Monday, February 13, 2012
Thank you, Governor Mark Dayton, for the common sense approach shown in your veto messages for four “tort reform” bills. The full letters are available on the governor’s web site here.
“I am vetoing and returning Chapter 118, SF 149, which addresses the unrelated topics of conciliation court claim limits and class actions appeals. These provisions are not consistent with the court’s recommendations for effectively addressing small claims, represent legislative meddling with court procedures best handled by the judiciary, and do not address legitimate problems in Minnesota. A recent study by the National Center for State Courts revealed that 72% of the civil case load in Minnesota is consumed by small claims and contract matters, while civil tort claims represent less than 3% of the cases. The Legislature should be addressing the areas of the court that consume the bulk of its workload.”
“I have vetoed and am returning Chapter 119, SF 373, which drastically lowers the statute of limitations for many important civil claims. . . . I am perplexed by the charge that Minnesota is an excessively litigious state or has a negative civil justice system for business. According to the Minnesota Supreme Court, civil case filings for injury claims are down over 40% since 1997, despite our expanding population. . . .”
“I am vetoing and returning Chapter 120, SF 429, a measure that has been rejected several times by the legislature and the courts. . . . This legislation would require that attorneys' fee awards must be in proportion to the damages awarded in a civil case. This requirement would seriously undermine the legislative purpose for enacting statutes that allow Minnesota businesses, consumers, and employees to collect their damages - plus reasonable attorney fees - for certain wrongful conduct. A rule of proportionality would make it difficult, if not impossible, for individuals to bring important and meritorious claims of relatively small value. To ensure that those claims are brought forward, the legislature has shifted the costs of bringing the claim to the negligent party, and rightly so. This legislation removes that protection. Further, the courts already review fee awards to ascertain that they are in relation to the recovery. However, the court will also consider other relevant factors like the time involved in the case and the nature of the controversy. No evidence has been presented that the current system is unfair to those found in violation of Minnesota laws.”
“I am vetoing and returning Chapter 121, SF 530, which would lower the interest rate on judgments for negligent parties and their insurance companies. This bill is a step backwards for justice.”
Thursday, February 9, 2012
In case you were wondering what ever happened to the complaint filed by five killer whales (represented by PETA) alleging that Sea World was subjecting them to slavery in violation of the 13th Amendment, it was just dismissed. The district court in San Diego held that "the only reasonable interpretation of the Thirteenth Amendment's plain language is that it applies to persons, and not to non-persons such as orcas."
So corporations are people, but killer whales are not.
Hat tip to Huff Post Green; the article is here.
Wednesday, February 1, 2012
The National Conference of Bar Examiners probably posted the questions from the July 2011 bar exam some time ago. I was only reminded to look when Kevin Clermont let me know that the link I’d posted to the February 2011 question no longer worked. He’s right -- the NCBE has taken down the link to the February exam.
To avoid such vanishing links in the future, I’ve cut and pasted the Federal Civil Procedure question from the July 2011 bar below.
Having only read this quickly, I have to ask: am I missing something? Really, the whole thing leads up to two straightforward appealability issues?
Anyway, here it is:
Federal Civil Procedure Question (from July 2011 MEE)
OfficeEquip is a U.S. distributor of office machines. It is incorporated in State A, where it has its principal place of business. BritCo is a manufacturer of copiers. It is incorporated in Scotland and has its principal place of business in London, England. OfficeEquip sued BritCo, alleging that BritCo had breached a long-term contract to supply copiers to OfficeEquip.
The suit was filed in the United States District Court for State A, and OfficeEquip properly invoked the court’s diversity (alienage) jurisdiction.
BritCo made a timely motion to dismiss the complaint on the ground that it was filed in violation of a forum-selection clause in the supply contract that required all contract disputes to be adjudicated in London. While its motion to dismiss was pending, BritCo filed an answer to the complaint.
In its answer, BritCo denied breaching the supply contract. BritCo also made a counterclaim seeking damages for OfficeEquip’s alleged breach of a contractual covenant not to compete with BritCo.
OfficeEquip filed a motion for judgment on the pleadings on BritCo’s counterclaim, arguing that the covenant not to compete was unenforceable as a matter of law.
After a short period of discovery, the district judge issued the following two orders:
OfficeEquip’s motion for judgment on the pleadings is granted. The contractual covenant not to compete is void as a matter of public policy and is therefore unenforceable. Given that this is strictly a legal issue and entirely severable from OfficeEquip’s breach of contract claim, there is no just reason for delay, and I accordingly direct that judgment should be entered in favor of OfficeEquip on BritCo’s counterclaim.
BritCo’s motion to dismiss is denied. Enforcement of the forum-selection clause would be unreasonable in this case. OfficeEquip has never done business in London, and it would be extremely inconvenient for it to litigate there.
Trial on the breach of contract claim is scheduled in three months.
1. Can BritCo immediately appeal the district court’s order granting OfficeEquip’s motion for judgment on the pleadings with respect to BritCo’s counterclaim? Explain.
2. Can BritCo immediately appeal the district court’s order denying its motion to dismiss? Explain.
Sunday, January 8, 2012
SCOTUSblog has a great post on the amicus brief by Robert Long on why the Anti-Injunction Act means that the Supreme Court should postpone hearing the ACA challenge cases until after the individual mandate goes into effect in 2014.
Saturday, January 7, 2012
The Association of American Law Schools has approved as new members Drexel University Earl Mack School of Law, North Carolina Central University School of Law, Texas Wesleyan University School of Law, and University of St. Thomas School of Law (Minneapolis).
The story is in the National Law Journal here.
Friday, December 9, 2011
With apologies to Schoolhouse Rock for the title of this post, President Obama has signed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, covered earlier here. The law contains many significant provisions regarding federal diversity jurisdiction, removal and remand, and venue. If you’re keeping score, it amends 28 U.S.C. §§ 1332, 1391, 1404, 1441, 1446, and 1453; repeals 28 U.S.C. § 1392; and enacts new code sections 28 U.S.C. §§ 1390 and 1455.
Sunday, December 4, 2011
This week Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (H.R. 394), although it is still awaiting the President's signature. It’s a very important piece of legislation that will be significant for academics and practitioners alike.
Prawfsblawg’s Howard Wasserman (Florida International) has posted a summary of the final bill that was circulated by Arthur Hellman (Pittsburgh). If you want to keep tabs on the bill, check out the Bill Summary & Status here.
Saturday, October 8, 2011
Tipped by a Justia article by John Dean (and who knew John Dean was an advocate for “the 99%”?), I visited a web site called ALEC Exposed, maintained by the Center for Media and Democracy. ALEC is the acronym for the innocuous-sounding American Legislative Exchange Council, a corporate-funded clearinghouse that for at least a decade has been “ghost writing” business-friendly legislation that is introduced into state legislatures.
Perusing the more than 800 such “model” bills, I was quickly drawn to the category Tort Reform, Corporate Liability, and the Rights of Injured Americans. Yep, there they were – some 68 bills with familiar double-speak “tort reform” titles like "Class Actions Improvements Act," "Private Enforcement of Consumer Protection Statutes," and "Noneconomic Damage Awards Act."
Thursday, September 8, 2011
The Fourth Circuit has held that it will not hear a challenge to the constitutionality of the individual mandate because it lacks jurisdiction under the Anti-Injunction Act. In a companion case, the court held that the state of Virginia lacks standing to sue to challenge the mandate. opinion is here courtesy of the BNA. More summaries of coverage to follow.
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.