Miscellaneous

Class Action Waiver Unenforceable If Individual Suits Too Costly

Posted on March 15, 2011
A class action waiver in an arbitration agreement is unenforceable when it would effectively preclude plaintiffs from enforcing their statutory rights, the U.S. Court of Appeals for the Second Circuit held March 8 (In re American Express Merchants' Litigation, 2d Cir...

Eleventh Circuit Determines Proper Vehicle for Enforcing Forum-Selection Clauses

Posted on March 09, 2011
Per Slater v. Energy Services Group Intern. Inc., --- F.3d ----, 2011 WL 782023 (11th Cir. Mar. 8, 2011):Slater contends that the district court abused its discretion by dismissing her claims for improper venue pursuant to Rule 12(b)(3) rather than applying the transfer analysis under 28 U...

Judge: Don?t remove Medicare lien dispute to federal court

Posted on February 17, 2011
Per Virginia Lawyers Weekly, February 17, 2011:Federal courts are not the place to resolve disputes over personal injury settlements held up by a Medicare lien, a Roanoke federal judge has ruled.In a Feb. 14 opinion, U.S. District Judge Samuel G. Wilson not only remanded a motion to enforce a personal injury settlement, he expressly retained jurisdiction to consider an award of sanctions for improper removal...

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

Posted on February 04, 2011
Per Adiscov LLC v. Autonomy Corp. PLC (Smith, J.):This court finds plaintiff?s conclusory allegations in the complaint neither give defendants notice of the substance of the suit against them, nor raise the right to relief above the speculative level...

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

Posted on February 04, 2011
The Sixth Circuit has issued an opinion dismissing a case for lack of subject matter jurisdiction because the amount in controversy was one penny short. The case is Freeland v. Liberty Mutual Fire Ins. Co., no. 10-3038 (6th Cir. Feb.4, 2011) and is available for download here.

SCOTUS Issues Opinion in Ortiz v. Jordan

Posted on February 02, 2011
The Supreme Court decided Ortiz v. Jordan last week, a case in which it held that denials of summary judgment after a full trial on the merits may not be appealed. Here is an excerpt from the Syllabus of the case:A party may not appeal a denial of summary judgment after a district court has conducted a full trial on the merits...

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

Posted on January 24, 2011
Visit the VLW Blog for an article on Lopez v. Asmar?s Mediterranean Food Inc., in which the judge held that the plausibility standard announced in Twombly and Iqbal does not apply to the pleading of affirmative defenses. A PDF of the opinion is available here.

Prof. Welsh Posts Article on Summary Jury Trials and Twombly

Posted on January 19, 2011
Prof. Nancy Welsh recently posted an article entitled on SSRN. Here is the abstract.With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally ?throwing the fight,? at least in the legal contests between many civil rights claimants and institutional defendants...

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

Posted on January 19, 2011
Professor Richard A. Bales (N. Kentucky) and Melanie Goff have recently published an article entitled A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses on SSRN. Here is the abstract:The U.S. Supreme Court?s 2007 and 2009 decisions in Twombly and Iqbal radically altered the environment in which federal complaints are filed by creating a ?plausibility? requirement where the Federal Rules before required only a ?short and plain statement? providing ?notice? of a claim...

Prof. Meier Posts Pleading Article on SSRN

Posted on January 14, 2011
Professor Luke Meier (Baylor) has posted an article entitled ?Why Twombly is Good Law (But Poorly Drafted) and Why Iqbal Will Be Overturned,? on SSRN. Here is part of the abstract:In the attempt to decipher what is required to plead a claim for relief in federal court after the Supreme Court?s decisions in Bell Atlantic Corporation v...

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

Posted on November 29, 2010
Professor Jay Tidmarsh (Notre Dame) has recently posted an article entitled Procedure, Substance, and Erie on SSRN. Here is the abstract:This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions...

