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Miscellaneous

Federal Civil Practice Bulletin

Dedicated to federal civil practice and procedure.

Post Frequency: 5.3/day

Last Entry: January 13, 2014 at 12:37:00

Prof. Nash Posts Article on Transjurisdictional Adjudication

Posted on August 07, 2008
Professor 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, 2008
Chase 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, 2008
Professor 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, 2008
Professor 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...

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Ninth Circuit Notes Split Re Reviewability of Remand Based on Declining Supplemental Jurisdiciton

Posted on July 29, 2008
Per 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, 2008
Professor 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, 2008
Prof. 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, 2008
Prof. 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, 2008
Professor 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, 2008
Professor 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, 2008
Per 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, 2008
Here 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, 2008
Visit 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, 2008
Per 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, 2008
Per 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, 2008
The 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, 2008
At 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, 2008
Per 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, 2008
Per 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, 2008
Per 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, 2008
Per 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, 2008
Professor 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, 2008
The 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, 2008
Per 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, 2008
Per 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, 2008
On 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, 2008
Here 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, 2008
Per 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, 2008
Professor 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, 2008
The 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...

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