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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. Martin Posts Article Analyzing the Impact of PACER

Posted on March 25, 2008
Professor 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, 2008
Professors 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, 2008
Per 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, 2008
Professor 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...

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Ninth Circuit Affirms Denial of Attorney's Fees Following Successful Motion to Remand after CAFA Removal

Posted on March 12, 2008
Per 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, 2008
Per 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, 2008
Prof. 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, 2008
From 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, 2008
Prof. 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, 2008
Prof. 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, 2008
Prof. 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, 2008
Prof. 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, 2008
Kendall 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, 2008
The 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, 2008
MARITIME 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, 2008
Per 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, 2008
On 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, 2008
As 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, 2008
Professor 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, 2008
Per 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, 2008
Per 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, 2008
Per 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, 2008
Per 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, 2008
Professor 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, 2008
Per 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, 2008
Today 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, 2008
Prof. 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, 2008
Elliot 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, 2008
Per 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, 2008
Yesterday 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...

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