AALS Newsletter Call for Conference Information

Posted on November 20, 2010
Each year the Civil Procedure Section of the AALS prepares a newsletter that aggregates various bits of information for the benefit of Civil Procedure teachers and scholars. One regular feature of that newsletter is ?Upcoming Conferences.? If you have planned (or are otherwise aware of) a conference for calendar year 2011 and would like this newsletter to list the event, please send us the details?web links, calls for papers, etc...

EDVA Transfers Case Under First-Filed Rule

Posted on November 03, 2010
Judge Rebecca Beach Smith (EDVA) applied the "first-filed" rule to transfer a patent infringement case to a New York federal court. Although the patent infringement action was properly filed in the Eastern District of Virginia, the adversary had previously filed a declaratory judgment action on the same issue in the Southern District of New York...

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

Posted on October 31, 2010
Senior Judge Payne (E.D. Va.) recently issued an opinion in a case that was removed from state court based on diversity more than one year after the case was filed in state court, notwithstanding section 1446(b)'s seeming prohibition on such removals...

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

Posted on October 26, 2010
Professor A. Benjamin Spencer (W&L) has recently posted an article entitled The Preservation Obligation: Regulating and Sanctioning Pre-Litigation Spoliation in Federal Court on SSRN. Here is the abstract:The issue of discovery misconduct, specifically as it pertains to the pre-litigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area...

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

Posted on October 19, 2010
Per Cappuccitti v. DirecTV, Inc., --- F.3d ----, 2010 WL 4027719 (11th Cir. Oct. 15, 2010):?On July 19, 2010, we issued an opinion in this case. Cappuccitti v. DirecTV, Inc., No. 09-14107, slip op. (11th Cir. July 19, 2010). We based our decision on our interpretation of the jurisdictional requirements of the Class Action Fairness Act of 2005 (?CAFA?), Pub...

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

Posted on October 19, 2010
Per Illinois v. Hemi Group LLC, --- F.3d ----, 2010 WL 3547647, (7th Cir.Sept. 14, 2010):We wish to point out that we have done the entire minimum contacts analysis without resorting to the sliding scale approach first developed in Zippo Mfg. Co. v...

Prof. Nagareda Posts Article on Litigation-Arbitration Dichotomy

Posted on October 18, 2010
Professor Richard Nagareda has recently posted an article entitled The Litigation-Arbitration Dichotomy Meets the Class Action on SSRN. Here is the abstract:Courts and commentators often conceive of litigation and arbitration as dichotomous regimes for civil dispute resolution...

Prof. Reinert Posts Article on Costs of Heightened Pleading

Posted on October 14, 2010
Professor Alex Reinert (Cardozo-Yeshiva) has posted an article entitled The Costs of Heightened Pleading on SSRN. Here is the abstract:In Conley v. Gibson, 355 U. S. 41 (1957), the Supreme Court announced its commitment to a liberal pleading regime in federal civil cases, and for decades thereafter was steadfast in resisting ad hoc heightened pleading rules adopted by lower courts...

SCOTUS Grants Cert in Personal Jurisdiction Case

Posted on September 29, 2010
The SCOTUS granted cert yesterday in a case presenting this question:"Whether a foreign corporation is subject to general personal jurisdiction, on causes of action not arising out of or related to any contacts between it and the forum state, merely because other entities distribute in the forum state products placed in the stream of commerce by the defendant...

Good Amount-In-Controversy Case in Virginia

Posted on September 23, 2010
Here is an excerpt from a posting by Paul Fletcher, the publisher of Virginia Lawyers Weekly:A veterinary supplies company says that a vet named Rasnic owes it $74,139.24 and wants to sue to collect. Can the company, Merial Ltd., sue in federal court?It?s a contract action and there?s no federal statute involved, so the plaintiff has to rely on diversity of citizenship under 28 U...

Boyd & Hoffman Post Article on Litigating Toward Settlement on SSRN

Posted on September 15, 2010
Professors Christina L. Boyd (SUNY Pol. Sci.) and David A. Hoffman (Temple) have posted and article on SSRN entitled Litigating Toward Settlement. Here is the abstract:What is the relationship between litigation and settlement? Previous research assumes that the factors influencing settlement are exogenous to the parties: once the complaint is filed, the die is cast...

