Thursday, August 17, 2017
This week the U.S. Court of Appeals for the Fifth Circuit issued its decision in Block v. Tanenhaus, reinstating a Loyola University professor’s claims for defamation and false light against the New York Times and two of its authors. The per curiam opinion acknowledges, but does not resolve, the interesting question of whether state “anti-SLAPP” statutes—such as Louisiana’s Article 971—apply in federal court under Erie:
Block argues that Article 971 is not applicable in federal court because it is procedural and because, even if it is substantive, it is in direct collision with the Federal Rules of Civil Procedure. The applicability of state anti-SLAPP statutes in federal court is an important and unresolved issue in this circuit.2 Unfortunately for Block, his arguments against application of Article 971 have been forfeited.
Footnote 2 describes the state of play in the Fifth Circuit:
We have noted on several occasions that this is an open question. See, e.g., Block, 815 F.3d at 221; Cuba v. Pylant, 814 F.3d 701, 706 & n.6 (5th Cir. 2016); Lozovyy, 813 F.3d at 582–83; Culbertson v. Lykos, 790 F.3d 608, 631 (5th Cir. 2015); Mitchell v. Hood, 614 F. App’x 137, 139 n.1 (5th Cir. 2015); NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 752–53 (5th Cir. 2014). These opinions post-date our decision in Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164 (5th Cir. 2009), which stated without explanation that “Louisiana law, including the nominally-procedural Article 971, governs this diversity case.” Id. 168–69. In Lozovyy, we noted the possibility that, particularly in light of our subsequent decisions, Henry could be interpreted as assuming the applicability of Article 971 for purposes of that case without deciding its applicability in federal courts more generally. Lozovyy, 813 F.3d at 582–83. Similarly, we noted in Pylant that Henry did not address “whether, under the Erie doctrine, the array of state procedural rules surrounding anti-SLAPP motions to dismiss (viz. discovery stays, accelerated timetables for decision, and the like) follow the core anti-SLAPP motion to dismiss into federal court.” Pylant, 814 F.3d at 706 n.6; cf. id. at 719 (Graves, J., dissenting) (addressing Erie question not reached by majority opinion and stating that similar anti-SLAPP statute in Texas is inapplicable in federal court because it is procedural (citing Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015)).
Wednesday, August 16, 2017
Last year we covered an interesting but somewhat obscure issue that came up in connection with the 2015 and 2016 amendments to Rule 4 of the Federal Rules of Civil Procedure. Inconsistencies in the text of these two amendments left it unclear which kinds of service were explicitly exempted from Rule 4(m)’s presumptive 90-day deadline for serving process. The situation prompted a letter to Congress by Sixth Circuit Judge Jeffrey Sutton, who was then the chair of the Standing Committee, seeking to clarify what the “net effect” of the two amendments would be.
This spring, the Supreme Court approved a new amendment that will remove any uncertainty on this question. Under the 2017 amendment, Rule 4(m) will read as follows:
If a defendant is not served within 90 days after the complaint is filed, the court--on motion or on its own after notice to the plaintiff--must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).
Unless Congress intervenes, this amendment will go into effect on December 1, 2017.
Friday, May 12, 2017
Lou reviews a recent article by Steve Subrin and Thom Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (2016).
Monday, April 24, 2017
Now on the Courts Law section of JOTWELL is Beth Thornburg’s essay, A Well-Pleaded Argument. Beth reviews Lonny Hoffman’s recent piece, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016).
Today the U.S. Supreme Court denied certiorari in Salazar-Limon v. City of Houston. Unlike most cert denials, this one prompted written opinions—one dissenting and one concurring. Justice Sotomayor, joined by Justice Ginsburg, authored a dissenting opinion, which begins:
Just after midnight on October 29, 2010, a Houston police officer shot petitioner Ricardo Salazar-Limon in the back. Salazar-Limon claims the officer shot him as he tried to walk away from a confrontation with the officer on an overpass. The officer, by contrast, claims that Salazar-Limon turned toward him and reached for his waistband—as if for a gun—before the officer fired a shot. The question whether the officer used excessive force in shooting Salazar-Limon thus turns in large part on which man is telling the truth. Our legal system entrusts this decision to a jury sitting as finder of fact, not a judge reviewing a paper record.
The courts below thought otherwise. The District Court credited the officer’s version of events and granted summary judgment to respondents—the officer and the city. 97 F. Supp. 3d 898 (SD Tex. 2015). The Fifth Circuit affirmed. 826 F. 3d 272 (2016). But summary judgment is appropriate only where “there is no genuine dispute as to any material fact.” Fed. Rule Civ. Proc. 56(a). The courts below failed to heed that mandate. Three Terms ago, we summarily reversed the Fifth Circuit in a case “reflect[ing] a clear misapprehension of summary judgment standards.” Tolan v. Cotton, 572 U. S. ___, ___ (2014) (per curiam) (slip op., at 10). This case reflects the same fundamental error. I respectfully dissent from the Court’s failure to grant certiorari and reverse.
