Friday, November 1, 2013
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.).
- Monday, November 4: SCOTUS oral argument in Walden v. Fiore (personal jurisdiction and venue)
- Tuesday, November 5: Senate Judiciary Committee Hearing, Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice? (witnesses: Arthur Miller, Andrew Pincus, Sherrilyn Ifill)
- Tuesday, November 5: SCOTUS announces one or more opinions in argued cases (could it be Daimler v. Bauman?)
- Tuesday, November 5: SCOTUS oral argument in Sprint v. Jacobs (Younger abstention)
- Wednesday, November 6: SCOTUS oral argument in Mississippi ex rel. Jim Hood v. AU Optronics Corp. (Class Action Fairness Act)
- Thursday, November 7: Public hearing on the proposed amendments to the Federal Rules of Civil Procedure
Thursday, October 3, 2013
Wednesday, October 2, 2013
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:
Wednesday, September 18, 2013
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.
Thursday, September 12, 2013
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:
Tuesday, August 27, 2013
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:
Monday, August 26, 2013
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 firstname.lastname@example.org
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.
Wednesday, August 21, 2013
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.
Tuesday, August 20, 2013
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.
Friday, August 16, 2013
In June 2013, the Judicial Conference Committee on Rules of Practice and Procedure (a.k.a. the Standing Committee) approved a significant set of amendments to the Federal Rules of Civil Procedure for publication and comment. The proposed amendments affect Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and the Appendix of Forms.
Anyone who is interested may submit written comments, and may also testify at a number of public hearings that are being held in the coming months (Washington, DC, on November 7, 2013; Phoenix, Arizona, on January 9, 2014; and Dallas, Texas, on February 7, 2014).
The public comment period closes on February 15, 2014. Only after this comment period is complete will the Civil Rules Advisory Committee decide whether—and with what further changes—to proceed with these proposals. That decision is likely to occur during the spring of 2014, with the Supreme Court ultimately signing off in the spring of 2015 (by May 1, 2015 at the latest). Absent intervention by Congress, any changes would go into effect on December 1, 2015.
More details about the comment and hearing process are available here and here. The draft of the proposed amendments are available here. (Note that these documents also include proposed amendments to the Bankruptcy Rules, which are subject to the same comment period but with a different set of public hearings.)
Tuesday, August 13, 2013
Here’s Adam Liptak’s latest story, When Lawyers Cut Their Clients Out of the Deal, which discusses a recent Ninth Circuit decision on cy pres settlements that is the subject of a pending Supreme Court cert. petition, Marek v. Lane (No. 13-136).
Monday, July 1, 2013
Here is the opinion in The Authors Guild, Inc. v. Google Inc. The opinion begins:
We consider in this appeal whether the United States District Court for the Southern District of New York (Denny Chin, Circuit Judge, sitting by designation) erred in certifying the plaintiff class—authors claiming that defendant-appellant Google Inc. committed copyright infringement by copying and displaying “snippets” of millions of books in the Library Project of its Google Books search tool. On the particular facts of this case, we conclude that class certification was premature in the absence of a determination by the District Court of the merits of Google’s “fair use” defense. Accordingly, we vacate the June 11, 2012 order certifying the class and remand the cause to the District Court, for consideration of the fair use issues, without prejudice to any future motion for class certification.
Monday, June 24, 2013
With all of this week’s end-of-the-Term anticipation and excitement, some of today’s cert. grants may have slipped below the radar. But here are two cases that will be argued next Term that may be of interest:
Friday, May 17, 2013
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.
Thursday, May 16, 2013
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.
Saturday, April 20, 2013
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.
Thursday, April 18, 2013
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.…
Tuesday, April 16, 2013
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.
Monday, March 25, 2013
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)