Thursday, February 12, 2015

Today's Federal Court Hearing in the Alabama Marriage Litigation (and More)

Reports are that today's hearing in Strawser has concluded with no ruling from Judge Granade.

One interesting update to the Strawser docket is a filing by Mobile County Probate Judge Don Davis entitled, Notice to this Court of Presently Conflicting and Potentially Conflicting Authority Based on Recent Filings. Included as attachments to this notice are two documents that I hadn't seen before.

One is the “In Rem Action” that Davis filed with the Alabama Supreme Court seeking clarification regarding Chief Justice Roy Moore's Sunday order that probate judges should not issue marriage licenses to same-sex couples. It starts on p.14 of the pdf file. The Alabama Supreme Court dismissed this petition yesterday, concluding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.”

The second is an “Emergency Petition for a Writ of Mandamus” that was apparently filed yesterday in the Alabama Supreme Court. It starts on p.44 of the pdf file. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, ostensibly as relators for the State of Alabama, and it seeks a writ of mandamus directing each probate judge in Alabama “not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples.”

 

 

February 12, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, February 11, 2015

Developments in the Alabama Same-Sex Marriage Litigation Ahead of Tomorrow's Federal Court Hearing

As we covered earlier, federal judge Callie Granade will hold a hearing Thursday afternoon in the Strawser case to determine whether to issue a preliminary injunction ordering Mobile County Probate Judge Don Davis to begin issuing marriage licenses to same-sex couples. Even if Judge Granade issues such an injunction, it’s not clear what effect that would have on probate judges in other counties who are still refusing to do so.

This could make it especially significant that there is another case pending before Judge Granade—the Hedgepeth case—that names as a defendant not only the Mobile probate judge, but also Alabama Chief Justice Roy Moore and Governor Bentley. Hedgepeth was filed on Monday, and on Tuesday Judge Granade issued an order denying the Hedgepeth plaintiffs’ request for a temporary restraining order. She also wrote:

There are numerous defendants named in this action, but at this time, only counsel on behalf of Attorney General Luther Strange have appeared in this matter. There is no proof of service on any other party. The court will not consider a preliminary injunction in this matter [Hedgepeth] until all of the defendants have been notified. However, because Plaintiffs’ claims in this case are almost identical to another case [Strawser] currently set for a preliminary injunction hearing in this court and the result of that hearing may impact Plaintiffs in this case, the court will allow counsel for Plaintiffs to participate in that hearing.

According to the Hedgepeth docket, Affidavits of Service on both Roy Moore and Governor Bentley have now been filed. We’ll find out tomorrow whether Judge Granade will issue any orders as to defendants other than the Mobile probate judge.

And speaking of Chief Justice Moore, the Alabama Supreme Court ruled Wednesday afternoon on the Mobile probate judge’s petition seeking clarification regarding Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. The Alabama Supreme Court dismissed the petition without ruling on the merits, finding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.” Moore recused himself, but there are several concurring opinions (also available here).

As always, stay tuned. You can find copies of important rulings and documents here

 

 

 

February 11, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Tuesday, February 10, 2015

Where Things Stand in the Alabama Same-Sex Marriage Litigation

Events continue to unfold in the wake of the U.S. Supreme Court’s order yesterday refusing to stay federal judge Callie V.S. Granade’s January ruling that Alabama’s same-sex marriage ban is unconstitutional. As of Tuesday, the number of Alabama counties where marriage licenses are being issued to same-sex couples has increased, but many are still refusing. See here and here for county-by-county information.

On Thursday, Judge Granade will hold a hearing in the Strawser v. Strange case to decide whether to issue an injunction against Mobile County Probate Judge Don Davis requiring him to begin issuing marriage licenses to same-sex couples. Today Judge Granade granted a motion to add Davis as a defendant (and several other couples as additional plaintiffs) in the Strawser case.

On another track, Davis has filed with the Alabama Supreme Court a request for clarification regarding Chief Justice Roy Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. No reports yet on when or how Moore will respond to this request (but he had lots to say in this interview on Bloomberg’s With All Due Respect).

You can find copies relevant rulings and documents here.

