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Federal Civil Practice Bulletin 
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SCOTUS Wiki on Hertz Corp. v. Friend
Posted on November 05, 2009Next week, SCOTUS is hearing oral arguments in Hertz Corporation v. Friend, a case that asks the Court to decide the meaning of "principal place of business" in 28 U.S.C. s. 1332, the diversity statute. The SCOTUS Wiki has a good summary of the case and links to related briefs here.
SCOTUS Blog Summarizes Shady Grove Oral Argument
Posted on November 04, 2009SCOTUS Blog has this very helpful summary of the oral argument in the Erie/Hanna case, Shady Grove Orthopedic v. Allstate here.
Prof. Seinfeld Posts Article on Enumeration and Article III
Posted on November 03, 2009Professor Gil Seinfeld (Michigan) has posted an Article entitled Article I, Article III, and the Limits of Enumeration on SSRN. Here is the Abstract:Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government...
S.D.N.Y. Discusses Different Views Re Whether a Denial of Leave to Amend a Pleading is Dispositive or Nondispositive for Rule 72 Purposes
Posted on November 02, 2009Per Sokol Holdings, Inc. v. BMB Munai, Inc., Slip Copy, 2009 WL 3467756 (S.D.N.Y. Oct. 28, 2009):The Court of Appeals for the Second Circuit has not clearly stated whether a denial of leave to amend a pleading is dispositive or nondispositive for Rule 72 purposes...
National Law Journal on Congressional Hearing to Discuss Iqbal
Posted on October 28, 2009David Ingram, Supreme Court's 'Iqbal' Ruling to Get Congressional Hearing, The National Law Journal, Oct. 26, 2009http://www.law.com/jsp/article.jsp?id=1202434918720&Supreme_Courts_Iqbal_Ruling__to_Get_Congressional_Hearing&hbxlogin=1
Eleventh Circuit Denies Officers' Qualified Immunity Claims
Posted on October 27, 2009The Eleventh Circuit has upheld a district court's denial of summary judgment based on qualified immunity in a case against two police officers alleged to have Tasered a man to death. The opinion is available at http://www.ca11.uscourts.gov/opinions/ops/200815081...
Prof. Hatamyar Posts Article on Twombly and Iqbal on SSRN
Posted on October 14, 2009Professor Patricia W. Hatamyar (St. Thomas) recently posted an Article entitled The Tao of Pleading: Do Twombly and Iqbal Matter Empirically? on SSRN. Here is the Abstract:This article is an empirical study of the effect of Bell Atlantic Corp. vs. Twombly, 550 U...
SCOTUS Grants Cert. In Complete Preemption and Federal Officer Removal Case
Posted on October 13, 2009The Supreme Court has granted cert. in Health Care Service Corporation v. Pollitt (No. 09-38). The decision below is at 558 F.3d 615 (7th Cir. 2009). The questions presented are:(1) Does the Federal Employee Health Benefits Act, 5 U.S.C. §§ 8901-14, completely preempt--and therefore make removable to federal court--a state suit challenging enrollment and health benefits determinations that are subject to the exclusively federal remedial scheme established in FEHBA?(2) Does the federal officer removal statute, 28 U...
Call to Submit Conference Information to the AALS Civil Procedure Section
Posted on October 09, 2009Each 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 2010 and would like this newsletter to list the event, please send us the details?web links, calls for papers, etc...
Prof. Strong Posts Article on Jurisdictional Discovery
Posted on October 06, 2009Professor S.I. Strong (Missouri) has recently posted an Article entitled Jurisdictional Discovery in United States Federal Courts on SSRN. Here is the Abstract:Jurisdictional discovery ties together three principles central to federal civil procedure: the right to broad discovery, the need for liberal notice pleading and the court?s inherent power to determine its own jurisdiction...
Prof. Bone Posts Essay on Iqbal on SSRN
Posted on September 28, 2009Professor Bone recently posted an Essay entitled Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal on SSRN. Here is the Abstract:This Essay critically examines the Supreme Court?s most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v...
Prof. Hartnett Posts Article on Twombly
Posted on September 25, 2009Professor Edward Hartnett has recently posted an Article entitled Taming Twombly on SSRN. Here is the Abstract:In Bell Atlantic v. Twombly, the Supreme Court held that an antitrust complaint alleging that major telecommunication providers engaged in parallel conduct unfavorable to competition could not survive a 12(b)(6) motion to dismiss, even though the complaint expressly alleged a conspiracy...
Law.com Iqbal Update
Posted on September 22, 2009An article entitled Plaintiffs Groups Mount Effort to Undo Supreme Court's 'Iqbal' Ruling by Tony Mauro is available on Law.com. It provides an update on the fallout of the Ashcroft v. Iqbal pleading decision from earlier this year. Click here for the story.
Judicial Conference Approves Proposed Amendments
Posted on September 20, 2009On September 15, 2009, the Judicial Conference met and approved the recommendations of the Committee on Rules of Practice and Procedure and approved the following proposed rules and forms amendments and new rules: ?Appellate Rules 1, 4, and 29, and Form 4;? Bankruptcy Rules 1007, 1014, 1015, 1018, 1019, 4001, 4004, 5009, 7001, 9001 and new Rule 5012, and Exhibit D of Official Form 1 and Official Form 23; ? Civil Rules 8, 26, and 56, and Illustrative Form 52; ? Criminal Rules 12...
W.D. Va. Applies Twombly to Dismiss Complaint in Slip-and-Fall Case
Posted on September 16, 2009Per Branham v. Dolgencorp., Inc., CIVIL NO. 6:09-CV-00037 (August 2009):The Defendant argues that the Plaintiff has failed to allege sufficient facts to allow the Court to draw the reasonable inference that the Defendant is liable in this case. For example, the Defendant argues that the Complaint lacks any allegation of how the Plaintiff slipped and fell, any allegation of the nature of the liquid on the floor of the store, any allegation that the liquid caused the Plaintiff?s fall, and any specific allegations regarding the injuries she suffered as a result of the fall...
Iqbal Symposium at Penn State
Posted on September 15, 2009Nancy Welsh (nxw10@DSL.PSU.EDU) of Penn State, Dickinson School of Law has announced the following conference:On Friday, March 26, 2010, Penn State will hold a symposium addressingthe Supreme Court's recent decision in Ashcroft v. Iqbal. There will bethree panels:One panel will address Iqbal's implications for the role of thecourts and judges in providing American society with both theopportunity for redress of harms and a common law-based approach to thedevelopment of law...
Visit the Rennovated Civil Procedure & Federal Courts Blog
Posted on September 12, 2009Persons interested in civil procedure should definitely check out the rennovated Civil Procedure & Federal Courts Blog over at the Law Professor Blogs Network for continuing coverage of civil procedure and federal courts issues.
Ninth Circuit Finds Complaint against Ashcroft to Be Sufficiently Pleaded under Iqbal
Posted on September 09, 2009Per Al-Kidd v. Ashcroft, --- F.3d ----, 2009 WL 2836448 (9th Cir. Sept. 4, 2009):Here, unlike Iqbal's allegations, al-Kidd's complaint ?plausibly suggest[s]? unlawful conduct, and does more than contain bare allegations of an impermissible policy. Id...
Prof. Steinman Posts Article Entitled "The Pleading Problem"
Posted on August 31, 2009Professor Adam Steinman recently posted an Article entitled The Pleading Problem on SSRN. Here is the Abstract:Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) have the potential to upend civil litigation as we know it...
AALS Workshop on Civil Procedure
Posted on August 25, 2009MemorandumTO: Civil Procedure Law ProfessorsFROM: Planning Committee on 2010 Workshop on Civil Procedure: Charting Your Course in a Shifting Field Frederic M. Bloom, Brooklyn Law School Laura Hines, University of Kansas Richard A...
Eleventh Circuit Dismisses Conspiracy Allegations as Insufficient under Iqbal
Posted on August 18, 2009Per Sinaltrainal v. Coca-Cola Co., --- F.3d ----, 2009 WL 2431463 (11th Cir. Aug. 11, 2009):We reiterate that to state a plausible claim for relief, the plaintiffs must plead ?factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged...
Is there an E-Discovery Bubble
Posted on August 14, 2009Check out this interesting post on the 3 Geeks and a Law Blog entitled "I'm calling it!! There's an E-Discovery Bubble". Here is a snippet:There comes a point in time where you have to shake your head and say that we've created something that is unsustainable...
Prof. Nowicki Posts Article on Apologies and Conflict Resolution
Posted on August 07, 2009Professor Elizabeth Nowicki has recently posted an Article entitled Apologies and Good Lawyering on SSRN. Here is the Abstract:In everyday life, apologies are common. For example, if one shopper bumps into another in a crowded grocery store, apologies abound...
Prof. David Marcus Posts Article on Trans-Substantivity
Posted on July 29, 2009Professor David Marcus (Arizona) has posted an Article entitled The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure on SSRN. Here is the Abstract:The trans-substantivity principle ? the same procedural rules should apply regardless of the substance of the case ? has been a central feature of modern federal civil procedure since its beginnings in 1938...
Prof. Casey Posts Article on Class Action Criminality
Posted on July 24, 2009Prof. Lisa Casey (Notre Dame) has posted an Article on SSRN entitled Class Action Criminality. Here is the Abstract:This paper examines the criminal prosecution of Milberg Weiss, formerly the most successful plaintiffs? securities class action firm in the country, for allegedly making undisclosed incentive payments to class representatives...
Sen. Specter's Notice Pleading Restoration Act
Posted on July 23, 2009Senator Arlen Specter has introduced a bill entitled the Notice Pleading Restoration Act in an effort to overrule Twombly and Iqbal. The text of the bill is available here. (Thanks to PrawfsBlawg for this link; visit them for more thoughts).
Prof. Main Post Article on Substance/Procedure Dichotomy on SSRN
Posted on July 19, 2009Professor Thomas Main has recently posted an article entitled The Procedural Foundation of Substantive Law on SSRN. Here is the Abstract:The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive...
Judge Rosenthal Reviews Pleading Standards after Iqbal
Posted on June 30, 2009Per Golden v. Austin County Sheriff's Dept., Slip Copy, 2009 WL 1835448 (S.D. Tex. June 26, 2009):Rule 12(b)(6) allows dismissal if a plaintiff fails ?to state a claim upon which relief may be granted.? Fed. R. Civ. P. 12(b) (6). The Supreme Court recently overruled the part of Conley v...
Hessick Posts Article on Federal Question Jurisdiciton on SSRN
Posted on June 16, 2009F. Andrew Hessick III (Visiting Associate Professor, Arizona) has recently published an Article entitled The Common Law of Federal Question Jurisdiction on SSRN. Here is the Abstract:The Supreme Court has repeatedly stressed that the role of the judiciary interpreting statutes is to declare the law as intended by Congress...
Prof. Sherman Posts Article on MDL Process on SSRN
Posted on June 12, 2009Prof. Edward Sherman recently posted an Article entitled The MDL Model for Resolving Complex Litigation if a Class Action is Not Possible on SSRN. Here is the Abstract:This article reviews the origins and development of multidistrict litigation before proceeding to examine its ability to take the place of class actions for the resolution of complex litigation...
Saddam Hussein's U.S. Torture Victims in Persian Gulf War Thwarted by Bush From Suing Iraq for Damages in Federal Court
Posted on June 11, 2009Per BNA's U.S. Law Week, June 9, 2009:.S. victims of Saddam Hussein's abuse during and after the 1991 Persian Gulf War may not pursue tort claims against Iraq, the U.S. Supreme Court rules unanimously. President Bush validly exercised his statutory authority to shield Iraq from such claims, the court holds...
Supreme Court Says Due Process Required West Virginia Justice To Recuse Himself From Case Involving Big Donor to His Campaign
Posted on June 10, 2009Per BNA's U.S. Law Week, June 9, 2009:A justice of the West Virginia Supreme Court of Appeals should have recused himself from a case because the biggest donor to his judicial election campaign was one of the parties in the case, the U.S. Supreme Court holds...
SCOTUS Grants Cert in Case that Will Determine Corporation's Principal Place of Business for Diversity Purposes
Posted on June 09, 2009On June 8, 2009, the Supreme Court granted certiorari in Hertz Corp. v. Friend, No. 08-1120. Here is the summary of the issues presented by BNA's U.S. Law Week's Supreme Court Today:Ruling Below: (9th Cir., 297 Fed. Appx. 690)Summary of Ruling Below: Defendant corporation's relevant business activities are significantly larger in California than in its next largest state, and thus, because California is litigant's principal place of business under "place of operations" test, nerve center test will not be applied to determine corporation's state citizenship for purposes of diversity jurisdiction; district court's order remanding to state court class action filed by, and exclusively on behalf of, California residents is affirmed...
