Friday, March 13, 2015

Would the Alabama Supreme Court prefer no marriage at all?

There’s an interesting paragraph in this week’s order from the Alabama Supreme Court, which confirmed that Mobile County probate judge Don Davis is subject to its earlier mandamus ruling even though he is also the subject of a federal-court injunction. In trying to make sense of this situation, Judge Davis had stopped issuing marriage licenses altogether. 

Here’s what the Alabama Supreme Court said (emphasis mine) on p.9

Section 30-1-9, Ala. Code 1975, provides that Judge Davis "may" issue “marriage licenses." To the extent he exercises this authority, he must issue those licenses in accordance with the meaning of the term "marriage" in that Code section and in accordance with other provisions of Alabama law, as discussed in our March 3 opinion. 

Is the implication here that Judge Davis has no obligation to issue marriage licenses to anyone? That he can refuse to issue them across the board, just as long as no marriage licenses are issued to same-sex couples? 

Meanwhile, expect some more activity in federal court next week. Judge Granade has ordered Judge Davis to file a response to the Strawser plaintiffs’ motion for class certification by Tuesday, March 17.

[Cross-posted at PrawfsBlawg]

 

 

March 13, 2015 in Class Actions, Current Affairs, Federal Courts, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, March 11, 2015

New developments in the Alabama same-sex marriage litigation

The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:

The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.

Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.] 

Continue reading

March 11, 2015 in Class Actions, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 3, 2015

Alabama Supreme Court Issues Writ of Mandamus, Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples

This evening the Alabama Supreme Court granted the petition for a writ of mandamus that had been filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. Here is the 134-page per curiam opinion, which concludes with an order enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.

Here is the full text of the order:

The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.

The last sentence, of course, refers to the federal injunction issued by Judge Callie Granade against Mobile County probate judge Don Davis last month. 

 

 

 

March 3, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, Standing, State Courts | Permalink | Comments (0)

Thursday, February 26, 2015

Erbsen on Klerman & Reilly on Forum Selling

Now available on the Courts Law section of JOTWELL is an essay by Allan Erbsen entitled Judicial Competition for Case Filings in Civil Litigation. Allan reviews a recent article by Daniel Klerman & Greg Reilly, Forum Selling, the current draft of which you can find on SSRN.

 

 

February 26, 2015 in Federal Courts, Recent Scholarship, State Courts, Weblogs | Permalink | Comments (0)

Tuesday, February 24, 2015

A New Federal Lawsuit, Plus Other Developments in the Alabama Marriage Litigation

A new lawsuit was filed in federal court today by Cari Searcy, the plaintiff whose earlier case led to the initial ruling by Judge Callie Granade declaring Alabama’s same-sex marriage ban unconstitutional. Searcy and Kimberly McKeand were legally married in California, but Searcy’s petition to adopt McKeand’s biological son was denied because of Alabama’s prohibition on recognizing same-sex marriages.

The complaint filed today alleges that Mobile probate judge Don Davis—who is already subject to an injunction issued by Judge Granade in the Strawser case—has still refused to grant Searcy an “unqualified adoption.” Instead the order granting custody to Searcy (Exhibit C to the complaint) states that it is “qualified in nature, and the Court will not issue a final adoption order until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it.” Searcy seeks an injunction ordering Davis to grant the adoption sought and to strike the “qualified” order. According to the docket sheet, this new case—Searcy v. Davis—has been assigned to Judge Granade as well.

Meanwhile, the Alabama Supreme Court is still considering the Emergency Petition for a Writ of Mandamus that was filed earlier this month by two groups opposing same-sex marriage, ostensibly as “relators” for the State of Alabama. The petition seeks an order compelling probate judges in Alabama not to issue marriage licenses to same-sex couples or to recognize any marriage licenses issued to same-sex couples. Last week, Judge Granade had denied requests—both by the Strawser plaintiffs and by the Jefferson County probate judge who had sought to intervene in the federal litigation—to compel Alabama Attorney General Luther Strange to appear in the Alabama Supreme Court mandamus proceeding and cause its dismissal. So the ball is now squarely in the Alabama Supreme Court’s court. Briefing was complete as of last Friday (2/20), with a number of  Alabama probate judges filing responses opposing the mandamus petition (e.g., this response by the probate judges in Jefferson County and Madison County).

