Friday, April 20, 2012

Supreme Court of Canada Issues Major Decisions on Personal Jurisdiction

On Wednesday, the Supreme Court of Canada issued a series of decisions on personal jurisdiction:

According the Vancouver Sun, the decisions "set national standards, bringing much-needed guidance to a very complex area of Canadian law." Reports of widespread jealousy in the United States have yet to be confirmed. Cf., e.g., J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).


(Hat Tip: Linda Silberman)

April 20, 2012 in In the News, International/Comparative Law, Recent Decisions | Permalink | Comments (0)

New FJC report on Rules 26(f) and 16(b)

Posted to the Civ Pro prof listserv by Emery Lee of the Federal Judicial Center:

The report [from here on quoting Mr. Lee's email]:

Can be accessed at this link:$file/leeearly.pdf

Executive Summary
At the request of the Judicial Conference Advisory Committee on Civil
Rules, the
Federal Judicial Center designed and conducted a closed-case survey about
early stages of litigation, especially Federal Rules of Civil Procedure 26
(f) and
16(b). The survey was sent to almost 10,000 attorneys of record in civil
terminated in July–September 2011 and yielded a 36% response rate.
Key findings of the survey include:
• 72% of all survey respondents reported that, in the sampled case, they
and conferred with the opposing side to plan for discovery, as required by
Rule 26(f). Among respondents also reporting a Rule 16(b) scheduling
with a judge in the sampled case, the comparable figure was 92%.
• The most common method of conducting the Rule 26(f) meeting was by
or videoconference, reported by 86% of respondents with a meeting.
• Most respondents with a Rule 26(f) meeting in person and/or by telephone
reported that the meeting lasted between 10 and 30 minutes.
• 71% of respondents with a Rule 26(f) meeting reported that the meeting
them in making arrangements to make initial disclosures in the sampled
case, 60% reported that it helped in developing a proportional discovery
plan, 50% reported that it helped them to better understand the opposing
side’s claims and/or defenses, 40% reported that they discussed discovery
electronically stored information, and 30% reported that the meeting
the likelihood of a prompt resolution of the sampled case.
• Of the 40% of respondents reporting a discussion of discovery of
stored information at the Rule 26(f) meeting, 60% reported discussing
preservation obligations.
• 50% of all respondents, and 60% of respondents with a Rule 26(f) meeting,
reported a Rule 16(b) scheduling conference, either in person or by
with a judge in the sampled case.
• Most respondents with a Rule 16(b) conference in person or by telephone
reported that the conference lasted between 10 and 30 minutes.
• 94% of respondents with a Rule 16(b) conference also reported a
order in the sampled case.
• Attorneys representing plaintiffs at least half of the time were asked
their pleading practices have changed since the Twombly and Iqbal
Half said yes, half said no. The most common change in pleading
practices reported was including more factual detail in complaints,
by 92% of those with changed practices. --PM

April 20, 2012 in Discovery, Federal Courts, Federal Rules of Civil Procedure | Permalink | Comments (0)

Mulligan and Reinert on Reframing Bivens After Minneci

Alex Reinert (Cardozo) and Lumen Mulligan (Kansas) have posted Asking the First Question: Reframing Bivens After Menneci to SSRN.

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a doctrinal level, the opinion destroys Bivens’ long-established parallelism with 42 U.S.C. § 1983 actions, where suits against privately employed individuals are allowed. Additionally, it creates asymmetries between the constitutional liability faced by privately and federally employed prison employees. More significantly, it conflicts with congressional intent as expressed in the Westfall Act, which codified the Bivens remedy in 1988, by conflating two distinct questions: whether a suit requires the courts to extend Bivens jurisprudence to a new context and whether, assuming an extension is necessary, such an extension is warranted. This piece offers the only full discussion to date of the importance of this “first question” to the Bivens canon. We end this Article by offering several strategies for limiting Minneci’s impact and for returning Bivens jurisprudence to its separation-of-powers roots.


April 20, 2012 in Federal Courts, Recent Decisions, Recent Scholarship | Permalink | Comments (0)

Thursday, April 19, 2012

Conference on Summary Judgment, Iqbal, and Employment Discrimination (New York Law School, Apr. 23, 2012)

As covered earlier, New York Law School is hosting a conference next Monday entitled, Trial by Jury or Trial by Motion? Summary Judgment, Iqbal and Employment Discrimination. Details available here.


April 19, 2012 in Conferences/Symposia, Twombly/Iqbal | Permalink | Comments (0)

Law Revue Land Shows Some Love For Civil Procedure

Video here. And it's one of the finalists for Above The Law's Law Revue Video Contest.

Parental Advisory

(Hat tip: Chris Newman)


April 19, 2012 in Film, Music, Weblogs | Permalink | Comments (0)

Wednesday, April 18, 2012

Workshop Announcement: New Voices in Civil Justice Workshop at Vanderbilt

Vanderbilt will be hosting its annual New Voices in Civil Justice Workshop on May 7, 2012.

