Tuesday, December 17, 2013

Members of Civil Rules Advisory Committee Explain and Defend Proposed FRCP Amendments

An ABA Webinar cast earlier this afternoon entitled "The Proposed Revisions to the Federal Rules of Civil Procedure" featured three members of the Civil Rules Advisory Committee, John M. Barkett (moderator), Judge John Koetl, and Judge Paul Grimm. 

I will not repeat the bulk of the presentations, as the Advisory Committee transmittal memorandum and notes on the proposed amendments cover much of what was said. 

Judge Koetl stated that the major themes that emerged at the 2010 Duke Conference (out of which the proposed amendments grew) to reduce the "cost and delay" of civil litigation were proportionality of discovery, cooperation among lawyers, and early and active judicial case management.  

In the category of early and effective judicial case management, the proposals include (among others) suggesting the addition of new topics to the scheduling order, such as a provision that the court can direct that before moving for discovery the parties must have a conference with the court.

This last point was interesting, because Judge Koetl stated that "about a third of the federal judges in the country do that now," and that those judges who do have found that it eliminates most discovery motions.  He stated that there was talk of making this requirement mandatory, but "because most judges don't do it, we only encouraged it." 

Turning to the proposals dealing with "proportionality" in discovery, Judge Koetl stated that the scope of discovery under Rule 26(b)(1) is changed in three main ways:

1. It is limited to matter that is relevant to a party's claim or defense.  The current provision allowing the ordering of discovery "relevant to the subject matter" for "good cause" should be deleted.

2.  The current statement of proportionality is "effectively buried" in Rule 26(b)(2)(C)(iii), so it should be moved to be within Rule 26(b)(1).

3.  The current provision that says relevant information need not be admissible in evidence, if the discovery is reasonably calculated to lead to the discovery of admissible evidence, should be changed.  That provision was intended, Judge Koetl asserted, to be an answer to something like a hearsay objection at a deposition; instead, that language has been used in some cases to expand the scope of discovery beyond its original intent.  The proposed revision says information within the (proposed revised) scope of discovery need not be admissible in evidence to be discoverable. 

Every listener who posed a question to the panel was at least somewhat critical of the proposed amendments.  One listener argued that there was no empirical support for the proposition that there is no "proportionality" in discovery currently, and believed that the proposals were "punishing the innocent majority for the malfeasance of the minority."  Judge Koetl responded that the studies that were conducted for Duke both by the FJC and others reflected measurable dissatisfaction "by a significant number of lawyers for plaintiffs and defendants with respect to discovery being disproportional with respect to the stakes in the case."  It was not a majority who found costs disproportional, but it was "a significant number of cases." 

Judge Koetl also briefly covered the reduction in presumptive limits on certain discovery devices (for example, the reduction from 10 to 5 depositions), and the proposed revision to Rule 1 to remind lawyers of their duty to cooperate.  Judge Grimm covered the proposed amendments to Rule 37 on preservation and spoliation standards.

Mr. Barkett reminded listeners that upcoming hearings were January 9 in Phoenix and February 7 in Dallas.  The public comment period closes Feb. 15, 2014.  See Adam Steinman's earlier post here.

December 17, 2013 in Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, December 16, 2013

ABA Webinar Tomorrow on Proposed FRCP Amendments, Free to Litigation Section Members

If you are a member of the ABA's Litigation section, you might want to check out this webinar tomorrow, Tuesday, December 17, 2013, at 1:00 pm EST on The Proposed Revisions to the Federal Rules of Civil Procedure.  Registration is free to Litigation section members, $100 to ABA members, and $130 to the general public.

