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:
- Club Resorts Ltd. v. Van Breda, 2012 SCC 17
- Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18
- Breeden v. Black, 2012 SCC 19
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)
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:
At the request of the Judicial Conference Advisory Committee on Civil
Federal Judicial Center designed and conducted a closed-case survey about
early stages of litigation, especially Federal Rules of Civil Procedure 26
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
• 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
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 19, 2012
Conference on Summary Judgment, Iqbal, and Employment Discrimination (New York Law School, Apr. 23, 2012)
Law Revue Land Shows Some Love For Civil Procedure
(Hat tip: Chris Newman)
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:
Alexandra Lahav, Professor of Law, University of Connecticut School of Law, “The Case for ‘Trial by Formula’”
Ariana Levinson, Assistant Professor of Law, University of Louisville-Brandeis School of Law, “What the Awards Tell Us About Labor Arbitration of Employment Discrimination Claims”
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.
SCOTUS decision in Mohamad v. Palestinian Authority
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).