March 30, 2007
No really, short and plain is enough
There are many reasons a plaintiff's pleading might contain detailed factual allegations and be organized by the elements of the relevant legal theories. But of course, it doesn't have to do either. Or does it? Fairly recently, the Seventh Circuit provided two concise and helpful descriptions of what is, and what is not, required:
It is enough to name the plaintiff and the defendant, state the nature of the grievance, and give a few tidbits (such as the date) that will let the defendant investigate. A full narrative is unnecessary. Kolupa v. Roselle Park Dist., 438 F.3d 713, 714 (2006).
This treatment went wrong at the first step: the belief that complaints must lay out facts corresponding to every “element” of a legal theory. That is a code-pleading approach, which the Federal Rules of Civil Procedure reject. One pleads “claims” (which is to say, grievances) rather than legal theories and factual specifics. The Supreme Court drove the point home in Swierkiewicz v. Sorema N.A., holding that plaintiffs need not allege either the factual or legal “elements” of a prima facie case under the employment-discrimination laws. That conclusion is equally applicable to every other federal claim. It is why “[a]ny district judge (for that matter, any defendant) tempted to write ‘this complaint is deficient because it does not contain...’ should stop and think: What rule of law requires a complaint to contain that allegation?” It is also why “[a]ny decision declaring ‘this complaint is deficient because it does not allege X’ is a candidate for summary reversal, unless X is on the list in Fed.R.Civ.P. 9(b).” *** Simpson's grievance was set out clearly enough to put the defendants on notice; no more is required. Simpson v. Nickel, 450 F.3d 303 (2006).
Although these are two of the more recent and forceful descriptions of the pleading obligation, the principles they contain were stated often before 2003, when Professor Christopher Fairman wrote:
Notwithstanding its foundation in the Federal Rules and repeated Supreme Court imprimatur, notice pleading is a myth. From antitrust to environmental litigation, conspiracy to copyright, substance specific areas of law are riddled with requirements of particularized fact-based pleading. To be sure, federal courts recite the mantra of notice pleading with amazing regularity. However, their rhetoric does not match the reality of federal pleading practice. Sometimes subtle, other times overt, federal courts in every circuit impose non-Rule-based heightened pleading in direct contravention of notice pleading doctrine. The Myth of Notice Pleading 45 Ariz. L. Rev. 987 (2003).
Is notice pleading a myth?
March 29, 2007
The Thursday Interview
Click the link at the bottom of this post to listen to this week's installment of the Thursday Interview. This week's interview is with Howard Wasserman at FIU about his most recent article, Jurisdiction, Merits, and Non-Extant Rights. Thanks to Howard for a great interview.
March 28, 2007
Apparently the US News Rankings have leaked again. Find the list here. Find more discussion here and here. Those heres have many more heres. I'm kinda new to this blogging thing, but from what I can gather, the standard protocol after a US News leak seems to be to leave a comment about indifference to the rankings while frantically opening another browser window to find the list and confirm its validity. --RR
March 27, 2007
Declining the Exercise of Supplemental Jurisdiction
The Seventh Circuit, via Posner, issued a short but interesting supplemental jurisdiction opinion earlier this month, Williams Elec. Games, Inc. v. Garrity. The case went to trial on both federal and state-law claims, but by the time the case went to the jury, the district court had dismissed all federal claims. In an earlier opinion, the Seventh Circuit granted the plaintiff a new trial because of errors in the state law fraud instructions to the jury. On remand, rather than conducting the new trial, the district court relinquished jurisdiction over the lone remaining state-law claim and dismissed the case under 1367(c).
The Seventh Circuit affirmed the dismissal, but said that it was "troubled" by the district judge's invocation of a "presumption" in favor of dismissal. Section 1367(c)(3) allows a district court to decline to exercise supplemental jurisdiction when all claims over which it has original jurisdiction have been dismissed. The court noted that district courts are to presume that, "if the federal claims drop out before trial, the district court should relinquish jurisdiction over the state-law claims," but the court said that the presumption was inapplicable here:
For while some of the federal claims (the Sherman Act claim and some of the RICO claims) did fall out of the case before trial, other RICO claims were tried, along with some of the state-law claims, though they were dismissed mid-way in the trial on the defendants' motion for directed verdict.
Of course, what the court says here is true about the first trial, but only a state-law claim remained for the second trial. I suppose the lesson we take from Garrity is that, where there is more than one trial, courts should only presume dismissal when it dismisses all federal claims before the first trial.
The Seventh Circuit affirmed the district courts dismissal, however, because the district court would have reached the same result "on proper grounds"--namely, section 1367(c)(1) ("the claim raises a novel or compex issue of State law"). If the state-law claim raised novel or complex issues of state law requiring dismissal after remand, didn't it raise those same novel and complex state-law issues before the first trial and appeal? If so, should the district court have declined the exercise of supplemental jurisdiction before the first trial?
March 26, 2007
Federal-court discovery and international tribunals
An interesting case from the 11th Circuit in an area I don't encounter often. After the defendant failed to satisfy a judgment secured by NoName corporation in a Panamanian court, NoName filed a post-judgment petition in the judgment-rendering Panamanian court. Following Panamanian procedures, NoName sought post-judgment discovery and suggested that, since the defendant resided in Florida, the court obtain the evidence through a letter rogatory. The court issued a letter rogatory to the Judicial Authorities for the City of Miami. The United States then filed an ex parte application in the United States District Court for the Southern District of Florida, pursuant to 28 U.S.C. s 1782, for an order appointing an Asst. U.S. Attorney as a commissioner for the purpose of obtaining the evidence requested by the Panamanian Court. The issue was whether and when a federal district court can assist in the production of evidence for use in a foreign court, and specifically whether a district court can do so when the judgment has not been domesticated. Ultimately, the 11th Circuit affirmed the district court's decision to grant the application for judicial assistance to foreign tribunals under s1782. --RR