Million Punitive Damages Award Against BP

2010-03-19T00:21:00.002-04:00

Horvitz & Levy LLP report on their blog about the federal district court judge who threw out a $100 million punitive damages award, not for excessiveness, but because he felt the plaintiffs had not presented clear and convincing evidence that the defendant, BP, acted with intent to harm or engaged in gross negligence. Read their post about the cased here.

Prof. Hartnett Posts Essay on Twombly & Iqbal

2010-03-09T19:08:00.003-05:00

Professor Edward Hartnett (Seton Hall) recently posted an essay entitled Responding to Twombly and Iqbal: Where Do We Go from Here? on SSRN. Here is the Abstract:

As reflected in the title of their article, Inventing Tests, Destabilizing Systems, Professors Clermont and Yeazell contend that the Supreme Court in Twombly and Iqbal invented a “new and foggy test” for judging the sufficiency of a complaint and “have destabilized the entire system of litigation.” As they see it, the Court’s approach is “thoroughly new,” and the Court “effectively creat[ed] a civil procedure hitherto foreign to our fundamental procedural principles.”

Elsewhere, I have offered a more-optimistic take on these cases, emphasizing the connections these decisions have with prior law and suggesting ways in which they can be tamed. See Taming Twombly—Even After Iqbal, 158 U. Pa. L. Rev. 473 (2010). Rather than rehash those arguments here, I instead take up Professors Clermont and Yeazell’s challenging question, “Where Do We Go from Here?” and address several of the proposals made to respond to Twombly and Iqbal by statute or rule amendment.

I also offer my own proposal, which focuses on the core issue at stake in debates about Twombly and Iqbal: should a plaintiff be able to obtain discovery in an effort to uncover evidence without which he or she cannot prevail? My proposal has something to offer plaintiffs, defendants, and the judicial system. I believe it represents an improvement over the current law and better than other proposed legislative and rulemaking responses to Twombly and Iqbal. Surely it could be improved by the perspectives of others in the academy, on the bench, or at the bar. Nevertheless, in deciding where we go from here, stumbling in the right direction is better than standing still or trying to go backwards.

This piece may be downloaded by visiting http://ssrn.com/abstract=1567694.

Judge Scheindlin Sets New Standards for E-Discovery Shortfalls

2010-03-05T09:47:00.002-05:00

Per the ABA's Litigation News, March 3, 2010:

In an 85-page opinion in Pension Committee of the Univ. of Montreal Pension Plan v. Banc of America Securities, LLC, Judge Shira Scheindlin sanctioned 13 plaintiffs for negligence or gross negligence in their identification, preservation, and collection of electronically stored information. . . . Judge Scheindlin’s opinion states that “. . .This is a case where plaintiffs failed to timely institute written litigation holds and engaged in careless and indifferent collection efforts after the duty to preserve arose.”

Judge Scheindlin found particular fault with the sanctioned plaintiffs’ failure to issue litigation holds until after the stay was lifted in 2007. She also found the sanctioned plaintiffs had failed to identify, collect, and preserve sources of potentially relevant and responsive electronic evidence, such as back-up tapes.

Judge Scheindlin found that 6 of the 13 plaintiffs had been grossly negligent and ordered a burden-shifting jury instruction as to them.

The Pension Committee decision’s sharpest break with precedent is the creation of a burden-shifting test for spoliation. Traditionally, a party is entitled to an adverse inference instruction as to spoliated evidence only if it can show, among other prerequisites, that the evidence was relevant to the party’s claim or defense and that the party suffered real prejudice as a result of the spoliation.

Noting that it is almost impossible for a party to make such a showing when it cannot know the substance of the spoliated evidence, Judge Scheindlin created a new burden-shifting test. If a party can show that spoliation was the result of bad faith or gross negligence, prejudice may be presumed. The burden then shifts to the spoliating party to rebut that presumption.

The full story is viewable by clicking here.

