August 5, 2011
Decision of Interest: Sharply Divided En Banc Fourth Circuit on Rule 60(b)(6)
Last month the en banc U.S. Court of Appeals for the Fourth Circuit, splitting 7-to-5, affirmed a district court’s refusal to grant a motion for relief from judgment under Rule 60(b)(6). The case is Aikens v. Ingram, No. 08-2278, 2011 WL 2725811 (July 13, 2011), and the majority opinion by Judge Niemeyer begins:
Frederick Aikens, formerly a colonel in the North Carolina Army National Guard, commenced this action against his former colleagues, Adjutant General William Ingram and Lieutenant Colonel Peter von Jess, alleging that they violated his Fourth Amendment rights by wrongfully intercepting, reading, and forwarding his e-mails while he was deployed in Kuwait. The district court dismissed the action without prejudice, concluding that it lacked subject matter jurisdiction because of Colonel Aikens' failure to exhaust any available intra-military remedies. The court entered a judgment of dismissal on September 14, 2007.
Although Colonel Aikens held the firm belief that the district court had erred, he did not appeal, nor did he seek a stay to assure the district court's continuing jurisdiction over the matter. Aikens did file his claim with the Army Board for Correction of Military Records (“ABCMR”), but then, when the Board determined that it could not provide him with the relief that he sought, he did not file another action in the district court. Rather, he sought to reopen the September 14, 2007 judgment by filing a motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6), several months after that action had become final and unappealable. The district court denied the Rule 60(b)(6) motion in the exercise of its discretion, reasoning that Colonel Aikens had failed to establish the extraordinary circumstances necessary under Rule 60(b)(6) for granting relief from the September 14, 2007 judgment.
For the reasons that follow, we conclude that the district court did not abuse its discretion and thus affirm.
Judge King’s dissent begins:
A majority of our en banc Court imposes the severest of sanctions against Colonel Aikens for his lawyer's failed, but sincere attempt to have the district court address the merits of Aikens's claim that his former military associates engaged in deplorable conduct that worked a serious deprivation of his civil rights. Having concluded, wrongly, that it lacked authority to decide the dispute, the district court dispatched Aikens to embark on a futile quest to vindicate its jurisdictional theory. Though the court believed itself rid of the matter, it was required by long-standing Supreme Court precedent to nonetheless retain the case and enter a stay sua sponte.The district court instead erroneously dismissed it, assuring Aikens that he “may return to federal court” if he truly belonged there. Aikens v. Ingram, 513 F.Supp.2d 586, 592 (E.D.N.C.2007).
Aikens took the court up on its offer, accepting its invitation to return after verifying that proceeding before the Army Board for Correction of Military Records (the “ABCMR”) was unnecessary. That process took less than seven months, an accomplishment that, given the oft-glacial pace of civil litigation, can hardly be criticized. But because counsel sought to attract the district court's attention through a timely Rule 60(b) motion rather than risking his client's cause by filing a potentially untimely new complaint, the court yanked the welcome mat from beneath Aikens's feet. Now, on appeal, the en banc majority has failed to appreciate that this entire predicament was not the result of counsel's disputably poor choices, but was instead caused by the district court's demonstrably wrong ones. Unwilling to lend my sanction to the injustice below, I must dissent.
Judge Diaz, who joined the majority opinion, wrote to clarify that while he agreed with the majority that it was not an abuse of discretion to deny Rule 60(b)(6) relief, he would also have affirmed a district court decision granting Rule 60(b)(6) relief, in light of the discretionary standard of review. He writes:
Were I the district judge in this case, I might well have reached a conclusion different from that below and granted Aikens's Rule 60(b)(6) motion. And if I did so, my opinion likely would have resembled the principal dissent. Once a case reaches our court, however, the applicable standard of review often forecloses us from substituting our judgment for that of the district court. While the principal dissent convincingly demonstrates that the district court could have granted Aikens's motion, it fails to establish that failure to grant the motion was so beyond the pale that it constitutes an abuse of discretion. The dissenters' view of the appropriate standard comes perilously close to endorsing a system where this court zealously accords deference to district judges—but only when they reach the decisions that we would have reached in the first instance.
(Hat Tip: Scott Dodson)
August 4, 2011
Recent steps taken to regulate expert testimony in med mal cases
Move over, Daubert -- here’s an interesting article in the online American Medical News about states tightening up expert testimony in medical liability cases.
