Friday, January 25, 2008
In Nat'l Mining Association v. Kempthorne, the D.C. Circuit determined that 30 U.S.C. s 1276(a)(1) granted subject matter jurisdiction to "the United States District Court for the District of Columbia" despite the fact that the statute references "the United States District Court for the District of Columbia Circuit." The D.C. Circuit noted that "there is no such court within the federal judiciary" and "excised" the word "Circuit" from the statute. The Court said it had no qualms about the erasure because "both Congress's intent and the error impeding it are plain to see."--Counseller
Wednesday, January 23, 2008
Do compulsory counterclaims exist in simple declaratory judgment suits? Generally no, writes Judge Posner in Allan Block Corp. v. County Materials Corp. It's really a nice opinion that delves deeper than does my summary below.
When a declaratory judgment plaintiff asserts no coercive claims, and the declaratory judgment defendant asserts no counterclaims, claim preclusion is not triggered. In other words, a judgment granting or denying declaratory relief is not claim preclusive. Easy enough for the plaintiff, who is free therefore to assert related claims in a later suit because a plain ol' declaratory request doesn't trigger the rules of merger and bar. (The plaintiff would of course be constrained by issue preclusion). Reaching the question of compulsory counterclaims requires an additional step. The civil rules define certain counterclaims as compulsory, but it's actually claim preclusion that bars the counterclaims the rules define as compulsory. That is when the plaintiff seeks coercive relief, claim preclusion--not the compulsory counterclaim rule alone--operates to bar defendants from asserting counterclaims when they are defined as compulsory. But since a pure declaratory judgment does not trigger claim preclusion, and since claim preclusion is what bars the later assertion of a compulsory counterclaim, there's generally no such thing as a compulsory counterclaim in a pure declaratory judgment suit. Or perhaps more precisely, there's no bar against later asserting a counterclaim even when it's defined as compulsory. --RR
Tuesday, January 22, 2008
As Ben Spencer points out over at the Federal Civil Practice Bulletin, Prof. Bone has posted a new article on SSRN titled To Encourage Settlement: Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure. I was one of the many who attended this year's Civil Procedure Section meeting in NYC this year--The Revolution of 1938 Revisited-- and I enjoyed Prof. Bone's comments about the rulemaking process and, in particular, his thoughts on the politicization of the process. I'm glad to see his new article offers more thoughts on the subject.--Counseller