March 3, 2007
More on where to start
Last week, we asked what topic you cover first in Civil Procedure. The post generated thoughtful comments from Prof. Vladeck of the University of Miami School of law, Prof. Wasserman of FIU, and Prof. Erichson of Seton Hall. These comments reminded us of a former colleague's concern. What obligation do we have, if any, as CivPro Profs, to the other first-year courses and their instructors? Starting with pleadings and legal-sufficiency review requires students to focus on elements and causes of action, which will help them process the significance of the procedural posture in their "substantive courses," or so the argument went. I suppose there are two questions: Do CivPro instructors have a unique obligation among first-year instructors, and if so, does a particular starting place best fulfill that obligation?
March 2, 2007
In case you missed it
- Cert. Denied in Blackwater Security Consulting v. Nordan. There, the question presented was whether a federal district court that lacks subject-matter matter jurisdiction over a removed action must dismiss rather than remand the action when the state court also lacks jurisdiction. Link to the Cert. petition at SCOTUSBLOG.
- Petitioner's Merits Brief filed in Watson v. Philip Morris. The Eighth Circuit's decision is available here. The question presented is "whether a private actor doing no more than complying with federal regulation is a "person acting under" a federal officer" for purposes of the federal-officer removal statute. A summary of the case is available here. The citation to the brief is 2007 WL 579304.
- Prof. Benjamin Spencer reports on two CAFA cases at the Federal Civil Practice Bulletin. His coverage of the first case, involving interlocutory appeals of CAFA remand denials, can be found here. His coverage of the second case, involving the home-state exception to CAFA, can be found here.
- The Eastern District of Louisiana ruled on an exam-question-worthy remand motion, which involved improper procedural joinder, supplemental jurisdiction, federal-question jurisdiction, and an amount-in-controversy dispute. The citation to the case, Accardo v. Lafayette Insurance Company, is 2007 WL 325368. (Note, this ruling did not occur this week, but I just located it.)
March 1, 2007
The Thursday Interview
Click the link at the bottom of this post to listen to this week's installment of the Thursday Interview. The interview this week is with Prof. Scott Dodson of the University of Arkansas School of Law about his new article, In Search of Removal Jurisdiction, which has been submitted to the Standford/Yale Junior Faculty Forum and will be presented in abbreviated oral form at the 2007 Southeastern Association of Law Schools annual conference. Prof. Dodson proposes a framework for characterizing provisions of the removal statutes as either jurisdictional or procedural. Here's the abstract:
“Jurisdiction,” it has been observed, “is a word of many, too many, meanings.” The ubiquitous and somewhat careless use of the term “jurisdictional” by courts has spawned confusion over what is and is not jurisdictional in a variety of contexts, including removal. What is and what is not jurisdictional in the removal statutes has broad implications both for litigants and for courts and looms as the next great front in the jurisdictional characterization landscape. It lacks scholarly coverage, is the subject of deep divisions in the lower courts, and cries out for resolution.
In this article, I develop an initial framework for tackling the jurisdictional/procedural characterization issues of the removal statute. I build upon the groundwork laid by prior precedent, modified to account for the quasi-jurisdictional nature of removal and its impact on the federal-state balance of power. I then showcase the utility of the framework in a case study of one particularly nettlesome removal issue, the forum defendant rule. The case study demonstrates both why the lower courts' approaches to resolving the issue have been misguided and how my framework can provide a more reasoned approach.
I end with thoughts for the future, including how my proposed framework will be a catalyst for further discussion on removal characterization and how it might affect other non-removal questions waiting for resolution.
A big thank you to Prof. Dodson for a great interview.
Download dodson_removal_interview.mp3 (13' 45")
February 28, 2007
"In Defense of Dissents"
This post might not be right down the middle of the CivPro strike zone, but it's Time Magazine and the Supreme Court so I couldn't resist throwing it out. In the February 26 edition of Time, Reynolds Holding authors a piece entitled "In Defense of Dissents," in which he discusses Chief Justice Roberts's push for unanimity on the court and the downsides of such an approach. For example, Holding says:
What's troubling is just how Roberts often gets to 9 to 0: by pushing for decisions on grounds narrow enough for each Justice to accept. That makes for some pretty thin rulings . . .
Holding also discusses the value of dissenting and concurring opinions.
But the price of unanimity is the loss of concurrence and dissent, the expression of views that can strengthen the law by showing us how it came to be, where it should develop and why the most important rulings are never easy. Sometimes the doubters are right, and if their voices disappear, so might the prospect of not-yet-recognized freedoms or protections for many Americans.
Holding cites the Harlan dissent in Plessy v. Ferguson and the Murphy dissent in the Korematsu Japanese internment case, among others, as examples of dissenting opinions that ultimately won out over the majority opinions. So, to bring this post back into the heart of the CivPro strike zone, what are the CivPro examples of dissenting opinions that ultimately won the day?
February 27, 2007
To stay or dismiss?
The major cases from the courts of appeals and all cases from the Supreme Court receive ample attention. We'll continue to link to those decisions as they are decided, but many interesting procedural and jurisdictional issues arise in the more obscure recent cases, such as The Lexus Real Estate Group, Inc v. Bullitt County Bank, 2007 WL 542402.
The Bank obtained a default judgment against the debtors in an Indiana State Court foreclosure action. The Debtors appealed, challenging improper service of process. The intermediate appellate court noted some oddities with the service but affirmed.
While the Debtors were preparing their challenge to the Indiana Supreme Court, the Debtors also filed a federal-court action against the Bank, asserting claims related to the foreclosure. The Bank moved for summary judgment, arguing that the Debtors were precluded from asserting the related claims. By the time the federal district court ruled on the preclusion defense, the case was pending before the Indiana Supreme Court.
The Bank had a valid preclusion defense. Since the allegedly preclusive judgment was rendered by an Indiana State Court, the Full Faith and Credit Act required the district court to apply Indiana preclusion principles. Under Indiana law, the claims were precluded as compulsory counterclaims. The Debtor argued that the state-court judgment was not entitled to preclusive effect because of improper service, but that argument was properly rejected based on the issue-preclusive effect of the state court's ruling on the service issue. And as is common, the pendency of an appeal did not strip a judgment of preclusive effect.
The district judge dismissed the claims with prejudice.The Court then noted the challenge pending before the Indiana Supreme Court. "If the Indiana Supreme Court ultimately decides that service of process was improper, Debtors will have an opportunity to file these claims as compulsory counterclaims...."
It seems to me that the district judge's dismissal with prejudice unnecessarily complicates matters, given the credible challenge to the validity of the judgment in state court. If the Indiana Supreme Court reverses, the debtors will still be faced with a potentially preclusive judgment, only now it will be the federal court's judgment based on the preclusive effect of a judgment that has been reversed. Perhaps the court's notation that the Debtors are free to refile their claims as counterclaims solves that problem. At the least, the Debtors would succeed in reopening the federal judgment. But isn't a stay preferable? If the Indiana Supreme Court reverses, the debtors are free to do more than the court suggests--file their claims as compulsory counterclaims in state court--they are free to refile this same federal suit, as the existence of parallel proceedings is no bar to federal jurisdiction. If the Indiana Supreme Court affirms, then the federal district court can dismiss with "real" prejudice to the claims being filed again. In this scenario, a stay doesn't infringe upon Colorado River Abstention policies; if anything, it advances them.
February 26, 2007
At the risk of revealing my own ignorance, I must admit I was shocked by what I learned reading Prof. Michael G. Collins' new article, "Jurisdictional Exceptionalism," which is part of the University of Virginia Law School's Public Law and Legal Theory Working Paper Series.
A party can challenge federal court subject matter jurisdiction at any time, even on appeal, even if that party invoked jurisdiction in the first place. Without question these rules amount to exceptional treatment of challenges to subject matter jurisdiction, but the article makes the point that this "exceptionalism" is a relatively recent development.
Here's the abstract:
Challenges to federal court subject matter jurisdiction enjoy exceptional treatment: They resist procedural regulation, they are immune to waiver, and they may be raised at any time during a case, even by the party who invoked the federal court’s jurisdiction in the first instance. Such treatment is said to arise from the limited nature of federal judicial power. Nevertheless, the current ability to raise jurisdictional challenges—however and whenever—proves to be a comparatively recent development. During the early Republic, the federal courts were governed by a highly formalized common-law pleading regime that constricted the time and manner of jurisdictional objections, that embraced a robust notion of waiver, and that created disincentives to challenging jurisdiction. The result was that federal courts heard cases in which the pleadings may have suggested subject matter jurisdiction but in which jurisdiction was lacking in fact. Mid-nineteenth century developments associated with code pleading brought an increased focus on jurisdictional facts, and the Reconstruction Congress provided greater opportunities for jurisdictional challenges than those available at common law. But it was not until the mid-1930’s that the Supreme Court fully articulated the modern notion that jurisdictional defects could be raised in any manner and at any time—a notion that was soon embodied in the Federal Rules of Civil Procedure. This underexplored history of pleading and jurisdiction—particularly that of the early Republic—suggests understandings of the federal courts’ limited jurisdiction that may be in tension with current views. It may also offer possibilities for (as well as limits on) procedural reform aimed at restricting the currently open-ended ability to raise jurisdictional challenges in federal court.
As Prof. Collins points out, many have criticized the "current treatment of jurisdictional questions." Is what Prof. Collins uncovers ammunition for ending "jurisdictional exceptionalism?" Or as Prof. Collins puts it, "Does history support foreclosure of jurisdictional objections?