Congratulations to the presenter's at this year's event: 

Elizabeth Chamblee BurchAssistant Professor of Law, University of Georgia, “Financiers as Monitors in Aggregate Litigation

Christina BoydAssistant Professor of Public Law, University at Buffalo, SUNY, “Litigating Toward Settlement

Alexandra LahavProfessor of Law, University of Connecticut School of Law, “The Case for ‘Trial by Formula’”

Ariana LevinsonAssistant Professor of Law, University of Louisville-Brandeis School of Law, “What the Awards Tell Us About Labor Arbitration of Employment Discrimination Claims

Corey YungAssociate Professor of Law, University of Kansas, John Marshall Law School, “How Judges Judge


April 18, 2012 in Conferences/Symposia | Permalink | Comments (0)

Benham on the Constitutional Aspects of Inherent Power

Dustin Benham (Texas Tech) has posted Beyond Congress's Reach: Constitutional Aspects of Inherent Power to SSRN.

Congress believes it has plenary authority to limit the inherent power of federal courts to police their own final judgments for fraud by a court officer. Surprisingly, some lower courts agree and have recently interpreted a federal statute in a way that restricts traditionally inherent judgment-relief powers. Both Congress and the courts are wrong. Their error stems from confusion about the scope of Article III “judicial power” and the so-called inherent powers necessary to support it. The resulting ill-considered abrogation of federal court power sheds light on broader questions regarding the scope of judicial power and Congress’s ability to limit it.

The propriety of any congressional restriction on a so-called inherent power should be analyzed through a two-step framework. First, courts should determine whether the power is absolutely essential to the exercise of the core, or irreducible nucleus, of Article III judicial power. If the power is not essential to support judicial power, Congress has plenary authority to abolish or limit it. Second, assuming the power is essential, courts should determine whether the statute restricting it prevents the full exercise of core Article III judicial power. If so, Congress has exceeded its power.

Based on this analysis, several traditional inherent powers are beyond Congress’s reach, including the direct contempt power, the power to take evidence and develop a factual record, and the power to vacate judgments for fraud on the court. Notably, the fraud on the court power provides courts with an essential tool to remedy litigation wrongs ranging from bribing a federal judge to creating false documents or other evidence.

And while the outer parameters of core judicial power are notoriously difficult to locate, some so-called inherent powers are plainly not necessary for courts to exercise even the most expansive view of the power. These include the power to dismiss cases for forum non conveniens and the power to dismiss cases for want of prosecution.


April 18, 2012 in Recent Scholarship | Permalink | Comments (0)

SCOTUS decision in Mohamad v. Palestinian Authority

Today the Supreme Court issued a unanimous decision in Mohamad v. Palestinian Authority (covered earlier here and here). Justice Sotomayor’s opinion begins:

The Torture Victim Protection Act of 1991 (TVPA or Act), 106 Stat. 73, note following 28 U. S. C. §1350, au­thorizes a cause of action against “[a]n individual” for acts of torture and extrajudicial killing committed under au­thority or color of law of any foreign nation. We hold that the term “individual” as used in the Act encompasses only natural persons. Consequently, the Act does not impose liability against organizations.

If you’re looking for tea leaves about how the Court will resolve the companion case of Kiobel v. Royal Dutch Petroleum (which concerns liability of corporations under the Alien Tort Statute, and is now on hold pending supplemental briefing and re-argument), you might be disappointed. Check out this excerpt from Mohamad (Slip Op. at 8):

We also decline petitioners’ suggestion to construe the TVPA’s scope of liability to conform with other federal statutes that petitioners contend provide civil remedies to victims of torture or extrajudicial killing. None of the three statutes petitioners identify employs the term “in­dividual” to describe the covered defendant, and so none assists in the interpretive task we face today. See 42 U. S. C. §1983; 28 U. S. C. §§1603(a), 1605A(c) (2006 ed., Supp. IV); 18 U. S. C. §§2333, 2334(a)–(b), 2337. The same is true of the Alien Tort Statute, 28 U. S. C. §1350, so it offers no comparative value here regardless of whether corporate entities can be held liable in a federal common­ law action brought under that statute.

Justice Breyer wrote a concurring opinion, and Justice Scalia did not join the portion of the Court’s opinion discussing the TVPA’s legislative history (Part III-B).


April 18, 2012 in Recent Decisions, Supreme Court Cases | Permalink | Comments (1)

Supreme Court Allows Generic Drug Manufacturer to Counterclaim To Challange Use Code in Patent Infringement Action

The Supreme Court yesterday issued a unanimous opinion, per Justice Kagan, in CARACO PHARMACEUTICAL LABORATORIES, LTD. v. NOVO NORDISK A/S, No. 10–844 (U.S. April 17, 2012), 2012 WL 1288732:
When the Food and Drug Administration (FDA) evaluates an application to market a generic drug, it considers whether the proposed drug would infringe a patent held by the manufacturer of the brand-name version. To assess that matter, the FDA requires brand manufacturers to submit descriptions of the scope of their patents, known as use codes. The FDA does not attempt to determine if that information is accurate. Rather, the FDA assumes that it is so and decides whether to approve a generic drug on that basis. As a result, the breadth of the use code may make the difference between approval and denial of a generic company's application.
In this case, we consider whether Congress has authorized a generic company to challenge a use code's accuracy by bringing a counterclaim against the brand manufacturer in a patent infringement suit. The relevant statute provides that a generic company “may assert a counterclaim seeking an order requiring the [brand manufacturer] to correct or delete the patent information [it] submitted ... under [two statutory subsections] on the ground that the patent does not claim ... an approved method of using the drug.” 117 Stat. 2452, 21 U.S.C. § 355(j)(5)(C)(ii)(I). We hold that a generic manufacturer may employ this provision to force correction of a use code that inaccurately describes the brand's patent as covering a particular method of using the drug in question.

April 18, 2012 | Permalink | Comments (0)