Justice Alito authored an opinion concurring in the cert denial. An excerpt:
The dissent acknowledges that summary judgment would be proper if the record compelled the conclusion that Salazar-Limon reached for his waist, but the dissent believes that, if the case had gone to trial, a jury could have reasonably inferred that Salazar-Limon did not reach for his waist—even if Salazar-Limon never testified to that fact. The dissent’s conclusion is surely debatable. But in any event, this Court does not typically grant a petition for a writ of certiorari to review a factual question of this sort, see this Court’s Rule 10, and I therefore concur in the denial of review here.
Sunday, April 2, 2017
Newly published: Stephen N. Subrin and Thomas O. Main, Braking the Rules: Why State Courts Should Not Replicate Amendments to the Federal Rules of Civil Procedure, 67 Case W. Res. L. Rev. 501 (Winter 2016).
From the Introduction:
Of course, the Federal Rules and their amendments could be the product of a flawed rulemaking process, fail to deliver on the promise of uniformity, and yet still be compelling content that is suitable for adoption by the states. But it turns out that proponents of replication at the state level would have to make a lot of assumptions that turn out not to be true, namely that:
- the number, the substantive mix, and the stakes of federal and state caseloads, respectively, are the same;
- the state courts have the judicial resources that federal procedure pre-supposes;
- the litigants in state courts can afford federal practice;
- the federal procedural amendments, whether by actual amendment or judicial decree, are working well for most cases;
- the drastic diminution of trials and juries in federal courts are salutary for our democracy; and
- state court procedural experimentation should be discouraged.
The Conclusion reveals the misguided nature of these assumptions. This Article will give examples of the mismatch of the federal amendments for the state court caseload.
The Conclusion ends with a question for state court judges. Simply put, what do you want your role as judges to be? The federal judiciary has become a huge bureaucracy (judges represent only a small percentage of the personnel) which has essentially given up on the major role of adjudication. They spend little time in the court room, and, on average, “preside over a civil trial approximately once every three months.” They, and in large measure the lawyers who appear before them, have had little experience with trials or with juries. They dispose of cases on dispositive motions and urge settlement or alternative modes of dispute resolution. The American jury is disappearing, and to have a trial is thought to be a judicial failure. This is not hyperbole. We hope that state judges avoid replicating this, and instead offer alternative models.
Tuesday, March 21, 2017
Several interesting civil procedure cases on the Supreme Court’s March 2017 oral argument calendar (more details in the links)...
Today (3/21): Microsoft v. Baker
Tomorrow (3/22): Water Splash v. Menon
Monday (3/27): TC Heartland v. Kraft Foods
Monday, March 20, 2017
The Akron Law Review is publishing a symposium issue entitled Discovery and the Impact of the December 2015 Amendments to the Federal Rules of Civil Procedure. From the announcement:
The Akron Law Review invites papers regarding the application and impact of the 2015 amendments to the Federal Rules of Civil Procedure, including articles relating to proportionality and the scope of discovery; protective orders regarding cost-shifting in discovery; sanctions for failing to preserve electronically stored information; measures to promote just, speedy, and inexpensive litigation; court application of the amended discovery rules; and the impact of the rule amendment process on rule content. This symposium issue will be published in the Akron Law Review in the 2017-2018 Academic Year.
Details in the full announcement below...
Tuesday, March 14, 2017
A very interesting ruling came down today from District Judge Mark Bennett of the Northern District of Iowa. From the opening paragraph:
This ruling involves one of the least favorite tasks of federal trial and appellate judges—determining whether counsel and/or the parties should be sanctioned for discovery abuses. This case squarely presents the issue of why excellent, thoughtful, highly professional, and exceptionally civil and courteous lawyers are addicted to “boilerplate” discovery objections.
Judge Bennett finds that the parties’ objections violated several discovery rules, including Rule 26(b)(5)’s provisions on asserting privileges and Rules 33 and 34’s requirements that objections to interrogatories and requests for production be stated “with specificity.” He concludes (footnotes omitted):
To address the serious problem of “boilerplate” discovery objections, my new Supplemental Trial Management Order advises the lawyers for the parties that “in conducting discovery, form or boilerplate objections shall not be used and, if used, may subject the party and/or its counsel to sanctions. Objections must be specific and state an adequate individualized basis.” The Order also imposes an “affirmative duty to notify the court of alleged discovery abuse” and warns of the possible sanctions for obstructionist discovery conduct.
I recall the words of a former U.S. Attorney General in a different context: “Each time a [person] stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, [they] send[ ] forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring, those ripples build a current which can sweep down the mightiest walls of oppression and resistance.” I pledge to do my part— enough of the warning shots across the bow.