Eight Circuit Refuses to Excuse Untimely Appeal Based on Lawyer's Claim of Failing to Received Electronic Notice
Posted on June 05, 2009The Eighth Circuit recently issued an opinion that refused to excuse an untimely appeal based on the excuse that the attorney failed to receive electronic notice of the district court's decision via the court's CM/ECF system:The appellants (?American Boat?) brought this negligence action against the United States for failing to maintain the navigable channel of the lower Mississippi River...
Supreme Court to hear Vioxx fraud case
Posted on May 27, 2009Jurist reports:The US Supreme Court on Tuesday granted certiorari in Merck & Co. v. Reynolds [docket; cert. petition], in which the Court will decide when the statute of limitations begins to run in a securities fraud case under th "inquiry notice" standard...
SCOTUS Invalidates NY Law that Strips Trial Courts of Jurisdiction over Suits against State Correctional Officers
Posted on May 26, 2009The Supreme Court decided the following case today (per BNA's U.S. Law Week - Supreme Court Today):Haywood v. Drown, No. 07-10374. A New York law that strips the state's trial courts of jurisdiction to hear suits for damages, including federal civil rights actions under 42 U...
Fourth Circuit: Court May Hear Appeals Filed Outside 10-Day Window
Posted on May 25, 2009Per U.S. v. Urutyan, No. 08-4295 (May 7, 2009):Urutyan was convicted by a jury on all counts. Judgment was entered against him on January 22, 2008. Urutyan filed a notice of appeal with the district court March 4, 2008. The notice was not timely. Appellate Rule 4(b)(1)(A) imposes a ten-day deadline on the filing of a notice of appeal in criminal cases, and Urutyan never requested an extension of that deadline...
WSJ BLog: Why Defense Lawyers Are Lovin? the Iqbal Decision
Posted on May 22, 2009Check out this blog post by Ashby Jones on the Wall Street Journal's Law Blog: Why Defense Lawyers Are Lovin? the Iqbal Decision.
Professors Posting about Iqbal
Posted on May 20, 2009See posts by professor Dorf, Wasserman (and here), and Dodson on Ashcroft v. Iqbal.
SCOTUS Decides Ashcroft v. Iqbal
Posted on May 18, 2009The Supreme Court has issued its opinion in Ashcroft v. Iqbal, deciding that Iqbal's complaint failed to plead sufficient facts to state a claim for purposeful and unlawful discrimination by government officials. Here is an excerpt from the Syllabus:"Iqbal?s pleadings do not comply with Rule 8 under Twombly...
Iqbal Court: Twombly Applies Beyond Antitrust Context
Posted on May 18, 2009One debate that has persisted among some scholars regarding the import of Twombly has been settled by the Supreme Court in Monday's decision in Ashcroft v. Iqbal: whether the Twombly standard can be limited to antitrust cases:"Respondent first says that our decision in Twombly should be limited to pleadings made in the context of an antitrust dispute...
Supreme Court Limits Federal Jurisdiction to Compel Arbitration
Posted on May 13, 2009ABA's Litigation News has a story on the Supreme Court's recent decision in Vaden v. Discover Bank. Here is an excerpt:Federal court jurisdiction to enforce arbitration agreements is not as broad as one may have thought, according to a recent U.S. Supreme Court decision...
Eisenberg, Heise, and Wells Post Punitive Damages Article on SSRN
Posted on May 11, 2009Professors Theodore Eisenberg, Michael Heise, and Martin T. Wells (all of Cornell) have recently posted an Article entitled Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court?s Decision in Exxon Shipping Co. v. Baker. Here is the Abstract:Exxon Shipping Co...
SCOTS Decides Case Addressing Reviewability of Post-Removal Remand Order
Posted on May 05, 2009Yesterday the Supreme Court issued its decision in Carlsbad Technology, Inc. v. HIF Bio, Inc., a case that addressed the reviewability of a post-removal remand order. Here is the Syllabus:Respondents filed a state-court suit alleging that petitioner had violated state and federal law in connection with a patent dispute...
Souter retiring from Supreme Court
Posted on May 01, 2009Per CNN.com: Supreme Court Justice David Souter is retiring after more than 18 years on the nation's highest court, a source close to Souter told CNN. Souter will leave after the current court term recesses in June, the source said. Filling Souter's seat would be President Obama's first Supreme Court appointment -- and the first since George W...
Advisory Committee Takes Final Action on Rule 26 and 56 Proposed Amendments
Posted on April 23, 2009Professor Steven Gensler has shared the following report on the Civil Rules Advisory Committee Meeting that recently took place:I thought I?d give a quick update on the Advisory Committee?s meeting from earlier this week. The Committee took final action on two proposals ? Rule 26 expert discovery and Rule 56 ? that I know quite a few of you have been following...
SCOTUS Rules on Appropriate Analysis Federal Circuit Must Apply to Review Veterans' Appeals Court Errors
Posted on April 22, 2009Yesterday the U.S. Supreme Court decided Shinseki v. Sanders, No. 07-1209. Here is the BNA U.S. Law Week summary of the holding: In reviewing veterans' claims on appeal from the Court of Appeals for Veterans' Claims where the Department of Veterans Affairs has failed to provide a veteran with a certain kind of statutorily required notice, the Federal Circuit is required by 38 U...
Prof. Dodson Posts Article on Comparative Pleading Standards
Posted on April 15, 2009Professor Scott Dodson (Arkansas) recently posted an Article entitled Comparative Convergences in Pleading Standards on SSRN. Here is the Abstract:Comparative civil procedure has had little influence in American jurisprudence and commentary, in part because of American procedure's deep and widespread exceptionalism...
Attorney Disbarred for Yelling at Federal Magistrate's Law Clerk
Posted on April 10, 2009Per Legal Blog Watch, April 10, 2009:Be kind to a judge's law clerk. That is the moral of a 5th U.S. Circuit Court of Appeals decision this week upholding the one-year disbarment from federal court of a lawyer who did not take kindly to the law clerk's phone call...
Seventh Circuit Rules on Conflict between CAFA and the Securities Act
Posted on April 08, 2009The ABA's Litigation News is reporting on a Seventh Circuit decision that speaks to the seemingly conflicting removal provisions of the Class Action Fairness Act and the Securities Act:The Seventh Circuit?s recent decision in Katz v. Gerardi [PDF], regarding the removal of class action Securities Act claims brought in state court, has raised questions about the intersection between Section 22(a) of the Securities Act of 1933 and the Class Action Fairness Act of 2005 (CAFA) (28 U...
6th Cir. Cites Twombly as Requiring "Facts Sufficient to Support More than a Speculative Injury to Competition" in Antitrust Case
Posted on April 07, 2009Per CBC Companies, Inc. v. Equifax, Inc., --- F.3d ----, 2009 WL 860225 (6th Cir. Apr. 2, 2009):CBC's complaint contains only conclusory allegations, and not facts sufficient to support more than a speculative injury to competition. See Twombly, 550 U...
Several Non-Time Computation Amendments to FRCP Included among Changes Approved by the Supreme Court
Posted on April 06, 2009The Supreme Court approved amendments to the Federal Rules of Civil Procedure on March 26, 2009. Although it is well known that those amendments included the so-called time computation amendments, there were also several non-time computation amendments that were approved, including the following:- Rule 13(f) was abrogated...
District Court Certifies Settlement Class Without State-by-State Analysis of Laws
Posted on March 27, 2009Per BNA's Class Action Litigation Report, 3/27/2009:No detailed state-by-state analysis of the various state consumer protection laws was needed before certifying a settlement of class claims arising from bulb failures in high-end televisions, the U.S...
First Circuit Discusses Split on Issue of Apportionment of Multi-Defendant Settlement Offers to Trigger Rule 68
Posted on March 26, 2009Per King v. Rivas, 555 F.3d 14 (1st Cir. Feb 02, 2009): The circuit courts have been divided about variations on the central problem. The Seventh Circuit has insisted that to trigger Rule 68 in multi-defendant cases an offer must contain amounts allocated to each defendant, Harbor Motor Co...
Prof. Burbank Posts Article on Pleading and the Dilemmas of General Rules
Posted on March 25, 2009Professor Burbank has recently posted an Article entitled Pleading and the Dilemmas of 'General Rules' on SSRN. Here is the Abstract:This article comments on Professor Geoffrey Miller's article about pleading under Tellabs and goes on (1) to use Tellabs, Bell Atlantic Corp...
Dean Klonoff and Co-Authors Herrman & Harrison Post Article on Class Actions and the Internet
Posted on March 24, 2009Dean Robert Klonoff (Lewis & Clark) and co-authors Mark Herrman and Brad Harrison have posted an Article entitled Making Class Actions Work: The Untapped Potential of the Internet(University of Pittsburgh Law Review, Vol. 69, p. 727, 2008) on SSRN...
CIT Holds That Attorneys' Fees Not Awardable for Phases of LItigation in Which Claimant Was Opposed Solely by Third Parties
Posted on March 23, 2009Per Jazz Photo Corp. v. U.S., --- F.Supp.2d ----, 2008 WL 5492105 (CIT Dec. 2, 2008It is inappropriate to award attorneys' fees against the government for those phases of litigation in which the claimant was opposed solely by third parties. See Judicial Watch, Inc...
Institute for the Advancement of the American Legal System and the ACTL Release Reform Principles to Improve the U.S. Civil Justice
Posted on March 19, 2009Here is a press release from the University of Denver's Institute for the Advancement of the American Legal System:The Final Report on the Joint Project of the American College of Trial Lawyers (ACTL) Task Force on Discovery and the Institute for the Advancement of the American Legal System (IAALS) is the culmination of an 18-month collaboration between the two organizations...
Prof. Tsai Posts Article on Certifying Civil Rights Discrimination Class Action Suits
Posted on March 18, 2009Professor James T. Tsai (Case Western) has posted an Article entitled 23(b)(2) Class Certification: Choosing an Approach for Certifying Civil Rights Discrimination Class Action Suits on SSRN. Here is the Abstract:The passage of the 1991 amendments to the Civil Rights Act granted injunctive as well as monetary damages for impermissible discrimination in the workplace...
Macey & Miller Post Article on Judicial Review of Class Action Settlements on SSRN
Posted on March 16, 2009Professor Jonathan R. Macey (Yale) and Geoffrey P. Miller (NYU) recently posted an Article entitled Judicial Review of Class Action Settlements on SSRN. Here is the Abstract:This article proposes a simple and coherent approach to judicial review of class action settlements...
SCOTUS Affirms the Well-Pleaded Complaint Rule
Posted on March 12, 2009On Monday the Supreme Court issued its decision in Vaden v. Discover Bank, No. 07?773, which held that federal question jurisdiction could not be predicated on the defendant's assertion of federal counterclaims, a holding that affirms the well-pleaded complaint rule...
Prof. Bassett Posts Article on E-Discovery and Ethics
Posted on March 11, 2009Debra Lyn Bassett (Alabama) recently posted an Article entitled E-Pitfalls: Ethics and E-Discovery on SSRN. Here is the Abstract:Written for a symposium on e-discovery, this Article addresses the convergence of ethics and e-discovery, and contends that the surprise and concern often expressed regarding ethical issues in e-discovery, which seem to view the use of such ethical considerations as novel, unusual, and contrary to traditional discovery practices, are overstated...
Prof. Spencer Posts Essay on the Restrictive Ethos in Civil Procedure
Posted on March 09, 2009Professor A. Benjamin Spencer (Washington & Lee) has recently posted an Essay entitled The Restrictive Ethos in Civil Procedure on SSRN. This Essay was written for the 15th Annual Clifford Symposium on Tort Law and Social Policy at DePaul University College of Law and will appear in their law review...
SCOTUS Holds that State Law Tort Actions are Not Preempted by FDCA
Posted on March 06, 2009On March 4 the Supreme Court issued its decision in Wyeth v. Levine, a case concerning whether a state law plaintiff's failure to warn claim was preempted by federal law. Here is the Syllabus:Petitioner Wyeth manufactures the antinausea drug Phenergan...
Eleventh Circuit Finds Personal Jurisdiction Lacking under FRCP 4(k)(2) for Lack of Relatedness
Posted on March 05, 2009SCOTUS to Rule on Subject Matter Jurisdiction over Copyright Infringement Claims
Posted on March 03, 2009D.C. Circuit Affirms Sanctions against Non-Party for Failure to Comply with Deadline in Stipulated Discovery Order
Posted on February 26, 2009In a January D.C. Circuit appellate opinion, In re Fannie Mae Securities Litigation, _ F.3d _, 2009 WL 21528 (C.A.D.C., Jan. 6, 2009), the court addressed the consequences of entering into a stipulated order designed to resolve some of the problems encountered over the course of complying with a subpoena issued under Federal Rule of Civil Procedure 45...
The Fordham Law Review presents Against Settlement: Twenty-Five Years Later
Posted on February 25, 2009The Fordham Law Review is hosting a symposium on Owen Fiss's Against Settlement. Here are the details:Friday | April 3, 20099:00 a.m. ? 5:30 p.m.Fordham Law School | McNally Amphitheatre140 West 62nd Street | New York, NY 10023In 1984, Owen Fiss provocatively argued that the ADR movement overvalued settlement, that adjudication serves a purpose greater than dispute resolution, and that "[c]ivil litigation is an instrument for using state power to bring a recalcitrant reality closer to our chosen ideals...