 

February 10, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Alabama Same-Sex Marriage Litigation: Important Rulings & Documents

As we’ve been covering, there has been significant activity here in Alabama in the wake of the U.S. Supreme Court’s refusal to stay a federal judge’s January ruling that Alabama’s prohibition on same-sex marriage is unconstitutional. This post is simply to provide a repository for some of the important filings, decisions, and other documents. The links below will open the actual documents themselves, not simply links to other websites (which can sometimes succumb to “link rot”). I plan to update this page with new documents as the litigation proceeds.

 

 

 

 

 

February 10, 2015 in Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Monday, February 9, 2015

The Latest in the Alabama Same-Sex Marriage Litigation

Last month, Judge Callie V.S. Granade of the U.S. District Court for the Southern District of Alabama issued an injunction forbidding Alabama Attorney General Luther Strange from enforcing Alabama’s prohibition on same-sex marriage. She stayed the ruling until today in order to give the state time to appeal it. And this morning, the U.S. Supreme Court denied Strange’s application for a stay. Here is the Supreme Court’s order, including a dissent by Justice Thomas joined by Justice Scalia.

Alabama Chief Justice Roy Moore, however, has been in the news arguing that Alabama probate judges are not bound by Judge Granade’s order. On Tuesday, February 3, he issued a memorandum to Alabama’s probate judges. And on Sunday, February 8, he issued an administrative order that concludes:

“Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.”

Alabama Attorney General Strange issued a statement today responding to the U.S. Supreme Court’s order refusing his stay application. Among other things, he states:

“To clarify my authority in this matter, the Alabama Attorney General’s Office does not issue marriage licenses, perform marriage ceremonies, or issue adoption certificates. The Chief Justice has explained in a public memorandum that probate judges do not report to me.”

And Alabama Governor Robert Bentley issued a statement today that he “will not take any action against Probate Judges, which would only serve to further complicate this issue” and will “allow the issue of same sex marriage to be worked out through the proper legal channels.”

As of this morning, same-sex marriages have begun in some counties in Alabama, but not in others. More litigation is almost certain, but here are some of the important rulings and documents so far:

 [Updated to include the statement by Governor Bentley.]

 

 

 

February 9, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Wednesday, February 4, 2015

Missing Pro Se Litigant With SCOTUS-worthy Rule 4(m) Issue Resurfaces

We covered earlier the Supreme Court’s grant of certiorari in Chen v. Mayor and City Council of Baltimore (No. 13-10400), which promised to resolve a conflict in the circuits over extensions of time to serve process under Rule 4(m).  The petitioner was proceeding pro se, and on January 9 the Court dismissed the case with this order:

Petitioner has not filed a brief on the merits within 45 days of the order granting the writ of certiorari, as required by Rule 25.1. Petitioner has neither requested an extension of time nor responded to correspondence directed to the mailing address provided under Rule 34.1(f). Additional efforts to contact petitioner have been unsuccessful. The writ of certiorari is accordingly dismissed.

But the story doesn’t end there. Yesterday Mr. Chen—represented by Paul Clement—filed a petition for rehearing asking for his case to be reinstated. From today’s Wall Street Journal story:

Mr. Clement’s eight-page submission said Mr. Chen left his New York residence last fall to make what was intended to be a short business trip to California. But while there, Mr. Chen suffered a “slip-and-fall injury” that postponed his return for more than two months.

The court filing said Mr. Chen arrived back in New York on Jan. 22 and was “surprised and dismayed” to learn the Supreme Court had accepted, and subsequently dismissed, his case.

Stay tuned.

 

 

 

 

 

February 4, 2015 in Current Affairs, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Saturday, January 31, 2015

Some of the URLs in Our Footnotes Are Probably Gone Already

Jill Lepore's article "The Cobweb: Can the Internet Be archived?" in last week's The New Yorker  discussed the ephemeral nature of websites and the consequent impermanence of footnote references to URLs.  "Link rot" is when you click on a URL and receive the unwelcome message “Page Not Found.”  "Content drift" is "more pernicious" because the original reference has been overwritten, erased, or moved.  The problem is widespread:

According to a 2014 study conducted at Harvard Law School, “more than 70% of the URLs within the Harvard Law Review and other journals, and 50% of the URLs within United States Supreme Court opinions, do not link to the originally cited information.”