The conduct identified in the Show Cause Order does not warrant sanctions, notwithstanding that the conduct was contrary to the requirements for discovery responses in the Federal Rules of Civil Procedure. NO MORE WARNINGS. IN THE FUTURE, USING “BOILERPLATE” OBJECTIONS TO DISCOVERY IN ANY CASE BEFORE ME PLACES COUNSEL AND THEIR CLIENTS AT RISK FOR SUBSTANTIAL SANCTIONS.
The case is Liguria Foods v. Griffith Laboratories.
Friday, March 10, 2017
We covered earlier several bills that could make significant changes to federal civil procedure. Two of these passed the House of Representatives yesterday.
- H.R. 725 (the Innocent Party Protection Act) passed by a vote of 224–194.
- H.R. 985 (the Fairness in Class Action Litigation Act) passed by a vote of 220-201-1.
Stay tuned. Getting to 60 votes in the Senate will be a more difficult proposition.
Thursday, March 2, 2017
The House of Representatives Committee on Rules has announced that it will meet the week of March 6 “to grant a rule that may provide a structured amendment process for floor consideration of” H.R. 720 (amendments to FRCP 11), H.R. 725 (on so-called “fraudulent” joinder), and H.R. 985 (on class actions and MDLs).
Hat tip: Adam Zimmerman
Wednesday, February 22, 2017
Simona Grossi has posted on SSRN a draft of her article, The Claim. Here’s the abstract:
I felt compelled to write this article when I realized that our law interpreters and reformers lack an understanding of the meaning and role of the claim in the federal system, and yet modern scholarship has not produced any study or helpful guidance on the topic.
I spent my fall 2016 at the Yale Law School to work on Charles E. Clark’s collected papers, which are stored in the Yale’s Archives. Clark was the driving force behind the adoption of the Federal Rules. His papers contain his thoughts, notes, sketches, and ideas on procedural law and on the system of federal rules he was designing. Clark’s clear procedural vision produced Rules that have lasted, almost untouched, for almost 80 years. Those Rules assigned to the claim a primary role. And that is not surprising, as the claim is the essential litigation unit, the heartbeat of the case, a demand for justice. Clark was a legal realist and believed that courts were powerful instruments of democracy, intended to allow and foster the development and enforcement of substantive rights. By gradually losing an understanding of, and an interest in, the claim, we have developed doctrines that obstruct and distort the judiciary’s democratic dispute-resolution mission.
My article is intended to offer a comprehensive study of the claim and the role of the claim in the various doctrines that govern procedure in federal courts. Based on that understanding, the article develops a theory of federal practice and procedure that centers on the claim, a theory that assigns to the claim a primary, and yet a non-dispositive role in litigation analysis.
Friday, February 17, 2017
Five bills that would generally operate to favor corporate defendants in civil lawsuits have passed the House Judiciary Committee with blinding speed and have been referred to the full House:
Fairness in Class Action Litigation Act
Bob Goodlatte (R-VA-6)
Furthering Asbestos Claim Transparency (FACT) Act
Blake Farenthold (R-TX-27)
Stop Settlement Slush Funds Act
Bob Goodlatte (R-VA-6)
Innocent Party Protection Act
Ken Buck (R-CO-4)
Lawsuit Abuse Reduction Act
Lamar Smith (R-TX-21)
We briefly described four of the bills here. The bills are opposed by over 50 advocacy groups for civil rights, consumer protection, and environmental protection.
Monday, February 13, 2017
While Trump Distracts, Republicans Introduce Four Bills Restricting Ordinary Citizens’ Access to the Courts
Four bills have been introduced in Congress that would limit plaintiffs' access to the courts. The title of each bill is misleading, in that the effect of each bill would be very different from what its title indicates.
1. Probably the most far-ranging bill is the so-called "Fairness in Class Action Litigation Act of 2017," H.R. 985.
This bill would critically hobble class actions by making them much more difficult to certify and reducing the compensation to plaintiffs’ class action lawyers.
The major provisions of the bill with respect to class actions are (this is not an exhaustive list):
Wednesday, February 1, 2017
In what is beginning to feel like the Groundhog Day of civil procedure bills, LARA has been reintroduced in the Senate and the House for the umpteenth (I think the fifth) time. Although the text of the bills is not yet available, they are likely to be the same as the last version, which was described on this blog here. Essentially, the bills would amend Rule 11 of the Federal Rules of Civil Procedure to eliminate the 21-day "safe harbor" and to make sanctions mandatory instead of discretionary if a violation is found.
The press release by Senator Grassley, one of the co-sponsors of the bill in the Senate, is a rehash of all the alternative facts repeated for years by defendants to discredit civil litigation.
