Thursday, March 17, 2016

SCOTUS Decision on Diversity Jurisdiction: Americold Realty Trust v. ConAgra Foods

There’s a lot of attention right now on President Obama’s nomination of Merrick Garland to the U.S. Supreme Court. But I wanted to quickly flag last week’s unanimous decision on diversity jurisdiction. Justice Sotomayor’s opinion in Americold Realty Trust v. ConAgra Foods, Inc. begins:

This case asks how to determine the citizenship of a “real estate investment trust,” an inanimate creature of Maryland law. We answer: While humans and corporations can assert their own citizenship, other entities take the citizenship of their members.

The Court reaffirmed the “oft-repeated rule” that unincorporated entities take on the citizenship of all of their members (citing Carden v. Arkoma Associates, 494 U. S. 185 (1990)), and held that the “members” of this sort of Maryland-law entity included all of its shareholders:

In Maryland, a real estate investment trust is an “unincorporated business trust or association” in which property is held and managed “for the benefit and profit of any person who may become a shareholder.” Md. Corp. & Assns. Code Ann. §§8–101(c), 8–102 (2014). As with joint-stock companies or partnerships, shareholders have “ownership interests” and votes in the trust by virtue of their “shares of beneficial interest.” §§8–704(b)(5), 8–101(d). These shareholders appear to be in the same position as the shareholders of a joint-stock company or the partners of a limited partnership—both of whom we viewed as members of their relevant entities. See Carden, 494 U. S., at 192–196; see also §8–705(a) (linking the term “beneficial interests” with “membership interests” and “partnership interests”). We therefore conclude that for purposes of diversity jurisdiction, Americold’s members include its shareholders.

Justice Sotomayor concluded by recognizing—but rejecting—the argument that the citizenship of an unincorporated entity should be determined the same way as a corporation:

We also decline an amicus’ invitation to apply the same rule to an unincorporated entity that applies to a corporation—namely, to consider it a citizen only of its State of establishment and its principal place of business. See Brief for National Association of Real Estate Investment Trusts 11–21. When we last examined the “doctrinal wall” between corporate and unincorporated entities in 1990, we saw no reason to tear it down. Carden, 494 U. S., at 190. Then as now we reaffirm that it is up to Congress if it wishes to incorporate other entities into 28 U. S. C. §1332(c)’s special jurisdictional rule.

 

March 17, 2016 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, February 22, 2016

House to Consider "Fraudulent Joinder Prevention Act" This Week

The House of Representatives is to consider the so-called Fraudulent Joinder Prevention Act of 2016, H.R. 3624. this week.  The bill provides:

Section 1447 of title 28, United States Code, is amended by adding at the end the following:

(f) Fraudulent joinder
(1) This subsection shall apply to any case in which—
(A) a civil action is removed solely on the basis of the jurisdiction conferred by section 1332(a);
(B) a motion to remand is made on the ground that—
(i) one or more defendants are citizens of the same State as one or more plaintiffs; or
(ii) one or more defendants properly joined and served are citizens of the State in which the action was brought; and
(C) the motion is opposed on the ground that the joinder of the defendant or defendants described in subparagraph (B) is fraudulent.
(2) The joinder of the defendant or defendants described in paragraph (1) (B) is fraudulent if the court finds that—
(A) there is actual fraud in the pleading of jurisdictional facts;
(B) based on the complaint and the materials submitted under paragraph (3), it is not plausible to conclude that applicable State law would impose liability on each defendant described in paragraph (1)(B);
(C) State or Federal law clearly bars all claims in the complaint against all defendants described in paragraph (1)(B); or
(D) objective evidence clearly demonstrates that there is no good faith intention to prosecute the action against all defendants described in paragraph (1)(B) or to seek a joint judgment.
(3) In determining whether to grant or deny a motion under paragraph (1)(B), the court may permit the pleadings to be amended, and shall consider the pleadings, affidavits, and other evidence submitted by the parties.
(4) If the court finds fraudulent joinder under paragraph (2), it shall dismiss without prejudice the claims against the defendant or defendants found to have been fraudulently joined and shall deny the motion described in paragraph (1)(B).