Minn. Law Review Publishes Prof. Erbsen Piece on Horizontal Federalism
Posted on February 23, 2009The Minnesota Law Review recently published an article by Professor Allan Erbsen (Minnesota) entitled Horizontal Federalism. Here is the Abstract:This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states...
Prof. Seinfeld Publishes Article on Federal Question Jurisdiction
Posted on February 17, 2009The California Law Review has just published an Article by Professor Gil Seinfeld (Michigan) entitled The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 Cal. L. Rev. 95 (Feb. 2009). Here is an excerpt from the Introduction:Since 1875, the federal district courts have been vested with what is known as ?general federal question jurisdiction?--original jurisdiction predicated on the presence in a suit of a question of federal law...
Second Circuit Affirms Dismissal under Federal Civil Rule 37
Posted on February 16, 2009Per Agiwal v. Mid Island Mortg. Corp., --- F.3d ----, 2009 WL 350717 (2d Cir. Feb. 13, 2009):Several factors may be useful in evaluating a district court's exercise of discretion to dismiss an action under Rule 37. These include: ?(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of ...
Court Certifies Class, Gives Preliminary OK to Settlement of Asbestos Litigation
Posted on February 13, 2009Per BNA's Class Action Litigation Report, 10 CLASS 112, Feb. 13, 2009:The U.S. Bankruptcy Court for the District of Delaware Jan. 16 certified a settlement class of more than 16,000 homeowners who sued specialty chemical manufacturer W.R. Grace & Co...
SEC Must Give More Tailored Response To David Stockman's Discovery Requests
Posted on February 10, 2009BNA's U.S. Law Week (77 U.S.L.W. 1468) is reporting on a recent discovery decision by Judge Shira Scheindlin:The Securities and Exchange Commission's response to former Reagan administration budget director David Stockman's discovery requests in a securities fraud enforcement action was sorely deficient, the U...
Prof. Erickson Post Article on Shareholder Litigation
Posted on February 05, 2009Professor Jessica Erickson (University of Richmond) recently posted an Article entitled Corporate Misconduct and the Perfect Storm of Shareholder Litigation on SSRN. Here is the Abstract:When it comes to combating corporate misconduct, is more litigation necessarily better? The conventional wisdom is that we should deploy every weapon in the law's arsenal to combat corporate misconduct...
The Howard Law Journal has just
Posted on February 02, 2009The Howard Law Journal has just published papers from the 2008 Second Annual Vinson & Elkins LLP/Howard Law Journal Symposium. This year's focus was the legacy of the Supreme Court's 1957 decision in Conley v. Gibson. Here is a listing of the Articles and their citations:Andrew I...
Standing Rules Committee Approved Proposed Rules Amendments
Posted on January 28, 2009At its January 12-13, 2009, meeting, the Committee on Rules of Practice and Procedure adopted the recommendation of the Advisory Committee on Appellate Rules and approved the following proposed amendment: ? Appellate Rule 40(a)(1) (clarifies the time to seek rehearing in cases where a United States officer or employee is a party)...
Prof. Suja Thomas Posts Article on Dispositive Procedure
Posted on January 27, 2009Prof. Suja Thomas (Illinois) recently posted an Article entitled The Fallacy of Dispositive Procedure on SSRN. Here is the Abstract:I have another seemingly heretical proposition - that dispositive procedure is fatally flawed. The Supreme Court has held that a judge can dismiss a case before, during, or after trial if he decides a reasonable jury could not find for the plaintiff...
Oklahoma Law Review Publishes 2008 AALS Civil Procedure Papers
Posted on January 26, 2009The papers presented at the 2008 AALS Civil Procedure Section's annual meeting program were just published in the Summer 2008 edition of the Oklahoma Law Review and are now available online at http://adams.law.ou.edu/olr. The topic of the program was "The Revolution of 1938 Revisited: The Role and Future of the Federal Rules...
Profs. Lewis and Eaton Post Article on Rule 68.1
Posted on January 15, 2009Professors Harold S. Lewis Jr. (Mercer) and Thomas A. Eaton (Georgia) have recently posted an Article entitled The Contours of a New FRCP, Rule 68.1: A Proposed Two-Way Offer of Settlement Provision for Federal Fee-Shifting Cases on SSRN. Here is the AbstractOur research began with interviews of experienced attorneys who prosecute and defend civil rights and employment discrimination cases...
Prof. Burch Posts Article on Nonclass Aggregation & Procedural Justice
Posted on January 13, 2009Professor Elizabeth Chamblee Burch (Fla. State) recently posted an Article entitled Procedural Justice in Nonclass Aggregation on SSRN. Here is the Abstract:Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions...
Prof. Issacharoff Posts Article on Private Claims and Aggregate Rights on SSRN
Posted on January 12, 2009Prof. Samuel Issacharoff (NYU) recently posted an Article entitled Private Claims, Aggregate Rights on SSRN. Here is the Abstract:In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts...
SCOTUS Denies Cert. in Case Holding that Subsequent Favorable Change in Law Insufficient Grounds for Reopening Case under Rule 60
Posted on January 12, 2009U.S. Law Week's Supreme Court Today is reporting that the Supreme Court denied review today in 94 cases, 7 of which are classified under civil procedure. The denial in one case, Silvas v. Remington Oil and Gas Corp., 08-647, let stand the Fifth Circuit's holding that a subsequent favorable change in the law is insufficient to justify allowing a litigant to reopen its case under Rule 60, even if the litigant would prevail under the current state of the law...
Eisenberg & Lanvers Post Settlement Study on SSRN
Posted on January 08, 2009Professor Theodore Eisenberg (Cornell) and Charlotte Lanvers (Disability Rights Education & Defense Fund) have recently posted What is the Settlement Rate and Why Should We Care? on SSRN. Here is the Abstract:After establishing the importance of knowledge of settlement rates, this article first shows that different research questions can yield different settlement rates...
First Circuit Holds that the Wild and Scenic Rivers Act Does not Preempt State Law
Posted on January 07, 2009Per Fitzgerald v. Harris, 549 F.3d 46 (1st Cir. Dec. 5, 2008):This case raises the issue of whether a Maine statute governing the management of a state-administered river, the Allagash Wilderness Waterway (?AWW?), Me.Rev.Stat. Ann. tit. 12, § 1882, is preempted by certain sections of a federal statute, the Wild and Scenic Rivers Act (?WSRA?), 16 U...
Third Circuit Affirm Dismissal of Prisoner's Denial of Court Access Claim
Posted on January 06, 2009Per Caldwell v. Beard, Slip Copy, 2008 WL 5397645 (3d Cir.Dec. 29, 2008): Prisoners have a right of access to the courts. See Lewis v. Casey, 518 U.S. 343 (1996). Importantly, however, where an inmate does not allege an actual injury to his ability to litigate a claim, his constitutional right of access to the courts has not been violated...
Eighth Circuit Holds that Law Firm Shareholder Lacks Standing to Sue for Refund of Penalty Paid by Law Firm
Posted on January 05, 2009Per Jewell v. U.S., 548 F.3d 1168 (8th Cir. Dec. 10, 2008):Jewell was a shareholder in the law firm of Jewell, Moser, Fletcher & Holleman, P.A. (?JMFH?). JMFH sponsored four prototype retirement plans, which its clients, mostly small businesses, relied upon to create individual retirement plans...
Second Circuit Declines to Take Up Alternate Basis for Affirming Judgment, Remanding to Hear More from the DCT on the Issue
Posted on December 30, 2008Per Fisher v. JPMorgan Chase & Co., Slip Copy, 2008 WL 5381269 (2d Cir. Dec. 24, 2008):The defendants nonetheless ask that we affirm the judgment on alternative legal grounds that they presented to the district court in their application for summary judgment, but which the district court did not address in the order which is the basis for this appeal...
Second Circuit Reverses District Court's Conversion of 12(b)(6) Motion to Summary Judgment Motion
Posted on December 18, 2008Per span id="headerTitleTruncate1" class="GroupHeading" style="font-weight: bold;"Sahu v. Union Carbide Corp./span, a class="InformationalSmall" href="https://web2.westlaw.com/result/result.aspx?findtype=Yamp;tf=0amp;fn=_topamp;scxt=WLamp;db=CTAamp;ss=CNTamp;migkchresultid=1amp;cxt=DCamp;vr=2...
Prof. Robert Jones Posts Article on Historical Origins of Diversity Jurisdiction on SSRN
Posted on December 17, 2008Professor Robert Jones (Northern Illinois) recently posted an Article entitled Finishing a Friendly Argument: The Jury and the Historical Origins of Diversity Jurisdiction on SSRN. Here is the Abstract:br /br /This Article argues that diversity jurisdiction was intended to funnel politically significant litigation into the federal courts principally because federal officials would have the power to dictate the composition of federal juries...
SCOTUS Decides Labeling Act Pre-emption Case
Posted on December 15, 2008The Supreme Court issued a decision in ALTRIA GROUP, INC., et al. v. GOOD et al. (No. 07?562.?Argued October 6, 2008?Decided December 15, 2008). Here is the Syllabus:Respondents, smokers of petitioners? ?light? cigarettes, filed suit, alleging that petitioners violated the Maine Unfair Trade Practices Act (MUTPA) by fraudulently advertising that their ?light? cigarettes delivered less tar and nicotine than regular brands...
Prof. Bone Posts Article on the Need for Procedure Theory
Posted on December 10, 2008Professor Robert Bone (Boston U.) has recently posted an article entitled Making Effective Rules: The Need for Procedure Theory (which will be published in the Oklahoma Law Review) on SSRN. Here is the Abstract:This essay is the published and somewhat expanded version of a presentation to the meeting of the AALS Section on Civil Procedure at the January 2008 AALS annual meeting...
Prof. Bone Post Article on Twombly and Access to Courts
Posted on December 03, 2008Professor Robert G. Bone (Boston University) has recently posted his forthcoming Article, Twombly, Pleading Rules, and the Regulation of Court Access. Here is the Abstract:In Bell Atlantic Corp. v. Twombly, the Supreme Court reconsidered Conley v. Gibson's very liberal notice pleading standard and held that the plaintiff must allege enough to support a plausibility of wrongdoing...
S.D. Ill. Holds that Denial of Multistate Class Action Certification Ends Subject Matter Jurisdiction under CAFA
Posted on December 01, 2008Per BNA's Class Action Litigation Report, Nov. 28, 2008:Citing the disfavor of multistate class actions, and finding the denial of class status ended federal jurisdiction, a federal judge refused Nov. 12 to certify a class of purchasers of allegedly spontaneously-shattering glass-top patio tables (Ronat v...
Bhopal Suit Reinstated Due to Procedural Error
Posted on November 26, 2008Per U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008):A ground water pollution case premised on the same Bhopal, India, pesticide factory explosion that prompted an earlier toxic tort suit resolved by settlement was reinstated by the U.S. Court of Appeals for the Second Circuit Nov...
Japan Is Appropriate Forum for Tort Suit
Posted on November 25, 2008Per U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008):A district court properly dismissed, on forum non conveniens grounds, a U.S. company's suit alleging conversion against Japanese entities, the U.S. Court of Appeals for the Seventh Circuit held Oct. 28...
Prof. Ides Posts Civil Procedure Professors' Amicus Brief in Ashcroft v. Iqbal
Posted on November 21, 2008Allan Ides (Loyola Los Angeles) has posted the amicus brief filed on behalf of a group of civil procedure professors in Ashcroft v. Iqbal, a case that may address the much discussed pleading standard that came out of Bell Atlantic, Corp. v. Twombly. Here is a summary of the brief prepared by Prof...
Cornell's LII Bulletin Previews SCOTUS Argument in Philip Morris v. Williams
Posted on November 20, 2008Philip Morris U.S.A. v. Williams (07-1216)Oral argument: Dec. 3, 2008Appealed from: Oregon Supreme Court (Mar. 24, 2008)In 1997, Mayola Williams's husband Jesse Williams died from lung cancer as a result of smoking cigarettes manufactured and marketed by Philip Morris USA Inc...
Felons Can Serve as Named Plaintiff, Judge Rules, Certifies Class of Jail Detainees
Posted on November 17, 2008Per BNA's Class Action Litigation Report, 11/14/2008: A federal judge in Chicago granted class certification in a case focusing on the Cook County Jail's procedures for distributing prescription drugs to inmates, after rejecting the defendant's adequacy-of-representation argument that asserted felons cannot serve as class representatives (Parish v...
No Heightened Pleading Required for CFAA Claims
Posted on November 13, 2008Per BNA:Allegations that former contractors have wrongfully accessed corporate bank accounts, changed protected computer passwords, and caused the wrongful transfer of electronic funds are sufficient to set out a colorable claim under the federal Computer Fraud and Abuse Act, even though they do not meet the heightened pleading requirements of Rule 9(b), the U...
