Wednesday, March 26, 2014
Here’s the transcript of today’s Supreme Court oral argument in Wood v. Moss. It’s a Bivens case brought by plaintiffs who had been protesting against President George W. Bush during his visit to a restaurant in Oregon. They allege that the defendants, who were secret service agents, engaged in unconstitutional viewpoint discrimination by moving them farther away from the President than a similar group that was expressing support for the President.
The crux of the defendants’ position is that they are protected by qualified immunity, but the case could have ramifications for pleading standards more generally. The argument included quite a bit on Iqbal, and there were several questions about the discovery that would likely ensue if the claims were allowed to move forward.
PS: Here is an analysis of the oral argument by Lyle Denniston (SCOTUSblog).
Tuesday, March 25, 2014
Expanding their earlier map of SCOTUS pleading cases, Scott Dodson and Colin Starger have now produced a seven-minute video visually demonstrating the relationship between the cases. You can watch this interesting endeavor here.
A more traditional form of the paper will appear this spring in the Federal Courts Law Review.
The Supreme Court issued a unanimous decision today in Lexmark International, Inc. v. Static Control Components, Inc. It’s principally a Lanham Act case, but Justice Scalia’s opinion has some interesting discussion on Article III standing, prudential standing, and whether Congress has (or has not) authorized a cause of action [See Part II, pp.6-9]. Justice Scalia recognized that the plaintiff in Lexmark had Article III standing based on its “allegations of lost sales and damages to its business reputation.” [p.6] Although the parties had “treat[ed] the question on which we granted certiorari as one of ‘prudential standing,’” he found this “misleading.” [p.6] Instead, he explained [p.9]:
[T]he question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under §1125(a). In other words, we ask whether Static Control has a cause of action under the statute.4 That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. We do not ask whether in our judgment Congress should have authorized Static Control’s suit, but whether Congress in fact did so. Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U.S. 275, 286–287 (2001), it cannot limit a cause of action that Congress has created merely because “prudence” dictates.
Footnote 4 states:
We have on occasion referred to this inquiry as “statutory standing” and treated it as effectively jurisdictional. See, e.g., Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 97, and n. 2 (1998); cases cited id., at 114–117 (Stevens, J., concurring in judgment). That label is an improvement over the language of “prudential standing,” since it correctly places the focus on the statute. But it, too, is misleading, since “the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court’s statutory or constitutional power to adjudicate the case.’ ” Verizon Md. Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 642–643 (2002) (quoting Steel Co., supra, at 89); see also Grocery Mfrs. Assn. v. EPA, 693 F.3d 169, 183–185 (Kavanaugh, J., dissenting), and cases cited therein; Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L. Rev. 89, 106 (2009).
There’s also a footnote that mentions Iqbal [footnote 6, on p.15]:
Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff ’s injury be fairly traceable to the defendant’s conduct. Like the zone-of-interests test, see supra, at 8–9, and nn. 3–4, it is an element of the cause of action under the statute, and so is subject to the rule that “the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction.” Steel Co., 523 U.S., at 89. But like any other element of a cause of action, it must be adequately alleged at the pleading stage in order for the case to proceed. See Ashcroft v. Iqbal, 556 U.S. 662, 678–679 (2009). If a plaintiff ’s allegations, taken as true, are insufficient to establish proximate causation, then the complaint must be dismissed; if they are sufficient, then the plaintiff is entitled to an opportunity to prove them.
Monday, March 24, 2014
James Maxeiner (University of Baltimore) has posted The Federal Rules at 75: Dispute Resolution, Private Enforcement or Decision According to Law? to SSRN.
This essay is a critical response to the 2013 commemorations of the 75th anniversary of the Federal Rules of Civil Procedure.
The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice” with decisions according to law. By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do.
One side promotes rules that control and conclude litigation: e.g., plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary judgment (“dispute resolution”). The other side defends rules that open litigation to investigation of possible rights: e.g., notice pleading, open and free discovery, and limited summary judgment (“private enforcement”).
Both sides focus on process. They overlook the essential goal of civil justice the world over: “to apply the applicable substantive law to the established facts in an impartial manner, and pronounce fair and accurate judgments.” They forget decisions according to law.
Abroad we can see systems of civil justice that work, if only we would look. Whereas the heroes of American civil justice, David Dudley Field, Jr., Roscoe Pound, Charles E. Clark, and Edson D. Sunderland, looked abroad for solutions, today’s proceduralists from the private enforcement side tell us to avert our eyes from foreign systems. Why? Supposedly our system in its goals is exceptional. In fact, it is not. We could and should learn from others.
Saturday, March 22, 2014
Michael Morely (Harvard Law School) has posted Avoiding Adversarial Litigation to SSRN.
There are a variety of procedural vehicles through which litigants may seek a substantive court ruling or order that declares or modifies their legal rights and obligations without actually litigating the merits of a case as a whole, or particular issues within the case. These alternatives include defaults, failures to oppose motions for summary judgment, stipulations of law, waivers and forfeitures, stipulations of law, confessions of error, and consent decrees. Courts presently apply different standards in determining whether to accept or allow litigants to take advantage of each of these vehicles for avoiding adversarial adjudication. Because all of these procedural alternatives share the same underlying structural similarity, however, courts should apply a single, consistent, unified standard to all of them.
Article III’s prohibition on hypothetical suits places outer bounds on the range of false factual and legal premises on which a court may base a judgment. Courts should go beyond this constitutional minimum, however, and apply an accuracy-centric approach in deciding whether to issue requested relief when litigants inadvertently or deliberately, expressly or implicitly, seek to have the court avoid considering the merits of a claim, issue, or argument in a case. If the court — based on its background knowledge of the law, experience with similar cases, or independent legal research — harbors doubts about the validity of a litigant’s legal premises or contentions, or believes the parties have overlooked a potentially valid claim, issue, or argument, it should decline to grant the requested relief and direct the litigants to brief the matter.
Adopting an accuracy-centric approach helps courts perform not only their law-declaring function of expounding the law and generating accurate precedents, but their dispute-resolution function, as well. Litigants, the public, and courts themselves have a strong interest in having courts resolve cases, and issues in cases, in accordance with the substance of applicable law, even when they are acting primarily in a dispute-resolution capacity.
Friday, March 21, 2014
Now available on the Courts Law section of JOTWELL is an essay by Brooke Coleman (Seattle) entitled Recognizing the Value of Failure in Civil Litigation. It reviews a recent article by Alex Reinert (Cardozo), Screening Out Innovation: The Merits of Meritless Litigation, 89 Ind. L. J. (forthcoming).
Thursday, March 20, 2014
I have admittedly fallen down on my self-appointed job of reporting on bitcoin litigation. Somewhat belatedly, I provide an update on some of the litigation surrounding the collapse of Mt. Gox, one of the earliest, largest, and best-known bitcoin exchanges.
On Feb. 27, 2014, a putative class action, Greene v. Mt. Gox Inc., Mt. Gox KK, Tibanne KK, and Mark Karpeles, No. 1:14-cv-1437, was filed in the Northern District of Illinois. Subject matter jurisdiction was premised on the Class Action Fairness Act. The complaint alleged counts for consumer fraud, common law fraud, negligence, and conversion, among other causes of action.
Two classes are proposed:
(1) Payment Class: All persons in the United States who paid a fee to Mt. Gox to buy, sell, or otherwise trade bitcoins.
(2) Frozen Currency Class: All persons in the United States who had bitcoins or Fiat Currency stored with Mt. Gox on Feb. 7, 2014.
On March 9, 2014, Mt. Gox Co., Ltd., which apparently is also known as Mt. Gox KK, filed a bankruptcy petition under Chapter 15 (foreign proceeding) in the Northern District of Texas, No. 3:14-bk-31229. Under the automatic stay, the Greene proceeding was stayed against defendant Mt. Gox KK.
However, as against the remaining defendants, Judge Feinerman in the Greene case entered a temporary restraining order on March 11, 2014. The court ruled that plaintiff had demonstrated a likelihood of success on the merits with respect to claims under the Illinois Consumer Fraud Act, common law fraud, negligence, conversion, and for an accounting, and restrained the defendants from selling, transferring, disposing of, or concealing any of their assets or records, including preservation of their web site.
Thursday, March 13, 2014
Monday, March 10, 2014
Want a cringe-worthy example of a difficult deponent? Try this excerpt of Justin Bieber's deposition in Binion v. Bieber, pending in state court in Miami. The complaint alleges:
7. At the aforedescribed date, time and place, Plaintiff, who is a 56 year old professional photographer, was legally on the sidewalk outside of the Hit Factory, taking photographs of Defendant BIEBER.
8. Defendant BIEBER, who is an internationally famous recording artist, did not want the Plaintiff to take photographs of him, so he directed HESNY and three other bodyguards to confront Plaintiff, and to forcibly take the memory card from Plaintiff’s camera.
9. In compliance with BIEBER’s instructions, Defendant HESNY threw Plaintiff against a wall, began choking him, and threatened Plaintiff with a gun, while the other bodyguards (whose names are unknown to the Plaintiff, pending further discovery), assisted him in threatening Plaintiff and forcibly removing the memory card from his camera.
Thanks to Brittany Cooper for passing this along!
The Supreme Court has granted certiorari in Public Employees' Retirement System of Mississippi v. IndyMac MDS, Inc.
Issue: Whether the filing of a putative class action serves, under American Pipe & Construction Co. v. Utah, to satisfy the three year time limitation in § 13 of the Securities Act with respect to the claims of putative class members.
SCOTUSblog has a post on the case.
Monday, March 3, 2014
SCOTUS has granted the petitions for certiorari in the following cases of interest to proceduralists:
Issue: Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonest during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.
Issue: Whether, for purposes of a claim under Section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff may plead that a statement of opinion was “untrue” merely by alleging that the opinion itself was objectively wrong, as the Sixth Circuit has concluded, or must the plaintiff also allege that the statement was subjectively false – requiring allegations that the speaker’s actual opinion was different from the one expressed – as the Second, Third, and Ninth Circuits have held.
Saturday, March 1, 2014
The Supreme Court, in Chadbourne & Parke LLC v. Troice, in an opinion by Justice Breyer, held that the Securities Litigation Uniform Standards Act of 1998 did not forbid "a class action in which the plaintiffs allege (1) that they 'purchase[d]' uncovered securities (certificates of deposit that are not traded on any national exchange), but (2) that the defendants falsely told the victims that the uncovered securities were backed by covered securities."
An analysis of the opinion is on SCOTUSblog here.
Tuesday, February 25, 2014
Today the Supreme Court issued a unanimous decision in Walden v. Fiore. The case is a Bivens action against an officer involved in seizing cash that the plaintiffs were carrying through the Atlanta airport. Justice Thomas’s unanimous opinion begins: “This case asks us to decide whether a court in Nevada may exercise personal jurisdiction over a defendant on the basis that he knew his allegedly tortious conduct in Georgia would delay the return of funds to plaintiffs with connections to Nevada.” The answer? No. From the final paragraph:
Well-established principles of personal jurisdiction are sufficient to decide this case. The proper focus of the “minimum contacts” inquiry in intentional-tort cases is “‘the relationship among the defendant, the forum, and the litigation.’” Calder, 465 U. S., at 788. And it is the defendant, not the plaintiff or third parties, who must create contacts with the forum State. In this case, the application of those principles is clear: Petitioner’s relevant conduct occurred entirely in Georgia, and the mere fact that his conduct affected plaintiffs with connections to the forum State does not suffice to authorize jurisdiction.
Here are some highlights from the opinion:
Plaintiffs filed class complaints against CarMax, alleging wage and hour violations. The trial court granted CarMax's motion to compel arbitration, and the California Court of Appeals reversed.
SCOTUS granted CarMax's petition for certiorari, vacated the judgment, and remanded the case for further consideration in light of American Express Co. v. Italian Colors Restaurant, 570 U.S. ___ (2013).
Monday, February 24, 2014
Today the Supreme Court denied certiorari in three cases that have come to be known as the “smelly washing machine” class actions. In all three, the lower court certified the class action, and the defendants—invoking Wal-Mart and Comcast—sought certiorari. The cases are:
- Whirlpool Corp. v. Glazer (S.Ct. No. 13-431), from the Sixth Circuit
- Sears Roebuck & Co v. Butler (S.Ct. No. 13-430), from the Seventh Circuit
- BSH Home Appliances Corp. v. Cobb (S.Ct. No. 13-138), from the Ninth Circuit (which did not issue an opinion but denied permission under Rule 23(f) to appeal the district court’s order granting class certification).
Tony Mauro at the National Law Journal has an article this morning entitled Lawyers Spar Over Discovery Rules. He reports, "More than 2,200 lawyers and others took the time in recent weeks to file sometimes impassioned comments with a committee of the Judicial Conference over proposals to narrow pretrial discovery and ease sanctions for failure to preserve documents. The deadline for comments was Feb. 18."
Saturday, February 22, 2014
Supplemental Jurisdiction Over State-Law Claim Proper Despite Plaintiff's Statement in Brief of "Dismissal" of Federal Claims
Plaintiff Thomas, a union member and an employee of U.S. Steel, was a team leader at a facility in Minnesota. He had an altercation with one of the employees under his supervision, and that employee reported the incident as harassment. At a fact-finding meeting held to determine what happened, the union representative attending the meeting made several allegedly defamatory comments about plaintiff, such as “[Thomas] has been verbally abusive to others for the past five years,” and plaintiff was thereafter removed from his position as team leader.
In his second amended complaint against the union and the union representative, plaintiff asserted federal labor-law claims and a state-law claim of defamation. The defendants moved for summary judgment on all of the claims. In his memorandum in opposition to the motion, plaintiff stated “the [Collective Bargaining Agreement] is not implicated in any of Plaintiff’s claims and as such [he is] dismissing all claims except the defamation claim . . .” The district court granted summary judgment.
On appeal, the Eighth Circuit sua sponte raised the question of whether the district court maintained subject matter jurisdiction to decide the defamation claim, after plaintiff stated he was dismissing the federal claims. The court held that the district court had jurisdiction: "we are not persuaded that an attempt to dismiss federal claims in a memorandum in opposition to a motion for summary judgment is the equivalent of filing an amended complaint because such act does not satisfy the requirements of Federal Rule of Civil Procedure 15. We therefore hold that because Thomas failed to follow Rule 15’s procedures and nothing in the district court’s order or the record suggests that leave to amend the complaint was granted, the federal claims were not withdrawn from the second amended complaint and remained before the district court until those claims were dismissed by the court in its order. . . . [T]the claims were merely abandoned for purposes of argument, not removed from the second amended complaint."
Having determined that the district court had subject matter jurisdiction, the court further concluded that the district court properly exercised supplemental jurisdiction over Thomas’s state-law defamation claim, “[g]iven the substantial amount of time and judicial resources expended in this case and the well-settled principles of state law concerning defamation."
On the merits of Thomas’s defamation claim, the court reversed the grant of summary judgment, finding genuine issues of material fact. Thomas v. United Steelworkers Local 1938, No. 12-3625 (8th Cir. Feb. 20, 2014).
Monday, February 17, 2014
It’s not about the Yankees slugger, or the Johnny Cash & June Carter classic, or the capital city of Mississippi. It’s about recent procedural reforms in the United Kingdom, initiated by – and named for – Lord Justice Rupert Jackson.