Sunday, August 7, 2011
If you like to share recently-filed complaints of interest with your incoming Civil Procedure students, here is one filed July 27, 2011 in the District of Idaho. Environmental groups bring suit against the U.S. Forest Service for failing to prepare a full Environmental Impact Statement before approving a mining exploration project located in the Boise National Forest.
The introductory portion of the complaint reads as follows:
Case 1:11-cv-00341-EJL Document 1 Filed 07/27/11
1. This action challenges the United States Forest Service’s violations of the National Environmental Policy Act (“NEPA”) and the National Forest Management Act (“NFMA”) in approving the CuMo Exploration Project, a mining exploration project located on Grimes Creek in the Boise River watershed, within the Boise National Forest. The Forest Service approved the CuMo Exploration Project through a Decision Notice and Finding of No Significant Impact (“DN/FONSI”) issued by the Boise National Forest Supervisor on February 11, 2011, based on an Environmental Assessment (“EA”) also issued in February 2011.
2. As approved in the DN/FONSI, the CuMo Exploration Project will include extensive road construction and around-the-clock drilling activities over much of the next five years within habitat for sensitive wildlife species, including wolverine, northern goshawk, and great grey owl, as the applicant Mosquito Gold drills hundreds of exploration holes to evaluate whether it can develop the CuMo site into the world’s largest open pit molybdenum mine. Despite the scale and disruptive impacts of the proposed exploration activities, the Forest Service approved the CuMo Project utilizing the EA and FONSI, rather than preparing a full Environmental Impact Statement (“EIS”) as required by NEPA.
3. The Forest Service has not evaluated how sensitive species in the area may be impacted by the road construction and drilling activities, and even approved the project before necessary wildlife surveys were completed. Yet the noise, disturbance, and human presence from the mining exploration may disturb these and other wildlife species, and impair their reproductive success – potential adverse impacts which the Forest Service failed to study, quantify, or fully disclose, in violation of NEPA.
4. The Forest Service also has no idea how groundwater may be impacted by the CuMo exploration drilling, even though the extensive drilling may alter groundwater hydrology and allow groundwater and/or surface water to become contaminated with arsenic and other hazardous substances, again violating NEPA.
5. The CuMo Exploration Project will also degrade riparian habitat along Grimes Creek and tributaries. Contrary to the requirements of the Boise Forest Plan, the Forest Service approved constructing roads, drill pads, settling ponds, and other structures within Riparian Conservation Areas, in violation of the “consistency” requirement of NFMA and implementing regulations.
6. Based on these and other violations of law, Plaintiffs request that the Court reverse and remand the CuMo EA and DN/FONSI, and enter other relief as prayed for below.
(Thanks to Courthouse News Service, Environmental Law Digest)
--Patricia Hatamyar Moore
Wednesday, July 13, 2011
Chuck Grassley (R-Iowa), Ranking Member of the Judiciary Committee, sent a letter on July 11 to ABA President Stephen Zack “to express concern after reading a June 9, 2011 article in The Chronicle of Higher Education that reported that the American Bar Association (ABA) 'was found to be out of compliance with 17 regulations, including the need to consider student-loan default rates in assessing programs.'” He continued:
My concern is that the ABA, which has the power to accredit law schools, was barely granted renewed recognition by the U.S. Department of Education’s accreditation experts. Moreover, in the eyes of the National Advisory Committee on Institutional Quality and Integrity, the ABA appears to be doing little to assess student-loan default rates in its law school accreditation process.
The New York Times also addressed similar issues in an April 30, 2011 article regarding what many law students interviewed by the New York Times referred to as a “bait and switch” practice regarding merit-based scholarships. According to the New York Times, ABA accredited law schools “offer more scholarships than [they] plan to renew[.]” One result of this practice is that many law students lose their merit-based scholarships after their first year because they failed to maintain a certain grade-point average. The New York Times articles raised concerns that some schools appear to set their grading curves in a manner which results in a large number of students losing their merit-based scholarships.
Senator Grassley then requested that the ABA provide written answers to 31 questions by July 25, 2011. The questions relate mainly to student financial issues such as student scholarships, loan repayment education programs, and programs to prevent default on student loans.
