May 17, 2013
Coleman on Hoffman on Civil Rulemaking After Twombly and Iqbal
Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Celebrating Civil Rulemaking. It reviews a recent article by Lonny Hoffman (Houston), Rulemaking in the Age of Twombly and Iqbal, which will appear in the U.C. Davis Law Review.
May 16, 2013
Brescia and Ohanian on the Politics of Procedure
Raymond H. Brescia and Edward J. Ohanian, both of Albany Law School, have posted on SSRN their new paper, "The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation Under the New Plausibility Standard."
civil procedure political? In May of 2009, the Supreme Court issued its
decision in Ashcroft v. Iqbal, which explicitly extended the
“plausibility standard,” first articulated in Bell Atlantic v. Twombly
two years earlier, to all civil pleadings. That standard requires that
pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil
Procedure, must state a plausible claim for relief. For many, these
rulings represented a sea change in civil pleading standards. Where
prior Supreme Court precedent had provided that a pleading should not be
dismissed “unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim,” the new standard requires that
judges utilize their own “judicial experience and common sense” to
determine whether claimants have set forth facts sufficient to “nudge
their claims across the line from conceivable to plausible.” In the
years since their issuance, this standard has provoked many questions.
One such question, which lurks behind all otherwise neutral rules of
procedure is the following: could this apparently neutral principle of
procedure be subject to political manipulation?
After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: i.e., if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily. Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents. As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described here attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over 500 employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal). This research reviewed the outcomes in such cases based on a number of metrics, including, most importantly, the political affiliation of the president who appointed the judge issuing each decision reviewed.
The study revealed a statistically significant relationship between the outcomes in civil rights cases and time period (i.e. pre-Twombly, post-Twombly but pre-Iqbal, and post-Iqbal) where the political affiliation of the president who appointed the judge reaching the decision in each case was Republican. For cases decided by judges appointed by Democrat-affiliated presidents, no such relationship was observed. This paper reports on the findings of this study and discusses their implications.
April 20, 2013
Supreme Court Adopts Amendments to Federal Rules
This week the Supreme Court adopted the latest round of amendments to the Federal Rules. Unless Congress intervenes, the new rules will take effect on December 1, 2013. The Civil Rules amendments involve FRCPs 37 & 45.
Links to the Supreme Court orders adopting the rules are below:
- Rules of Appellate Procedure
- Rules of Bankruptcy Procedure
- Rules of Civil Procedure
- Rules of Criminal Procedure
- Rules of Evidence
More details about the amendments can be found in the September 2012 Report of the Judicial Conference.
April 18, 2013
Decision of Interest: Erie and Donald Trump in the Ninth Circuit
Yesterday the U.S. Court of Appeals for the Ninth Circuit decided Makaeff v. Trump University, __ F.3d __, 2013 WL 1633097, No. 11-55016. As the opinion explains, “California law provides for the pre-trial dismissal of certain actions, known as Strategic Lawsuits Against Public Participation, or SLAPPs, that ‘masquerade as ordinary lawsuits’ but are intended to deter ordinary people ‘from exercising their political or legal rights or to punish them for doing so.’” [Slip Op. 10] Ms. Makaeff invoked California's anti-SLAPP statute and moved to strike Trump University’s defamation counterclaim against her. The district court denied her motion, but the Ninth Circuit reverses and remands for the district court to apply California’s anti-SLAPP law and to consider whether Trump had shown “a reasonable probability of proving, by clear and convincing evidence, that Makaeff made her critical statements with actual malice.” [Slip Op. 32-33]
Two judges on the three-judge panel—Judge Kozinski and Judge Paez—author concurring opinions questioning whether California’s anti-SLAPP statute properly applies in federal court under the Erie doctrine. Here are some excerpts from Judge Kozinski’s concurrence [Slip Op. 32-37]:
I join Judge Wardlaw’s fine opinion because it faithfully applies our law, as announced in United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999), and its progeny. But I believe Newsham is wrong and should be reconsidered.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), divided the law applicable to diversity cases into two broad categories. Overruling Swift v. Tyson, 41 U.S. 1 (1842), it held that state law, rather than federal common law, applies to matters of substance. Erie, 304 U.S. at 78–79. But when it comes to procedure, federal law governs. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 & n.7 (1996); see also Hanna v. Plumer, 380 U.S. 460, 473 (1965) (“Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts . . . .”).