The panel includes:

Hon. John Koeltl, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the Southern District of New York, New York, NY

Hon. Paul Grimm, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the District of Maryland, Baltimore, MD

John M. Barkett (Moderator), Member, Advisory Committee on Civil Rules, Partner, Shook, Hardy & Bacon, Miami, FL

Hon. John Koeltl, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the Southern District of New York, New York, NY

Hon. Paul Grimm, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the District of Maryland, Baltimore, MD

John M. Barkett (Moderator), Member, Advisory Committee on Civil Rules, Partner, Shook, Hardy & Bacon, Miami, FL

- See more at: http://apps.americanbar.org/cle/programs/l13rcp1.html?sc_cid=CEL3RCP-C#sthash.M4UUGA8Y.dpuf

Hon. John Koeltl, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the Southern District of New York, New York, NY

Hon. Paul Grimm, Member, Advisory Committee on Civil Rules, Judge, U.S. District Court for the District of Maryland, Baltimore, MD

John M. Barkett (Moderator), Member, Advisory Committee on Civil Rules, Partner, Shook, Hardy & Bacon, Miami, FL

- See more at: http://apps.americanbar.org/cle/programs/l13rcp1.html?sc_cid=CEL3RCP-C#sthash.M4UUGA8Y.dpuf

December 16, 2013 in Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Tuesday, December 3, 2013

SCOTUS Decision in Atlantic Marine: Forum-Selection Clauses and Venue Transfer

Today the Supreme Court issued a unanimous decision in Atlantic Marine Constr. Co. v. United States Dist. Court for Western Dist. of Tex. (No. 12-929), which considers the proper procedural vehicle for enforcing a contractual forum-selection clause when the plaintiff files in a federal district that violates that clause. A few highlights from the opinion by Justice Alito:

  • Motions under Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a) are not appropriate in this situation. A forum-selection clause does not make a venue “improper” for purposes of Rule 12(b)(3) or “wrong” for purposes of § 1406(a). [See pp. 4-8]
  • A motion to transfer under 28 U.S.C. § 1404(a) is appropriate in this situation. Section 1404(a) “provides a mechanism for enforcement of forum-selection clauses that point to a particular federal district.” [p.9]
  • “[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens.” [pp.9-10]
  • It remains an open question whether a forum-selection clause could be enforced through other vehicles, such as a Rule 12(b)(6) motion. This possibility had been urged by Professor Stephen Sachs in amicus brief, but the Court did not address it because the parties themselves did not raise it. Justice Alito adds: “Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that § 1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-­selection clause and that §1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms.” [p.11]

The opinion then addresses how a court should decide a § 1404(a) motion to enforce a forum-selection clause. Justice Alito writes: 

“When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause.5 Only under extraordinary circumstances unrelated to the convenience of the parties should a §1404(a) motion be denied.” [p.11]

(Footnote 5 makes clear that the Court’s analysis “presupposes a contractually valid forum-selection clause,” which leaves open the possibility that such a clause could be challenged as contractually invalid.) Justice Alito then explains: “The presence of a valid forum-selection clause requires district courts to adjust their usual §1404(a) analysis in three ways.” [p.12] They are:

  • “First, the plaintiff ’s choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.” [p.13]
  • “Second, a court evaluating a defendant’s § 1404(a) mo­tion to transfer based on a forum-selection clause should not consider arguments about the parties’ private inter­ests…. As a consequence, a district court may consider argu­ments about public-interest factors only.” [pp.13-14]
  • “Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules.” [p.14]

Footnote 8 states that “the same standards should apply to should apply to motions to dismiss for forum non conveniens in cases involving valid forum-selection clauses pointing to state or foreign forums.”

The Court ultimately reverses the Fifth Circuit, but it remands for further proceedings: “Although no public-interest factors that might support the denial of Atlantic Marine’s motion to transfer are apparent on the record before us, we remand the case for the courts below to decide that question.” [p.17]

December 3, 2013 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, December 2, 2013

Erie, Semtek, Rule 41(a), and the Preclusive Effect of Voluntary Dismissals

See how the Supreme Court of Tennessee addresses these issues in Cooper v. Glasser, __ S.W.3d __, 2013 WL 6174469 (Tenn. Nov. 26, 2013). The opinion is here. It begins:

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December 2, 2013 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, State Courts | Permalink | Comments (0)

Sunday, December 1, 2013

Welcome to your new FRCPs 37 & 45

The recent amendments to Federal Rules of Civil Procedure 37 and 45—which the Supreme Court approved last Spring—came into effect today.