SCOTUS Notes Requirement of Likelihood of Injury, Not Just Possibility, to Obtain a Preliminary Injunction
Posted on November 12, 2008Per WINTER, SECRETARY OF THE NAVY, et al. v NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., No. 07?1239 (Nov. 12, 2008):The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a ?possibility? of irreparable harm...
Prof. Sloan Posts Article on Non-Precedential Opinions on SSRN
Posted on November 10, 2008Professor Amy E. Sloan (Baltimore) recently posted an Article entitled If You Can't Beat 'Em, Join 'Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts on SSRN. Here is the Abstract:For many years, judges and academics have debated the pros and cons of non-precedential judicial opinions in the federal appellate courts...
M.D. Tenn. Declines to Dismiss Title VII after 12(b)(6) Challenge
Posted on October 30, 2008Per Smith v. Davidson Transit Organization, Slip Copy, 2008 WL 4722652, at * 10 (M.D. Tenn. Oct. 23, 2008):In count three, plaintiff alleges that DTO perpetuated a racially hostile work environment and engaged in racial/gender discrimination in violation of Title VII...
Advisory Committee on Civil Rules to Meet on November 17 & 18
Posted on October 28, 2008Per Tom Rowe (Duke):The Advisory Committee on Civil Rules meets on November 17-18 in Washington. The agenda books are now posted on the U.S. Courts Web site, and the one for next month's meeting is athttp://www.uscourts.gov/rules/Agenda Books/CV2008-11...
D. Mass Certifies Nationwide Class in Case Against Pharmaceutical Manufacturers
Posted on October 27, 2008The court in In re Pharmaceutical Industry Average Wholesale Price Litigation,252 F.R.D. 83 (D. Mass. Sept. 26, 2008), certified the requested nationwide class against pharmaceutical manufacturers. Here is Westlaw's synopsis of the case: Consumers and third-party payors (TPPs) brought suit against pharmaceutical manufacturers alleging that manufacturers fraudulently inflated drug prices by misstating average wholesale prices (AWPs) of their drugs in industry publications in violation of state unfair and deceptive trade practice acts (UDTPAs)...
District Court Rejects Fifth Circuit Rule, Says No Loss Causation Showing Needed Yet
Posted on October 24, 2008BNA's Class Action Litigation Report (10/24/08) is reporting that the U.S. District Court for the District of Utah Sept. 25 declined to follow U.S. Court of Appeals for the Fifth Circuit precedent, concluded that loss causation need not be established at the class certification stage, and certified a class of investors in Nature's Sunshine Products Inc...
SCOTUS Denies Cert. in Case Addressing Split Re Standard of Review for Bremen Dismissals
Posted on October 21, 2008Yesterday the Supreme Court denied certiorari in Arrow Electronics Inc. v. E.ON AG (9th Cir., 268 Fed. Appx. 551), a case that sought to resolve a circuit split regarding appellate review of dismissals under M/S Bremen v. Zapata Off-Shore Co., 407 U.S...
Profs. Bassett and Perschbacher Post Article on Contemporary Divergence from FRCP as Originally Envisioned
Posted on October 20, 2008Debra Lyn Bassett (Alabama) and Rex Perschbacher (U.C. Davis) recently posted an Article entitled The Revolution of 1938 and its Discontents on SSRN. Here is the Abstract:This paper explores the divergence between the purposes and goals of the 1938 Federal Rules of Civil Procedure and the purposes and goals of litigation today...
SCOTUS Grants Cert. in Case Involving Interpretation of Statute Barring Appellate Review of Remand Decisions
Posted on October 15, 2008U.S. Law Week's Supreme Court Today is reporting that the Supreme Court has granted certiorari in HIF Bio Inc. v. Yung Shin Pharmaceuticals Industrial Co., Fed. Cir., 508 F.3d 659, 76 U.S.L.W. 1308, a civil procedure case: Summary of Ruling Below: District court's discretionary decision, under 28 U...
Prof. Pfander Posts Article on Forum Shopping and Federalism
Posted on October 14, 2008Professor James Pfander (Northwestern) recently posted an Article entitled Forum Shopping and the Infrastructure of Federalism on SSRN. Here is the Abstract:The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism...
Prof. Steinman Posts Article Analyzing Proposed Amendments to FRCP 56
Posted on October 09, 2008Professor Adam Steinman (Cincinnati) has just posted an Essay entitled An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process, a piece which is forthcoming in the Northwestern University Law Review Colloquy...
AALS Civil Procedure Section Seeks Information about Future Conferences
Posted on October 09, 2008The Civil Procedure section of the AALS plans to include a listing of upcoming conferences that would be of interest to civil procedure professors and scholars. Please email Thomas Main, who is a member of the section's Executive Committee, any information that you have pertaining to upcoming conferences...
Sedona Conference Releases "Cooperation Proclamation"
Posted on October 07, 2008According to the Legal Blog Watch, The Sedona Conference will hold a virtual press conference tomorrow at noon Eastern time to release its "Cooperation Proclamation," a document that seeks to promote cooperation in civil discovery. The document is available for download at the Sedona Conference Website.
U. Penn Law Review Publishes Articles From CAFA Symosium
Posted on October 06, 2008The University of Pennsylvania Law Review has just published pieces from a recent Symposium entitled FAIRNESS TO WHOM? PERSPECTIVES ON THE CLASS ACTION FAIRNESS ACT OF 2005 (Volume 156, Number 6, June 2008). Here are the articles that appear as part of the Symposium:- The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, Stephen B...
Prof. Eichhorn Publishes Article on Drafting and the FRCP Style Project
Posted on October 02, 2008Professor Lisa Eichhorn (South Carolina) recently published an article entitled Clarity and the Federal Rules of Civil Procedure: A Lesson from the Style Project, 5 Journal of the Association of Legal Writing Instructors 1 (2008). Here is an excerpt from the Introduction:At the stroke of midnight on December 1, 2007, the Federal Rules of Civil Procedure both changed completely and did not change at all...
S.D.N.Y. Holds that CAFA Removal Provision Trumps Non-Removal Provision of Securities Act
Posted on September 30, 2008Per New Jersey Carpenters Vacation Fund v. Harborview Mortg. Loan Trust 2006-4, Slip Copy, 2008 WL 4369840 (S.D.N.Y. Sept. 24, 2008):The Plaintiffs argue that CAFA does not override the Securities Act anti-removal provision, and that even if it did, this case falls under one of CAFA's exceptions, § 1332(d)(9)(C), which excepts from federal jurisdiction a class action that relates to the ?rights, duties and obligations arising out of a security...
Brooke Coleman Posts Article on Federal Civil Rulemaking and Access to Justice
Posted on September 25, 2008Brooke D. Coleman (Stanford Law School Fellow) has recently posted an Article entitled Recovering Access: Rethinking the Structure of Federal Civil Rulemaking on SSRN. Here is the Abstract:Access to the justice system, which I broadly define as the opportunity to resolve the merits of a legal claim, is declining...
Drug and Device Law Blog Comments on New FRE 502
Posted on September 24, 2008President Bush signed the new Federal Rule of Evidence 502 into law on September 19. The Drug and Device Law blog posted an analysis of the new rule yesterday. The post can be accessed by clicking here.
Fifth Circuit Joins other Circuits in Holding that Citizenship of LLC for Purposes of Diversity Jurisdiction Is Based on Citizenship of all Members
Posted on September 23, 2008Per Harvey v. Grey Wolf Drilling Co., --- F.3d ----, 2008 WL 4194538 (5th Cir. Sept. 15, 2008):Neither the Supreme Court nor this circuit have previously addressed the question of how to determine the citizenship of a LLC for purposes of diversity jurisdiction...
Court Orders Daubert Hearing as Part of Class Certification Analysis
Posted on September 22, 2008Here's an excerpt from an ABA Litigation Section news report on the trend to conduct full Daubert hearings as part of the class certification process:In what appears to be part of a trend across the country, a federal trial court in West Virginia has ordered a full, evidentiary Daubert hearing as part of deciding a motion on whether to certify a class in a pending action...
Congress Passes Legislation Creating New Evidence Rule
Posted on September 19, 2008Here is an excerpt from an ABA Litigation Section news report on new Evidence Rule 502:Last week, Congress approved legislation creating a new evidentiary rule to address disclosure of information protected by the attorney-client privilege and work-product doctrine...
N.D. Ill. Applies Twombly to Uphold an Employment Discrimination Claim
Posted on September 18, 2008Mull v. Abbott Laboratories, 563 F.Supp.2d 925 (N.D. Ill. June 30, 2008):As the Seventh Circuit recently reiterated, ?a plaintiff alleging employment discrimination under Title VII may allege these claims quite generally.? Tamayo, 526 F.3d at 1081...
Massachusetts SJC Adopts Twombly Interpretation of Its Own State Pleading Rules
Posted on September 15, 2008Per Iannacchino v. Ford Motor Co., 451 Mass. 623, 888 N.E.2d 879 (Mass. June 13, 2008): The standard for reviewing adequacy of complaints. While we have concluded that the plaintiffs' complaint is insufficient on the basis of the standard described in Nader v...
Congress Passes New Evidence Rule 502: September 8, 2008
Posted on September 11, 2008On September 8, 2008, the House unanimously passed without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The Senate had earlier approved by unanimous consent without amendment S...
Prof. Field Posts Article on Federal Circuit's Approach to Choice of Law for Procedural Matters on SSRN
Posted on September 08, 2008Ted Field, a Visiting Assistant Professor of Law at Chicago-Kent has recently posted an Article entitled Improving the Federal Circuit's Approach to Choice of Law for Procedural Matters in Patent Cases on SSRN. Here is the Abstract:Because of its virtually exclusive jurisdiction over patent cases from the entire country, the United States Court of Appeals for the Federal Circuit faces a unique situation with respect to choice of law for procedural matters in patent cases...
California SCT Holds that an Agreement to Have Judicial Review of the Merits of an Arbitration Award Is Enforceable under Cal. Arbitration Act
Posted on September 03, 2008Professors Arnold Rosenburg and William Slomanson brought the following case to my attention (this is a quotation from Prof. Rosenburg's email):Last week, the California Supreme Court held in Cable Connection, Inc. v. DIRECTTV, Inc., No. S147767 (August 26, 2008) that an agreement to subject the merits of an arbitration award to judicial review for errors of law is enforceable under the California Arbitration Act...
Prof. Nagareda Posts Article on Class Certification
Posted on September 02, 2008Professor Richard A. Nagareda (Vanderbilt) has recently posted an Article entitled Class Certification in the Age of Aggregate Proof on SSRN. The Article is slated to appear in the New York University Law Review in 2009. Here is the Abstract:Few pre-trial motions in our civil justice system elicit as much controversy as those for the certification of class actions...
Seventh Circuit Rejects Government Argument that It May Decide Qualified Immunity Issue before the District Court Can Address the Issue
Posted on August 28, 2008Per Khorrami v. Rolince, --- F.3d ----, 2008 WL 3917557 (7th Cir. Aug. 27, 2008):In the event of a brief pretrial postponement of a qualified immunity argument at the same time as the court is considering a motion under Rule 12(b)(6), the district court is the only judicial tribunal that may revisit the issue...
Federal Circuit Finds Jurisdiction Lacking in Declaratory Judgment Action Seeking to Avoid Patent Infringement Suit
Posted on August 26, 2008Per U.S. Law Week, Volume 77, Number 8, Tuesday, August 26, 2008:A company's desire to determine whether its product infringed patents held by a competitor did not create a case or controversy sufficient to support the district court's exercising jurisdiction over the company's declaratory judgment action, the U...
Seventh Circuit Discusses Split Re Whether a District Court's Order to Remand to Bankruptcy Court is Appealable
Posted on August 22, 2008Per In re Holland, --- F.3d ----, 2008 WL 3844140 (7th Cir. Aug 19, 2008): Circuit courts remain split on which test to apply in determining whether a district court order that remands a case to a bankruptcy court is appealable. See, e.g., In re Lopez, 116 F...
N.D. Fla. Notes Split Re Removal from State Administrative Agencies Under § 1441
Posted on August 20, 2008Per Johnson v. Albertson's LLC, 2008 WL 3286988 (N.D. Fla. Aug 06, 2008): The Eleventh Circuit has yet to decide whether cases may be removed from state administrative agencies pursuant to § 1441, and if so, under what circumstances. See Bellsouth Telecomm...
Third Circuit Holds that Other Courts' Judgments May Be Vacated under Rule 60(b)'s Catch-All Provision
Posted on August 19, 2008Per Budget Blinds, Inc. v. White, --- F.3d ----, 2008 WL 2875349 (3d Cir. July 28, 2008):The power of a court to invoke Rule 60(b) to vacate its own earlier judgment is unquestioned. As we discuss below, however, it is unclear whether a court has the power to invoke Rule 60(b) to vacate a judgment when the court in which the judgment is registered (the ?registering court?) is different from the court that entered the judgment (the ?rendering court?)...