In most cases, it’s easy enough to tell whether a rule is substantive or procedural. Whether a defendant is liable in tort for a slip-and-fall, or has a Statute of Frauds defense to a contract claim, is controlled by state law. Just as clearly, the time to answer a complaint, the manner in which process is served, the methods and time limits for discovery, and whether the jury must be unanimous are controlled by the Federal Rules of Civil Procedure. The latter is true, even though such procedural rules can affect outcomes and, hence, substantive rights. See Hanna, 380 U.S. at 471.
But the distinction between substance and procedure is not always clear-cut. While many rules are easily recognized as falling on one side or the other of the substance/procedure line, there are some close cases that call for a more nuanced analysis. See, e.g., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1437 (2010); Gasperini, 518 U.S. at 428.…
Most of Newsham’s analysis was devoted to showing that there’s no “conflict” between California’s anti-SLAPP statute and the Federal Rules of Civil Procedure and, therefore, the two regimes can operate side-by-side in the same lawsuit. But the question of a conflict only arises if the state rule is substantive; state procedural rules have no application in federal court, no matter how little they interfere with the Federal Rules. Newsham’s mistake was that it engaged in conflict analysis without first determining whether the state rule is, in fact, substantive.
It’s not. The anti-SLAPP statute creates no substantive rights; it merely provides a procedural mechanism for vindicating existing rights. The language of the statute is procedural: Its mainspring is a “special motion to strike”; it contains provisions limiting discovery; it provides for sanctions for parties who bring a non-meritorious suit or motion; the court’s ruling on the potential success of plaintiff’s claim is not “admissible in evidence at any later stage of the case”; and an order granting or denying the special motion is immediately appealable. See Cal. Civ. Proc. Code § 425.16. The statute deals only with the conduct of the lawsuit; it creates no rights independent of existing litigation; and its only purpose is the swift termination of certain lawsuits the legislators believed to be unduly burdensome. It is codified in the state code of civil procedure and the California Supreme Court has characterized it as a “procedural device to screen out meritless claims.” See Kibler v. N. Inyo Cnty. Local Hosp. Dist., 138 P.3d 193, 198 (Cal. 2006).
Federal courts must ignore state rules of procedure because it is Congress that has plenary authority over the procedures employed in federal court, and this power cannot be trenched upon by the states. See Erie, 304 U.S. at 78 (“[T]he law to be applied in any [diversity] case is the law of the State” except for “matters governed by the Federal Constitution or acts of Congress . . . .” (emphasis added)); see also 28 U.S.C. § 2072. To me, this is the beginning and the end of the analysis. Having determined that the state rule is quintessentially procedural, I would conclude it has no application in federal court.
Judge Kozinski concludes [Slip Op. 40]:
Newsham was a big mistake. Two other circuits have foolishly followed it. See Godin v. Schencks, 629 F.3d 79, 81, 85–91 (1st Cir. 2010); Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 168–69 (5th Cir. 2009). I’ve read their opinions and find them no more persuasive than Newsham itself. It’s time we led the way back out of the wilderness. Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof.… [I]f this or another case were taken en banc, we could take a fresh look at the question. I believe we should.
April 16, 2013
Miller on the Deformation of Federal Civil Procedure
Now available online is an article by Arthur Miller (NYU) entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. L. Rev. 286 (2013). Here’s the abstract:
When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems. The federal courts applied that philosophy of procedure for many years. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today.
The author examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986. Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (1) expert testimony, (2) the constriction of class action certification, (3) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (4) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (5) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (6) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.
All of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.
Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. The author argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary. The author cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.