 

 

February 22, 2016 in Federal Courts, Subject Matter Jurisdiction | Permalink | Comments (0)

Sunday, January 31, 2016

Bill to Federalize Trade Secrets Claims Moves Forward

A bill to extend federal jurisdiction to claims for theft of trade secrets, the Defend Trade Secrets Act of 2015 (S. 1890), has been reported out of committee to the full chamber.  Trade secrets are largely the subject of state law, and the federal courts currently lack jurisdiction of a claim for theft of trade secrets, unless there is diversity of citizenship or joinder with a transactionally-related federal-question claim such as trademark infringement.

The bill is co-sponsored by Republicans and Democrats.

The bill creates a civil action with original federal jurisdiction brought by “an owner of a trade secret that is misappropriated . . . if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.”  The bill sets conditions for the “seizure of property necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.”

The bill would also create a cause of action by “a person who suffers damage by reason of a wrongful or excessive seizure.”

One of the remedies that is authorized is, of course, damages:

[a court may] (B) award—

(i)

(I) damages for actual loss caused by the misappropriation of the trade secret; and

(II) damages for any unjust enrichment caused by the misappropriation of the trade secret that is not addressed in computing damages for actual loss; or

(ii) in lieu of damages measured by any other methods, the damages caused by the misappropriation measured by imposition of liability for a reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade secret . . .

(As an aside: Could (B)(ii) be characterized as an award of statutory damages, currently under attack in the Supreme Court in Spokeo, Inc. v. Robins?)

A brief description of the bill’s background by David J. Kappos, former director of the United States Patent & Trademark Office, is in thehill.com.

January 31, 2016 in Current Affairs, Subject Matter Jurisdiction | Permalink | Comments (1)

Monday, January 25, 2016

SCOTUS Decision in Montgomery v. Louisiana: Supreme Court Jurisdiction, State Courts, and Retroactivity

Today the Supreme Court issued a 6-3 decision in Montgomery v. Louisiana, which involves the retroactive effect of the Supreme Court’s 2012 decision in Miller v. Alabama (where the Court prohibited mandatory sentences of life without the possibility of parole for juveniles).

The case presented both an interesting question of Supreme Court jurisdiction in the context of state collateral review proceedings, and the perennial federal courts challenge of when a new constitutional right applies retroactively. The majority opinion authored by Justice Kennedy (joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Kagan & Sotomayor) concluded:

(1) The Supreme Court had jurisdiction to review a state court’s failure to recognize, in the context of state collateral review, a federal constitutional right that applies retroactively;

(2) Miller did announce “a substantive rule of constitutional law” that applies retroactively; and

(3) A state may remedy a Miller violation by extending parole eligibility to juvenile offenders.

The three dissenters were Justices Scalia, Thomas, and Alito, who disagreed both on jurisdiction and on the merits. Justice Scalia wrote a dissenting opinion that was joined by both Thomas and Alito, and Justice Thomas wrote a separate dissent as well.

Check out Lyle Denniston’s analysis on SCOTUSblog.

 

 

 

 

January 25, 2016 in Federal Courts, Recent Decisions, State Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, January 20, 2016

Today’s SCOTUS Decision in Campbell-Ewald v. Gomez

The Supreme Court issued its decision today in Campbell-Ewald Co. v. Gomez, a closely watched case on class actions, Article III, and mootness (covered earlier here and here). Justice Ginsburg’s majority opinion begins:

Is an unaccepted offer to satisfy the named plaintiff ’s individual claim sufficient to render a case moot when the complaint seeks relief on behalf of the plaintiff and a class of persons similarly situated? This question, on which Courts of Appeals have divided, was reserved in Genesis HealthCare Corp. v. Symczyk, 569 U. S. ___, ___, ___, n. 4 (2013) (slip op., at 5, 6, n. 4). We hold today, in accord with Rule 68 of the Federal Rules of Civil Procedure, that an unaccepted settlement offer has no force. Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant’s continuing denial of liability, adversity between the parties persists.