 

December 1, 2013 in Discovery, Federal Rules of Civil Procedure | Permalink | Comments (0)

Monday, November 18, 2013

Another SCOTUS "Statement" on Class Actions (While Denying Cert.)

Earlier this month we covered Chief Justice Roberts’ statement in Marek v. Lane, a case challenging a class action settlement that included cy pres remedies. In his statement, Chief Justice Roberts agreed with the decision to deny certiorari but raised a number of concerns about cy pres remedies, concluding that “[i]n a suitable case, this Court may need to clarify the limits on the use of such remedies.”

Today, Justice Alito issued a similar statement “respecting the denial of the petition for writ of certiorari” in another case involving a class action settlement: Martin v. Blessing (No. 13-169). You can find his six-page statement in today’s order list, beginning on page 13 of the pdf file. It begins:

The petition in this case challenges a highly unusual practice followed by one District Court Judge in assessing the adequacy of counsel in class actions. This judge insists that class counsel “ensure that the lawyers staffed on the case fairly reflect the class composition in terms of relevant race and gender metrics.” App. to Pet. for Cert. 35a. The uniqueness of this practice weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.

The judge is U.S. District Judge Harold Baer of the Southern District of New York, and Justice Alito writes that “[b]ased on the materials now before us, I am hard-pressed to see any ground on which Judge Baer’s practice can be defended.” [p.3]

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November 18, 2013 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Supreme Court Cases | Permalink | Comments (0)

Friday, November 15, 2013

SCOTUS Cert. Grant of Interest: Halliburton v. Erica P. John Fund

Today the Supreme Court granted certiorari in Halliburton Co. v. Erica P. John Fund (No. 13-317). Here are the questions presented:

1. Whether this Court should overrule or substantially modify the holding of Basic Inc. v. Levinson, 485 U.S. 224 (1988), to the extent that it recognizes a presumption of classwide reliance derived from the fraud-on-the-market theory.

2. Whether, in a case where the plaintiff invokes the presumption of reliance to seek class certification, the defendant may rebut the presumption and prevent class certification by introducing evidence that the alleged misrepresentations did not distort the market price of its stock.

Links to the cert-stage briefing and the Fifth Circuit’s opinion below available are at SCOTUSblog. If the name of this case sounds familiar, it’s been up to the Supreme Court before. In 2011, the Court unanimously decided that the plaintiff was not required to prove loss causation at the class-certification phase. But at the end of the opinion, Chief Justice Roberts alluded to the issues the Court will now confront:

Because we conclude the Court of Appeals erred by requiring EPJ Fund to prove loss causation at the certification stage, we need not, and do not, address any other question about Basic, its presumption, or how and when it may be rebutted. To the extent Halliburton has preserved any further arguments against class certification, they may be addressed in the first instance by the Court of Appeals on remand.

 

November 15, 2013 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, November 14, 2013

Dodson and Starger Map SCOTUS Pleading Cases

Scott Dodson and Colin Starger have posted a one-page chart of Supreme Court pleading decisions.  FRCP 8 Pleading: Supreme Court Doctrine 1957-2011.

Abstract:     

Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal are the most important pleadings decisions the Supreme Court has ever issued. Yet the voluminous commentary on these decisions has tended to gloss over the complicated genealogy of the Court's pleadings decisions from Conley v. Gibson to today. In particular, a number of under-appreciated cases, including Associated General, Papasan, and Broudo, laid foundation for the breakout Twombly decision. Commentary has further tended to elide subsequent cases, which appear to move away from Twombly and Iqbal, at least in result.