March 25, 2013
Agenda Book for the Civil Rules Advisory Committee's April 2013 Meeting
The Administrative Office of the U.S. Courts has posted the agenda book for the upcoming meeting of the Advisory Committee on Civil Rules (April 11-12). Action items include:
- Report of Duke Conference Subcommittee: Proposal to Recommend Publication, Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37
- Revisions of Rule 37(e) as approved for publication
(Hat Tip: Emery Lee)
February 27, 2013
SCOTUS Decision in Amgen: Class Certification in Securities Fraud Cases
Today the Supreme Court issued its decision in Amgen v. Connecticut Retirement Plans (No. 11-1085), covered earlier here. The basic issue is whether, in a securities fraud case, proof of “materiality” is required in order to certify a class action. The Court splits 6-to-3, with Justice Ginsburg writing the majority opinion (joined by Roberts, Breyer, Alito, Sotomayor, and Kagan). Here’s an excerpt from the first few paragraphs of Justice Ginsburg’s opinion (Slip Op. 2-3):
The issue presented concerns the requirement stated in Rule 23(b)(3) that “the questions of law or fact common to class members predominate over any questions affecting only individual members.” Amgen contends that to meet the predominance requirement, Connecticut Retirement must do more than plausibly plead that Amgen’s alleged misrepresentations and misleading omissions materially affected Amgen’s stock price. According to Amgen, certification must be denied unless Connecticut Retirement proves materiality, for immaterial misrepresentations or omissions, by definition, would have no impact on Amgen’s stock price in an efficient market.
While Connecticut Retirement certainly must prove materiality to prevail on the merits, we hold that such proof is not a prerequisite to class certification. Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class. Because materiality is judged according to an objective standard, the materiality of Amgen’s alleged misrepresentations and omissions is a question common to all members of the class Connecticut Retirement would represent. The alleged misrepresentations and omissions, whether material or immaterial, would be so equally for all investors composing the class. As vital, the plaintiff class’s inability to prove materiality would not result in individual questions predominating. Instead, a failure of proof on the issue of materiality would end the case, given that materiality is an essential element of the class members’ securitiesfraud claims. As to materiality, therefore, the class is entirely cohesive: It will prevail or fail in unison. In no event will the individual circumstances of particular class members bear on the inquiry.
Essentially, Amgen, also the dissenters from today’s decision, would have us put the cart before the horse. To gain certification under Rule 23(b)(3), Amgen and the dissenters urge, Connecticut Retirement must first establish that it will win the fray. But the office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the “metho[d]” best suited to adjudication of the controversy “fairly and efficiently.”
Justice Alito writes a concurring opinion. Justice Scalia writes a dissenting opinion. And Justice Thomas writes a dissenting opinion (joined by Kennedy and partially by Scalia).
SCOTUS Decision on FRCP 54(d): Marx v. General Revenue Corp.
Federal Rule of Civil Procedure 54(d)(1) gives district courts discretion to award costs to prevailing defendants“[u]nless a federal statute … provides otherwise.” The Fair Debt Collection Practices Act (FDCPA), 91 Stat. 881, 15 U. S. C. §1692k(a)(3), provides that “[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” This case presents the question whether §1692k(a)(3) “provides otherwise” than Rule 54(d)(1). We conclude that §1692k(a)(3) does not “provid[e] otherwise,” and thus a district court may award costs to prevailing defendants in FDCPA cases without finding that the plaintiff brought the case in bad faith and for the purpose of harassment.
Justice Sotomayor dissents, joined by Justice Kagan.
December 13, 2012
The Seventh Circuit Explains “Incidental Monetary Relief” that May be Certified Under Rule 23(b)(2)
A new Case Note posted by the ABA Class Action & Derivative Suits Committee:
Judge Posner's opinion in Johnson v. Meriter Health Services Employee Retirement Plan, No. 12-2216 (7th Cir. Dec. 4, 2012), focuses on one question arguably left open by Wal-Mart Stores v. Dukes – what kind of incidental monetary relief may be certified in a Rule 23(b)(2) case? The Court affirmed the class certification order in this ERISA class action, concluding that the variations and the complexity of the claims did not destroy commonality because the claims of each sub-class were homogeneous. The Court also noted that the Supreme Court's holding that damages could not be sought in a Rule 23(b)(2) action was limited to “monetary relief [which] is not incidental to
the injunctive or declaratory relief.” Here, the plan participants were permitted to seek monetary relief incidental to the declaration of their rights under the subject pension plan. The Court also provided detailed guidance as to calculating this incidental monetary relief where the plaintiffs' claims might require an evidentiary hearing, including certification of a Rule 23(b)(2) class with notice and opt out, bifurcated certification, or damage calculations via a computer program.
Submitted by Jocelyn Larkin, Impact Fund
December 07, 2012
Dodson on Dismissal Rates in Federal Civil Cases
Scott Dodson of University of California Hastings College of the Law has posted on SSRN his paper, “A New Look: Dismissal Rates in Federal Civil Cases,” forthcoming in 96 Judicature.