Second Circuit Determines that FSIA Protects an Individual Official of a Foreign Government Acting in His Official Capacity
Posted on August 18, 2008Per In re Terrorist Attacks on September 11, 2001, --- F.3d ----, 2008 WL 3474167 (2d Cir. Aug. 14, 2008):This Circuit has not yet decided whether the FSIA protects an individual official of a foreign government acting in his official capacity. . . .We join our sister circuits in holding that an individual official of a foreign state acting in his official capacity is the ?agency or instrumentality? of the state, and is thereby protected by the FSIA...
Most Plaintiffs Who Reject Settlement Offers Do Worse at Trial
Posted on August 15, 2008Here's a story from the ABA Journal Online (8/11/08):By Debra Cassens WeissThe gamble of going to trial doesn?t pay off for most plaintiffs, according to a study of more than 2,000 civil suits from 2002 to 2005. Sixty-one percent of plaintiffs who turned down settlement offers ended up faring worse at trial, according to a New York Times story on the study...
Standing Committee Requests Comments on Proposed Amendments to the Federal Civil Rules
Posted on August 14, 2008The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (the Standing Committee) has published proposed amendments to the Federal Rules of Civil Procedure for comment. The proposed amendments are to Rule 26 (discovery) and Rule 56 (summary judgment)...
Northwestern University Law Review Publishes Special Edition on Preemption
Posted on August 13, 2008The Northwestern University Law Review recently published a special edition for a symposium entitled Ordering State-Federal Relations Through Federal Preemption Doctrine. Here are the articles included in the symposium:Nury Raquel Agudo & Alison E...
Ninth Circuit Reverses Dismissal of Securities Fraud Claim
Posted on August 12, 2008Per In re Gilead Sciences Securities Litigation, --- F.3d ----, 2008 WL 3271039 (9th Cir. Aug. 11, 2008):Based on our own review, we find the complaint sufficiently alleges a causal relationship between (1) the increase in sales resulting from the off-label marketing, (2) the Warning Letter's effect on Viread orders, and (3) the Warning Letter's effect on Gilead's stock price...
D. Colorado Notes Improper Prolixity of Pro Se Complaint but Addresses Substance Issues of Motion to Dismiss Instead
Posted on August 11, 2008Per Tassio v. Mullarkey, Slip Copy, 2008 WL 3166149 (D. Colo. Aug. 05, 2008):Mr. Tassio's complaint takes the term prolix to new heights. In spite of his efforts to provide an outline of his claims, it is redundant and tedious to the extreme and pleonastic to the point of being indecipherable...
ABA Litigation Research Fund Seeking Grant Applicants
Posted on August 08, 2008The ABA Section of Litigation invites applications to The LitigationResearch Fund which makes individual awards of between $5,000 and$20,000 to support original and practical scholarly work thatsignificantly advances the understanding of civil litigation in theUnited States...
Prof. Nash Posts Article on Transjurisdictional Adjudication
Posted on August 07, 2008Professor Jonathan Remy Nash (Tulane) has recently posted an article entitled The Uneasy Case for Transjurisdictional Adjudication on SSRN. Here is the Abstract:Federal courts often decide cases that include matters of state law, while state courts often decide cases that raise matters of federal law...
Chase College of Law Northern Kentucky University Law Review Call for Papers (E-Discovery)
Posted on August 06, 2008Chase College of Law?s Northern Kentucky University Law Review welcomes proposals of both articles and panel presentations for its spring 2009 symposium on E-discovery. The symposium will be held Saturday, February 28, 2009. CLE approval will be sought for Kentucky, Ohio and Indiana...
Prof. Wolff Posts Article on Federal Jurisdiction, Due Process, and Nationwide Class Actions
Posted on July 31, 2008Professor Tobias Barrington Wolff (Penn) has posted an Article entitled Federal Jurisdiction and Due Process in the Era of the Nationwide Class Action on SSRN. Here is the Abstract:The class action has come of age in America. With increasing regularity, class litigation plays a central role in discussions about theory, doctrine, and policy in the American civil justice system...
Prof. Effron Posts Article on Disaster-Specific Methods for Consolidation
Posted on July 30, 2008Professor Robin Effron (Brooklyn) has recently posted an Article entitled Disaster-Specific Mechanisms for Consolidation on SSRN. Here is the Abstract:Within the past decade, two large scale catastrophes - the terrorist attacks of September 11, 2001 and Hurricanes Katrina and Rita - have been the recent laboratories of new congressional provisions for the federalization and aggregation of mass tort claims...
Ninth Circuit Notes Split Re Reviewability of Remand Based on Declining Supplemental Jurisdiciton
Posted on July 29, 2008Per California Dept. of Water Resources v. Powerex Corp., --- F.3d ----, 2008 WL 2797031 (9th Cir. Jul 22, 2008): As DWR notes, the Federal Circuit has come to the opposite conclusion, holding that "a remand based on declining supplemental jurisdiction must be considered within the class of remands described in § 1447(c) and thus barred from appellate review by § 1447(d)...
Prof. Clermont Posts Article on Empirical Study of Adjudicatory Process
Posted on July 28, 2008Professor Kevin Clermont (Cornell) recently posted a paper entitled Litigation Realities Redux with the NELLCO Legal Scholarship Repository. Here is the Abstract:Both summarizing recent empirical work and presenting new observations on each of the six phases of a civil lawsuit (forum, pretrial, settlement, trial, judgment, and appeal), the author stresses the needs for and benefits from understanding and using empirical methods in the study of the adjudicatory system's operation...
Prof. Renleman Posts Due Process and Punitive Damages Article on SSRN
Posted on July 25, 2008Prof. Doug Rendleman (W&L) has recently posted a piece entitled A Plea to Reject the United States Supreme Court's Due-Process Review of Punitive Damages on SSRN. Here is the Abstract:Because the audience and readers of this piece are not United States lawyers, I supply background and I paint with a broad brush...
Prof. Doernberg Posts Erie Article on SSRN
Posted on July 23, 2008Prof. Donald L. Doernberg has recently posted an Article entitled The Unseen Track of 'Erie Railroad': Why History and Jurisprudence Suggest a More Straightforward Form of 'Erie' Analysis on SSRN. Here is the Abstract:In the seventy years since the Court announced it, the 'Erie' doctrine and the vertical choice-of-law inquiry that it attempts to control have become almost hopelessly complex...
Prof. Sherwin Posts Article on Pre-Conley Pleading Debate
Posted on July 16, 2008Professor Emily L. Sherwin has recently Posted an Article entitled The Jurisprudence of Pleading: Rights, Rules, and Conley v. Gibson on SSRN. Here is the Abstract: In 1957, in the case of Conley v. Gibson, the Supreme Court announced a minimal standard for the contents of a complaint under the Federal Rules of Civil Procedure and endorsed what has come to be known as 'notice' pleading...
Prof. Stancil Posts Article on the Economics of Pleading on SSRN
Posted on July 14, 2008Professor Paul J. Stancil has posted an Article entitled The Practical Economics of Pleading on SSRN. Here is the Abstract:Pleading standards present a tale of two asymmetries. The first is informational: Plaintiffs don't know as much as defendants about defendants' alleged wrongful behavior...
Fifth Circuit Reverses Sua Sponte Imposition of Rule 11 Monetary Sanctions for Failure to Comply with Proper Procedure
Posted on July 10, 2008Per Marlin v. Moody Nat. Bank, N.A., --- F.3d ----, 2008 WL 2568823 (5th Cir. June 30, 2008):In awarding summary judgment to Defendants, the district court, sua sponte, ruled that sanctions would be imposed against Plaintiffs M. Gene Marlin and Old National Bank; subsequently, after ordered filings and a hearing, it set the amount at approximately $640,000...
6th Circuit: Tax Court Is Not a "Court" and Thus Lacks Power to Transfer Case to District Court
Posted on July 09, 2008Here is news of a Sixth Circuit case from the Tax Prof Blog:The Sixth Circuit yesterday affirmed a Tax Court's decision that it lacked authority 28 U.S.C. § 1631 to transfer a case to the federal district court becasue the Tax Court is not a "court" for purposes of 28 U...
Judge Condemns Prolix Pleading; Pens Limerick at the End of the Order
Posted on July 09, 2008Visit http://howappealing.law.com/PresidioGroupVsGMACMortgage.pdf to view a district court order condemning a pleading as prolix and requiring the plaintiff to replead.Catching many readers' attention is the limerick by the judge at the end of the opinion:Plaintiff has a great deal to say,But it seems he skipped Rule 8(a),His Complaint is too long,Which renders it wrong,Please re-write and re-file today...
2d Cir. Finds that Rule 50 Motion not Waived When Court Indicates that Such a Motion at the Close of the Evidence is Unecessary
Posted on July 08, 2008Per Brady v. Wal-Mart Stores, Inc., --- F.3d ----, 2008 WL 2597936 (2d Cir. July 02, 2008):A prerequisite for a motion for judgment as a matter of law post-verdict is that the movant had also moved for judgment as a matter of law ?at the close of all of the evidence...
Ninth Circuit Vacates Dismissal of Civil Rights Complaint that Had Been Dismissed for Prolixity
Posted on July 07, 2008Per Hearns v. San Bernardino Police Dept., --- F.3d ----, 2008 WL 2579243 (9th Cir.July 01, 2008):We turn now to the merits of the February 17, 2005 Order dismissing the First Case. Federal Rule of Civil Procedure 41(b) authorizes a district court to dismiss a complaint with prejudice for failure to comply with Rule 8(a)...
St. John's Law Review Publishes Brief Symposium Issue on Twombly
Posted on July 07, 2008The St. John's Law Review recently published a brief Symposium Issue on Twombly entitled The Future of Pleading in the Federal System: Debating the Impact of Bell Atlantic v. Twombly. Here are the pieces included within the issue:J. Douglas Richards, Three Limitations of Twombly: Antitrust Conspiracy Inferences In A Context of Historical Monopoly, 82 St...
Standing Rules Committee Approved Proposed Rules Amendments and new Rules
Posted on July 03, 2008At its June 9-10, 2008, meeting, the Committee on Rules of Practice and Procedure adopted the recommendations of the Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules and approved the following proposed amendments on the computation of time under the rules: ? Appellate Rules 4, 5, 6, 10, 12, 15, 19, 25, 26, 27, 28...
N.D.N.Y. Uphold Punitive Damages Award with 3-to-1 Ratio in Police Abuse Case
Posted on July 02, 2008Per Lewis v. City of Albany Police Dept., 547 F.Supp.2d 191 (N.D.N.Y. Apr. 24, 2008):A trial was held on February 25, 26, 27, 28, and March 6, 2008. The jury rendered a verdict on behalf of plaintiff, Phillip Lewis (?Lewis? or ?plaintiff?), and against defendant William Bonanni (?Bonanni?) finding that he used excessive physical force in arresting plaintiff on November 23, 2002, thus violating his constitutional rights...
Eighth Circuit Finds SLUSA Preemption in Bank of America Trust Beneficiaries Case
Posted on July 01, 2008Per Kutten v. Bank of America, N.A., --- F.3d ----, 2008 WL 2406232 (8th Cir. June 16, 2008):Background: Trust beneficiaries brought class action against bank, as trustee, alleging breach of fiduciary duty, breach of contract, and related claims, in connection with bank's alleged plan to convert trust assets into mutual funds owned by bank...
Seventh Circuit Restates Its "Notice Pleading" Interpretation of Twombly
Posted on June 30, 2008Per Moore v. F.B.I., Slip Copy, 2008 WL 2521089 (7th Cir. June 25, 2008):Even after the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), complaints in federal courts still are subject to the notice-pleading standard of Federal Rule of Civil Procedure 8(a)...
Seventh Circuit Reverses Dismissal of Civil Rights Claim
Posted on June 25, 2008Per Radunz v. Von Haden, Slip Copy, 2008 WL 2463868 (7th Cir. June 19, 2008):We review § 1915A dismissals de novo, applying the same standard used for evaluating dismissals as under Federal Rule of Civil Procedure 12(b)(6). Westefer, 422 F.3d at 574...
Prof. Oldfather Posts Article on De Novo Review on SSRN
Posted on June 23, 2008Professor Chad M. Oldfather (Marquette) has recently posted an Article entitled Universal De Novo Review on SSRN. Here is the Abstract:This article takes up the question of why appellate courts always review questions of law pursuant to the de novo standard of review...
SCOTUS Grants Cert. In Foreign Property Attachment Case
Posted on June 23, 2008The Supreme Court has granted cert. in Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, No. 07-615. Here is the BNA's summary:In a dispute involving the Iranian Ministry of Defense and holders of U.S. default judgments against Iran seeking to execute those judgments or attach against property found in the United States, is an attachment against foreign sovereign property permissible when that property is "at issue in claims against the United States before an international tribunal," and the property is not a "blocked asset," under the terms of the 2000 Victims of Trafficking and Violence Protection Act and 2002 Terrorism Risk Insurance Act?