The Advisory Committee, however, knows that there are not "thousands of frivolous lawsuits" in our federal courts and would be unlikely to amend Rule 11 based upon that falsehood. I assume that is one reason the bills propose an end run around the Rules Enabling Act process.
Tuesday, January 31, 2017
Nick Parrillo has posted on SSRN a draft of his article, The Endgame of Administrative Law: Governmental Disobedience and the Judicial Contempt Power. Here’s the abstract:
Scholars of administrative law focus overwhelmingly on lawsuits to review federal government action while assuming that, if plaintiffs win such lawsuits, the government will do what the court says. But in fact, the federal government’s compliance with court orders is imperfect and fraught, especially with orders compelling the government to act affirmatively. Such orders can strain a federal agency’s resources, interfere with its other legally-required tasks, and force it to make decisions on little information. An agency hit with such an order will often warn the judge that it badly needs more latitude and more time to comply. Judges relent, cutting slack and extending deadlines. The plaintiff who has “won” the suit finds that victory was merely the start of a tough negotiation that can drag on for years.
These compliance negotiations are little understood. Basic questions about them are unexplored, including the most fundamental: What is the endgame? That is, if the judge concludes that the agency has delayed too long and demanded too much, is there anything she can do, at long last, to make the agency comply?
What the judge can do, ultimately, is the same thing as for any disobedient litigant: find the agency (and its high officials) in contempt. But do judges actually make such contempt findings? If so, can judges couple those findings with the sanctions of fine and imprisonment that give contempt its potency against private parties? If not, what use is contempt? The literature is silent on these questions, and conventional research methods, confined to appellate case law, are hopeless for addressing it. There are no opinions of the Supreme Court on the subject, and while the courts of appeals have handled the problem many times, they have dealt with it in a manner calculated to avoid setting clear and general precedent.
Through an examination of thousands of opinions (especially of district courts), docket sheets, briefs, and other filings, plus archival research and interviews, this Article provides the first general assessment of how federal courts handle the federal government’s disobedience. It makes four conclusions. First, the federal judiciary is willing to issue contempt findings against agencies and officials. Second, while several federal judges believe they can (and have tried to) attach sanctions to these findings, the higher courts have exhibited a virtually complete unwillingness to allow sanctions, at times swooping down at the eleventh hour to rescue an agency from incurring a budget-straining fine or its top official from being thrown in jail. Third, the higher courts, even as they unfailingly thwart sanctions in all but a few minor instances, have bent over backward to avoid making pronouncements that sanctions are categorically unavailable, deliberately keeping the sanctions issue in a state of low salience and at least nominal legal uncertainty. Fourth, even though contempt findings are practically devoid of sanctions, they have a shaming effect that gives them substantial if imperfect deterrent power.
The efficacy of litigation against agencies rests on a widespread perception that federal officials simply do not disobey court orders and a concomitant norm that identifies any violation as deviant. Contempt findings, regardless of sanctions, are a means of weaponizing that norm by designating the agency and official as violators and subjecting them to shame. But if judges make too many such findings, and especially if they impose (inevitably publicity-grabbing) sanctions, they may risk undermining the perception that officials always comply and thus the norm that they do so. The judiciary therefore may sometimes pull its punches to preserve the substantial yet limited norm-based power it has.
Tuesday, January 24, 2017
Now on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Infusing Civil Rulemaking with Economic Theory. Linda reviews Paul Stancil’s recent article, Substantive Equality and Procedural Justice, which is forthcoming in the Iowa Law Review.
Wednesday, January 18, 2017
Today the U.S. Supreme Court heard oral argument in three consolidated cases raising issues relating to Bivens, qualified immunity, and pleading standards.
Here’s the transcript from today’s argument.
Friday, January 13, 2017
Whether intervenors participating in a lawsuit as of right under Federal Rule of Civil Procedure 24(a) must have Article III standing (as three circuits have held), or whether Article III is satisfied so long as there is a valid case or controversy between the named parties (as seven circuits have held).
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Yesterday the U.S. Court of Appeals for the D.C. Circuit denied an attempt by two consumers to intervene in U.S. House of Representatives v. Burwell (No. 16-5202). The case involves, among other things, whether the House of Representatives has Article III standing to sue regarding the Executive Branch’s administration of the Affordable Care Act.
Here is the text of yesterday’s order:
Upon consideration of the motion for leave to intervene, the responses thereto, and the reply, it is
ORDERED that the motion for leave to intervene be denied. Movant-intervenors have not demonstrated that they are entitled to intervene in this case. See Fed. R. Civ. P. 24; Building and Const. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (enumerating the requirements for intervention under Rule 24 and applying those factors to a motion to intervene in an appellate proceeding). This case shall continue to be held in abeyance, with motions to govern further proceedings due February 21, 2017. See Order (Dec. 5, 2016).
Here is the initial motion to intervene: