Wednesday, June 6, 2007

Privilege Waiver and Inadvertent Disclosure

David B. Alden has a nice piece on The Clash of Privilege Waiver and Inadvertent Disclosure Rules over at the Drug and Device Law Blog that's worth a CivPro Prof's read.  Thanks to Mark Herrmann for the heads-up.--Counseller

June 6, 2007 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 5, 2007

Specific Jurisdiction in a Virtual World

Bragg v. Linden Research, most interesting for its property-law implications, presents a straightforward TJ issue in an interesting context.  The case involved a plaintiff's claim that the owner of a role-playing game, Second Life, unlawfully confiscated his virtual property and denied him access to the virtual world.  According to the court, "while the property and the world where it is found are 'virtual', the dispute is real."  Ultimately, the court rejected the owner's challenge and exercised specific jurisdiction, concluding that "the owner's representations-which were made as part of a national campaign to induce persons, including Bragg, to visit Second Life and purchase virtual property-constitute sufficient contacts to exercise specific personal jurisdiction over Rosedale" and that the exercise of jurisdiction did not offend traditional notions of fair play and substantial justice.    Thanks to Rick Bales of the Workplace Prof Blog for the heads up. --RR


June 5, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, June 4, 2007

USSCT Action

The Supreme Court decided several cases today.  See SCOTUSblog for more details.

In a per curiam decision, the Court issued its first pleadings decision since Twombly.  In that case, Erickson v. Pardus, the Court summarily reversed a dismissal of a pro se prisoner's complaint.  The Court's analysis, including the Court's first cite to Twombly, appears below:   

It may in the final analysis be shown that the District Court was correct to grant respondents’ motion to dismiss. That is not the issue here, however. It was error for the Court of Appeals to  conclude that the allegations in question, concerning harm caused petitioner by the termination of his medication, were too conclusory to establish for pleading purposes that petitioner had suffered “a cognizable independent harm” as a result of his removal from the hepatitis C treatment program. Id., at 698. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Specific facts are notnecessary; the statement need only “ ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’ ” Bell Atlantic Corp. v. Twombly, 550 U. S. ___, ___ (2007) (slip op., at 7-8) (quoting Conley v. Gibson, 355 U. S. 41, 47 (1957)). In addition, when ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint. Bell Atlantic Corp***

The complaint stated that Dr. Bloor’s decision to remove petitioner from his prescribed hepatitis C medication was “endangering [his] life.” Petitioner’s Complaint 2. It alleged this medication was withheld “shortly after” petitioner had commenced a treatment program that would take one year, that he was “still in need of treatment for this disease,” and that the prison officials were in the meantime refusing to provide treatment. Id., at 3, 4. This alone was enough to satisfy Rule 8(a)(2). Petitioner, in addition, bolstered his claim by making more specific  allegations in documents attached to the complaint and in later filings. The Court of Appeals’ departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pronounced in this particular case because petitioner has been proceeding, from the litigation’s outset, without counsel. A document filed pro se is “to be liberally construed,” Estelle, 429 U. S., at 106, and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers,” ibid. ***

Whether petitioner’s complaint is sufficient in all respects is a matter yet to be determined, for respondents raised multiple arguments in their motion to dismiss. In particular, the proper application of the controlling legal principles to the facts is yet to be determined. The case cannot, however, be dismissed on the ground that petitioner’s allegations of harm were too conclusory to put these matters in issue.


June 4, 2007 | Permalink | Comments (2) | TrackBack (0)