Interview with MDL Panel Chair Published in Third Branch Newsletter

2010-03-03T09:53:00.002-05:00

The Third Branch, the newsletter of the U.S. Courts, recently published an interview with Judge John G. Heyburn (W.D. Ky.) to discuss the role of the Judicial Panel on Multidistrict Litigation. You can read the interview by clicking here.

Malveaux Publishes Article on Pre-Dismissal Discovery and Iqbal

2010-02-25T00:50:00.000-05:00

Professor Suzette Malveaux (Catholic University) has just published an Article entitled Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases as part of the Lewis & Clark Law Review's Iqbal Symposium. Here is the Abstract:

Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater detrimental effect on certain substantive claims. In particular, the Supreme Court’s recent interpretation of Rule 8(a)(2)’s pleading requirement and Rule 12(b)(6)’s dismissal criteria - in Bell Atlantic v. Twombly and Ashcroft v. Iqbal - sets forth a plausibility pleading standard which makes it more difficult for potentially meritorious civil rights claims alleging intentional discrimination to survive dismissal. Such claims are more vulnerable to dismissal because: plaintiffs alleging intentional discrimination often plead facts consistent with both legal and illegal conduct; discriminatory intent is often difficult, if not impossible, to unearth pre-discovery because of informational inequities between the parties; and the plausibility standard’s subjective nature fails to provide sufficient guidance to courts ruling on dismissal motions. This increased risk of dismissal threatens to undermine civil rights enforcement, compromise court access, and incentivize unethical conduct. In response to this risk, courts are empowered and encouraged to utilize narrow, targeted, pre-dismissal discovery to determine plausibility at the pleading stage (“plausibility discovery”) so that the trans-substantive application of the Rules does not work an injustice against civil rights and other cases involving informational inequities. Courts should consider permitting some limited discovery towards the front of the litigation (front loading) for the purpose of determining a case’s viability (heavy lifting). Courts already use early, targeted, pre-merits discovery to resolve threshold issues such as class certification, qualified immunity and jurisdiction. These models, while imperfect, illustrate how courts are willing and able to order clearly defined, narrow discovery to successfully resolve various preliminary litigation matters. Similarly, plausibility discovery is authorized and justified on policy grounds. This Article concludes with the types of arguments parties are likely to make post-Iqbal and a roadmap for how courts can order plausibility discovery while equitably balancing the parties’ competing interests.

This Article may be downloaded by clicking here.

2010-02-24T10:58:00.002-05:00

The Supreme Court has issued its opinion in Hertz Corp. v. Friend, No. 08-1107, in which it held that a corporation's principal place of business for purposes of the diversity jurisdiction statute is its "nerve center". Here is the Syllabus:

Respondents, California citizens, sued petitioner Hertz Corporation in a California state court for claimed state-law violations. Hertz sought removal to the Federal District Court under 28 U. S. C. §§1332(d)(2), claiming that because it and respondents were citizens of different States, §§1332(a)(1), (c)(1), the federal court possessed diversity-of-citizenship jurisdiction. Respondents, however, claimed that Hertz was a California citizen, like themselves, and that, hence, diversity jurisdiction was lacking under §1332(c)(1), which provides that “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” To show that its “principal place of business” was in New Jersey, not California, Hertz submitted a declaration stating, among other things, that it operated facilities in 44 States, that California accounted for only a portion of its business activity, that its leadership is at its corporate headquarters in New Jersey, and that its core executive and administrative functions are primarily carried out there. The District Court concluded that it lacked diversity jurisdiction because Hertz was a California citizen under Ninth Circuit precedent, which asks, inter alia, whether the amount of the corporation’s business activity is “significantly larger” or “substantially predominates” in one State. Finding that California was Hertz’s “principal place of business” under that test because a plurality of the relevant business activity occurred there, the District Court remanded the case to state court. The Ninth Circuit affirmed.