 

 

February 24, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, February 18, 2015

Frost on State Courts and Lower Federal Court Precedent

Amanda Frost has posted on SSRN her recently published article, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L. Rev. 53 (2015). This has been an important issue, of course, in the recent litigation over Alabama’s same-sex marriage ban. Last week Alabama Supreme Court Justice Bolin cited the article in an opinion concurring in the refusal to hear the Mobile probate judge’s action seeking clarification of Chief Justice Moore’s earlier order instructing probate judges not to issue same-sex marriage licenses.

Here’s the abstract:

Continue reading

February 18, 2015 in Federal Courts, Recent Scholarship, State Courts | Permalink | Comments (0)

Tuesday, February 17, 2015

More Federal Court Filings in the Alabama Same-Sex Marriage Litigation

Lots of filing activity today in Strawser, one of the federal cases pending before Judge Granade on the constitutionality of Alabama’s same-sex marriage ban. As we covered earlier, the Alabama Supreme Court recently ordered briefing on an Emergency Petition for a Writ of Mandamus filed by two groups opposing same-sex marriage, ostensibly as “relators” for the State of Alabama. This prompted the Jefferson County probate judge (who had been granting licenses to same-sex couples) to seek to intervene in the federal litigation.

Kent Faulk has this report on today’s filings, but here’s a summary:

You can find copies of all the important filings, rulings, and other documents here.

 

 

February 17, 2015 in Current Affairs, Federal Courts, In the News, State Courts | Permalink | Comments (0)

Jefferson County Probate Judge Seeks to Intervene in Federal Same-Sex Marriage Lawsuit

Over the weekend, Jefferson County Probate Judge Alan King—who was one of the first to begin granting marriage licenses to same-sex couples last week—filed an Emergency Motion to Intervene in the Strawser case pending before Judge Granade in federal court. Kent Faulk as a report here.

The motion was prompted by the Emergency Petition for a Writ of Mandamus that two groups opposing same-sex marriage filed in the Alabama Supreme Court. Those groups (the Alabama Policy Institute and Alabama Citizens Action Program) filed that petition as “relators” for the State of Alabama, and they seek to order probate judges in Alabama not to issue marriage licenses to same-sex couples or to recognize any marriage licenses issued to same-sex couples. The petition names as respondents several Alabama probate judges—including King—and names as Doe respondents every probate judge in Alabama. Late last Friday, over the dissent of two Justices, the Alabama Supreme Court set a briefing schedule requiring a response to the mandamus petition. One of the issues for which the Alabama Supreme Court ordered briefing was “any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction.” The respondents’ briefing is due this Wednesday (2/18), and the reply briefing is due on Friday (2/20).

In his motion to intervene in the federal Strawser case, King contends that the two groups who filed the mandamus petition are “acting in concert with and on behalf of the State of Alabama” and in doing so are violating the injunctions issued by Judge Granade. King’s motion also states:

“Judge King faces an imminent risk of being subjected to a state court Order that will put him in the position of having to choose either to disregard the United States Constitution, which he is sworn to uphold, thereby subjecting him to liability and perhaps personal liability for damages and attorney fees, or to disregard a state court Order thereby subjecting him to contempt proceedings, sanctions, and/or possible impeachment under Alabama law.” 

 

 

 

 

 

February 17, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Sunday, February 15, 2015

Alabama Supreme Court Orders Briefing on Mandamus Petition Seeking to Halt Same-Sex Marriages

Last week we noted that an “Emergency Petition for a Writ of Mandamus” had been filed in the Alabama Supreme Court seeking to order probate judges in Alabama not to issue marriage licenses to same-sex couples—or to recognize any marriage licenses issued to same-sex couples. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, claiming to be relators for the State of Alabama itself. You can find a copy of the petition here (as an attachment to Mobile probate judge Don Davis’s filing in the Strawser case).