Sixth Circuit Permits Consideration of Legislative Record without Converting a 12(c) Motion to a Summary Judgment Motion
Posted on June 20, 2008Per Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. May 20, 2008)Plaintiffs-Appellants argue that by considering the legislative record attached to Defendants' motion the district judge improperly converted a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) into a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56...
Colorado Issues Metadata Opinion
Posted on June 19, 2008Per Legalethics.com: Colorado has addressed whether lawyers can review metadata sent by opposing counsel outside the context of discovery. The summary states: A Sending Lawyer who transmits electronic documents or files has a duty to use reasonable care to guard against the disclosure of metadata containing Confidential Information...
SCOTUS Grants Cert. In Case Involving Interpretation of Bell Atlantic Corp. v. Twombly
Posted on June 17, 2008On Monday the Supreme Court granted the petition for certiorari in the case of Ashcroft v. Iqbal, --- S.Ct. ----, 2008 WL 336310 (Mem) (June 16, 2008). This case will involve the review of Iqbal v. Hasty, 490 F.3d 143 (2d Cir. June 14, 2007), a case in which the Second Circuit opined on the meaning of the Court's 2007 pleading case, Bell Atlantic Corp...
ABA Litigation Update Discusses Derivative Claims Standing
Posted on June 16, 2008Here is an excerpt from a story in the ABA Litigation Update, June 2008 edition, entitled Derivative Claims: They?re Not Just for Shareholders Anymore: Determining whether a claim for corporate wrongdoing is direct or derivative can be a complicated question...
E.D. Pa. Finds Discriminatory Discipline Claim Inadequately Pleaded under Twombly
Posted on June 10, 2008Per George v. American Baptist Churches USA, Slip Copy, 2008 WL 2265281 (E.D. Pa. May 30, 2008):In her Answer to Defendant's Motion for Summary Judgment, plaintiff asserts that her claim is not time-barred because the scope of her Complaint is broader than failure to hire and includes a claim for disparate treatment during her employment with defendant...
Prof. Eisenberg & Atty. Charlotte Lanvers Post Article on Summary Judgment Rates
Posted on June 06, 2008Professor Theodore Eisenberg (Cornell) along with Charlotte Lanvers of the Disability Education & Defense Fund have recently posted an Article entitled Summary Judgment Rates Over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts...
Sixth Circuit Grants En Banc Review in Case to Determine Whether State or Federal Law Governs Spoliation of Evidence
Posted on June 05, 2008The Sixth Circuit has granted en banc review in a case in which a panel of the court noted that the Circuit's rule applying state law to determine spoliation of evidence issues was out of step with the approach taken in other circuits. Here is an excerpt from the panel opinion in Adkins v...
Fifth Circuit Notes Split Re Proper Privity Analysis in Context of EPA-Negotiated Consent Decree on a Prior CWA Suit
Posted on June 04, 2008Per Environmental Conservation Organization v. City of Dallas, --- F.3d ----, 2008 WL 2174066 (5th Cir. May 27, 2008):We recognize that, in some limited instances, ?a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits...
Prof. Spencer Posts Article on Pleading Civil Rights Claims
Posted on June 02, 2008Professor A. Benjamin Spencer (W&L) has just posted an Article entitled Pleading Civil Rights Claims in the Post-Conley Era. Here is the Abstract:Much has been made of the Supreme Court's recent pronouncements on federal civil pleading standards during the latter half of the 2006-2007 Term...
Prof. Lahav Posts Essay on Value of Jurisdictional Redundancy
Posted on May 30, 2008Professor Alexandra D. Lahav (Conn.) has recently posted an Essay entitled Recovering the Social Value of Jurisdictional Redundancy on SSRN. Here is the Abstract:This essay, written for the Tulane Law Review Symposium on the Problem of Multidistrict Litigation, argues that the focus of proceduralists on centralization as a solution to the problems posed by modern litigation is misplaced...
Prof. Redish and Dennis Mrashko Post Article on Rules Enabling Act on SSRN
Posted on May 28, 2008Professor Martin Redish (Northwestern) and Dennis Murashko (10th Circuit law clerk) have posted an Article entitled The Rules Enabling Act and the Procedural-Substantive Tension: A Lesson in Statutory Interpretation on SSRN. Here is the Abstract:The Rules Enabling Act vests in the Supreme Court the power to promulgate rules governing procedure in federal court litigation...
Fifth Circuit Hears Case about whether Judge's Discretion Should Be Limited When Party Requests Venue Transfer
Posted on May 27, 2008From the Texas Lawyer, May 22, 2008:In a mandamus case that could significantly alter one of the hottest federal civil dockets in Texas, the full 5th U.S. Circuit Court of Appeals heard arguments on May 22 over whether a trial judge?s discretion should be limited when a party moves to transfer venue...
N.D. Ala. Notes Split Re Test For Determining Whether Matter was Prepared in Anticipation of Litigaiton
Posted on May 26, 2008Per Regions Financial Corp. v. U.S., Slip Copy, 2008 WL 2139008 (N.D. Ala. May 08, 2008):Courts have wrestled with the articulation of a clear test for interpreting what constitutes ?prepared in anticipation of litigation? in the context of an IRS summons...
Eighth Circuit Finds SLUSA Preemption Based on Merely Coincident Nondisclosures
Posted on May 21, 2008Per Siepel v. Bank of America, N.A., --- F.3d ----, 2008 WL 2079028 (8th Cir. May 19, 2008):The Plaintiffs argue that the Bank's non-disclosure was not ?in connection with? the purchase of the securities, such that the non-disclosure did not relate to a decision whether to purchase a security...
Prof. Sharkey Posts Article on CAFA Settlement Notice Provision
Posted on May 20, 2008Professor Catherine M. Sharkey (NYU) has recently posted an Article entitled CAFA Settlement Notice Provision: Optimal Regulatory Policy? on SSRN. Here is the Abstract:Written for The University of Pennsylvania Law Review's symposium, Fairness to Whom? Perspectives on the Class Action Fairness Act of 2005, this article evaluates the largely ignored settlement notice provision...
Prof. Sebok Posts Essay on Punitive Damages Limitations on SSRN
Posted on May 19, 2008Professor Anthony Sebok (Brooklyn) recently posted a brief essay entitled After Philip Morris v. Williams: What is Left of the 'Single-Digit' Ratio? on SSRN. Here is the Abstract:This short essay was written for a symposium on The Future of Punitive Damages held at the Charleston School of Law in 2007...
Prof. Moss Posts Article on Improving Discovery
Posted on May 15, 2008Professor Scott A. Moss of the University of Colorado Law School recently posted an Article entitled Litigation Discovery Cannot Be Optimal but Could Be Better: The Economics of Improving Discovery Timing in a Digital Age on SSRN. Here is the Abstract:Cases are won and lost in discovery, yet discovery draws too little academic attention...
First Circuit Discusses Degree of Merits Inquiry Required at Class Certification Stage for Novel or Complex Theories of Injury
Posted on May 14, 2008Per In re New Motor Vehicles Canadian Export Antitrust Litigation, 522 F.3d 6 (1st Cir. Mar. 28, 2008):In challenging the certification of the state damages classes, defendants primarily argue that the district court did not engage in a sufficiently searching inquiry into the relevant merits issues...
Prof. Burch Posts Article on Securities Class Actions on SSRN
Posted on May 13, 2008Professor Elizabeth Chamblee Burch (Florida State) has recently posted an Article entitled Securities Class Actions as Pragmatic Ex Post Regulation on SSRN (forthcoming Georgia Law Review). Here is the Abstract:Securities class actions are on the chopping block-again...
Prof. Rose Posts Article on Reforming Securities Litigation Reform on SSRN
Posted on May 12, 2008Professor Amanda Rose (Vanderbilt) recently posted an Article entitled Reforming Securities Litigation Reform: A Proposal for Restructuring the Relationship Between Public and Private Enforcement of Rule 10b-5 on SSRN. Here is the Abstract:For years, commentators have debated how to reform the controversial Rule 10b-5 class action, without pausing to ask whether the game is worth the candle...
Prof. Campbell Posts Article on Antitrust Pleading Standards after Twombly
Posted on May 07, 2008Professor Charles Campbell has recently posted an Article entitled A 'Plausible' Showing after 'Bell Atlantic Corp. v. Twombly' on SSRN. Here is the Abstract:The United States Supreme Court's decision in Bell Atlantic Corp. v. Twombly is creating quite a stir...
Prof. Parness Posts Article on Improving Judicial Settlement Conferences
Posted on May 06, 2008Professor Jeffrey Parness has recently posted an Article entitled Improving Judicial Settlement Conferences on SSRN. Here is the Abstract:Professors Molot, Fuller, Fiss, and Resnik, among others, have expressed concerns about the unbounded, unchecked, unbridled, and virtually unfettered judicial discretion of American trial court judges who preside over civil case settlement conferences...
Prof. Ward Posts Article on Tombly
Posted on May 05, 2008Professor Ettie Ward (St. John's) has posted an Article entitled The After-Shocks of Twombly: Will We Notice Pleading Changes? on SSRN. Here is the Abstract:Bell Atlantic Corp. v. Twombly was decided by the Supreme Court on May 21, 2007 and has already been cited more than 9400 times as of March 15, 2008...
Prof. Epstein Posts Article on Bell Atlantic v. Twombly
Posted on April 30, 2008Professor Richard A. Epstein of the University of Chicago School of Law has recently posted an Article entitled Bell Atlantic V. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments on SSRN. Here is the Abstract:The recent Supreme Court decision in Bell Atlantic v...
Civil Rules Committee Approves Proposed Rules Amendments
Posted on April 29, 2008At its April 7-8, 2008, meeting, the Advisory Committee on Civil Rules approved amendments to Civil Rules 6, 12, 14, 15, 23, 27, 32, 38, 50, 52, 53, 54, 55, 56, 59, 62, 65, 68, 71.1, 72, 81, Supplemental Rules B, C, and G, and Illustrative Civil Forms 3, 4, and 60 regarding the computation of time under the rules...
Second Circuit Describes Twombly as Having Created Heightened Pleading Standard for Antitrust Claims
Posted on April 28, 2008Per Ross v. Bank of America, N.A.(USA), --- F.3d ----, 2008 WL 1836640 (2d Cir. Apr. 25, 2008):In our view, the cardholders have pled ?actual and imminent? harms sufficient to establish Article III injury in fact. There is no heightened standard for pleading an injury in fact sufficient to satisfy Article III standing simply because the alleged injury is caused by an antitrust violation...
Prof. Roederer Publishes Article on Tort Reform
Posted on April 25, 2008Professor Christopher J. Roederer of the Florida Coastal School of Law recently published an article entitled Democracy and Tort Law in America: The Counter-Revolution, 110 W. Va. L. Rev. 647 (2008). Here is an excerpt from the Introduction:Th[e] gap between the ?haves? and ?have nots? cuts across both socioeconomic aspects of life (education, jobs, income, mobility) and civil and political aspects of life (the ability to participate in civic and political life, through voting, volunteering, protesting, donating, etc...
Prof. Miller Posts Article on Pleading after Tellabs
Posted on April 22, 2008Professor Geoffrey Miller has recently posted an Article entitled Pleading After Tellabs on SSRN. Here is the Abstract:In Tellabs, Inc. v. Makor Issues & Rights, Ltd., the Supreme Court held that a securities fraud complaint will survive a motion to dismiss only if a reasonable person would deem the inference of [culpable state of mind] cogent and at least as compelling as any opposing inference one could draw from the facts alleged...
Prof. Green Posts Article on Erie
Posted on April 21, 2008Professor Craig Green recently posted an Article entitled Erie and Problems of Constitutional Structure: A Response to Professor Clark on SSRN. Here is the Abstract:Erie has become a lamentably prevalent authority for limiting federal judicial power; I have called this phenomenon Erie's new myth...
Iowa Law Review Symposium Pieces on Summary Judgment Available on SSRN
Posted on April 14, 2008SSRN now has available papers on Summary Judgment from a recent Iowa Law Review Symposium entitled "Procedural Justice: Perspectives on Summary Judgment, Preemptory Challenges, and the Exclusionary Rule." Here are links to those papers:Suja Thomas, The Unconstitutionality of Summary Judgment: A Status Report http://ssrn...
Prof. Nagareda Posts Article on Trans-Atlantic Civil Litigation
Posted on April 11, 2008Prof. Richard Nagareda recently posted an Article entitled Aggregate Litigation across the Atlantic and the Future of American Exceptionalism on SSRN. Here is the Abstract:This article analyzes the emerging phenomenon of trans-Atlantic civil litigation on an aggregate basis - chiefly, though not exclusively, by way of class actions...