Some of the questions, though, relate to the number of law schools that the ABA has accredited in the last 20 years, as well as the qualifications of the accreditation committee members.
Another article about Senator Grassley’s letter appears in the National Law Journal today.
Wednesday, June 29, 2011
Tuesday, May 3, 2011
The Blog of the Legal Times has a good post on whether Bin Laden's death will have any effect on those seeking civil redress from the harms he caused on 9/11. The short answer? Not much. From the post:
Bin Laden’s death could open the door to civil litigation targeted directly at him if new assets are uncovered, said Bill Wheeler of Mississippi’s Wheeler and Franks. The firm is pursuing a civil suit pending in Washington federal court stemming from the 1998 embassy bombings in Africa.
If an estate is discovered abroad, said Wheeler's co-counsel, James Franks, “that would be much easier than trying to get service on bin Laden [when he was alive].” But the ability to access those assets would depend on the probate laws in that country, he added.
Thursday, April 21, 2011
Andrew F. Popper (American University) has posted Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill and Arbitrary Limits on Civil Liability to SSRN.
Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.
This paper Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in the Gulf of Mexico. More broadly, it argues that caps on damages undermine the deterrent effect of tort liability and fail to achieve economically efficient and socially just results.
Tuesday, April 5, 2011
Over at Prawfsblawg, Howard Wasserman has been examining the recent decisions by U.S. District Judge James Beaty in civil lawsuits brought by former members of the Duke lacrosse team against the City of Durham, District Attorney Michael Nifong, and numerous other defendants.
His most recent post (Pleading in the Duke lacrosse opinions) looks at what Judge Beaty's decisions have to say about pleading, including his application of Iqbal.
Friday, March 11, 2011
Statements from the three witnesses at today’s congressional hearing on H.R. 966 (covered earlier here) are now available. Here are the links:
Elizabeth A. Milito
NFIB Small Business Legal Center
University of Houston Law Center
Victor E. Schwartz
Shook, Hardy & Bacon L.L.P.
Thursday, March 10, 2011
The House Judiciary Committee’s Subcommittee on the Constitution is holding a hearing tomorrow (March 11th) at 10:00 a.m. on H.R. 966. The legislation is entitled the "Lawsuit Abuse Reduction Act of 2011," and its purposes include "[t]o amend Rule 11 of the Federal Rules of Civil Procedure to improve attorney accountability."
Elizabeth A. Milito
NFIB Small Business Legal Center
Professor Lonny Hoffman
University of Houston Law Center
Mr. Victor E. Schwartz
Shook, Hardy & Bacon L.L.P.
If you’re in D.C. and want to check it out, the location is 2141 Rayburn House Office Building.
Friday, February 18, 2011
It's only marginally about civil procedure, but I am very amused by this whole lawsuit: R. Allen Stanford who is accused of running a "mini-Madoff" Ponzi scheme has filed a $7.2 billion lawsuit against a number of government officials for their behavior in investigating him.
Wondering what they did and why it's worth $7.2 billion? AmLaw Daily reports here.
Thursday, February 10, 2011
From David Ingram at Blog of the Legal Times comes the story New Group in Congress Pushes to Change Legal System. Initiated by six members of the House of Representatives, the newly-formed Congressional Civil Justice Caucus will be promoting “an array of changes to the civil justice system, including proposals related to medical malpractice reform, venue and federal pleading standards.”
Wednesday, February 9, 2011
In the ongoing litigation between Chevron and plaintiffs in Ecuador, Judge Kaplan of the SDNY has already blocked enforcement of the Ecuadorian judgment in the U.S. The New York Law Journal reports here on a host of interesting issues: restraining orders, enforcement of judgments, and the use of an internal law firm memo as the basis of the action.
Thursday, January 20, 2011
Monday, December 6, 2010
Monday, November 15, 2010
Sunday’s New York Times contains an article Investors Put Money on Lawsuits to Get Payouts, which begins:
Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings.