Late last Friday—after federal judge Callie Granade had issued an injunction the day before forbidding the Mobile probate judge from denying marriage licenses to same-sex couples—the Alabama Supreme Court issued the following order regarding the mandamus petition:

“The respondents are ordered to file answers and, if they choose to do so, briefs, addressing issues raised by the petition, including , but not limited to, any issue relating to standing or otherwise relating to this Court’s subject-matter jurisdiction, and any issue relating to the showing necessary for temporary relief as requested in the petition. Such answers and briefs shall be filed by 5:00 p.m. on February 18, 2015. Thereafter, the petitioners may file their respective replies no later than 5:00 p.m. on February 20, 2015.”

Kent Faulk has this report on the order. Two Justices—Shaw & Main—dissented from the order, with Justice Shaw calling it “an unprecedented attempt to control several probate courts by means of a rare original petition seeking a writ of mandamus issued by this Court.” He also stated in his dissenting opinion that:

“In order to grant relief to the petitioners, this Court will have to conclude that a probate court is forbidden from following an Alabama federal district court's ruling on the constitutionality of the ministerial acts a probate court performs, which ruling both a federal appellate court and the Supreme Court of the United States have refused to stay pending appeal. In my view, the petition does not provide an adequate foundation for reaching such a conclusion.”

Neither the order nor the dissenting opinions expressed an opinion regarding the constitutionality of Alabama’s prohibition on same-sex marriage. According to this report by Kelsey Stein, Chief Justice Moore in a recent interview “declined to comment further on Granade’s decision because there is a case filed before the Alabama Supreme Court regarding the same issues.”

 

 

 

February 15, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, Standing, State Courts | Permalink | Comments (0)

Friday, February 13, 2015

Ohio Supreme Court Decision on Standing & Jurisdiction

I have a guest post over at Legally Speaking Ohio about an interesting Ohio Supreme Court case on standing and jurisdiction. The decision is Bank of America v. Kuchta, which Marianna Bettman aptly called “a field day for civil procedure geeks.”

 

 

February 13, 2015 in Adam Steinman, Recent Decisions, Standing, State Courts, Subject Matter Jurisdiction, Weblogs | Permalink | Comments (0)

Thursday, February 12, 2015

Ruling in Alabama Marriage Litigation: Judge Granade Grants Injunction Against Mobile Probate Judge

Following today's hearing, federal judge Callie Granade issued a preliminary injunction against Mobile County Probate Judge Don Davis. Here's the operative text:

It is ORDERED and DECLARED that ALA. CONST. ART. I, § 36.03 (2006) and ALA. CODE 1975 § 30-1-19 are unconstitutional because they violate the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Probate Judge Don Davis is hereby ENJOINED from refusing to issue marriage licenses to plaintiffs due to the Alabama laws which prohibit same-sex marriage. If Plaintiffs take all steps that are required in the normal course of business as a prerequisite to issuing a marriage license to opposite-sex couples, Judge Davis may not deny them a license on the ground that Plaintiffs constitute same-sex couples or because it is prohibited by the Sanctity of Marriage Amendment and the Alabama Marriage Protection Act or by any other Alabama law or Order pertaining to same-sex marriage. This injunction binds Judge Don Davis and all his officers, agents, servants and employees, and others in active concert or participation with any of them, who would seek to enforce the marriage laws of Alabama which prohibit or fail to recognize same-sex marriage.

 

 

 

February 12, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Today's Federal Court Hearing in the Alabama Marriage Litigation (and More)

Reports are that today's hearing in Strawser has concluded with no ruling from Judge Granade.

One interesting update to the Strawser docket is a filing by Mobile County Probate Judge Don Davis entitled, Notice to this Court of Presently Conflicting and Potentially Conflicting Authority Based on Recent Filings. Included as attachments to this notice are two documents that I hadn't seen before.

One is the “In Rem Action” that Davis filed with the Alabama Supreme Court seeking clarification regarding Chief Justice Roy Moore's Sunday order that probate judges should not issue marriage licenses to same-sex couples. It starts on p.14 of the pdf file. The Alabama Supreme Court dismissed this petition yesterday, concluding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.”

