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)

Monday, June 9, 2014

Appeals Court Reverses Denial of Sanctions Motion Against Merrill Lynch's Law Firm

The opinion of the Massachusetts Appeals Court begins:

The plaintiffs appeal from the denial of their motion for sanctions against Bingham McCutchen LLP (Bingham), intervener, the law firm that defended Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill), in the 2002 jury trial of this action. The plaintiffs claim that in that litigation Bingham wrongfully withheld documents relevant to the issue whether Merrill, in handling the accounts of Benistar Property Exchange Trust Company, Inc. (Benistar), knew that Benistar was trading with money belonging to third parties. We hold that Bingham lacked an adequate legal basis, under the guise of the work product doctrine, for its decisions to withhold information that Merrill employees had viewed certain Benistar Web pages describing its business as an intermediary for third-party funds and then to present a defense claiming that no Merrill employees had viewed the very same Web pages.  As a result, we vacate that portion of the final judgment entering judgment in favor of Bingham on the plaintiffs' motion for sanctions.  As explained below, there remain certain issues that require resolution by a fact finder, and thus, we remand for further proceedings consistent with this opinion.

Cahaly v. Benistar Property Exchange Trust Co., Inc. No. 12-P-956 (Mass. Ct. App. June 6, 2014).

Hat tip: The American Lawyer

June 9, 2014 in Discovery, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, May 7, 2014

California Bar Publishes Ethical Opinion on ESI for Public Comment

The State Bar of California has published a proposed formal opinion for public comment on the question, "What are an attorney’s ethical duties in the handling of discovery of electronically stored information?"

The digest of the opinion states:

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.

The deadline for public comments is 5 p.m., June 24, 2014.      

May 7, 2014 in Discovery, State Courts, Web/Tech | Permalink | Comments (0)

Friday, January 17, 2014

Med Mal Statute of Limitations Held Unconstitutional

Professor Ruthann Robson on the Constitutional Law Prof Blog posted on a decision by the Washington State Supreme Court holding that a medical malpractice statute of limitations violated the state constitution. See http://lawprofessors.typepad.com/conlaw/2014/01/equality-and-statutes-of-limitations-in-the-washington-state-supreme-court-.html

January 17, 2014 in State Courts | Permalink | Comments (0)

Monday, December 2, 2013

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

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

Continue reading

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

Wednesday, November 13, 2013

New Short Articles from ABA Mass Torts Litigation Committee

The Fall 2013 newsletter from the ABA Mass Torts Litigation Committee has several blurbs of possible interest to Civil Procedure professors (the summaries below are in the newsletter's words), including:

Costa Concordia Actions: Florida Courts' Differing Views on Venue 

By Deborah A. Elsasser, Nicholas Magali, and Philip R. Weissman

Some claimants have the opportunity to try their claims in Florida while others will litigate in Italy.

SCOTUS Aims to Resolve Circuit Split in CAFA Parens Patriae Actions 

Undoubtedly, the outcome of this case will impact the "jurisdictional gamesmanship" involved with the litigation of mass-torts actions.

 

 

November 13, 2013 in Class Actions, Mass Torts, Recent Scholarship, State Courts | Permalink | Comments (0)

Wednesday, October 23, 2013

Delaware Chancery Court Arbitrations Must Be Open to Public, Third Circuit Holds

We first reported on the Delaware Coalition for Open Government's challenge to the statutorily-mandated confidentiality of court-sponsored arbitrations here, when the federal district court held that the First Amendment mandated public access to the arbitrations.

The Third Circuit has now affirmed that decision:

Because there has been a tradition of accessibility to proceedings like Delaware’s government-sponsored arbitration, and because access plays an important role in such proceedings, we find that there is a First Amendment right of access to Delaware’s government-sponsored arbitrations. We will therefore affirm the order of the District Court.

Delaware Coalition for Open Government v. Strine, No. 12-3859 (3d Cir. Oct. 23, 2013).

October 23, 2013 in Recent Decisions, State Courts | Permalink | Comments (0)

Monday, September 30, 2013

State Peer Review Statute Shields Documents from Medical Malpractice Discovery

The Legal Intelligencer reports a ruling by a Pennsylvania state trial judge protecting certain hospital documents from discovery in a medical malpractice case under Pennsylvania's Peer Review Protection Act.  Nurses created the documents, "including a chronology of events and a staff re-education plan," after receiving a report of an alleged injury at the hospital. The judge "found that the documents were created for peer-review purposes, and were therefore confidential" under the Act.

September 30, 2013 in Discovery, Recent Decisions, State Courts | Permalink | Comments (0)

Wednesday, September 4, 2013

Discovery and Lance Armstrong

Jim Vertuno (AP) covers a recent order by a Texas state court judge compelling Lance Armstrong to respond to discovery requests. Here are some excerpts from the report, Judge Orders Armstrong to Answer Doping Questions:

Nebraska-based Acceptance Insurance Holding is seeking the information in its lawsuit to recover $3 million in bonuses it paid Armstrong from 1999 to 2001.***

Travis County District Judge Tim Sulak last week ordered Armstrong to provide documents and written answers to a series of questions by the end of September. The case has been set for trial in April 2014.

The questions seek information dating to 1995 and ask Armstrong to detail who was paid for delivered performance-enhancing drugs, who determined what amount to use and administered them, and who was aware of his drug use. Acceptance specifically asks for information on when and how Armstrong's closest friends, advisers, ex-wife and business partners learned of his doping.

 

September 4, 2013 in Current Affairs, Discovery, In the News, State Courts | Permalink | Comments (0)

Wednesday, August 21, 2013

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

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

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

PM

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

Friday, July 19, 2013

Cohen on Civil Cases in State Intermediate Appellate Courts

Thomas H. Cohen, of the Administrative Office of the U.S. Courts, has posted on SSRN "Litigating Civil Cases in State Intermediate Appellate Courts: Analyzing Decisions to Appeal Civil Trial Verdicts or Judgments and the Impact of Appellate Litigation on Trial Court Outcomes."

Abstract:

In the civil justice system, litigants can file appeals as a means of challenging or modifying trial court verdicts or judgments. In most states, intermediate appellate courts represent the first, and in many cases, final arbiter of review for civil cases decided by bench or jury trial. While prior research on state appellate courts has focused primarily on civil appeals in state courts of last resort, there have been few attempts to examine the appeals process in state intermediate appellate courts. The current research attempts to address this gap by examining a national sample of tort and contract trials concluded in 2005 that were subsequently appealed. Specifically, this paper explores the factors that are related to (1) the rates in which civil trials are appealed to intermediate appellate courts, (2) the likelihood that a civil appeal will be decided on the merits, and (3) the probability of trial court outcomes being reversed at the intermediate appellate court level. The paper provides a roadmap for better understanding the case and litigant level characteristics that drive key decisions in intermediate appellate courts.

PM


July 19, 2013 in Recent Scholarship, State Courts | Permalink | Comments (0)

Wednesday, July 3, 2013

Pennsylvania Court Upholds $500,000 Limit on Awards Against Governmental Entities

The Legal Intelligencer reports that a Pennsylvania lower court has upheld the statutory $500,000 limit on damages awards against governmental entities, reducing a $14 million award to a plaintiff for loss of her leg, and setting the stage for a constitutional challenge to the damages cap in the Pennsylvania Supreme Court.

PM 

July 3, 2013 in In the News, Recent Decisions, State Courts | Permalink | Comments (0)

Sunday, June 23, 2013

Number of civil jury trials declines to new lows in Texas