The loans are propelling large and prominent cases. Lenders including Counsel Financial, a Buffalo company financed by Citigroup, provided $35 million for the lawsuits brought by ground zero workers that were settled tentatively in June for $712.5 million. The lenders earned about $11 million.
Most investments are in the smaller cases that fill court dockets. Ardec Funding, a New York lender backed by a hedge fund, lent $45,000 in June to a Manhattan lawyer hired by the parents of a baby brain-damaged at birth. The lawyer hired two doctors, a physical therapist and an economist to testify at a July trial. The jury ordered the delivering doctor and hospital to pay the baby $510,000. Ardec is collecting interest at an annual rate of 24 percent, or $900 a month, until the award is paid.
Thursday, September 2, 2010
Earlier this summer, Paul Ceglia filed a lawsuit in a Buffalo, New York state court claiming he’s entitled to an 84% stake in Facebook. Mark Zuckerberg, the defendant and Facebook CEO, removed the case to U.S. District Court for the Western District of New York on diversity grounds. Zuckerberg contends that he’s a citizen of California and the plaintiff is a citizen of New York.
Last month the plaintiff filed a motion to remand the case, arguing that Zuckerberg is still domiciled in New York, thus destroying diversity of citizenship. Zuckerberg filed his opposition to remand this week.
Zuckerberg’s citizenship for diversity purposes has already been the subject of a published federal court decision. In ConnectU LLC v. Zuckerberg, 482 F. Supp. 2d 3 (D. Mass. 2007) (Hat Tip: Kevin Clermont), the court held that as of September 2, 2004, Zuckerberg was still domiciled with his parents in New York. That decision was reversed on other grounds.
Tuesday, August 17, 2010
The U.S. Court of Appeals for the Fifth Circuit has decided Clemens v. McNamee, No. 09-20625 (Aug. 12, 2010). If those names sound familiar, it’s because this case is the defamation action filed by baseball legend Roger Clemens against ex-trainer Brian McNamee based on McNamee’s statements that Clemens used performance-enhancing drugs. Clemens filed the case in Texas state court, and McNamee removed it to the U.S. District Court for the Southern District of Texas. The district court dismissed for lack of personal jurisdiction. A Fifth Circuit panel has now affirmed the dismissal in a 2-1 decision. From the majority opinion authored by Judge W. Eugene Davis:
In this appeal, we consider whether allegedly defamatory statements made elsewhere but which caused damage to the plaintiff in the forum state are sufficient to confer personal jurisdiction over the defendant when the content and context of the statements lack any connection with the forum state. For the following reasons, we agree with the district court that the plaintiff failed to establish personal jurisdiction over the defendant and affirm.
. . .
The most instructive case on this issue from the Supreme Court is Calder v. Jones, 465 U.S. 783 (1984). . . . We read Calder as requiring the plaintiff seeking to assert specific personal jurisdiction over a defendant in a defamation case to show (1) the subject matter of and (2) the sources relied upon for the article were in the forum state. Thus the question in this case further narrows to whether McNamee’s allegedly defamatory statements were aimed at or directed to Texas. . . . [T]he statements in this case concerned non-Texas activities–the delivery of performance-enhancing drugs to Clemens in New York and Canada. The statements were not made in Texas or directed to residents of Texas.
In support of jurisdiction, Clemens points to the harm he suffered in Texas and to McNamee’s knowledge of the likelihood of such damage in the forum. Yet . . . Clemens has not made a prima facie showing that McNamee made statements in which Texas was the focal point: the statements did not concern activity in Texas; nor were they made in Texas or directed to Texas residents any more than residents of any state. As such, the district court did not err in dismissing Clemens’ suit for lack of personal jurisdiction over McNamee.
From the dissenting opinion by Judge Catharina Haynes:
Because I conclude that specific jurisdiction exists here, I respectfully dissent. McNamee had sufficient minimum contacts with Texas, and the exercise of personal jurisdiction does not offend traditional notions of fair play and substantial justice.
. . .