The second is an “Emergency Petition for a Writ of Mandamus” that was apparently filed yesterday in the Alabama Supreme Court. It starts on p.44 of the pdf file. The petition was filed by the Alabama Policy Institute and Alabama Citizens Action Program, ostensibly as relators for the State of Alabama, and it seeks a writ of mandamus directing each probate judge in Alabama “not to issue marriage licenses to same-sex couples and not to recognize any marriage licenses issued to same-sex couples.”

 

 

February 12, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, February 11, 2015

Developments in the Alabama Same-Sex Marriage Litigation Ahead of Tomorrow's Federal Court Hearing

As we covered earlier, federal judge Callie Granade will hold a hearing Thursday afternoon in the Strawser case to determine whether to issue a preliminary injunction ordering Mobile County Probate Judge Don Davis to begin issuing marriage licenses to same-sex couples. Even if Judge Granade issues such an injunction, it’s not clear what effect that would have on probate judges in other counties who are still refusing to do so.

This could make it especially significant that there is another case pending before Judge Granade—the Hedgepeth case—that names as a defendant not only the Mobile probate judge, but also Alabama Chief Justice Roy Moore and Governor Bentley. Hedgepeth was filed on Monday, and on Tuesday Judge Granade issued an order denying the Hedgepeth plaintiffs’ request for a temporary restraining order. She also wrote:

There are numerous defendants named in this action, but at this time, only counsel on behalf of Attorney General Luther Strange have appeared in this matter. There is no proof of service on any other party. The court will not consider a preliminary injunction in this matter [Hedgepeth] until all of the defendants have been notified. However, because Plaintiffs’ claims in this case are almost identical to another case [Strawser] currently set for a preliminary injunction hearing in this court and the result of that hearing may impact Plaintiffs in this case, the court will allow counsel for Plaintiffs to participate in that hearing.

According to the Hedgepeth docket, Affidavits of Service on both Roy Moore and Governor Bentley have now been filed. We’ll find out tomorrow whether Judge Granade will issue any orders as to defendants other than the Mobile probate judge.

And speaking of Chief Justice Moore, the Alabama Supreme Court ruled Wednesday afternoon on the Mobile probate judge’s petition seeking clarification regarding Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. The Alabama Supreme Court dismissed the petition without ruling on the merits, finding that it was “in substance a request for an advisory opinion” that the Court “is not authorized to address.” Moore recused himself, but there are several concurring opinions (also available here).

As always, stay tuned. You can find copies of important rulings and documents here

 

 

 

February 11, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Tuesday, February 10, 2015

Where Things Stand in the Alabama Same-Sex Marriage Litigation

Events continue to unfold in the wake of the U.S. Supreme Court’s order yesterday refusing to stay federal judge Callie V.S. Granade’s January ruling that Alabama’s same-sex marriage ban is unconstitutional. As of Tuesday, the number of Alabama counties where marriage licenses are being issued to same-sex couples has increased, but many are still refusing. See here and here for county-by-county information.

On Thursday, Judge Granade will hold a hearing in the Strawser v. Strange case to decide whether to issue an injunction against Mobile County Probate Judge Don Davis requiring him to begin issuing marriage licenses to same-sex couples. Today Judge Granade granted a motion to add Davis as a defendant (and several other couples as additional plaintiffs) in the Strawser case.

On another track, Davis has filed with the Alabama Supreme Court a request for clarification regarding Chief Justice Roy Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. No reports yet on when or how Moore will respond to this request (but he had lots to say in this interview on Bloomberg’s With All Due Respect).

You can find copies relevant rulings and documents here.

 

February 10, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Alabama Same-Sex Marriage Litigation: Important Rulings & Documents

As we’ve been covering, there has been significant activity here in Alabama in the wake of the U.S. Supreme Court’s refusal to stay a federal judge’s January ruling that Alabama’s prohibition on same-sex marriage is unconstitutional. This post is simply to provide a repository for some of the important filings, decisions, and other documents. The links below will open the actual documents themselves, not simply links to other websites (which can sometimes succumb to “link rot”). I plan to update this page with new documents as the litigation proceeds.