In the wake of Twombly and Iqbal, a number of studies have been conducted to determine the decisions' effects on dismissal practice in federal civil cases. However, those studies have tended to code whole cases rather than claims -- leading to the ambiguous coding category of “mixed” dismissals and to problems in characterizing the nature of the dispute -- and have failed to distinguish between legal sufficiency and factual sufficiency, potentially masking important detail about the effects of the pleadings changes.
This paper begins to fill in that detail. I compiled an original dataset of district court opinions and coded each claim -- rather than whole case -- subject to an adjudicated Rule 12(b)(6) motion. For each claim, I also determined whether the court resolved the motion on grounds of legal or factual sufficiency. This methodology opened an unprecedented level of granularity in the data.
The data reveal statistically significant increases in the dismissal rate overall and in a number of subsets of claims. I also find an increase in the relative prevalence and efficacy of factual-insufficiency arguments for dismissal. Perhaps surprisingly, I find a decrease in the relative prevalence and efficacy of legal-insufficiency arguments for dismissal. These data and insights on the rationales of dismissals are new to the literature and suggest that Twombly and Iqbal are affecting both movant strategy and judicial reasoning.
November 26, 2012
Meier on the Summary Judgment Standard
Professor Luke Meier of Baylor University has posted on SSRN his new article, "Probability, Confidence, and the 'Reasonable Jury' Standard."
The modern summary judgment standard requires that a judge consider how a "reasonable jury" would resolve a particular dispute. By creating the impression that a judge's analysis at summary judgment replicates that of a jury at trial, the "reasonable jury" standard masks a component of the judge's summary judgment analysis. To appreciate this concept, it is necessary to distinguish between the concepts of probability and confidence. Whereas a jury primarily -- if not exclusively -- engages in a probability analysis, a judge performs both a probability and confidence analysis. This article discusses the dual nature of a judge's summary judgment inquiry through a reconsideration of Professor Tribe's "blue bus" hypothetical. In addition, this article demonstrates how the "reasonable jury" standard makes it difficult to identify the confidence concept as a component of federal procedure.
November 08, 2012
This Week's SCOTUS Oral Arguments: Mootness, Class Actions, And FRCP 54(d) (Oh My!)
The Supreme Court heard oral argument in several interesting cases this week. Below are some links…
Already LLC v. Nike Inc., No. 11-982 (Article III & mootness)
- Oral argument transcript
- PatentlyO (Megan La Belle)
- Reuters (Jonathan Stempel)
- SCOTUSblog (Lyle Denniston)
Amgen Inc. v. Connecticut Retirement Plans, No. 11-1085 (class actions)
- Oral argument transcript
- Jurist (Julia Zebley)
- N.Y. Times (Adam Liptak)
- Point of Law (Ted Frank)
- Reuters (Jonathan Stempel)
- SCOTUSblog (Steven Kaufhold)
Comcast v. Behrend, No. 11-864 (class actions)
- Oral argument transcript
- Jurist (Julia Zebley)
- N.Y. Times (Adam Liptak)
- Reuters (Jonathan Stempel)
- SCOTUSblog (Sergio Campos)
- Wall Street Journal (Brent Kendall)
Marx v. General Revenue Corp., No. 11-1175 (Rule 54(d))
October 01, 2012
Conference Announcement: Advocacy Under the Federal Rules of Civil Procedure After 75 Years
Conference: Advocacy Under the Federal Rules of Civil Procedure at the University of Kansas, November 8-9, 2012
The Kansas Law Review in conduction with the Shook, Hardy & Bacon Center for Excellence in Advocacy will host "Advocacy Under the Federal Rule of Civil Procedure After 75 Years"
• Professor Richard Marcus – Horace O. Coil Chair in Litigation at University of California Hastings College of the Law; Associate Reporter to the Advisory Committee on Civil Rules of the Judicial Conference of the U.S.
• John Barkett – Partner, Shook Hardy & Bacon L.L.P, Miami office; ABA Section of Litigation’s liaison member to the Federal Civil Rules Advisory Committee.
• Professor Steven Gensler – Professor, Associate Dean of Research and Scholarship at University of Oklahoma College of Law; Member of the United States Judicial Conference Advisory Committee on Civil Rules; Former Supreme Court Fellow at the Administrative Office of the United States Courts
• Professor Robert Burns – Professor of Law at Northwestern University School of Law; Program Director and Section Leader for the National Institute for Trial Advocacy.