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

Posted on September 07, 2010
Prof. Allan Ides (Loyolla LA) has just posted a piece entitled The Standard for Measuring the Validity of a Federal Rule of Civil Procedure: The Shady Grove Debate between Justices Scalia and Stevens on SSRN. Here is the abstract:In Shady Grove Orthopedic Associates, P...

Prof. Nagareda Posts Essay on Class Certification

Posted on August 31, 2010
Professor Richard Nagareda (Vanderbilt) has recently posted an Essay entitled Common Answers for Class Certification. Here is the abstract:This Essay for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. focuses on new developments in the law of class action certification...

Prof. Erbsen Posts Article on Impersonal Jurisdiction on SSRN

Posted on August 30, 2010
Professor Allan Erbsen (Minnesota) has recently posted an Article entitled Impersonal Jurisdiction on SSRN. Here is the abstract:Constitutional law governing personal jurisdiction in state courts inspires fascination and consternation. Courts and commentators recognize the issue?s importance, but cannot agree on the purpose that limits on personal jurisdiction serve, which clauses in the Constitution (if any) supply those limits, and whether current doctrine implementing those limits is coherent...

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

Posted on August 18, 2010
An en banc petition has been filed in Cappuccitti v. DirecTV, Inc., the Eleventh Circuit case in which the panel interpreted the Class Action Fairness Act as not eliminating the requirement that at least one plaintiff have a claim of more than $75,000...

EDVA Judge Denies Request for Confidential Settlement Terms During DIscovery

Posted on August 18, 2010
An identity theft victim need not disclose to defendant credit company her settlement agreements with three credit reporting agencies and a separate debt collection agency on related claims under the FDCPA and the FCRA, an Alexandria U.S. District Court says...

Second Circuit Finds Personal Jurisdiction Over Online Handbag Counterfeit Seller

Posted on August 15, 2010
Here is the Westlaw synopsis of a recent Second Circuit decision on personal jurisdiction based on Internet contacts, Chloe v. Queen Bee of Beverly Hills, LLC, --- F.3d ----, 2010 WL 3035495 (2d Cir. Aug. 5, 2010):Background: Trademark owner, a fashion company that sold women's clothing and accessories, brought action against competitor and competitor's employees for violations of the Trademark Act and common law trademark infringement and unfair competition...

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

Posted on August 12, 2010
ABA's Litigation News contains an article entitled "Is It Time for a Federal Rule on Preservation?" and discusses an proposal by judges and practitioners who served on a panel at the 2010 Civil Rules Advisory Committee Litigation Conference at Duke.According to the article, the elements of the proposal include:- general and specific triggers for attachment of the obligation to preserve information, including electronically stored information;- the scope of the preservation duty, including both time frame and the types of covered data and data sources;- the form or format in which data subject to preservation should be maintained;- limitations and guidance for determining the individual database users and data custodians for - whom detailed data must be captured and preserved;- preservation standards applicable to non-parties;- limitations as to the duration of preservation duties and their applicability to post-suit records and data;- the contours of a safe harbor for organizations utilizing formal litigation hold procedures;- the extent to which internal efforts to ensure and accomplish proper preservation should be protected as work product; and- the consequences and related procedural requirements applicable in instances of alleged breaches of the preservation duty...

Fourth Circuit Reverses Denial of Motion to Set Aside Default

Posted on August 11, 2010
The case is Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc., --- F.3d ----, 2010 WL 3042441 (4th Cir. Aug. 5, 2010). Here is Virginia Lawyers' Weekly's summary of the case:A corporation's registered agent failed to forward suit papers, and the 4th Circuit says a district court abused its discretion when it refused to vacate entry of default against the corporation, sued by a private school for roof damage allegedly caused by the company's fire-retardant materials...

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