 

 

 

 

 

February 10, 2015 in Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Monday, February 9, 2015

The Latest in the Alabama Same-Sex Marriage Litigation

Last month, Judge Callie V.S. Granade of the U.S. District Court for the Southern District of Alabama issued an injunction forbidding Alabama Attorney General Luther Strange from enforcing Alabama’s prohibition on same-sex marriage. She stayed the ruling until today in order to give the state time to appeal it. And this morning, the U.S. Supreme Court denied Strange’s application for a stay. Here is the Supreme Court’s order, including a dissent by Justice Thomas joined by Justice Scalia.

Alabama Chief Justice Roy Moore, however, has been in the news arguing that Alabama probate judges are not bound by Judge Granade’s order. On Tuesday, February 3, he issued a memorandum to Alabama’s probate judges. And on Sunday, February 8, he issued an administrative order that concludes:

“Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.”

Alabama Attorney General Strange issued a statement today responding to the U.S. Supreme Court’s order refusing his stay application. Among other things, he states:

“To clarify my authority in this matter, the Alabama Attorney General’s Office does not issue marriage licenses, perform marriage ceremonies, or issue adoption certificates. The Chief Justice has explained in a public memorandum that probate judges do not report to me.”

And Alabama Governor Robert Bentley issued a statement today that he “will not take any action against Probate Judges, which would only serve to further complicate this issue” and will “allow the issue of same sex marriage to be worked out through the proper legal channels.”

As of this morning, same-sex marriages have begun in some counties in Alabama, but not in others. More litigation is almost certain, but here are some of the important rulings and documents so far:

 [Updated to include the statement by Governor Bentley.]

 

 

 

February 9, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Tuesday, October 14, 2014

Standing, Subject Matter Jurisdiction, and Rule 60(b)

The Supreme Court of Ohio issued an interesting decision last week involving standing, subject matter jurisdiction, and whether they can be challenged via Ohio Rule 60(b) after the opportunity for a direct appeal has passed. The case is Bank of America, N.A. v. Kutcha.

Marianna Bettman has an analysis of the opinion, calling it a “Field Day for Civil Procedure Geeks.”

 

 

October 14, 2014 in Recent Decisions, Standing, State Courts, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, August 7, 2014

Minnesota Supreme Court Rejects Twiqbal

In Walsh v. U.S. Bank, N.A., No. A13-0742 (Aug. 6, 2014), the Minnesota Supreme Court held:

[W]e now decline to engraft the plausibility standard from Twombly and Iqbal onto our traditional interpretation of Minn. R. Civ. P. 8.01. We decline to do so despite the fact that the relevant text of Fed. R. Civ. P. 8(a)(2) is identical to the text of Minn. R. Civ. P. 8.01. . .

. . . A claim is sufficient against a motion to dismiss for failure to state a claim if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.

Hat tip: James Pielemeier

August 7, 2014 in Recent Decisions, State Courts, Twombly/Iqbal | Permalink | Comments (0)

Thursday, July 31, 2014

Specific, Not General, Jurisdiction Upheld Over Non-Residents' Claims Against Bristol-Myers

A recent opinion from the California Court of Appeals perhaps illustrates the extent to which defendants have been emboldened by the United States Supreme Court's decision striking down personal jurisdiction in Daimler AG v. Bauman.

In Bristol-Myers Squibb Co. v. Superior Court of San Francisco County, No. A140035 (Cal. App. July 30, 2014), BMS filed a petition for writ of mandate to reverse the trial court's ruling upholding personal jurisdiction.  The court set the scene:

Defendant Bristol-Myers Squibb Company (BMS) has been sued by dozens of California residents in a coordinated proceeding before the San Francisco Superior Court. They allege defects in Plavix, a drug BMS manufactures and sells throughout the country. Jurisdiction over BMS as to these plaintiffs is conceded. The question presented is whether California also has jurisdiction over BMS regarding identical Plavix defects claims brought by hundreds of non-resident co-plaintiffs, the real parties in interest here (RPI), in the same coordinated proceeding, consistent with the Due Process Clause of the Fourteenth Amendment.

