Miscellaneous

Coleman on the Abrogation of Rule 84 and the Appendix of Forms

Posted on January 13, 2014
Brooke Coleman (Seattle) has just posted an essay entitled Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms on SSRN.  Here is the abstract:The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms...

Cincinnati College of Law Celebrates the 75th Anniversary of the Federal Rules of Civil Procedure

Posted on August 26, 2013
Date: August 27, 2013                                               Time: 3:00 p...

SCOTUS Decides Standard Fire Insurance Co. v. Knowles

Posted on March 19, 2013
From BNA's Supreme Court Today:Standard Fire Insurance Co. v. Knowles, No. 11-1450: A would-be class plaintiff's stipulation that he and the class he seeks to represent will not seek damages greater than $5 million total, which is the jurisdictional threshold for federal district courts to have original jurisdiction over class actions under the Class Action Fairness Act of 2005, does not remove the case from CAFA's scope...

Kaplow on Multistage Litigation

Posted on December 04, 2012
Professor Louis Kaplow (Harvard) has posted an article entitled Multistage Litigation on SSRN.  Here is the abstract:Legal proceedings often involve multiple stages: U.S. civil litigation allows motions to dismiss and for summary judgment before reaching a trial; government agencies as well as prosecutors employ investigative and screening processes before initiating formal adjudication; and many Continental tribunals move forward sequentially...

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Issacharoff and Miller Post Motion to Dismiss Article on SSRN

Posted on November 27, 2012
Professors Samuel Issacharoff and Geoffrey Miller (both of NYU) have just posted an article entitled An Information-Forcing Approach to the Motion to Dismiss on SSRN.  Here is the abstract:This article proposes a new approach to the 12(b)(6) motion to dismiss...

Prof. Coleman Posts Right-to-Counsel Article on SSRN

Posted on September 12, 2012
Professor Brooke Coleman (Seattle) has recently posted her forthcoming piece on the right to counsel, Prison is Prison, which will be published in the Notre Dame Law Review.  Here is the abstract:Two indigent men stand before two separate judges...

Top 10 Best Practices in Predictive Coding

Posted on August 22, 2012
Equivio, an e-discovery vendor, has produced a white paper discussing the best practices in predictive coding.  Registration is required to view the paper. Here is a description:Predictive coding is new to e-discovery.  Predictive coding, sometimes termed computer-assisted review or technology-assisted review, is software that can be trained by a human being to distinguish between relevant and non-relevant documents...

Prof. Hoffman Posts Article on Rulemaking in the Age of Twombly and Iqbal

Posted on August 15, 2012
Professor Lonny Hoffman (Houston) has just posted an Article entitled Rulemaking in the Age of Twombly and Iqbal.  Here is the abstract:In this article I am essentially trying to answer one critical question: Faced with the controversy triggered by the Supreme Court?s decisions in Bell Atlantic Co...

2013 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP

Posted on August 14, 2012
2013 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOPCALL FOR PAPERSVanderbilt Law School?s Branstetter Litigation & Dispute Resolution Program invites submissions for its annual New Voices in Civil Justice Scholarship Workshop, to be held May 6-7, 2013 at Vanderbilt Law School...

Langbein on the Disappearance of the Civil Trial

Posted on August 13, 2012
New on SSRN: John Langbein, The Disappearance of Civil Trial in the United States - http://ssrn.com/abstract=2123386.  Abstract:Since the 1930s, the proportion of civil cases concluded at trial has declined from about 20% to below 2% in the federal courts and below 1% in state courts...

Blogging Hiaitus

Posted on August 02, 2012
Multiple time constraints have made it impossible to keep up with a regular posting schedule at this blog.  Thus, I am making explicit the fact that I will not be posting to this blog with any regularity for the foreseeable future.  If something critical arises that is of interest to civil procedure, I may post about it...

Summary Judgment Symposium Papers Published

Posted on May 19, 2012
The Loyola University Chicago Law Journal has just published papers from last fall's symposium on Summary Judgment.  The articles are available at http://www.luc.edu/law/activities/publications/lljdocs/vol43_no3/llj_vol43_no3.html.

Announcing the Stanford Journal of Complex Litigation

Posted on May 11, 2012
Here is the announcement:Dear Authors:We are proud to announce the founding of the Stanford Journal of Complex Litigation (SJCL). Beginning in the 2012-2013 academic year, SJCL will publish articles and essays that are timely and make a significant, original contribution to the field of complex litigation...

Fourth Circuit Rejects Sufficiency of Evidence Appeal Absent JMOL Renewal

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

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

Posted on April 10, 2012
Per Toys "R" Us-Delaware, Inc. v. Tots in Mind, Inc., Slip Copy, 2012 WL 529595 (E.D. Va. Feb. 17, 2012):TRU's Motion for Sanctions is based on Tots' alleged spoliation of evidence. During his deposition, Mr. LaMantia, Tots' Fed.R.Civ.P. 30(b)(6) witness, testified that Tots never altered its seven-year document destruction policy during either this, or the underlying Blanco, litigation...

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

Posted on April 09, 2012
Per U.S. ex rel. Bunk v. Birkart Globistics GmbH & Co., Slip Copy, 2012 WL 488256 (E.D.Va. Feb. 14 2012):Presently pending before the Court is the Plaintiffs' post-trial motion for an award of civil penalties under the False Claims Act with respect to the DPM claim...

