September 3, 2011
Decision of Interest: Circuit Split on Diversity Jurisdiction and National Banks
Yesterday a panel of the U.S. Court of Appeals for the Eighth Circuit issued a 2-1 decision that appears to create (or at least deepen) a circuit split over the citizenship of national banks for purposes of diversity jurisdiction. The case is Wells Fargo Bank, N.A. v. WMR e-PIN LLC, No. 09-3800, 2011 WL 3862589 (Sept. 2, 2011).
Here’s some background: Under 28 U.S.C. § 1348, “[a]ll national banking associations shall . . . be deemed citizens of the States in which they are respectively located.” In Wachovia Bank v. Schmidt, 546 U.S. 303 (2006), the Supreme Court rejected the notion that such a national bank is “located” in every state where it has a branch office, holding instead that a “a national bank, for § 1348 purposes, is a citizen of the State in which its main office, as set forth in its articles of association, is located.” Id. at 307.
The Wachovia decision acknowledged but did not directly confront the question of whether, for purposes of diversity jurisdiction, a national bank is also a citizen of the state where it has its principal place of business (PPB). See id.at 317 n.9. That question could be significant if the bank’s PPB is in a different state than the “main office” listed in its article of association. That’s precisely the issue in Wells Fargo. The party opposite Wells Fargo was a California citizen, and it argued that diversity jurisdiction was lacking because Wells Fargo’s PPB is in California, even though the “main office” set forth in its articles of association is in South Dakota.
The majority opinion in Wells Fargo, authored by Judge Wollman, concludes that a national bank is not a citizen of the state where it’s PPB is located for purposes of diversity jurisdiction. Judge Wollman acknowledges that this holding is contrary to decisions from other circuits such as Horton v. Bank One, 387 F.3d 426 (5th Cir. 2004), and Firstar Bank v. Faul, 253 F.3d 982 (7th Cir.2001), although he asserts that the Seventh Circuit changed course on this issue in Hicklin Engineering v Bartell, 439 F.3d 346 (7th Cir. 2006).
Judge Murphy dissents, arguing that a national bank like Wells Fargo can be a citizen of two states: the state of its PPB and the state where its main office, as listed in its articles of association, is located.
(Hat Tip: How Appealing)
September 1, 2011
Sex, drugs, and rock 'n' roll. I prefer civil procedure, although if there were ever a band called "Personal Jurisdiction," I'd certainly buy their album. I digress. The question at bar: what is the most memorable judicial line in a SCOTUS civ pro/fed cts decision?
Important ground rule: one doesn’t have to agree with the sentiment expressed by a nominee line. We can all agree, I think, that Justice Souter's Twombly line that Conley’s “no set of facts” language “has earned its retirement” was darn memorable. Email me nominees (bmaher at okcu.edu) and I'll reveal the winner at the end of my guest month here at CPFCB. Winner is the line that gets the most mentions.
Delighted to be guesting. Thanks much to Adam, Robin, and Cynthia for having me.
Conference announcement: Third-Party Financing of Litigation
The Searle Civil Justice Institute (SCJI) at George Mason University’s Law & Economics Center is hosting a global conference on "Third-Party Financing of Litigation: Civil Justice Friend or Foe?" to be held at the New York Athletic Club on Wednesday, October 5 and Thursday, October 6, 2011. The conference will begin at 1:00pm Eastern on Wednesday and conclude by 12:00pm on Thursday. A cocktail reception will be held on Wednesday evening.
Further details may be found here.
--Patricia Hatamyar Moore
The continuing saga of Senator Grassley's criticism of the ABA
The National Law Journal has an article here.
--Patricia Hatamyar Moore
Summary Judgment in Fosamax Case Leaves Only One Claim Standing
There is only one federal court claim left in the 1500 case Fosamax MDL in the Southern District of New York. Although trial will begin on September 7, the judge granted partial summary judgment for Merck on several issues, including the fact that the plaintiff cannot seek punitive damages. The opinion relies heavily on the outcome of the previous cases, despite the fact that the plaintiff's injury occurred during a later time frame, thus possibly changing the facts as to Merck's knowledge of risks and defects.
