Tuesday, March 14, 2017

Federal Court Ruling on Boilerplate Discovery Objections

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.

Download 14cv3041.Liguria v. Griffith.Order On Show Cause.final.031317

 

 

 

March 14, 2017 in Discovery, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (1)

Monday, February 27, 2017

SCOTUS Cert Grant on Habeas Review of Unexplained State Court Decisions

Today the U.S. Supreme Court granted certiorari in Wilson v. Sellers, which presents the following question:

Did this Court's decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991) - that a federal court sitting in habeas proceedings should "look through" a summary state court ruling to review the last reasoned decision - as a slim majority of the en banc Eleventh Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

February 27, 2017 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Whether FRAP 4(a)(5)(C) is Jurisdictional

Today the U.S. Supreme Court granted certiorari in Hamer v. Neighborhood Housing Services of Chicago, which presents the following question:

Whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive a court of appeals of jurisdiction over an appeal that is statutorily timely, as the Second, Fourth, Seventh, and Tenth Circuits have concluded, or whether Federal Rule of Appellate Procedure 4(a)(5)(C) is instead a nonjurisdictional claim-processing rule because it is not derived from a statute, as the Ninth and D.C. Circuits have concluded, and therefore subject to equitable considerations such as forfeiture, waiver, and the unique-circumstances doctrine.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

February 27, 2017 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Supplemental Jurisdiction & 1367(d)'s Tolling Provision

Today the U.S. Supreme Court granted certiorari in Artis v. District of Columbia, which presents the following question:

Section 1367 of Title 28 authorizes federal district courts in certain circumstances to exercise supplemental jurisdiction over claims arising under State law.

Section 1367 further provides that "[t]he period of limitations for any [such] claim ...shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period." 28 U.S.C. § 1367(d).

The question presented is whether the tolling provision in §1367(d) suspends the limitations period for the state-law claim while the claim is pending and for thirty days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

 

February 27, 2017 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, February 9, 2017

Ninth Circuit Refuses to Stay District Court’s TRO Against Trump’s Executive Order

Today the Ninth Circuit issued its opinion in Washington v. Trump, refusing to grant the federal government’s request for a stay of Judge Robart’s TRO:

Download WA v Trump (9th Cir 2-9-17)

  • Yes to appellate jurisdiction
  • Yes to Article III standing for Washington and Minnesota
  • No to the federal government’s request to narrow the TRO

Although this resolves the federal government’s request for a stay, the Ninth Circuit also issued a briefing schedule for the federal government’s appeal of the TRO itself:

Download 2-9-17 Procedural Order

 

 

February 9, 2017 in Current Affairs, Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Travel | Permalink | Comments (0)

Sunday, January 29, 2017

Legal Challenges to Trump Executive Orders on Immigration and Refugee Policy

Yesterday several legal challenges to Trump’s Executive Orders were filed. If you want to keep track of the various filings and orders as these cases proceed, the University of Michigan’s Civil Rights Litigation Clearinghouse is collecting them here.

 

 

 

January 29, 2017 in Current Affairs, Federal Courts, In the News, Recent Decisions | Permalink | Comments (0)

Thursday, January 19, 2017

SCOTUS Cert Grant on Personal Jurisdiction: Bristol-Myers Squibb v. Superior Court

The U.S. Supreme Court’s docket of civil procedure and federal courts cases continues to expand. Today the U.S. Supreme Court granted certiorari in Bristol-Myers Squibb Co. v. Superior Court, which will review a California Supreme Court decision handed down this summer. The cert petition presents the following question:

The Due Process Clause permits a state court to exercise specific jurisdiction over a defendant only when the plaintiff’s claims “arise out of or relate to” the defendant’s forum activities. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472 (1985) (citation omitted). The question presented is:

Whether a plaintiff’s claims arise out of or relate to a defendant’s forum activities when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims—that is, where the plaintiff’s claims would be exactly the same even if the defendant had no forum contacts.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

January 19, 2017 in Recent Decisions, Supreme Court Cases | Permalink | Comments (2)

Wednesday, January 18, 2017

Today’s SCOTUS Decision on Federal Jurisdiction & Fannie Mae

Today, the U.S. Supreme Court issued a unanimous decision in Lightfoot v. Cendant Mortgage Corp. Justice Sotomayor’s opinion begins:

The corporate charter of the Federal National Mortgage Association, known as Fannie Mae, authorizes Fannie Mae “to sue and to be sued, and to complain and to defend, in any court of competent jurisdiction, State or Federal.” 12 U. S. C. §1723a(a). This case presents the question whether this sue-and-be-sued clause grants federal district courts jurisdiction over cases involving Fannie Mae. We hold that it does not.

Download Lightfoot v Cendant Mortgage

 

 

 

January 18, 2017 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, January 13, 2017

SCOTUS Cert Grant on Judicial Review of MSPB Decisions

Today the U.S. Supreme Court granted certiorari in Perry v. Merit Systems Protection Board, which presents the following question:

The Merit Systems Protection Board (MSPB) is authorized to hear challenges by certain federal employees to certain major adverse employment actions. If such a challenge involves a claim under the federal anti-discrimination laws, it is referred to as a “mixed” case. This case presents the following question:

Whether an MSPB decision disposing of a “mixed” case on jurisdictional grounds is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

January 13, 2017 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on General Jurisdiction & FELA

Today the U.S. Supreme Court granted certiorari in BNSF Railway Co. v. Tyrrell, which presents the following question:

In Daimler AG v. Bauman, 134 S. Ct. 746 (2014), this Court held that the Due Process Clause forbids a state court from exercising general personal jurisdiction except where the defendant is “at home.” BNSF Railway Company is not at home in Montana under Daimler, yet the Montana Supreme Court held that BNSF is subject to general personal jurisdiction in Montana, and can be sued there by out-of-state plaintiffs for claims that have no connection at all to the state. The Montana Supreme Court explicitly “declined” to apply this Court’s decision in Daimler, for two reasons: First, because the facts of this case involve American parties and arose in the United States, not foreign parties and an overseas injury as in Daimler. Second, because the plaintiffs here sued under the Federal Employers’ Liability Act (FELA), which is a different federal cause of action from the ones at issue in Daimler. Section 56 of FELA establishes venue for cases filed in federal court, and it provides for concurrent subject-matter jurisdiction in state courts. Yet the Montana Supreme Court held that this provision authorizes state courts to exercise personal jurisdiction, and that the statute overrides the limitations of the Due Process Clause.

The question presented is:

Whether a state court may decline to follow this Court’s decision in Daimler AG v. Bauman, which held that the Due Process Clause forbids a state court from exercising general personal jurisdiction over a defendant that is not at home in the forum state, in a suit against an American defendant under the Federal Employers’ Liability Act.

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

January 13, 2017 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Article III Standing & Intervention

Today the U.S. Supreme Court granted certiorari in Town of Chester v. Laroe Estates, Inc., which presents the following question:

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.

 

 

 

January 13, 2017 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Class Actions and Statutes of Limitations

Today the U.S. Supreme Court granted certiorari in California Public Employees' Retirement System v. ANZ Securities, Inc., which presents the question: “Does the filing of a putative class action serve, under the American Pipe rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members?”

(This question was the subject of an earlier Supreme Court case (IndyMac), but cert in that case was dismissed as improvidently granted because of a settlement.)

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

January 13, 2017 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

SCOTUS Cert Grant on Class-Waiver Arbitration Agreements & Federal Labor Law

Today the U.S. Supreme Court granted certiorari in three cases that raise the question of whether arbitration agreements that forbid class claims violate federal labor law. The cases, which were consolidated by the Court, are:

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at the SCOTUSblog case pages for Epic Systems, Ernst & Young, and Murphy Oil.

 

 

January 13, 2017 in Class Actions, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

16 Cert Grants in Today’s SCOTUS Order List

Today the U.S. Supreme Court granted certiorari in 16 cases. Lots of federal courts and civil procedure issues in the mix—more details to come.

In the meantime, here’s the order list.

 

 

 

January 13, 2017 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

D.C. Circuit Denies Motion to Intervene in ACA Appeal

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).

Download DC Circuit Order

Here is the initial motion to intervene:

Download DC Circuit Motion to Intervene

 

 

 

January 13, 2017 in Current Affairs, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Tuesday, January 10, 2017

Interesting Class Action Decision from the Ninth Circuit

Last week, the U.S. Court of Appeals for the Ninth Circuit decided Briseno v. ConAgra Foods Inc., which addresses what has come to be known in other federal courts as the “ascertainability” requirement. The entire opinion is worth a read, but here are some highlights.

At the outset, the court took issue with the term “ascertainability.” It explained in a footnote:

ConAgra called this a failure of “ascertainability.” We refrain from referring to “ascertainability” in this opinion because courts ascribe widely varied meanings to that term. For example, some courts use the word “ascertainability” to deny certification of classes that are not clearly or objectively defined. See, e.g., Brecher v. Republic of Argentina, 806 F.3d 22, 24–26 (2d Cir. 2015) (holding that a class defined as all owners of beneficial interests in a particular bond series, without reference to the time owned, was too indefinite); DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970) (affirming denial of class certification because a class composed of state residents “active in the ‘peace movement’” was uncertain and overbroad). Others have used the term in referring to classes defined in terms of success on the merits. See, e.g., EQT Prod. Co. v. Adair, 764 F.3d 347, 360 n.9 (4th Cir. 2014) (remanding and instructing the district court to consider, “as part of its class-definition analysis,” inter alia , whether the proposed classes could be defined without creating a fail-safe class).

Stated more precisely, ConAgra’s argument was that “there would be no administratively feasible way to identify members of the proposed classes because consumers would not be able to reliably identify themselves as class members.” The court, however, rejected the argument that class certification requires—separate and apart from the enumerated requirements in Rule 23—that there be “an administratively feasible way to determine who is in the class.” It wrote: “We have not previously interpreted Rule 23 to require such a demonstration, and, for the reasons that follow, we do not do so now.”

The court also said the following about case law from other circuits:

We recognize that the Third Circuit does require putative class representatives to demonstrate “administrative feasibility” as a prerequisite to class certification. See Byrd v. Aaron’s Inc., 784 F.3d 154, 162–63 (3d Cir. 2015); Carrera v. Bayer Corp., 727 F.3d 300, 306–08 (3d Cir. 2013). The Third Circuit justifies its administrative feasibility requirement not through the text of Rule 23 but rather as a necessary tool to ensure that the “class will actually function as a class.” Byrd, 784 F.3d at 162. The Third Circuit suggests that its administrative feasibility prerequisite achieves this goal by (1) mitigating administrative burdens; (2) safeguarding the interests of absent and bona fide class members; and (3) protecting the due process rights of defendants. See Carrera, 727 F.3d at 307, 310. The Seventh Circuit soundly rejected those justifications in Mullins v. Direct Digital, LLC, 795 F.3d 654 (7th Cir. 2015), and the Sixth Circuit followed suit, see Rikos v. Procter & Gamble Co., 799 F.3d 497, 525 (6th Cir. 2015) (citing Mullins in declining to follow Carrera). We likewise conclude that Rule 23’s enumerated criteria already address the interests that motivated the Third Circuit and, therefore, that an independent administrative feasibility requirement is unnecessary.

Download Briseno (9th Cir)

 

 

January 10, 2017 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Thursday, December 29, 2016

Interesting Seventh Circuit Decision on Summary Judgment

It’s a “nonprecedential disposition,” but the Seventh Circuit’s decision last week in Couvillion v. Speedway LLC features an interesting exchange about summary judgment. The majority (Chief Judge Wood & Judge Easterbrook) affirms the lower court’s grant of summary judgment against a plaintiff who sued Speedway after she was injured while adding air to her tires at a Speedway service station. In the final paragraph, the court writes:

Couvillion also contends that Indiana’s courts favor jury trials in tort suits. See, e.g., Countrymark Cooperative, Inc. v. Hammes, 892 N.E.2d 683, 688 (Ind. App. 2008) (“negligence cases are especially fact sensitive and are governed by a standard of the objective reasonable person—one best applied by a jury after hearing all of the evidence.”) * * * . Maybe Indiana’s judiciary would have submitted Couvillion’s claim to a jury. But federal rules govern the allocation of tasks between judge and jury in federal court. See, e.g., Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir. 1994). In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment. We know from Walker v. Armco Steel Corp., 446 U.S. 740 (1980), and other decisions, that federal procedure governs all federal cases, even if this implies an outcome different from the one likely in state court.

There are a couple of interesting points here. One is about the Erie doctrine. My personal view is that the interplay between FRCP 56 and state law is not quite so simple, and that a proper understanding might require a federal court adjudicating a state-law claim to follow state law on certain aspects of summary-judgment practice. [See What Is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?)].

Another point—which Judge Sykes emphasizes in her dissent—has to do with the majority’s assertion that “In federal practice, reflected in Fed. R. Civ. P. 56, the absence of a material factual dispute means that a judge will resolve the case by summary judgment.” Judge Sykes writes in response:

Under Rule 56 (and in state practice), a judge may resolve the case by summary judgment only if there is no material factual dispute “and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a) (emphasis added); see also Ind. R. Trial P. 56(C). The historical facts are undisputed here, but it doesn’t follow that a judge decides liability. Couvillion is entitled to have a jury determine Speedway’s liability unless on this record no reasonable jury could find a breach of duty under §§ 343 and 343A.

There would seem to be federalism dimensions with respect to this issue as well—is it by state or federal law that we decide whether the movant is “entitled to judgment as a matter of law”?

Download Couvillion v Speedway (7th Cir)

(H/T Raffi Melkonian)

 

 

 

December 29, 2016 in Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (1)

Wednesday, December 14, 2016

SCOTUS Cert Grant on Venue in Patent Cases: TC Heartland v. Kraft Foods

Today the U.S. Supreme Court granted certiorari in TC Heartland LLC v. Kraft Food Brands Group LLC. Here is the question presented set forth in the cert petition (including the usual wind-up):

The patent venue statute, 28 U.S.C. § 1400(b), provides that patent infringement actions "may be brought in the judicial district where the defendant resides .... " The statute governing "[v]enue generally," 28 U.S.C. § 1391, has long contained a subsection (c) that, where applicable, deems a corporate entity to reside in multiple judicial districts.

In Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222 (1957), this Court held that § 1400(b) is not to be supplemented by § 1391(c), and that as applied to corporate entities, the phrase "where the defendant resides" in § 1400(b) "mean[s] the state of incorporation only." Id. at 226. The Court's opinion concluded: "We hold that 28 U.S.C. § 1400(b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. § 1391 (c)." Id. at 229 .

Federal Circuit precedent holds to the contrary. Although Congress has not amended § 1400(b) since Fourco, the Federal Circuit has justified its departure from Fourco’s interpretation of§ 1400(b) based on amendments to § 1391(c). As stated in the decision below, Federal Circuit precedent holds that "the definition of corporate residence in the general venue statute, § 1391(c), applie[s] to the patent venue statute, 28 U.S.C. § 1400" (App. 4a) and that "Fourco was not and is not the prevailing law" (App. Sa) on where venue is proper in patent infringement actions under § 1400(b).

The question in this case is thus precisely the same as the issue decided in Fourco:

Whether 28 U.S.C. § 1400(b) is the sole and exclusive provision governing venue in patent infringement actions and is not to be supplemented by 28 U.S.C. § 1391(c).

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

December 14, 2016 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, December 12, 2016

SCOTUS GVRs Sixth Circuit case for further consideration in light of Tyson Foods

Today’s Supreme Court order list includes an order in FTS USA, LLC v. Monroe, granting certiorari, vacating, and remanding the case to the Sixth Circuit for further reconsideration in light of last Term’s decision in Tyson Foods v. Bouaphakeo. The FTS cert petition challenged the district court’s handling of a Fair Labor Standards Act (FLSA) collective action as violating the FLSA, the Due Process Clause, and the Seventh Amendment.

 

 

 

December 12, 2016 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, December 2, 2016

SCOTUS Cert Grant on Service by Mail Under the Hague Convention: Water Splash v. Menon

Today the U.S. Supreme Court granted certiorari in Water Splash, Inc. v. Menon. Here is the question presented:

In 1965, the member states of the Hague Conference on Private International Law, including the United States, adopted a treaty known as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”). The Hague Service Convention enables service of process from one member state to another without the use of consular or diplomatic channels. This case presents the following federal question on which state and federal courts have been divided for over 25 years:

Does the Hague Service Convention authorize service of process by mail?

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.

 

 

 

December 2, 2016 in International/Comparative Law, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)