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

Posted on March 13, 2012
Per Denver Health and Hosp. Authority v. Beverage Distributors Co., LLC --- F.Supp.2d ----, 2012 WL 400320 (D.Colo. Feb. 8, 2012):Beverage contends that Rule 9(b), not Rule 8(a), applies to the negligent misrepresentation claim and that the claim cannot meet Rule 9(b)...

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

Posted on February 29, 2012
Prof. Howard Wasserman (FIU) has just posted an Article entitled The Roberts Court and the Civil Procedure Revival on SSRN.  Here is the Abstract:In the six terms since John G. Roberts became Chief Justice in September 2005, the Supreme Court has decided numerous, significant, and potentially far-reaching cases on core civil procedure subjects, including pleading, summary judgment, personal jurisdiction, subject matter jurisdiction, class actions, and the Erie/Hanna Doctrine...

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

Posted on February 16, 2012
From the ABA Journal:An unusual decision by a federal magistrate judge to require a so-called predictive coding protocol for automated e-discovery in an employment discrimination class action is both good news and bad news for young attorneys.The bad news: A number of their jobs could be at risk, if what may be a first-of-its-kind ruling by U...

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

Posted on February 16, 2012
Michael D. Sant'Ambrogio (Michigan State) and Adam S. Zimmerman (St. John's) have posted The Agency Class Action on SSRN.  Here is the Abstract:The number of claims languishing on administrative dockets has become a new ?crisis? ? producing significant backlogs, arbitrary outcomes and new barriers to justice...

SDNY Rejects KPMG's E-Discovery Appeal

Posted on February 06, 2012
Above the Law is reporting on an SDNY decision in Pippin v. KPMG, ruling that KPMG has to preserve a larger set of computer hard drives than it had wanted to preserve:  http://abovethelaw.com/2012/02/kpmg-recieves-an-e-discovery-smackdown/

Congress Passes Federal Courts Jurisdiction and Venue Clarification Act

Posted on December 02, 2011
Congress has passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (JVCA) and sent it to the President for his signature.  The bill cleans up  matters in the area of subject matter jurisdiction and venue that needed to be cleared up relating to permanent resident aliens and diversity jurisdiction, the remand of unrelated state law claims removed to federal court, the determination of venue generally, and other matters...

Washburn Law Journal Seeking Contributions

Posted on November 22, 2011
The Washburn Law Journal is constructing its Spring 2012 issue around the topic of resource allocation and the law. Specifically, the issue will focus on how attempts to conserve resources during the economic recession may impact the justice system. Several authors are already committed to the issue and will discuss topics including prosecutorial discretion as a vehicle to conserve state resources, questions surrounding the use of prison labor, and how new procedural rules may inhibit the ability of plaintiffs to access the court system...

Glover Posts Article on Federal Civil Settlements on SSRN

Posted on November 18, 2011
Maria Glover, a Climenko Fellow and Lecturer on Law at Harvard, has recently posted an article entitled The Federal Rules of Civil Settlement on SSRN.  Here is the abstract:The Federal Rules of Civil Procedure were based upon a straightforward model of adjudication: Resolve the merits of cases at trial, and use pre-trial procedures to facilitate accurate trial outcomes...

New Book on Civil Justice in International Perspective

Posted on November 15, 2011
New Book: Failures of American Civil Justice in International PerspectiveAbout the book:Few lawyers today would say that American civil justice works well. Some say that it is oppressive and unjust. Many have given up getting it to work. America's reformers have run out of ideas...

FJC study on post-Twombly motions to dismiss released

Posted on March 29, 2011
The Federal Judicial Center has released its report on post-Twombly motions to dismiss. It is available here.

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

Posted on March 22, 2011
The U.S. Supreme Court issued an opinion today in Matrixx Initiatives v. Siracusano, No. 09-1156, a case addressing the sufficiency of the pleading in a securities fraud case. Here is an excerpt from the Syllabus:Respondents filed this securities fraud class action, alleging that petitioners (hereinafter Matrixx) violated § 10(b) of the Securities Exchange Act of 1934 and Securities and Exchange Commission Rule 10b-5 by failing to disclose reports of a possible link between Matrixx's leading product, Zicam Cold Remedy, and loss of smell (anosmia), rendering statements made by Matrixx misleading...

Congress Considering Lawsuit Abuse Reduction Act, Again

Posted on March 15, 2011
Per BNA's U.S. Law Week, March 15, 2011, Vol. 79, no. 34:A House Judiciary subcommittee recently held hearings on the Lawsuit Abuse Reduction Act, which would amend Federal Rule of Civil Procedure 11 to make it more like the 1983 version of the rule, which lacked a safe harbor provision and was generally more strict than the current 1993 version of the rule by mandating sanctions for rule violations...

Discovery Sanctions: Default Judgment, $1M Fine

Posted on March 15, 2011
Per BNA's U.S. Law Week, March 15, 2011, Volume 79 No. 34:A patent case plaintiff's discovery misconduct elicited sanctions of a default judgment and a $1 million fine from the U.S. District Court for the Northern District of Illinois Feb. 23. The court initially sanctioned the plaintiff when its witness made statements during his deposition that contradicted the statements made in the plaintiff's motion for summary judgment...

Younger Bars Federal Relief for Juror on Facebook

Posted on March 15, 2011
Per BNA's U.S. Law Week, March 15, 2011, Volume 79 No. 34:The U.S. District Court for the Eastern District of California Feb. 14 declined to issue a temporary restraining order to a juror seeking to enjoin a California trial court judge from enforcing an order requiring him to issue a consent with Facebook to provide updates he made during a criminal trial...

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