We map Twombly and Iqbal, along with their progenitors and their progeny, over time. Our depiction reveals that, prior to 2005, the Court maintained a relatively consistent adherence to very liberal pleading, with one outlier (Papasan), which was not cited during this time. From 2005 to 2009, the Court's pleading standards became stricter. Twombly resurrected Papasan and questioned many of the prior decisions, and Iqbal represents the nadir of pleading liberality. The one outlier is Erickson, which is potentially distinguishable as a pro se case. In 2011, however, the Court seemed to relax pleading again, upholding complaints in two cases, Matrixx and Skinner. Skinner even cited to the 2002 case of Swierkiewicz but not to either Twombly or Iqbal.

November 14, 2013 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | 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)

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:

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November 5, 2013 in Current Affairs, Discovery, Federal Rules of Civil Procedure | 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)

Thursday, October 3, 2013

Webcast: Panel on the Federal Rules of Civil Procedure at the University of Cincinnati

You can now watch a webcast of the University of Cincinnati’s recent panel discussion celebrating the 75th anniversary of the Federal Rules of Civil Procedure. 

October 3, 2013 in Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, October 2, 2013

Spencer on Pleading and Access to Civil Justice

Now in print is an essay by Prof. Benjamin Spencer (Washington & Lee) entitled Pleading and Access to Civil Justice: A Response to Twiqbal Apologists, 60 UCLA L. Rev. 1710 (2013). Here’s the abstract:

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October 2, 2013 in Conferences/Symposia, Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Wednesday, September 18, 2013

Symposium at Penn Law School: The Federal Rules at 75

On November 15 & 16, 2013, the University of Pennsylvania Law Review is hosting a symposium entitled “The Federal Rules at 75.” It’s taking place at Penn Law School, 3501 Sansom Street, Philadelphia, PA. Registration is free for all students and scholars.

Details are posted on the Law Review website, where you can register online. A full schedule – including a list of all the speakers, moderators, and panelists –  is here

September 18, 2013 in Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Thursday, September 12, 2013

Eighth Circuit Opinion on Iqbal and Twombly

The Eighth Circuit's decision last week in Horras v. American Capital Strategies, Ltd. (No. 12-3886), __ F.3d __, 2013 WL 4711389, includes a partial dissent by Judge Colloton that is worth a read for his approach to pleading standards after Iqbal and Twombly. (Hat tip to Ryan Koopmans, who covers the case in this post.) The majority in Horras affirms the district court's dismissal of Horras’s complaint. Judge Colloton dissents as to Horras's claim for breach of fiduciary duty.

Judge Colloton writes that while the Supreme Court's approach to pleading in Iqbal and Twombly is an “important development,” courts “must be careful not to embellish it.” Citing Erickson, Swierkiewicz, Form 11, and articles by Judge, Dean, and chief drafter of the original FRCPs Charles E. Clark, he concludes: “Under the simplified pleading standard of Rule 8(a), I think the complaint here was sufficient to give ACS fair notice of the fiduciary duty claim that Horras has amplified in his briefing.”  

Here are some excerpts from Judge Colloton's opinion:  

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September 12, 2013 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Twombly/Iqbal, Weblogs | Permalink | Comments (0)

Tuesday, August 27, 2013

Seventh Circuit (Posner, J.) reaffirms class certification after post-Comcast GVR

Following its decision in Comcast v. Behrend, the Supreme Court remanded a number of class actions for reconsideration (two in April and one in June). Last month, the Sixth Circuit found that class certification remained proper in Glazer v. Whirlpool, a class action involving defective washing machines. The Seventh Circuit has now done the same in a similar washing machine class action against Sears. The entire opinion (Butler v. Sears) is worth a read; Judge Posner’s discussion of Comcast starts on page 5. Here are some excerpts:

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August 27, 2013 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, August 26, 2013

Bryan Garner on Judge Robert Keeton and the Restyling of the Federal Rules

The ABA Journal has this article by Bryan Garner, How attention to style improves substance.