January 31, 2015 in Current Affairs | Permalink | Comments (0)

Tuesday, December 30, 2014

Documentary on Forced Arbitration at AALS Meeting (Jan. 3)

If you’ll be in Washington, DC for the AALS meeting this coming weekend, Alliance for Justice will be showing their new documentary, Lost in the Fine Print: Examining the Impact of Forced Arbitration. It’ll be from 8:30-9:30pm on Saturday, January 3. More details and a list of speakers here.

 

 

 

December 30, 2014 in Conferences/Symposia, Current Affairs, Film | Permalink | Comments (0)

Friday, August 22, 2014

Questioning the Sample MBE Civil Procedure Questions

In response to yesterday's posting regarding the NCBE's release of Sample Civil Procedure Test Questions for the MBE, Professor Kevin Clermont in dialogue with others points out that the answer to Sample Question 9 is "probably wrong."

Question 9 is:

9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment.
If the court grants the company’s motion, what is the likely explanation?
(A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company.
(B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence.
(C) The motorcyclist violated the doctrine of election of
remedies.
(D) The state-court judgment is the law of the case.

The NCBE's Answer Key states that "A" is the correct answer.  If you, like me, thought that B was the correct answer, you're not alone.  Here is Professor Clermont's email:

I think you could argue for Answer 1 (CP) or Answer 2 (IP), but in no way is Answer 1 right and Answer 2 wrong.  I would have answered Answer 2.

I can’t say that Answer 1 is wrong, however.   And the examiners do make the point that one shouldn’t reach IP if CP is available. 

Nonetheless, the argument for CP is not theirs, resting on claim and privity.  The claim against employer is a different claim from the one against employee, and the E’er and E’ee are not in privity.

The argument for CP is nonmutual CP.  See W&M 4464.1.  If you sue the indemnitor first and then the indemnitee, the latter can use CP.  This would be the way to go if the plaintiff lost the first suit by failure to prosecute, so that no issues were litigated and determined.  But here there is no need to push the frontiers of the law (where nonmutual CP resides).  Every court I have seen goes the standard nonmutual IP route if it is available.

. . .   A court would go [with] Answer 2.  But I think an academic could construct an argument for Answer 1.

He concludes that Question 9 is not, therefore, an ideal bar question. 

Thanks to Professor Clermont for sharing his thoughts on this.

 

August 22, 2014 in Current Affairs | Permalink | Comments (0)

Thursday, August 21, 2014

Sample Civil Procedure Multistate Bar Exam Questions Posted

The National Conference of Bar Examiners has released ten Civil Procedure Sample Multistate Bar Examination questions. 

As we reported earlier, Civil Procedure will be included for the first time on the MBE administration in February 2015.

August 21, 2014 in Current Affairs | Permalink | Comments (0)

Wednesday, July 23, 2014

Article III Standing and Yesterday's ACA Decisions (Halbig & King)

By now most folks have seen yesterday’s conflicting rulings over whether the Affordable Care Act authorizes subsidies for individuals who purchase insurance on a federal exchange (as opposed to exchanges run by the states). The D.C. Circuit found that such subsidies were not statutorily authorized (the Halbig case). And an hour later, the Fourth Circuit found that the subsidies were statutorily authorized (the King case).

The merits of these decisions, as a practical matter and in terms of statutory interpretation, have received tremendous attention. But Article III standing was also an issue in both Halbig and King. Who, after all, suffers the constitutionally required “injury in fact” by virtue of receiving a subsidy? The answer: People who would be subject to the individual mandate if they are entitled to the subsidy but would not be subject to the individual mandate (on income grounds) without the subsidy. Here’s how the Halbig majority explained it with respect to one of the plaintiffs in that case, David Klemencic:

Klemencic resides in West Virginia, a state that did not establish its own Exchange, and expects to earn approximately $20,000 this year. He avers that he does not wish to purchase health insurance and that, but for federal credits, he would be exempt from the individual mandate because the unsubsidized cost of coverage would exceed eight percent of his income. The availability of credits on West Virginia’s federal Exchange therefore confronts Klemencic with a choice he’d rather avoid: purchase health insurance at a subsidized cost of less than $21 per year or pay a somewhat greater tax penalty.

