December 19, 2008
Rules Enabling Act
Anthony Vitarelli recently posted A Blueprint for Applying the Rules Enabling Act's Supersession Clause on SSRN. Click the article title to download. This abstract follows:
When Congress passed the Rules Enabling Act (REA), it deferred to the Supreme Court's institutional expertise to enact guidelines for judicial procedure. In the REA, Congress included a provision - now known as the supersession clause - that declared existing statutes in conflict with new rules to "be of no further force or effect." This Comment examines a divergence between 18 U.S.C. 3731 and Federal Rule of Appellate Procedure 4(b)(1)(B) that implicates the supersession clause. Three circuits have adjudicated this conflict and reached different conclusions. The substance of the conflict concerns the timeliness of government appeals of district court decisions and orders in criminal cases. At present, Rule 4(b) permits a longer appellate time limit than 3731, but a 2007 Supreme Court case, Bowles v. Russell, may invalidate any limit longer than that in 3731. This Comment asserts that irrespective of Bowles, applying the supersession clause favors the primacy of Rule 4(b). Employing the supersession clause provides a blueprint for future rule-statute disputes concerning timeliness. In making these determinations, this Comment argues that courts should evaluate the rule versus the statute according to three metrics: the relative recency of enactment, the institutional competence of the respective authors to decide the issue, and the degree to which the rule affects substantive rights.
December 17, 2008
Venue Selection, State or Federal?
When a contract contains a forum-selection clause that requires "exclusive venue" in a particular county of a State, might venue be proper in a Federal District Court that happens to be located in that county? The Fifth Circuit answered "yes" this week in Alliance Health Group, Inc. v. Bridging Health Options LLC. En route, the court disagreed with a 10th Circuit case and distinguished provisions that require venue in the courts of a county from provisions that require venue in the courts in a county. Federal district courts are courts in a county, but they are not courts of a county. Although controversial, Judge Barksdale's opinion is concise, well-written, and accessible. --RR
December 16, 2008
Service via Certified Poke?
The AP reports: Australia OKs Facebook for serving lien notice.--RR
December 15, 2008
Foreign Defendants and Service of Process under State Law
The New York Court of Appeals recently handed down an interesting opinion regarding service of process upon foreign defendants in their home country. The suit involved a forfeiture proceeding initiated by the New York attorney general seeking to obtain the proceeds from a money transfer operation based in Brazil. The plaintiff served the Brazilian defendants in Brazil in accordance with the NY service of process statute. The trial court held that the service of process was invalid because it failed to comply with the Inter-American Convention on Letters Rogatory as well as the service requirements of Brazil. Brazil requires that a foreign plaintiff serve a Brazilian party using letters rogatory or a letter of request sent through diplomatic channels. The intermediate appeals court affirmed, holding that the service procedures were improper because "they did not comply with Brazilian law and failed to defer to principles of international comity."
Arguing before the NY Court of Appeals the plaintiff asserted that because service was proper under the NY statute, the defendants were properly served. As to the comity argument, the plaintiff argued that "principles of comity do not warrant the importation of another country's service of process rules." The high court first made clear that the plain text of the statute did not require a NY plaintiff to comply with any foreign locale's service of process requirements. The court then quickly dispensed of the comity argument: "Thus, comity is not an additional hurdle for a plaintiff to overcome in serving a party in a foreign country, and defendant's claim that plaintiff should have complied with Brazilian law, which requires that service of process by a foreign party upon a party domiciled in Brazil must be made by letters rogatory, is without merit."
Read the full opinion here.
Remanding "matters" in which State Law Predominates under 1441(c)
The Fifth Circuit recently reversed a district court's finding that even though a suit involved a federal question, the entire case should be remanded to state court because most of the plaintiff's claims arose under state law. The plaintiff in the case asserted state law claims involving misrepresentation, fraud, and breach of contract. Additionally, the plaintiff asserted a violation under the federal Fair Labor Standards Act ("FLSA"). The district court found that under 1441(c) all claims, including the federal question, should be decided in state court. As framed by the Fifth Circuit panel, the appeal presented the following question: "[D]oes 28 U.S.C. § 1441(c) permit a district court to remand federal claims conferring removal jurisdiction where those claims are part of a case 'predominated' by state law?"
The court first pointed out that although other courts have interpreted the word "matters" in 1441(c) to refer to an entire action, the court's precedent required a different result. The plaintiff argued that several Fifth Circuit cases permitted the district court to remand the entire action, including the federal claims, if the state law claims predominate. The court declared most of the statements in the cited cases dicta, and further dispensed with the argument by stating it was not necessary to "navigate the murky waters between alternate holding and dicta..." The court then utilized an older case than those relied upon by the plaintiff to declare that the district court had no authority to remand the plaintiff's FLSA claim.
Read the full opinion here.