E.D. Wisc. Denies Motion to Dismiss Title VII Claim, Citing Swierkiewicz and Twombly
Posted on April 09, 2008Per Kimble v. Wisconsin Dept. of Workforce Development, Slip Copy, 2008 WL 916964 (E.D. Wis. Arp. 2, 2008):Plaintiff worked as a supervisor for the Equal Rights Division (?ERD?) within the Wisconsin Department of Workforce Development, for around twenty-five years before retiring...
Prof. Floyd Publishes Article on Supplemental Jurisdiction
Posted on April 07, 2008Professor C. Douglass Floyd recently published an Article entitled Three Faces of Supplemental Jurisdiction after United Mine Workers v. Gibbs, 60 Fl. L. Rev. 277 (April 2008). Here is an excerpt from the Introduction:In a post-Gibbs world, therefore, three competing views of the permissible scope of federal subject matter jurisdiction over non-diverse state law claims have emerged...
Prof. Steinman Posts Article on Erie Doctrine
Posted on April 03, 2008Professor Adam Steinman has just posted his latest Article, entitled What is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), on SSRN. Here is the Abstract:As when Erie Railroad v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren...
Professor Cassandra Robertson Posts Article on Federal Judges' Ability to Grant New Trials on the Weight of the Evidence
Posted on April 02, 2008Professor Cassandra Burke Robertson has just posted her Article entitled Judging Jury Verdicts on SSRN. The piece will be published in the Tulane Law Review. Here is the Abstract:Empirical studies show that juries generally perform their job conscientiously and that the large majority of jury verdicts are accurate and fair...
Boston College Law Review Publishes Article on Bell Atlantic v. Twombly
Posted on March 27, 2008The Boston College Law Review has just published a piece by Professor A. Benjamin Spencer (Richmond/W&L) entitled Plausibility Pleading, 49 B.C. L. Rev. 431 (2008). Here is the Abstract:Last Term, in Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court dramatically reinterpreted Federal Rule of Civil Procedure 8(a)(2), which requires a ?short and plain? statement of a plaintiff?s claim...
The Supreme Court has decided the
Posted on March 26, 2008The Supreme Court has decided the case of Hall Street Associates, L.L.C. v. Mattel, Inc., No. 06-989, a case pertaining to the role of the judiciary in reviewing arbitration awards under the Federal Arbitration Act. Here is an excerpt from the Syllabus of the case:The Federal Arbitration Act (FAA), 9 U...
Prof. Martin Posts Article Analyzing the Impact of PACER
Posted on March 25, 2008Professor Peter Martin of Cornell Law School has recently posted an article entitled Online Access to Court Records - from Documents to Data, Particulars to Patterns on SSRN. Here is the abstract:For over a decade the public has had remote access to federal court records held in electronic format, including documents filed by litigants and judicial rulings...
Profs. Rosen-Zvi and Fisher Publish Article on Overcoming Divide between Civil and Criminal Procedure
Posted on March 24, 2008Professors Issacar Rosen-Zvi and Talia Fisher have recently published an article entitled Overcoming Procedural Boundaries in the Virginia Law Review, 94 Va. L. Rev. 79 (2008). Here is an excerpt from the Introduction:The Article will not challenge (at least not directly) the distinction between substantive criminal law and civil law but rather will focus solely on procedure...
D. Arizona Holds That Copyright Nonregistration Argument Cannot Aid a Facial Attack on Subject Matter Jurisdiction
Posted on March 20, 2008Per Bean v. McDougal Littell, --- F.Supp.2d ----, 2008 WL 660070 (D. Ariz. Mar. 06, 2008):A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction can take one of two forms. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F...
Prof. Dodson Posts Article on Bowles v. Russell
Posted on March 17, 2008Professor Scott Dodson has just posted an article entitled The Failure of Bowles v. Russell on SSRN. Here is the Abstract:This article, written for the Supreme Court Review issue of Tulsa Law Review, critiques Bowles v. Russell - perhaps last term's most underrated case - which characterized the time to file a civil notice of appeal as jurisdictional and therefore not subject to equitable excuses for noncompliance...
Ninth Circuit Affirms Denial of Attorney's Fees Following Successful Motion to Remand after CAFA Removal
Posted on March 12, 2008Per Lussier v. Dollar Tree Stores, Inc., --- F.3d ----, 2008 WL 614407 (9th Cir. Mar. 7, 2008):John Lussier and Mary Hawks, putative class representatives in litigation against Dollar Tree Stores, Inc., appeal the district court's denial of their request for attorney's fees following their successful motion to remand the underlying action after it had been removed by Dollar Tree pursuant to the recently enacted Class Action Fairness Act of 2005 (CAFA)...
E.D. Va. Cites Twombly in Rejecting Motion to Dismiss in Employment Discrimination Case
Posted on March 10, 2008Per Chappell v. Virginia State University, Slip Copy, 2008 WL 611298 (E.D. Va. Mar. 5, 2008):Rule 8(a) of the Federal Rules of Civil Procedure requires only ?a short and plain statement of the claim showing that the pleader is entitled to relief.? ?[A] complaint meets Rule 8's requirements if, in light of the nature of the action, the complaint sufficiently alleges each element of the cause of action so as to inform the opposing party of the claim and its general basis...
Prof. Counseller Posts New Article on Restyled Federal Rules
Posted on March 05, 2008Prof. Jeremy Counseller has posted a new article entitled Rooting for the Restyled Rules (Even Though I Opposed Them) at the Civil Procedure Prof Blog. Here is the abstract:The Restyling Amendments of December 1, 2007 made top-to-bottom changes to the text of the most important and successful set of rules in the American civil justice system...
Senate Passes Evidence Rule 502
Posted on March 03, 2008From the Federal Rulemaking web page:On February 27, 2008, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. See Sen. Rept...
Prof. Hoffman Post Article on Judicial Power over Pleading
Posted on February 27, 2008Prof. Lonny Hoffman recently posted an article entitled Burn Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power Over Pleadings on SSRN. Here is the Abstract:This paper addresses the most talked about "new" tool for managing the burdens of modern litigation: judicial power to dismiss a case at the pleading stage, before an opportunity for discovery has been afforded...
Prof. Dodson Posts Article on Mandatory Rules
Posted on February 26, 2008Prof. Dodson has recently posted an article entitled Mandatory Rules on SSRN. Here is the Abstract:Whether a limitation is jurisdictional or not is an important but often obscure question. In an Article I recently published in Northwestern University Law Review, I proposed a framework for courts to resolve the issue in a principled way, but I left open the next logical question: what does it mean if a rule is characterized as nonjurisdictional? Jurisdictional rules generally have a clearly defined set of traits: they are not subject to equitable exceptions, consent, waiver, or forfeiture; they can be raised at any time; and they can be raised by any party or the court sua sponte...
Prof. Pfander Posts Article on Protective Jurisdiction
Posted on February 25, 2008Prof. James Pfander has recently posted an article entitled Protective Jurisdiction, Aggregate Litigation, and the Limits of Article III on SSRN. Here is the Abstract:Although the Supreme Court has yet to define precisely how far Congress may go in conferring protective jurisdiction on the federal courts, recent decisions cast some doubt on the viability of this expansive conception of federal jurisdiction...
Prof. Burbank Posts CAFA Article on SSRN
Posted on February 21, 2008Prof. Stephen Burbank has posted an article entitled The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View on SSRN. Here is the Abstract:This article sets CAFA in the contexts of the history of federal diversity of citizenship litigation in general and, within that larger story, the history of diversity class actions in federal court...
Law Student Posts Note Studying Impact of Twombly
Posted on February 20, 2008Kendall W. Hannon, a student at Notre Dame Law School (and reportedly the incoming Editor-in-Chief of the law review there) has recently posted a Note entitled Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(B)(6) Motions on SSRN...
Iowa Law Review Announces Upcoming Symposium on Summary Judgment and other Topics
Posted on February 19, 2008The Iowa Law Review will host its 2008 symposium, Procedural Justice: Perspectives on Summary Judgment, Peremptory Challenges, and the Exclusionary Rule, on February 29. The event will include a panel debating the constitutionality of summary judgment...
Cornell's LII Bulletin Previews SCOTUS Argument in Maritime Punitive Damages Case
Posted on February 18, 2008MARITIME LAW, PUNITIVE DAMAGES, VICARIOUS LIABILITYExxon Shipping Co. v. Baker (07-219) Oral argument: Feb. 27, 2008In 1989 the oil tanker Exxon Valdez ran aground on Bligh Reef, off the Alaska coast, spilling millions of gallons of oil into Prince William Sound...
S.D.N.Y. Awards Attorneys' Fees to Plaintiff after Defendant Unreasonably Sought Removal to Federal Court
Posted on February 14, 2008Per Alicea v. Circuit City Stores, Inc., --- F.Supp.2d ----, 2008 WL 344695 (S.D.N.Y. Feb. 08, 2008):On January 22, 2008, this Court granted plaintiff's motion to remand on the ground that when defendant Circuit City Stores, Inc. (?Circuit City?) removed this case from state court, it failed to satisfy the $5 million amount-in-controversy requirement under the Class Action Fairness Act of 2005 (?CAFA?)...
Senate Judiciary Committee Passes Evidence Rule 502
Posted on February 13, 2008On January 31, 2008, the Senate Judiciary Committee approved without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. See: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:SN02450:@@@L&summ2=m&...
Class Action Lawyer Bill Lerach Sentenced to Two Years in Prison
Posted on February 12, 2008As reported by the Wall Street Journal's Law Blog:"Famed plaintiffs lawyer Bill Lerach received a two-year sentence today for his role in the alleged kickback scheme at Milberg Weiss. Lerach, 61, was also sentenced to two years probation, fined $250,000 and ordered to complete 1,000 hours of community service...
Prof. Sherry Posts Essay on CAFA's Impact on Erie Doctrine
Posted on February 11, 2008Professor Suzanna Sherry has posted her essay Overruling Erie: Nationwide Class Actions and National Common Law on SSRN. Here is the Abstract:In this essay, part of a symposium on the Class Action Fairness Act, I argue that CAFA should be read as having overruled Erie Railroad Co...
N.D. W.Va. Mentions Twombly and Finds that Complaint Satisfies Plausibility Pleading Standard
Posted on February 08, 2008Per Herman Strauss, Inc. v. Esmark Inc., Slip Copy, 2008 WL 313857 (N.D. W.Va. Feb. 04, 2008).In the wake of Twombly, uncertainty exists regarding the level of pleading required to satisfy Rule 8, which prior to Twombly was understood as requiring pure notice pleading in all manner of cases except those identified in Rule 9...
W.D. Okla. Dismisses Sec. 1983 Claim against Jail Due to the Naming of Wrong Entity
Posted on February 05, 2008Per Daugomah v. Kay County Jail, Slip Copy, 2008 WL 281553 (W.D. Okla. Jan. 31, 2008): Defendant Kay County Jail moves to dismiss Plaintiff's 42 U.S.C. § 1983 action against it on the basis that the jail is not a separate legal entity subject to suit...
D.D.C. Holds that Complaints May Be Dismissed for Failure to Exhaust Administrative Remedies, Even Though Such Defect Is an Affirmative Defense
Posted on February 01, 2008Per Lykens v. U.S. Government, 523 F.Supp.2d 26 (D.D.C. Dec. 10, 2008)Plaintiffs next contend that complaints can no longer be dismissed for failure to exhaust administrative remedies after Jones v. Bock, --- U.S. ----, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007), which plaintiffs characterize as foreclosing consideration of an exhaustion defect through a motion to dismiss, insofar as Jones categorizes it as an affirmative defense...
Tenth Circuit Reverses DCT Dismissal for Lack of Personal Jurisdiction, Finding Minimum Contacts over Foreign Defendants
Posted on January 31, 2008Per AST Sports Science, Inc. v. CLF Distribution Ltd., --- F.3d ----, 2008 WL 217722 (10th Cir. Jan. 28, 2008):Plaintiff, AST Sports Science, Inc. (AST) sued defendants, CLF Distribution Limited (CLF) and Robin Holiday, claiming they failed to pay for products received from AST...
Prof. Symeonides Posts Annual Choice of Law Survey on SSRN
Posted on January 24, 2008Professor Symeon Symeonides Has posted an article entitled Choice of Law in the American Courts in 2007: Twenty-First Annual Survey on SSRN. Here is the Abstract:This is the Twenty-First Annual Survey of American Choice-of-Law Cases. It covers cases decided by American state or federal courts from January 1 to December 31, 2007, and reported during the same period...
S.D.N.Y. Discusses Split Re Meaning of ?Arise out of or Relate to? in the Context of a Personal Jurisdiction Analysis
Posted on January 24, 2008Per Del Ponte v. Universal City Development Partners, Ltd., Slip Copy, 2008 WL 169358 (S.D.N.Y. Jan. 16, 2008):What does it mean for a cause of action to ?arise out of or relate to? a given defendant's conduct in a forum? As the Second Circuit has observed, there is little consensus on this issue...
