Wednesday, December 10, 2008

Haywood v. Drown

The Supreme Court heard arguments on last Thursday in Haywood v Drown.  The bulk of the argument focused on the jurisdictional issue.  As SCOTUSblog pointed out, at one point Justice Alito asked whether there was some "Platonic ideal of jurisdiction versus non-jurisdiction.”  You can read the full argument transcript here.  Also of interest is the amicus brief filed by a group of constitutional law and civil procedure professors arguing for reversal of the New York Court of Appeals decision.  You can read that here.

-Counseller/ps

December 10, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 9, 2008

Forum Non Conveniens and the "American" Presumption

Judge Posner, writing for a panel of the Seventh Circuit Court of Appeals recently affirmed a district court's dismissal on forum non conveniens of a diversity suit brought under 28 U.S.C. § 1332(d)(2)(C).  The plaintiff was a wholly owned subsidiary of a Japanese company incorporated in Delaware that invested in a limited partnership which bought a building in Chicago.  The limited partnership was also incorporated in Delaware with a principal place of business in Japan, and all the partners had Japanese addresses.  The bulk of the opinion is dedicated to the plaintiff's argument that there is a strong presumption in favor of the plaintiff's choice of forum, "especially if the plaintiff is an American and the forum is an American court."  The court quickly dismissed that argument and seemed to scold the plaintiff's counsel declaring that "the plaintiff's lawyers refuse to acknowledge that their client is 'American' in only the most artificial sense."  Judge Posner then went on to explain that "Courts need to look behind an assertion that the plaintiff is 'American,' moreover, to determine whether the party has the sort of ties with the United States that make the American judicial forum convenient."  So there would be no confusion as to the relevance of the presumption following this opinion, the court declared "the presumption is fine, but it is not to be treated, as the plaintiff would have us do, as a nigh-insurmountable obstacle to dismissal."

Read the full opinion here.

-Counseller/ps

December 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, December 8, 2008

Converting a 12(b)(6) Motion to Dismiss into a Motion for Summary Judgment under FRCP 56

A panel of the Second Circuit Court of Appeals recently reinstated a suit arising out of the 1984 Bhopal, India factory explosion.  The district court dismissed all of plaintiff's claims except for one after converting the defendants' motion to dismiss under FRCP 12(b)(6) into a Rule 56 motion for summary judgment.  The plaintiffs argued on appeal that the district court gave inadequate notice of conversion prior to granting the motion.  The appeals panel agreed and found that the conversion was in error, or at the least premature.  Citing the language of FRCP 12(d), the panel explained that "this means that a district court must give notice to the parties before converting a motion to dismiss pursuant to Rule 12(b)(6)."  The district court had found notice was unnecessary because the plaintiffs were already on notice to a possible conversion.  Citing to a previous Second Circuit case the court emphasized that "care should, of course, be taken by the district court to determine that the party against whom summary judgment is rendered has had a full and fair opportunity to meet the proposition that there is no genuine issue of material fact...”

Read the full opinion here.

-Counseller/ps

December 8, 2008 | Permalink | Comments (1) | TrackBack (1)