In this case, there are two independent grounds upon which the minimum contacts inquiry is satisfied. First, McNamee made numerous business trips to Texas to train Clemens, and these trips “relate to” and form an integral part of the instant cause of action. Second, under the Calder “effects test,” McNamee established minimum contacts with Texas because, taking Clemens’s allegations as true, McNamee intentionally directed his false claims at Texas, where he knew Clemens resided and where it was foreseeable that the brunt of the injury from McNamee’s statements would be felt.
Friday, August 13, 2010
Last month we covered the hearing before the U.S. Judicial Panel on Multidistrict Litigation (JPML) on the BP Oil Spill litigation (In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010, MDL No. 2179). This week the JPML ordered, pursuant to 28 U.S.C. § 1407, that actions relating to the BP Oil Spill be transferred to the U.S. District Court for the Eastern District of Louisiana and assigned to Judge Carl J. Barbier for consolidated pretrial proceedings.
From the panel’s opinion:
The actions before the Panel indisputably share factual issues concerning the cause (or causes) of the Deepwater Horizon explosion/fire and the role, if any, that each defendant played in it. Centralization under Section 1407 will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including rulings on class certification and other issues, and conserve the resources of the parties, their counsel, and the judiciary. Centralization may also facilitate closer coordination with Kenneth Feinberg’s administration of the BP compensation fund. In all these respects, centralization will serve the convenience of the parties and witnesses and promote the more just and efficient conduct of these cases, taken as a whole.
. . .
The parties have advanced sound reasons for a large number of possible transferee districts and judges. Upon careful consideration, however, we have settled upon the Eastern District of Louisiana as the most appropriate district for this litigation. Without discounting the spill’s effects on other states, if there is a geographic and psychological “center of gravity” in this docket, then the Eastern District of Louisiana is closest to it. Considering all of the applicable factors, we have asked Judge Carl J. Barbier to serve as transferee judge. He has had a distinguished career as an attorney and now as a jurist. Moreover, during his twelve years on the bench, Judge Barbier has gained considerable MDL experience, and has been already actively managing dozens of cases in this docket. We have every confidence that he is well prepared to handle a litigation of this magnitude.
The order includes “the relatively few personal injury/wrongful death actions” as well as the “putative class actions seeking recovery for property damage and other economic losses.”
Friday, July 30, 2010
Yesterday the U.S. Judicial Panel on Multidistrict Litigation (JPML) heard argument on various motions to centralize litigation relating to the BP Oil Spill. Orders relevant to the hearing are available on the JPML website here.
Saturday, July 24, 2010
Since some of the provisions of Arizona Senate Bill 1070 (the controversial Arizona immigration statute) implicate federalism issues, you might find "Arizona Senate Bill 1070: A Preliminary Report" of interest. It has been posted on SSRN by its authors: Professors Gabriel J. Chin (University of Arizona James E. Rogers College of Law; University of Arizona School of Government and Public Policy), Carissa Byrne Hessick (Arizona State University Sandra Day O'Connor College of Law), Toni M. Massaro (University of Arizona James E. Rogers College of Law), and Marc L. Miller (University of Arizona James E. Rogers College of Law).
The abstract states:
Tuesday, June 22, 2010
We blogged earlier about Supreme Court nominee Elena Kagan’s civil procedure paper trail.
As for her views on one of today’s most controversial issues in civil procedure — federal pleading standards — a recent New York Times article starts with an interesting story about Kagan’s service in the Clinton administration. Kagan’s first Oval Office presentation involved the 1995 Private Securities Litigation Reform Act (PSLRA), and Kagan expressed particular concern about the Act’s heightened pleading standards. From the article, Bill Clinton Speaks Out on Kagan:
“Against the wishes of his economic team and top Congressional Democrats, Mr. Clinton in late 1995 was considering vetoing new legislation that was framed as a way to halt frivolous lawsuits against the securities industry. At his direction, Ms. Kagan had analyzed the bill and determined that it would raise the bar so high for such suits that shareholders could be prevented from pursuing legitimate fraud claims. . . . Mr. Clinton accepted her judgment and issued a surprise veto — one of two occasions when he was overridden by Congress.”
Perhaps a Justice Kagan will be similarly concerned about the direction of federal pleading standards after Twombly and Iqbal?