SCOTUS Issues Opinion in Federal Tort Claims Act Case
Posted on January 22, 2008Today the Supreme Court issued its decision in Ali v. Federal Bureau of Prisons, No. 06-9130. Here is BNA's summary of the case holding: "A prisoner's claims against Federal Bureau of Prisons employees for allegedly losing the prisoner's personal property are barred by sovereign immunity, because an exclusion from the Federal Tort Claims Act's waiver of sovereign immunity for certain torts that protects detention of property by a 'law enforcement officer' applies to all law enforcement officers, not just those enforcing customs or excise laws...
Prof. Bone Posts Article on Rule 68 and FRCP
Posted on January 21, 2008Prof. Robert Bone has posted an article entitled "To Encourage Settlement: Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure" on SSRN. Here is the abstract:Rule 68, the offer of judgment rule, has been described as among the most enigmatic of the Federal Rules of Civil Procedure...
Prof. Weiss Posts Article about PSLRA Lead Plaintiff Provisions
Posted on January 14, 2008Elliot J. Weiss of the University of Arizona College of Law recently posted an Article entitled The Lead Plaintiff Provisions of the PSLRA after a Decade, or 'Look What's Happened to My Baby'. Here is the Abstract:In 1995, my colleague John Beckerman and I had an experience shared by very few legal academics...
S.D. Ill. Uses Twombly Standard to Dismiss Civil Rights Claim as Speculative
Posted on January 10, 2008Per Neuman v. U.S., Slip Copy, 2008 WL 78785 (S.D. Ill. Jan. 07, 2008):McNaught argues that Neuman's complaint contains only conclusory allegations that she conspired with others to violate his civil rights. Citing Bell Atlantic, McNaught argues that Rule 8 requires a plaintiff's complaint to include ?enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement,? and that failure to do so may result in dismissal...
SCOTUS Decides Court of Federal Claims Statute of Limitations Case
Posted on January 08, 2008Yesterday the Supreme Court decided John R. Sand & Gravel Co. v. United States, No. 06-1164, in which it held that the special statute of limitations governing the Court of Federal Claims requires that court to consider on its own initiative the timeliness of a suit filed in the claims court, even where the federal government has waived the issue...
N.D. Ill. Notes Intracircuit Split Re whether the PSLRA Applies to Section 14(a) Exchange Act Cases
Posted on December 31, 2007Per In re JPMorgan Chase & Co. Securities Litigation, Slip Copy, 2007 WL 4531794 (N.D. Ill. Dec. 18, 2007):Plaintiffs argue that (1) negligence is not a state of mind, and therefore does not require a pleading of particular facts to give strong inference, and (2) even if it were, the pleadings are sufficient...
S.D.N.Y. Raises Interesting Question Re Scope of Tellabs
Posted on December 28, 2007Per S.E.C. v. Collins & Aikman Corp., Slip Copy, 2007 WL 4480025 (S.D.N.Y. Dec. 21, 2007):In Tellabs, the Supreme Court determined that to plead a ?strong inference of scienter? in the context of the PSLRA, a complaint must allege facts that give rise to an inference of scienter at least as strong as any competing inference...
Prof. Steinman Publishes Article on Appellate Jurisdiction
Posted on December 26, 2007Prof. Adam Steinman recently published an article entitled Reinventing Appellate Jurisdiction, 48 B.C. L. Rev. 1237 (Nov. 2007). Here is the Abstract:Appellate jurisdiction in the federal system has been properly criticized for both its doctrinal incoherence and its procedural complexity...
Prof. Sack Posts Article on the Domestic Relations Exception
Posted on December 20, 2007Prof. Emily Sack has recently posted an article entitled The Domestic Relations Exception, Domestic Violence, and Equal Access to Federal Courts on SSRN. Here is the Abstract:This article examines the classic issue of the allocation of jurisdiction between the state and federal courts, with an untraditional focus on family law, domestic violence, and women's access to federal courts...
Ninth Circuit Holds that Plaintiff is Entitled to New Trial after Premature Grant of JMOL
Posted on December 18, 2007Per U.S. Law Week, December 18, 2007 (76 USLW 1356, 2007):A plaintiff in a negligence suit against two airlines is entitled to a new trial because a magistrate judge granted judgment as a matter of law before the plaintiff's case was "fully heard," the U...
E.D. Pa. Notes Split Re Applicability of Rule 11 in a Removal Case Where the Defendant Seeks Sanctions for the Filing of a State Court Complaint
Posted on December 13, 2007Per Dieffenbach v. Cigna Corp., Slip Copy, 2007 WL 4275502 (E.D. Pa. Dec. 04, 2007):The question of the applicability of Rule 11 in a removal case where the defendant seeks sanctions for the filing of a state court complaint is an unresolved one in this circuit...
Fourth Circuit Upholds CAFA Jurisdiction; Declines to Entertain Local Controversy Argument Raised for the First Time on Appeal
Posted on December 12, 2007Per Lanier v. Norfolk Southern Corp., Slip Copy, 2007 WL 4270847 (4th Cir. Dec. 05, 2007):For the district court to have original jurisdiction over a class action under CAFA, the proponent of removal must show minimal diversity, and it must be clear from the face of the complaint that the amount in controversy exceeds $5 million...
S.D. Fla. Discusses Fraud Pleading Standard under Rule 9(b); Disapproves Use of Passive Voice
Posted on December 10, 2007Per Cordova v. Lehman Bros., Inc., --- F.Supp.2d ----, 2007 WL 4287729 (S.D. Fla. Dec. 07, 2007):To survive a motion to dismiss, a plaintiff's claims of fraud under § 10(b) and Rule 10b-5 must satisfy the requirements of Fed.R.Civ.P. 9(b), which requires that ?the circumstances constituting fraud or mistake shall be stated with particularity...
DDC Denies Motion to Transfer Venue in Clean Water Act Case
Posted on December 06, 2007Per Sierra Club v. Van Antwerp, --- F.Supp.2d ----, 2007 WL 4233745 (D.D.C. Dec. 04, 2007):As a threshold matter, this Court first finds that plaintiffs could have originally filed suit in the Middle District of Florida because ?a substantial part of property that is the subject of the action is situated? there...
Ninth Circuit Holds that Either Actual or Inquiry Notice Can Start the Running of the Limitations Period on Federal Securities Fraud Claims
Posted on December 05, 2007Per Betz v. Trainer Wortham & Co., Inc., 504 F.3d 1017 (9th Cir. Oct. 04, 2007):We have held that the statute of limitations for a federal securities fraud claim begins to run when the plaintiff has either actual or inquiry notice that the defendants have made a fraudulent misrepresentation...
SCOTUS Grants Cert. in Cases Involving FRCP 19 and the Republic of the Philippines
Posted on December 04, 2007The Supreme Court has just granted cert in the case of Republic of the Philippines v. Pimentel, No. 06-1204. Here is the summary of the ruling below and the questions presented for the Court (per U.S. Law Week's Supreme Court Today): Summary of Ruling Below: In interpleader action brought by custodian of assets of Panamanian corporation owned by former Philippine President Ferdinand Marcos, Republic of Philippines, which enacted law declaring forfeiture of Marcos's assets in its favor and which successfully asserted its sovereign immunity earlier in this suit, is not indispensable party within meaning of Fed...
Federal Circuit Determines that Remand of Removed Case Based on a District Court's Rejection of Supplemental Jurisdiction Is not Reviewable
Posted on November 28, 2007Per U.S. Law Week Volume 76 Number 20, Tuesday, November 27, 2007:An order remanding a removed case in which the district court declined to exercise supplemental jurisdiction over state claims is not reviewable in federal appeals court, the U.S. Court of Appeals for the Federal Circuit held Nov...
Seventh Circuit Applies Probate Matters/Domestic-Relations Exception to Federal Jurisdiction to Bar Suit Against Guardian of Incompetent Mother
Posted on November 27, 2007Per Struck v. Cook County Public Guardian, --- F.3d ----, 2007 WL 4145845 (7th Cir. Nov. 26, 2007):The plaintiff appeals from the dismissal of his suit, which the district court held was outside its jurisdiction. The complaint alleged that an Illinois state court had appointed a guardian for the plaintiff's mother because she was incompetent to manage her own affairs, and that the plaintiff had asked the court to revoke the guardianship because the guardian was abusing his mother, refusing to let him visit her, and denying him access to her records, mail, and assets...
D.D.C. Certifies Direct Purchasers Suing Over Contraceptive
Posted on November 26, 2007Per BNA's Class Action Litigation Report:A federal court in Washington, D.C., Nov. 6 certified a class of drug wholesalers alleging two pharmaceutical companies agreed to hold a generic contraceptive drug off the market in violation of federal antitrust law (Meijer Inc...
SDNY Holds that Former Patients Lack Standing to Assert ADA Claim against Treatment Facility
Posted on November 20, 2007Per Romano v. SLS Residential Inc., --- F.R.D. ----, 2007 WL 3145076 (S.D.N.Y. Oct. 10, 2007):?Title III of the ADA proscribes discrimination against the disabled in public accommodations.? Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir...
Ninth Circuit Invalidates Class Arbitration Waiver Clause and Holds that the Invalidation Is Not Preempted by the FAA
Posted on November 19, 2007Per Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d 976 (9th Cir. Aug. 17, 2007):In this case, we consider whether a class arbitration waiver in New Cingular Wireless Service Inc.'s standard contract for cellular phone services is unconscionable under California law, and whether the Federal Arbitration Act preempts a holding that the waiver is unenforceable...
Class Action Suit Filed in M.D. Tennesee against Hannah Montana Fan Club
Posted on November 14, 2007Disgruntled members of a fan club devoted to entertainer Miley Cyrus a.k.a. Hannah Montana have initiated a class action lawsuit against the club claiming that promised preferential access to Cyrus concert tickets was not delivered.The suit was filed in the U...
SCOTUS Grants Cert in Equal Access to Justice Act Case
Posted on November 13, 2007The Supreme Court has granted cert in Richlin Security Service Co. v. Chertoff, No. 06-1717, which presents the following question: Under the Equal Access to Justice Act, may a prevailing party be awarded reimbursement of paralegal services at the market rate, or does the act limit reimbursement for paralegal services to a reimbursement rate based on the cost to the attorney? BNA subcribers may view more information about this case by visiting http://pubs...
Merck Settles Vioxx Claims; WSJ Publishes Several Articles Discussing the Settlement
Posted on November 12, 2007Although it is by now old news that Merck has reached a $4.85 billion settlement in the Vioxx litigation, the Wall Street Journal has several good articles on the settlement that interested readers should review:- Merck Vioxx Settlement by the Numbers- Vioxx Settlement Vindicates Merck's Tactics- Vioxx Settlement's Next Big Question: Who Makes What?
Milberg Weiss Named Class Counsel in Securities Fraud Action
Posted on November 09, 2007Per BNA's Class Action Litigation Report (Volume 08 Number 21, November 9, 2007):The U.S. District Court for the Eastern District of Pennsylvania Oct. 26 certified a class of investors in a securities fraud suit against Select Medical Corp. and its officials over alleged misrepresentations and omissions as to the impact of Medicare regulatory changes (Marsden v...
Fulbright & Jaworski Releases Findings of its Fourth Annual Litigation Trends Survey
Posted on November 08, 2007This fourth installment of the F&J litigation survey has much to say about respondents' views of the impact of the 2006 e-discovery amendments to the FRCP. Readers interested in a summary of the findings may visit Robert Owen's post about the survey by visiting http://www...
New York State Court Holds That Attorney-Client Communications Stored on Employer's E-mail Server Not Protected by A/C Privilege
Posted on November 07, 2007Per Scott v. Beth Israel Medical Center Inc. --- N.Y.S.2d ----, 2007 WL 3053351 (N.Y.Sup.Oct. 17, 2007):Plaintiff Dr. Scott moves . . . for a protective order requiring defendants Beth Israel Medical Center and Continuum Health Partners Inc. (collectively ?BI?) to return to plaintiff all e-mail correspondence between plaintiff and his attorney...
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Can a former employee use photographs of jobs completed whie working for me in marketing material for a new business?
There are several issues here
1. Sub contractor started up a compe...
I have worked for this employer for only three weeks. The employer makes up his own rules as to what he chooses to report for the purpose of property taxes. He tells me to "let them come after us". He defines Entertain
He arrogantly insists, "let them come after us." Well, if you are invo...
I was fired on June 3, 2002 in Massachusetts because I reported discriminatory behavior by the employer towards a particular nationality. In July I filed a discrimination/retaliation complaint against the employer with t
It seem sin your case that the fact you filed the complaint prior to being dissa...
Divorce in the Philippines between a national and a foreigner?
first of all,eventhough divorce is not legal in the Phil,the fact that you are m...
My fiance's check is DD into a local credit union. Bank seems to have a pattern of "invisibly holding" charges from the debit card until just HOURS before his DD is processed (and this is after hours, of course). Over th
Have your fiance take the information you've collected and go into the bank...
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