The D.C. Circuit found that this was sufficient for purposes of Article III standing, and the Fourth Circuit reached the same conclusion. From the Halbig majority opinion (footnote omitted):

The government characterizes Klemencic’s injury as purely ideological and hence neither concrete nor particularized. But, although Klemencic admits to being at least partly motivated by opposition to “government handouts,” he has established that, by making subsidies available in West Virginia, the IRS Rule will have quantifiable economic consequences particular to him. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (explaining that a “threatened injury” that is “certainly impending” may “constitute injury in fact” (emphasis and internal quotation marks omitted)). Those consequences may be small, but even an “‘identifiable trifle’” of harm may establish standing. Chevron Natural Gas v. FERC, 199 F. App’x 2, 4 (D.C. Cir. 2006) (quoting United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 689 n.14 (1973)); see Bob Jones Univ. v. United States, 461 U.S. 574, 581-82 (1983) (noting that Bob Jones University sued for a tax refund of $21.00). Klemencic thus satisfies the requirement of establishing an injury in fact, and because that injury is traceable to the IRS Rule and redressable through a judicial decision invalidating the rule, we find that he has standing to challenge the rule.

And from the King opinion:

We agree that this represents a concrete economic injury that is directly traceable to the IRS Rule. The IRS Rule forces the plaintiffs to purchase a product they otherwise would not, at an expense to them, or to pay the tax penalty for failing to comply with the individual mandate, also subjecting them to some financial cost. Although it is counterintuitive, the tax credits, working in tandem with the Act’s individual mandate, impose a financial burden on the plaintiffs.

The defendants’ argument against standing is premised on the claim that the plaintiffs want to purchase “catastrophic” insurance coverage, which in some cases is more expensive than subsidized comprehensive coverage required by the Act. The defendants thus claim that the plaintiffs have acknowledged they would actually expend more money on a separate policy even if they were eligible for the credits. Regardless of the viability of this argument, it rests on an incorrect premise. The defendants misread the plaintiffs’ complaint, which, while mentioning the possibility that several of the plaintiffs wish to purchase catastrophic coverage, also clearly alleges that each plaintiff does not want to buy comprehensive, ACA-compliant coverage and is harmed by having to do so or pay a penalty. The harm in this case is having to choose between ACA-compliant coverage and the penalty, both of which represent a financial cost to the plaintiffs. That harm is actual or imminent, and is directly traceable to the IRS Rule.

 

 

July 23, 2014 in Current Affairs, Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, February 6, 2014

Final Public Hearing on the Proposed Amendments to the FRCPs (Feb. 7 in Dallas)

Tomorrow, the Judicial Conference Committee on Rules of Practice and Procedure is holding its final public hearing on the recent set of proposed amendments to the Federal Rules of Civil Procedure. Here are some links:

The public comment period closes on February 15, 2014. You can submit comments here.

 

February 6, 2014 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Saturday, January 25, 2014

Kanye West Allowed to Serve Defendants by E-Mail in "Coinye" Lawsuit

In my continuing efforts to make Bitcoin and other cryptocurrencies somehow relevant to this blog, I can report that Kanye West has sued Odaycoins.com, Coinye-Exchange.com, Amazon.com, and others in federal district court in Manhattan (Case Number 1:14-cv-00250, filed January 14, 2014).  The suit is for trademark infringement, unfair competition, and dilution and right of publicity violations, arising from Defendants' "initial public offering of a 'block' of cryptocurrency called, interchangeably, COINYE WEST, COINYE and COYE on their website . . . Although Defendants could have chosen any name for their cryptocurrency, they deliberately chose to trade upon the goodwill associated with Mr. West by adopting names that are admitted plays on his name."  (Complaint, pp. 1-2.)

 

In a civil procedure move that our students will likely find interesting, Judge Analisa Torres entered this order:

 

ORDER GRANTING PLAINTIFFS' EX PARTE APPLICATION FOR PERMISSION TO USE EMAIL AS SERVICE OF PROCESS ON DEFENDANTS AND THIRD PARTIES: that Plaintiffs may serve all legal documents on defendants and third parties by email at email addresses that Plaintiffs ascertain to be valid and operational including, but not limited to the following email addresses: alexfour@orcon.net.nz; coinyewest@ gmail.com; contact@buycoinye.com; coinyecoin@outlook.com; support@coinyecasino.com, rozenbal@emeto.eu; dogecoincom@obscure.me. Such service shall constitute due and sufficient service and notice hereof.

 

The summonses were returned executed two days later.

January 25, 2014 in Current Affairs, Recent Decisions | Permalink | Comments (1)

Monday, December 9, 2013

Decision of Interest on the Federal Arbitration Act

Professors Charlie Sullivan and Tim Glynn (Seton Hall) have uncovered what appears to be a draft Supreme Court opinion in Pasquinade v. Quillet Enterprises, Inc. Or not. Here’s the abstract:

The opinion reproduced below was delivered to us anonymously, with a cover note stating that it had been found on a photocopy machine in the Supreme Court of the United States. Efforts to identify the source of the note have been unsuccessful; further, we have been unable to confirm that a case denominated Pasquinade v. Quillet Enterprises, Inc., was ever filed in that Court or in any other federal court.

In light of its unverified origins, the Pasquinade opinion should not be cited as authority. Nevertheless, it contains a few points of interest, and, who knows, could represent a kind of trial run by the Justice who supposedly authored it, complete with reaction to anticipated dissent. We express no opinion on the matter and merely offer Pasquinade “for what it’s worth.”

 

December 9, 2013 in Current Affairs, Federal Courts, Recent Scholarship | Permalink | Comments (0)

Friday, November 15, 2013

"Lawsuit Abuse Reduction" Bill Passes House

H.R. 2655,  the so-called "Lawsuit Abuse Reduction Act of 2013," passed the House of Representatives yesterday 228-195 (sigh . . . ). 

In 2011, Professor Lonny Hoffman testified against this bill before the House Judiciary Committee. 

November 15, 2013 in Current Affairs, Federal Courts, In the News | Permalink | Comments (0)

Wednesday, November 13, 2013

Hearing on Proposed Amendments to the FRCPs

Last week the Advisory Committee on the Civil Rules held a hearing in Washington, D.C. on the most recent round of proposed amendments to the Federal Rules of Civil Procedure. See below for links to:

The public comment period closes on February 15, 2014.

November 13, 2013 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, November 6, 2013

Still More on the Second Circuit's Order in the Stop-and-Frisk Case

Coverage of the Second Circuit’s order in the Stop-and-Frisk case—staying Judge Scheindlin’s rulings and ordering her removed from the case—continues:

More coverage here.

November 6, 2013 in Current Affairs, Federal Courts, In the News, Recent Decisions, Weblogs | Permalink | Comments (0)

Tuesday, November 5, 2013

Senate Judiciary Committee Hearing on Proposed Changes to FRCP Discovery Rules

In the midst of a week that’s chock full of civil procedure, we’re just moments away from a hearing of the Senate Judiciary Committee Subcommittee on Bankruptcy and the Courts entitled “Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?” Here are the details and witness list:

Continue reading

November 5, 2013 in Current Affairs, Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Sunday, November 3, 2013

More on the Second Circuit's Order in the Stop-and-Frisk Case

We covered earlier the Second Circuit’s order staying District Judge Shira Scheindlin’s rulings in the stop-and-frisk litigation and removing her from the case. For more, here are a few links worth taking a look at:

 

November 3, 2013 in Current Affairs, Federal Courts, In the News, Recent Decisions, Weblogs | Permalink | Comments (0)

Friday, November 1, 2013

A Big Week for Civil Procedure & Federal Courts

There is a lot of action on the civil procedure & federal courts front next week. Mark your calendars (especially if you’ll be in D.C.).

 

November 1, 2013 in Current Affairs, Discovery, Federal Courts, Federal Rules of Civil Procedure, In the News, Supreme Court Cases | Permalink | Comments (0)