Justice Ginsburg’s opinion is joined by Justices Kennedy, Breyer, Sotomayor, and Kagan. Justice Thomas adds a sixth vote, but writes a separate concurring opinion. Chief Justice Roberts writes a dissenting opinion, joined by Justices Scalia and Alito, and Justice Alito writes a dissenting opinion as well.

 

 

 

January 20, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, January 15, 2016

SCOTUS Cert Grant in Microsoft v. Baker: Appellate Review of Orders Denying Class Certification

Today the Supreme Court granted certiorari in Microsoft Corp. v. Baker, limited to the following Court-generated question:

Whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice.

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

 

 

January 15, 2016 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Tuesday, December 1, 2015

Today's SCOTUS Decision on the Foreign Sovereign Immunities Act

Today the Supreme Court issued its first opinion in an argued case this Term: OBB Personenverkehr AG v. Sachs. In an opinion by Chief Justice Roberts, the Court unanimously held that a lawsuit against the Austrian state-owned railway was barred by Foreign Sovereign Immunities Act. From the opinion:

Respondent Carol Sachs is a resident of California who purchased in the United States a Eurail pass for rail travel in Europe. She suffered traumatic personal injuries when she fell onto the tracks at the Innsbruck, Austria, train station while attempting to board a train operated by the Austrian state-owned railway. She sued the railway in Federal District Court, arguing that her suit was not barred by sovereign immunity because it is “based upon” the railway’s sale of the pass to her in the United States. We disagree and conclude that her action is instead “based upon” the railway’s conduct in Innsbruck. We therefore hold that her suit falls outside the commercial activity exception and is barred by sovereign immunity. 

Our earlier coverage is here.

 

 

December 1, 2015 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, November 2, 2015

Today’s SCOTUS Oral Argument in Spokeo, Inc. v. Robins

The Supreme Court hears oral argument today in Spokeo, Inc. v. Robins, which presents the question:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

For our earlier coverage, see here, here, and here. You should also check out Amy Howe’s preview of the argument for SCOTUSblog and the Vanderbilt Law Review’s En Banc Roundtable on the case, available here.

UPDATE: The transcript of the oral argument has now been posted.

 

November 2, 2015 in Federal Courts, Recent Decisions, Recent Scholarship, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, October 22, 2015

Dodson & Pucillo on Diversity Jurisdiction

Scott Dodson and Philip Pucillo have posted on SSRN a draft of their recent article, Joint and Several Jurisdiction, which will be published in the Duke Law Journal. Here’s the abstract:

Is federal diversity jurisdiction case-specific or claim-specific? Consider a state-law case in federal court between a Texas plaintiff and two defendants — one from California and the other from Texas. The complete-diversity rule taught to every first-year law student makes clear that, when the diversity defect is noted, the court lacks subject-matter jurisdiction over the action as a whole. The court cannot, therefore, proceed with either claim as long as the nondiverse claim remains. But does the court’s subject-matter jurisdiction nevertheless extend to the diverse claim, such that the case can continue if the spoiler is dismissed? This question is both pervasive and unsettled. We identify and explore two possible answers, each based on a different theory of subject-matter jurisdiction. The first we denote “joint jurisdiction ”— an all-or-nothing theory — under which the presence of a nondiverse claim contaminates the whole case and deprives the court of diversity jurisdiction over diverse claims. The second we denote “several jurisdiction” — a claim-by-claim theory — under which the court lacks subject-matter jurisdiction over the nondiverse claim but always had, and continues to have, diversity jurisdiction over the diverse claim. We show that each theory boasts jurisprudential support, leaving the doctrine ambivalent on a question that affects thousands of cases filed in federal court each year. We then offer a way to reconcile these seemingly incompatible theories and precedent: manipulation of the nonjurisdictional time-of-filing rule. Finally, we discuss how that solution potentially creates new tensions, particularly regarding the notion that a court without subject-matter jurisdiction over an action may nonetheless render a binding adjudication of claims within that action.