• Honorable Lee H. Rosenthal – U.S. District Court Judge for the Southern District of Texas, Houston Division; Chair of the Judicial Conference Committee on the Rules of Practice and Procedure; Former Chair of the Judicial Conference Advisory Committee on Civil Rules.
• Rebecca Kourlis – Founder and Executive Director of the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver; Former Justice of the Colorado Supreme Court.
• John H. Martin – Partner, Thompson & Knight LLP; Fellow, American College of Trial Lawyers; Fellow, International Academy of Trial Lawyers
• Kelley Sears – Senior Vice President and Deputy General Counsel, Wal-Mart
• Honorable David J. Waxse – Magistrate Judge for the United States District Court, District of Kansas; Former Chair of Kansas Commission on Judicial Qualifications; Past-President of the Kansas Bar Association.
All are invited to attend the conference. Additionally, some funds are available to sponsor room and board faculty wishing to attend. Please contact Prof. Lou Mulligan at firstname.lastname@example.org
September 04, 2012
Fifth Circuit Adopts “Flexible Due Diligence” Standard For Service of a Foreign Defendant
In Lozano v. Bosdet et al., No. 11-60736 (5th Cir. Aug. 31, 2012), a Mississippi citizen sued the driver of a rental car, her passengers, and Enterprise Rent-A-Car for a traffic accident on the last day before the statute of limitations expired. Enterprise removed the case to federal district court (and was later granted summary judgment). The other defendants were individuals believed to be living in England. Within 120 days of the complaint’s filing, plaintiff attempted service by restricted delivery mail and also hired a private process server to communicate with a local agent of two of the defendants. At the end of the 120 days, plaintiff moved for and was granted an additional 120-day period, and later an additional 30-day period, in which to complete service. Still failing service, plaintiff moved for yet another extension, stating that steps were underway to accomplish service according to Rule 4(f)’s provisions for service outside the U.S. The district court denied the final request and dismissed the suit without prejudice.
Upon plaintiff’s appeal, the Fifth Circuit reversed. The court held that the 120-day service requirement in Rule 4(m) was subject to an express exception for service of individuals abroad under the Hague Convention. However, the court did not view the time allotted for service unlimited but subject to a “flexible due diligence standard” measured by “good faith and reasonable dispatch.”
Further, the court held that because the plaintiff would likely be barred from refiling a dismissed suit due to the statute of limitations, a higher standard applicable to a with-prejudice dismissal applied. In such a case, dismissal should only be granted when there was a “clear record of delay or contumacious conduct by the plaintiff,” and “when the delay (1) was caused by the plaintiff himself, as opposed to by counsel; (2) resulted in actual prejudice to the defendants; or (3) was caused by intentional conduct.” The court held that this standard had not been met and reversed the dismissal.
August 20, 2012
Two Articles About Appeals in the Federal System
Two articles about the Federal Rules and appeals have been posted to SSRN.
Bryan Lammon (Washington University) has posted Rules, Standards, and Experimentation in Appellate Jurisdiction.
The current system of interlocutory appeals in federal court has long been criticized for its complexity and unpredictability, and federal courts scholars have long debated how best to reform it. But much of this discussion occurs at an abstract level. Scholars debate the effects of potential reforms — such as whether a particular reform will increase the number of interlocutory appeals — and these arguments have a substantial empirical element. They are often based, however, on implicit theories of judicial and litigant behavior, not empirical evidence. All of these arguments contain plausible positions on the potential effects of particular reforms. And therein lies the problem; there is no way to evaluate such arguments other than to agree or disagree with the logic and normative commitments at their core. Some empirical evidence could go a long way toward breaking the current stalemate in interlocutory appeal reform.
This article offers a means of using experimentation, initiated and overseen by judges, to generate evidence about the consequences of different approaches to interlocutory appeals. Under this experimental approach, the Courts of Appeals would be permitted to take differing positions on the appealability of particular orders; repeated application of these different rules would then illustrate their effects. The courts could reassess these different rules in light of their observed consequences. Although such experimentation (sometimes called "percolation") is controversial, it could work in the interlocutory appeals context. As a specific means for facilitating such experimentation, this article looks to the choice between rules and standards and suggests the modest and feasible reform of making the current collateral order exception more standard-like. In so doing, this article shows how standards can facilitate rapid and fruitful experimentation in a hierarchical judiciary, something the literature on rules and standards has often overlooked.
Andrew Pollis has posted Civil Rule 54(b): Seventy-Five and Ready for Retirement.
As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this article takes a critical look at one of the failed rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first to describe them comprehensively, analyze their root causes, and offer a workable alternative.
When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by finding “no just reason for delay.” The rule was designed to ease the hardship on litigants who would otherwise have to await the conclusion of the entire case to appeal an adverse ruling.
But the rule has spawned seventy-five years of chaos. Courts struggle to evaluate whether an order fully adjudicates a discrete and severable claim. They struggle to evaluate what “no just reason for delay” really means. At the heart of the problem lies a power clash; Rule 54(b) puts the district court in charge of deciding when an appellate court is required to hear an appeal. Not surprisingly, appellate courts often resist. And they often question Rule 54(b) certifications only after full briefing and oral argument.
It is time to end the struggle. And a better solution exists. This article advocates the repeal of Rule 54(b) and, in its place, a resort to a discretionary-appeal system to permit trial courts to certify certain orders for immediate appeal and to permit appellate courts to decide whether to hear them.
August 16, 2012
Mulligan and Staszewski on The Supreme Court's Regulation of Civil Procedure
Just published in UCLA Law Review: "The Supreme Court’s Regulation of Civil Procedure: Lessons From Administrative Law" by Lumen N. Mulligan and Glen Staszewski.
In this Article, we argue that the U.S. Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the Court can resolve the case solely through the deployment of traditional tools of statutory interpretation. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this insight, we present a justification for favoring rulemakings over adjudications by analogy to administrative law. Third, we couple this preference for rulemaking over adjudication with three criteria detailing when this presumption should apply. Namely, we conclude that civil procedure issues are better resolved by reference to the Advisory Committee if the issue (a) requires an interpretation of a rule that rests substantially upon legislative facts, (b) calls for the resolution of a Chevron step-two-like ambiguity, or (c) seeks a resolution that approximates a legislative rule. Only when traditional tools of statutory interpretation—text, history, and purpose—will resolve a case should the Court retain its disposition in the adjudicatory form. Fourth, we offer the mechanisms for pragmatically achieving this preference for rulemaking both under existing law as well as through a new “referencing” procedure, without unduly constraining the flexibility needed by lower courts to implement the civil rules effectively. In so doing, we contend that expanding the Court’s use of rulemaking not only should result in better rules but should also bolster the democratic legitimacy of the Court’s civil-rules decisionmaking.
August 08, 2012
Hoffman on “Rulemaking in the Age of Twombly and Iqbal”
Lonny Hoffman has just posted on SSRN the above-titled paper.
In this article I am essentially trying to answer one critical question: Faced with the controversy triggered by the Supreme Court’s decisions in Bell Atlantic Co. v. Twombly (2007) and Ashcroft v. Iqbal (2009), particularly over access to the courts, why have judicial rulemakers not proposed rule reforms to address the concerns raised? This question is particularly puzzling when one realizes that over the last seventy-five years the rules committees have consistently rejected proposals to stiffen pleading requirements along lines similar to what the Court decreed in Twombly and Iqbal. It is as if Congress had repeatedly voted against amending a statute that had been on the books for years only to have the Court through judicial interpretation effectively rewrite the law as though it had been amended. While we reasonably might predict that at least some in Congress would call for a legislative response if this happened, five years after Twombly no proposals for rule reform have been forthcoming and there is no momentum on the rules committees in favor of reform. Why? In this paper I argue that uncovering what has kept rulemakers from acting in the past permits us to interrogate whether those reasons can justify the same course in the future. Ultimately, I conclude that the justifications of the past are no longer sufficient and that the case for immediate rule reform is strong. Beyond its immediate relevance to the unresolved pleading problem, the added perspective gained by examination of the rulemakers’ deliberations can also deepen our understanding of the rulemaking process generally, providing new insights about how the process of making new rules and evaluating existing ones may be improved.