Held:

1. Respondents’ argument that this Court lacks jurisdiction under §1453(c)—which expressly permits appeals of remand orders such as the District Court’s only to “court[s] of appeals,” not to the Supreme Court, and provides that if “a final judgment on the appeal” in a court of appeals “is not issued before the end” of 60 days (with a possible 10-day extension), “the appeal shall be denied”—makes far too much of too little. The Court normally does not read statutory silence as implicitly modifying or limiting its jurisdiction that another statute specifically grants. E.g., Felker v. Turpin , 518 U. S. 651 . Here, replicating similar, older statutes, §1254 specifically gives the Court jurisdiction to “revie[w] … [b]y writ of certiorari” cases that are “in the courts of appeals” when it grants the writ. The Court thus interprets §1453(c)’s “60-day” requirement as simply requiring a court of appeals to reach a decision within a specified time—not to deprive this Court of subsequent jurisdiction to review the case. See , e.g., Aetna Casualty & Surety Co. v. Flowers , 330 U. S. 464 . Pp. 4–5.

2. The phrase “principal place of business” in §1332(c)(1) refers to the place where a corporation’s high level officers direct, control, and coordinate the corporation’s activities, i.e., its “nerve center,” which will typically be found at its corporate headquarters. Pp. 5–19.

(a) A brief review of the legislative history of diversity jurisdiction demonstrates that Congress added §1332(c)(1)’s “principal place of business” language to the traditional state-of-incorporation test in order to prevent corporations from manipulating federal-court jurisdiction as well as to reduce the number of diversity cases. Pp. 5–10.

(b) However, the phrase “principal place of business” has proved more difficult to apply than its originators likely expected. After Congress’ amendment, courts were uncertain as to where to look to determine a corporation’s “principal place of business” for diversity purposes. If a corporation’s headquarters and executive offices were in the same State in which it did most of its business, the test seemed straightforward. The “principal place of business” was in that State. But if those corporate headquarters, including executive offices, were in one State, while the corporation’s plants or other centers of business activity were located in other States, the answer was less obvious. Under these circumstances, for corporations with “far-flung” business activities, numerous Circuits have looked to a corporation’s “nerve center,” from which the corporation radiates out to its constituent parts and from which its officers direct, control, and coordinate the corporation’s activities. However, this test did not go far enough, for it did not answer what courts should do when a corporation’s operations are not far-flung but rather limited to only a few States. When faced with this question, various courts have focused more heavily on where a corporation’s actual business activities are located, adopting divergent and increasingly complex tests to interpret the statute. Pp. 10–13.

(c) In an effort to find a single, more uniform interpretation of the statutory phrase, this Court returns to the “nerve center” approach: “[P]rincipal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. In practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e. , the “nerve center,” and not simply an office where the corporation holds its board meetings. Pp. 13–19.

(i) Three sets of considerations, taken together, convince the Court that the “nerve center” approach, while imperfect, is superior to other possibilities. First, §1332(c)(1)’s language supports the approach. The statute’s word “place” is singular, not plural. Its word “principal” requires that the main, prominent, or most important place be chosen. Cf., e.g., Commissioner v. Soliman , 506 U. S. 168 . And the fact that the word “place” follows the words “State where” means that the “place” is a place within a State, not the State itself. A corporation’s “nerve center,” usually its main headquarters, is a single place. The public often considers it the corporation’s main place of business. And it is a place within a State. By contrast, the application of a more general business activities test has led some courts, as in the present case, to look, not at a particular place within a State, but incorrectly at the State itself, measuring the total amount of business activities that the corporation conducts there and determining whether they are significantly larger than in the next-ranking State. Second, administrative simplicity is a major virtue in a jurisdictional statute. Sisson v. Ruby , 497 U. S. 358 . A “nerve center” approach, which ordinarily equates that “center” with a corporation’s headquarters, is simple to apply comparatively speaking . By contrast, a corporation’s general business activities more often lack a single principal place where they take place. Third, the statute’s legislative history suggests that the words “principal place of business” should be interpreted to be no more complex than an earlier, numerical test that was criticized as too complex and impractical to apply. A “nerve center” test offers such a possibility. A general business activities test does not. Pp. 14–17.

(ii) While there may be no perfect test that satisfies all administrative and purposive criteria, and there will be hard cases under the “nerve center” test adopted today, this test is relatively easier to apply and does not require courts to weigh corporate functions, assets or revenues different in kind, one from the other. And though this test may produce results that seem to cut against the basic rationale of diversity jurisdiction, accepting occasionally counterintuitive results is the price the legal system must pay to avoid overly complex jurisdictional administration while producing the benefits that accompany a more uniform legal system. Pp. 17–18.

(iii) If the record reveals attempts at jurisdictional manipulation—for example, that the alleged “nerve center” is nothing more than a mail drop box, a bare office with a computer, or the location of an annual executive retreat—the courts should instead take as the “nerve center” the place of actual direction, control, and coordination, in the absence of such manipulation. Pp. 18–19.

(d) Although petitioner’s unchallenged declaration suggests that Hertz’s “nerve center” and its corporate headquarters are one and the same, and that they are located in New Jersey, not in California, respondents should have a fair opportunity on remand to litigate their case in light of today’s holding. P. 19.

297 Fed. Appx. 690, vacated and remanded.

Breyer, J., delivered the opinion for a unanimous Court.

M.D. Alabama Notes Split Re Ancillary Jurisdiction to Determine Matters of Expungement

2010-02-23T06:57:00.000-05:00

Per Hall v. Alabama Slip Copy, 2010 WL 582076 (M.D. Ala. Feb. 18, 2010):

[I]n 1994 the Supreme Court issued its opinion in Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) and explained the limited reach of ancillary jurisdiction. Tyler, --- F.Supp.2d at ----, 2009 WL 4059156 at *2. The Supreme Court stated that ancillary jurisdiction exists in two separate, but related, premises: “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, that is, to manage its proceedings, vindicate its authority, and effectuate its decrees.” Id. at 379-80, 114 S.Ct. at 1676 (citations omitted).

After the Kokkonen decision, a split among the circuits has developed with regard to whether a federal district court has ancillary jurisdiction to determine matters of expungement. See United States v. Paxton, 2007 WL 2081483 (M.D.Ala.2007) (unpublished). Several circuits, including the First, Third, Eighth, and Ninth, have concluded that, after Kokkonen, a request for expungement does not serve the limited purposes necessary for invocation of ancillary jurisdiction and that equitable considerations standing alone are not sufficient to support jurisdiction over such a request. See United States v. Coloian, 480 F.3d 47, 52 (1st Cir.2007); United States v. Meyer, 439 F.3d 855, 859-60 (8th Cir.2006); United States v. Dunegan, 251 F.3d 477, 479-80 (3d Cir.2001); United States v. Sumner, 226 F.3d 1005, 1013-15 (9th Cir.2000)

This Court has not found any Eleventh Circuit opinions on expungement in general since the Kokkonen case. See also Tyler, --- F.Supp.2d at ----, 2009 WL 4059156 at *2 (noting the lack of a post- Kokkonen opinion from the Eleventh Circuit); United States v. Carson, 366 F.Supp.2d 1151, 1155 (M.D.Fla.2004) (finding that the Eleventh Circuit has published no opinions on expungement in general outside the realm concerning the now-repealed “Youth Corrections Act”); Paxton, 2007 WL 2081483 at *1 (citing Carson and the proposition that the Eleventh Circuit has not addressed the issue). Absent statutory authority and a post- Kokkonen opinion from the Eleventh Circuit, this Court agrees with the analysis set forth by the First, Third, Eighth, and Ninth Circuits as well as the district courts in Tyler, Carson, and Paxton. Kokkonen effectively narrowed the scope of ancillary jurisdiction. Therefore, the court does not have ancillary jurisdiction to determine the issue of expungement.