Hoffman on Twombly/Iqbal and the FJC Study on Motions to Dismiss
Professor Lonny Hoffman (Houston) has posted on SSRN a draft of his article, Twombly and Iqbal's Measure: An Assessment of the Federal Judicial Center's Study of Motions to Dismiss. Here’s the abstract:
This paper provides the first comprehensive assessment of the Federal Judicial Center’s long-anticipated study of motions to dismiss for failure to state a claim after Iqbal v. Ashcroft. Three primary assessments are made of the FJC’s study. First, there are reasons to be concerned that the study may be providing an incomplete picture of actual Rule 12(b)(6) activity. Even if the failure to capture all relevant motion activity was a non-biased error, the inclusiveness problem is consequential. Because the study was designed to compare over time the filing and grant rate of Rule 12(b)(6) motions, the size of the effect of the Court’s cases turns on the amount of activity found. Second, even if concerns are set aside that the collected data may be incomplete, it misreads of the FJC’s findings to conclude that the Court’s decisions are having no effect on dismissal practice. The FJC found that after Iqbal, a plaintiff is twice as likely to face a motion to dismiss. This sizeable increase in rate of Rule 12(b)(6) motion activity represents a marked departure from the steady filing rate observed over the last several decades and means, among other consequences, added costs for plaintiffs who have to defend more frequently against these motions. The data regarding orders resolving dismissal motions even more dramatically shows the consequential impacts of the Court’s cases. There were more orders granting dismissal with and without leave to amend, and for every case category examined. Moreover, the data show that after Iqbal it was much more likely that a motion to dismiss would be granted with leave to amend (as compared to being denied) both overall and in the three largest case categories examined (Civil Rights, Financial Instruments and Other). Employment Discrimination, Contract and Torts all show a trend of increasing grant rates. In sum, in every case type studied there was a higher likelihood after Iqbal that a motion to dismiss would be granted. Third, because of inherent limitations in doing empirical work of this nature, the cases may be having effects that the FJC researchers were unable to detect. Comparing how many motions were filed and granted pre-Twombly to post-Iqbal cannot tell us whether the Court’s cases are deterring some claims from being brought, whether they have increased dismissals of complaints on factual sufficiency grounds, or how many meritorious cases have been dismissed as a result of the Court’s stricter pleading filter. Ultimately, perhaps the most important lesson to take away from this last assessment of the FJC’s report is that empirical study cannot resolve all of the policy questions that Twombly and Iqbal raise.
For links to the FJC study, see our earlier coverage here.
August 3, 2011
Attorney’s Fees Award Denied after Defendant Tenders Full Amount Plaintiff Claimed
Here’s another attorney’s fee case that leaves me wondering if federal judges understand (or care about) the cost of access to justice – namely, finding an attorney who will take a small but meritorious case on an other than pro bono basis. Dionne v. Floormasters Enterprises, Inc., 2011 WL 3189770 (11th Cir. July 28, 2011).
Plaintiff Dionne worked for defendant Floormasters for two months as a warehouse clerk. Claiming nonpayment of overtime, Dionne filed a complaint under the FLSA to recover overtime, liquidated damages, and attorney’s fees. Instead of answering, Floormasters filed a “Tender of Full Payment and Motion to Dismiss Complaint With Prejudice,” tendering the full amount plaintiff claimed for overtime, liquidated damages, and interest, in the amount of $3000.00, while denying liability. The district court dismissed the case with prejudice.
Plaintiff then moved for an award of attorney’s fees and costs, as authorized by the FLSA, 29 U.S.C. §216(b): “The court in such action shall, in addition to any judgment awarded to the plaintiff . . ., allow a reasonable attorney’s fee to be paid by the defendant . . . .” Plaintiff argued that he was the prevailing party based on “the relief that was obtained following the filing of the lawsuit.” The trial court denied plaintiff’s motion for fees.
The Eleventh Circuit affirmed, relying on language in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), superseded by statute on other grounds:
A defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change. Our precedents thus counsel against holding that the term “prevailing party” authorizes an award of attorney’s fees without a corresponding alteration in the legal relationsip of the parties.
Perhaps recognizing that Section 216(b) does not use the term “prevailing party,” the court continued:
The FLSA plainly requires that the plaintiff receive a judgment in his favor to be entitled to attorney’s fees and costs.
Dionne has filed to cite to any case that supports his contention that the entry of a defendant’s motion to dismiss a plaintiff’s claims as moot because the trial court no longer has subject matter jurisdiction constituted a judgment in favor of the plaintiff.
So there’s a road map for employers – fail to pay overtime, and then if the employee hires a lawyer and sues, tender the full amount claimed.
August 2, 2011
Hot Off The Presses: Recent Articles Of Interest
With a hat tip to the Current Index to Legal Periodicals, here are some recent articles that may be of interest:
Robert Force, The Position in the United States on Foreign Forum Selection and Arbitration Clauses, Forum Non Conveniens, and Antisuit Injunctions, 35 Tul. Mar. L.J. 401 (2011).