Second Circuit Holds Petition to Compel Arbitration Cannot Be Voluntarily Dismissed
From JDSupra, by Katten Muchin Rosenman LLP:
The U.S. Court of Appeals for the Second Circuit affirmed the Southern District of New York’s vacatur of a petitioner’s voluntary notice of dismissal of a petition to compel arbitration. Petitioner and respondent had entered into an arbitration agreement and petitioner had filed a petition to compel arbitration. After some litigation, petitioner filed a notice of voluntary dismissal under the Federal Rules of Civil Procedure. The Second Circuit found that the Federal Rule of Civil Procedure allowing for voluntary dismissal (Rule 41) did not apply to petitions to compel arbitration and that the petitioner lacked the right to voluntarily and unilaterally dismiss the petition for arbitration. Additionally, the Second Circuit found that allowing parties to voluntarily dismiss petitions to compel arbitration would inappropriately expand the voluntary dismissal right, as the Rule allows one party to curtail the other’s right of voluntary dismissal by filing an answer or a motion for summary judgment, but under the Federal Arbitration Act, a respondent’s option is limited: he can file a motion for summary judgment, but not an answer, in response to a motion to compel arbitration.
ISC Holding AG v. Nobel Biocare Finance AG, Nos. 10-4867-cv(L), 11-239-cv(CON) (2d Cir. July 25, 2012).
April 24, 2012
SCOTUS Decision in Wood v. Milyard
Today the Supreme Court decided Wood v. Milyard, a case involving the authority of a federal court of appeals to raise sua sponte a limitations defense to a habeas petition. The case builds on the Court’s previous decisions in Granberry v. Greer, 481 U. S. 129 (1987), and Day v. McDonough, 547 U. S. 198 (2006). Justice Ginsburg’s opinion of the Court (joined by Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan) holds: "Consistent with Granberry and Day, we decline to adopt an absolute rule barring a court of appeals from raising, on its own motion, a forfeited timeliness defense. . . . [C]ourts of appeals, like district courts, have the authority—though not the obligation—to raise a forfeited timeliness defense on their own initiative." [Slip Op. at 9].
As for how that authority should be exercised, Justice Ginsburg clarifies that "[a]lthough a court of appeals has discretion to address, sua sponte, the timeliness of a habeas petition, appellate courts should reserve that authority for use in exceptional cases." [Slip Op. at 9]. Applying that idea to the facts of Wood, she writes that "[a] court is not at liberty . . . to bypass, override, or excuse a State’s deliberate waiver of a limitations defense. The Tenth Circuit, we accordingly hold, abused its discretion by resurrecting the limitations issue instead of reviewing the District Court’s disposition on the merits of Wood’s claims." [Slip Op. at 2].
Justice Thomas authors a concurring opinion, joined by Justice Scalia, that would give courts less ability to resurrect a state’s potential defenses to a habeas petition [Concurring Op. at 1, 3 (some citations omitted)]:
"Because I continue to think that Day was wrongly decided and that Granberry is inapposite, I cannot join the Court’s opinion. See Day, 547 U. S., at 212–219 (SCALIA, J., joined by THOMAS and BREYER, JJ., dissenting). As the dissent in Day explained, the Federal Rules of Civil Procedure apply in habeas corpus cases to the extent that they are consistent with the Habeas Corpus Rules, the habeas corpus statute, and the historical practice of habeas proceedings. As relevant here, the Rules of Civil Procedure provide that a defendant forfeits his statute of limitations defense if he fails to raise it in his answer or in an amendment thereto. 547 U. S., at 212 (citing Rules 8(c), 12(b), 15(a)). That forfeiture rule is fully consistent with habeas corpus procedure. . . .
"In light of these considerations, I cannot join the Court’s holding that a court of appeals has discretion to consider sua sponte a forfeited limitations defense."
April 23, 2012
Dodson on Rule 60(b)
Prof. Scott Dodson (William & Mary) has posted on SSRN his essay Rethinking Extraordinary Circumstances, which will appear in the Northwestern University Law Review. Here’s the abstract:
This short Essay seeks to rationalize the “extraordinary circumstances” requirement of Rule 60(b)(6) of the Federal Rules of Civil Procedure. Under the Supreme Court’s Ackermann decision, any extraordinary circumstances justifying relief must not have been caused by the movant’s own litigation conduct. I argue that the Ackermann rule, at its broadest, would be unjust to those litigants most in need of Rule 60(b)(6) relief and would overserve finality interests. A case study of the recent Fourth Circuit case Aikens v. Ingram illustrates these points. I propose, contrary to Aikens, that the Ackermann rule should apply more narrowly: only to a movant who intentionally abandons the litigation.