--A

August 26, 2013 in Federal Rules of Civil Procedure, In the News | Permalink | Comments (0)

Sunday, August 25, 2013

Panel Discussion on the 75th Anniversary of the Federal Rules of Civil Procedure at the University of Cincinnati

This Tuesday, August 27, the University of Cincinnati College of Law is hosting a panel discussion celebrating the 75th anniversary of the Federal Rules of Civil Procedure. From the announcement:

Date: August 27, 2013                                               

Time: 3:00 p.m. - 5:00 p.m.

Location: Patricia Corbett Theater (CCM)         

CLE:     2 hrs CLE credits approved for OH and KY

RSVP: Contact Mindy Lawson at mindy.lawson@uc.edu       

The College of Law’s fall event schedule kicks off with the “75th Anniversary of the Federal Rules of Civil Procedure,” a panel discussion to be held on August 27, 2013 at 3:00 p.m.  A star-studded panel of judges, academics, politicians, lawyers, and business people will come together to discuss the impact of the Federal Rules of Civil Procedure and the importance of this anniversary. The panel will be taking a wide angle view of what the rules were designed to achieve, how they have been applied, what is happening now, and what the future of the Federal Rules might be.  Arthur R. Miller, University Professor at New York University, the nation’s leading scholar in the field of American civil procedure and coauthor with the late Charles Wright of Federal Practice and Procedure, will moderate this event.

--A

August 25, 2013 in Conferences/Symposia, Federal Rules of Civil Procedure | Permalink | Comments (0)

Wednesday, August 21, 2013

Proposed Amendments to FRCP Are Reminiscent of New Texas Civil Procedure Rules

JD Supra Law News has a recent post on the new Texas Rules of Civil Procedure, effective March 1, 2013.  One change is the tracking of cases depending on the size of the relief requested and creating an "Expedited Action Rule" for claims less than $100,000.  "Expedited Actions" are subject to a limit of 15 interrogatories (down from 25) "and only 15 requests for production and 15 requests for admission (both of which were not limited under the old rules)," as well as other time limitations.

Sounds a lot like some of the proposed amendments to the FRCP (reported on here), except the proposed amendments to the FRCP are not limited to claims under $100,000.  

PM

August 21, 2013 in Federal Rules of Civil Procedure, State Courts | Permalink | Comments (0)

Tuesday, August 20, 2013

Green on the Twin Aims of Erie

Michael Steven Green (William & Mary) has posted The Twin Aims of Erie to SSRN.

We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid "forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. Through the twin aims, state law is incorporated into federal procedural common law in order to serve federal interests.

This reading does not merely have important consequences for diversity cases. It also has an impact on the role of the twin aims outside diversity. If the twin aims have their source in the purposes standing behind the congressional grant of jurisdiction, rather than respect for state interests, the fact that a federal court entertains a state law action is neither a necessary nor a sufficient reason for the twin aims to apply. The twin aims might apply to federal courts when entertaining federal causes of action. Conversely, they might not apply to a federal court when entertaining state law actions under jurisdictional statutes other than diversity.

I therefore examine four jurisdictional scenarios in order to assess the role of the twin aims in each: a federal court entertaining a federal cause of action, a state court entertaining a federal cause of action (sometimes called reverse-Erie), and a federal court entertaining a state law action under supplemental jurisdiction and under bankruptcy. In the course of my argument, I suggest a resolution to the current circuit split about whether a federal court sitting in bankruptcy should use forum state choice-of-law rules. I also argue that the Supreme Court has wrongly assumed that the twin aims apply in a reverse-Erie context. As a result, it has improperly limited state courts’ powers when entertaining federal civil rights actions — most recently in Haywood v. Drown, 556 U.S. 729 (2009).

This Article offers an original justification of the twin aims in diversity cases, and the first comprehensive explanation of their role in a variety of other jurisdictional contexts.

 RJE 

 


August 20, 2013 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship | Permalink | Comments (0)