Michael Steven Green, Horizontal Erie and the Presumption of Forum Law, 109 Mich. L. Rev. 1237 (2011).
Simona Grossi, A Comparative Analysis Between Italian Civil Proceedings and American Civil Proceedings Before Federal Courts, 20 Ind. Int'l & Comp. L. Rev. 213 (2010).
Katherine A. Macfarlane, The Improper Dismissal of Title VII Claims on "Jurisdictional" Exhaustion Grounds: How Federal Courts Require that Allegations be Presented to an Agency Without the Resources to Consider them, 21 Geo. Mason U. Civ. Rts. L.J. 213 (2011).
Yuval Sinai, Reconsidering Res Judicata: A Comparative Perspective, 21 Duke J. Comp. & Int'l L. 353 (2011).
Charles A. Sullivan, Plausibility Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011).
Symeon C. Symeonides, Choice of Law in the American Courts in 2010: Twenty-Fourth Annual Survey, 59 Am. J. Comp. L. 303 (2011).
Guangjian Tu, China's New Conflicts Code: General Issues and Selected Topics, 59 Am. J. Comp. L. 563 (2011).
Franklin E. White, Jr., The Bell Atlantic Corp. v. Twombly Pleading Standard: Has its Application Been Outcome Determinative in Court of International Trade Cases?, 19 Tul. J. Int'l & Comp. L. 543 (2011).
Matthew S. Connors, Comment, Don't Make a Federal Case Out of It: An Argument Why the Claims of Plaintiffs Affected by a Nationwide Fraud Should Not Be Certified as a Class Action Under Rule 23(b)(3), 13 U. Pa. J. Bus. L. 499 (2011).
Michael Crain, Note, No Suit for You!: The Ninth Circuit in Bowoto v. Chevron Corp. Holds the Death on the High Seas Act Preempts Alien Tort Statute Survival Claims, 35 Tul. Mar. L.J. 595 (2011).
James M. Patrick, Comment, Preserving the Right to a Jury Trial in Public Employee Free Speech Litigation: The Protected Status of Speech Must Be Labeled a Mixed Question of Law and Fact, 79 U. Cin. L. Rev. 375 (2010).
Thomas G. Stanwood, Note, Model Citizenship: The Supreme Court Redefines Principle Place of Business, 44 Suffolk U.L. Rev. 281 (2011).
Amanda R. Szuch, Comment, Reconsidering the Contractual Waivers of the Right to a Jury Trial in Federal Court, 79 U. Cin. L. Rev. 435 (2010).
Nicholas C. Thompson, Note, Putting the Cart Back Behind the Horse: The Future of Corporate Liability Under the Alien Tort Statute After Kiobel, 9 DePaul Bus. & Com. L.J. 293 (2011).
August 1, 2011
Erbsen on Goodyear v. Brown
Over at PrawfsBlawg, Allan Erbsen (Minnesota) has a post entitled Personal Jurisdiction, Goodyear v. Brown, and Homely Line Drawing. From the post:
The determinative question in Goodyear was whether the Turkish defendant's contacts with North Carolina were "continuous and systematic" or merely "sporadic" and "limited." That will also be the pivotal question in future cases involving a state's attempt to assert general jurisdiction. So one would hope to see language in the opinion explaining how lower courts should draw lines between "continuous" and "sporadic," and between "systematic" and "limited." And yet such guidance is missing.
Mulligan and Staszewski on SCOTUS Regulation of Civil Procedure
Lumen Mulligan (University of Kansas) and Glen Staszewski (Michigan State) have just posted The Supreme Court’s Regulation of Civil Procedure: The Lessons of Administrative Law to SSRN.
In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this insight, we present an analogy-to-administrative-law justification for favoring rulemakings over adjudications. Third, we couple this preference for rulemaking over adjudication with three criteria detailing when this presumption should apply. Namely, we conclude that civil procedure issues are better resolved by reference to the Advisory Committee if the issue: (a) requires an interpretation of a rule that rests substantially upon legislative facts, (b) calls for the resolution of a Chevron-step-two-like ambiguity, or (c) seeks a legislative-rule-like resolution. Only when traditional tools of statutory construction – text, history, and purpose – will resolve a case should the Court retain its disposition in the adjudicatory form. Fourth, we offer the mechanisms for pragmatically achieving this preference for rulemaking both under existing law as well as through a new “referencing” procedure, without unduly constraining the flexibility needed by lower courts to implement the civil rules effectively. In so doing, we contend that expanding the Court’s use of rulemaking not only should result in better rules, but should also bolster the democratic legitimacy of the Court’s civil-rules decisionmaking.