The trial court had upheld general jurisdiction over the non-residents' claims against BMS because:

[I]t had sold in the state nearly $1 billion worth of Plavix between 2006 and 2012 and 196 million Plavix pills between 1998 and 2006, had been registered with the California Secretary of State to conduct business since 1936, maintained an agent for service of process in Los Angeles, operated five offices in California that employed approximately 164 people, employed approximately 250 in-state sales representatives, owned a facility in Milpitas employing 85 people that was used primarily for research, operated other facilities that were used primarily for research and laboratory activities in Aliso Viejo, San Diego and Sunnyvale, and had a small office in Sacramento that was used by the company’s Government Affairs group.

Despite these extensive contacts with California, the appellate court concluded that after Daimler, California could not exercise general jurisdiction over BMS because it was not "at home" in the forum.  

All was not lost for the non-resident plaintiffs, however.  Turning to specific jurisdiction, the court relied on Keeton v. Hustler Magazine to show that "the doctrine of specific jurisdiction can apply to the claims of a non-resident against a non-resident."  Further, the court noted that although the United States Supreme Court has not yet defined "what it means for a suit to 'arise out of' or 'relate' to a defendant’s contacts with the State," California has adopted the “'substantial connection' test, under which the relatedness requirement is satisfied if 'there is a substantial nexus or connection between the defendant’s forum activities and the plaintiff’s claim.'”

The court held that there was a "substantial connection" between BMS' extensive contacts with California and the non-residents' claims of injury involving Plavix:

BMS has “deliberately exploited” the relevant market in the State (Keeton, supra, 465 U.S. at p. 781) for many years, having sold over 196 million Plavix pills in California between 1998 and 2006 and nearly $1 billion worth of Plavix between 2006 and 2012.
Further, plaintiffs allege BMS’s Plavix sales in California have led to injuries to California residents that are the same as those suffered by the RPI.

Finally, the court held that BMS had not satisfied its burden of showing that California's exercise of specific jurisdiction was unreasonable. 

Hat tip: Levi Wilkes (St. Thomas J.D. Candidate 2015)

July 31, 2014 in Mass Torts, Recent Decisions, State Courts | Permalink | Comments (0)

Friday, July 25, 2014

Wisconsin Adopts Twombly's Plausibility Standard

In a 4-3 decision, the Wisconsin Supreme Court has adopted the plausibility pleading standard of the U.S. Supreme Court's opinion in Bell Atlantic Corp. v. Twombly.  Data Key Partners v. Permira Advisers LLC,  No. 2012AP1967 (Wis. July 23, 2014).

The court reversed the Wisconsin Court of Appeals' ruling that plaintiffs had alleged sufficient facts to show breach of fiduciary duty against the defendants.  Wisconsin's pleading rule requires a complaint to contain "[a] short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief."  Wis. Stat. § 802.02(1)(a).

The court held that "[p]laintiffs must allege facts that, if true, plausibly suggest a violation of applicable law," stating that "Twombly is consistent with our precedent."  The court also asserted that Twombly had overruled Conley v. Gibson.  (In my view, however, Twombly only overruled Conley's "no set of facts" standard, not the entire opinion.)

Justice Shirley Abramson, for two other justices, dissented.

I would follow Wisconsin law and conclude that as a general rule, parties need not plead specific facts at the motion-to-dismiss phase.  In the instant case, although the plaintiffs raised the business judgment rule in their complaint, the plaintiffs also set forth sufficient facts to plead around the rule and provide notice to the defendants of the claim being alleged.

. . . Under Twombly/Iqbal, federal district courts have increased the rate at which they grant motions to dismiss.  

No Wisconsin case has adopted the rule as stated in Twombly and Iqbal.  Twombly was not argued or briefed in the instant case.  The majority opinion relies on the Twombly heightened pleading standard without any briefing or argument. I have written before that this court should give counsel the opportunity to develop arguments before the court in the adversarial system. . . .

July 25, 2014 in Recent Decisions, State Courts, Twombly/Iqbal | Permalink | Comments (0)