This decision raises questions about not only res judicata, but the scope of "law of the case" in large MDLs in which the plaintiffs are still bringing their own suits in their own names. One wonders how this plaintiff would have fared in a non-MDL situation.
August 31, 2011
Welcome Guest Blogger Brendan Maher
We are very pleased to welcome Professor Brendan Maher as a guest-blogger for the month of September. Brendan is an Assistant Professor of Law at Oklahoma City University School of Law (and not to be confused with the famous Irish hurler).
Great to have you on board, Brendan!
August 30, 2011
SCOTUSblog Class Action Symposium
Beginning today, SCOTUSblog is hosting a symposium on the future of class action lawsuits. From the introductory post:
In the wake of several recent decisions from the Court – such as Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and Smith v. Bayer– involving class actions, SCOTUSblog has solicited posts from experts in the field to the effects that these decisions (as well as others relating to class actions) will have on cases that are currently pending in the lower courts, as well as the future of class action lawsuits more generally.
We are grateful to our contributors, who are listed below, for their hard work:
- Sergio Campos, University of Miami School of Law
- Sarah Crawford, National Partnership for Women and Families
- Scott Dodson, William & Mary Law School
- Allen Erbsen, University of Minnesota Law School
- Ted Frank, Center for Class Action Fairness, LLC
- J. Russell Jackson, Skadden, Arps, Slate, Meagher & Flom LLP
- Paul Karlsgodt, Baker Hostetler
- Charles Silver, University of Texas Law School
- Andrew J. Trask, McGuire Woods
Links to the symposium posts will be available here.
August 29, 2011
Upcoming ABA webinar/teleconference on Twombly
The Section of Antitrust Law of the ABA will present a webinar on September 7, 2011, from 12:00 - 1:30 p.m. entitled, "OMG! Has Twombly been Over-Turned?: the 7th Circuit's Text Messaging Case." The flyer states that "Judge Posner . . . has clarified that a plaintiff alleging an antitrust conspiracy need merely establish a 'non-negligible probability' that the claim is valid."
The full flyer and registration for the teleconference can be accessed here.
--Patricia Hatamyar Moore
Hills on Preemption Doctrine in the Roberts Court
Rodrick Hills (NYU) has posted Preemption Doctrine in the Roberts Court: Constitutional Dual Federalism By Another Name? to SSRN.
This paper argues that the Roberts Court’s preemption decisions suggest a pattern of deferring to state laws in “regulatory” contexts while presumptively preempting them in “commercial” contexts. As I use these terms, “commercial” contexts involve federal and state laws having the purpose of defining the rules for bargaining and remedies for breach of bargains, while “regulatory” contexts involve state and federal laws defining the baseline entitlements over which the parties bargain. The “mailbox rule” defining when a contract is accepted is an example of a “commercial” law, while a prohibition on filling a wetlands or building a cement plant in a residential zone are examples of “regulatory” laws. I suggest that, in “commercial” contexts so defined, the Court’s decisions seem to favor preemption. In “regulatory” contexts, the decisions lean against preemption. In both contexts, the Court enforces the independence of each level of government from the other, striking blows for states’ control over their own property and personnel by refusing to give federal agencies exclusive control over the enforcement of state law in Cuomo v. Clearing House Association. The flip side of state autonomy is federal supremacy: Despite the exhortations of some scholars, the Court seems to have continued to resist the idea that state law can be justified by its utility in reforming federal administrative processes.
Put simply, the Roberts Court’s decisions seem to follow a traditional script of dual federalism – that is, carving out separate spheres for state and federal governments and enforcing norms of mutual non-interference between these spheres. The paper concludes with speculation about whether there might be any normative justification for this pattern. One might argue that preemption is less costly when the state and federal rules in question define the framework for bargaining as opposed to the assignment of entitlements. By contrast, preemption of state laws defining entitlements to health, safety, bodily integrity, and property more generally tend to raise culturally and politically divisive issues that are best handled subnationally in a federal regime.