 

October 22, 2015 in Federal Courts, Recent Scholarship, Subject Matter Jurisdiction | Permalink | Comments (0)

Wednesday, October 14, 2015

Today’s SCOTUS Oral Argument in Campbell-Ewald Co. v. Gomez

The Supreme Court heard oral argument today in Campbell-Ewald Co. v. Gomez, which presents some important questions regarding Article III, mootness, and class actions. The transcript is here.

 

 

October 14, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Thursday, October 1, 2015

Happy October! SCOTUS Cert Grants of Interest (Bank Markazi; Americold; MHN)

Today the Supreme Court issued its much-anticipated order list from the end-of-summer “long conference.” It granted certiorari in a few cases that folks interested in civil procedure and federal courts will want to keep an eye on:

Bank Markazi v. Peterson (No. 14-770), from the Second Circuit, is a separation-of-powers challenge to a congressional statute involving the execution of a judgment against bonds held by the Central Bank of Iran. Here is the question presented by the petitioner:

This case concerns nearly $2 billion of bonds in which Bank Markazi, the Central Bank of Iran, held an interest in Europe as part of its foreign currency reserves. Plaintiffs, who hold default judgments against Iran, tried to seize the assets. While the case was pending, Congress enacted § 502 of the Iran Threat Reduction and Syria Human Rights Act of 2012, 22 U.S.C. § 8772. By its terms, that statute applies only to this one case: to “the financial assets that are identified in and the subject of proceedings in the United States District Court for the Southern District of New York in Peterson et al. v. Islamic Republic of Iran et al., Case No. 10 Civ. 4518 (BSJ) (GWG).” Id. § 8772(b). “In order to ensure that Iran is held accountable for paying the judgments,” it provides that, notwithstanding any other state or federal law, the assets “shall be subject to execution” upon only two findings—essentially, that Bank Markazi has a beneficial interest in them and that no one else does. Id. § 8772(a)(1), (2). The question presented is:

Whether § 8772—a statute that effectively directs a particular result in a single pending case—violates the separation of powers.

Americold Logistics, LLC v. ConAgra Foods, Inc. (No. 14-1382), from the Tenth Circuit, involves how to determine the citizenship of a trust for purposes of diversity jurisdiction:

Petitioners Americold Logistics, LLC and Americold Realty Trust – a corporation and real estate investment trust, respectively – removed a case from Kansas state court to the United States District Court for the District of Kansas, asserting the parties were diverse. No party challenged the removal, and the District Court ruled on the merits of that litigation without addressing any issue relating to diversity jurisdiction. Likewise, neither party raised any jurisdictional challenge on appeal to the Tenth Circuit Court of Appeals.

The Tenth Circuit, however, sua sponte queried whether there was full diversity of citizenship among the parties. In particular, the judges challenged whether the citizenship of Americold Realty Trust, a business trust, should be determined by reference to its trustees’ citizenship, or instead by reference to some broader set of factors. This issue has deeply split courts across the country. Joining the minority of courts, the Tenth Circuit held the jurisdictional inquiry extends, at a minimum, to the citizenship of a trust’s beneficiaries in addition to its trustees’ citizenship. In this case, doing so destroyed diversity of citizenship among the parties.

The question presented by this petition is: Whether the Tenth Circuit wrongly deepened a pervasive circuit split among the federal circuits regarding whether the citizenship of a trust for purposes of diversity jurisdiction is based on the citizenship of the controlling trustees, the trust beneficiaries, or some combination of both.

MHN Government Services, Inc. v. Zaborowski (No. 14-1458), from the Ninth Circuit, is another case involving the relationship between the Federal Arbitration Act and state contract law. Here is the question presented by the petitioners:

The Federal Arbitration Act (“FAA”) provides that an arbitration agreement shall be enforced “save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U.S.C. § 2. California law applies one rule of contract severability to contracts in general, and a separate rule of contract severability to agreements to arbitrate. The arbitration-only rule disfavors arbitration and applies even when the agreement contains an express severability clause. Its application in this case conflicts with binding precedent of this Court and with opinions of four other courts of appeals.

The question presented is whether California’s arbitration-only severability rule is preempted by the FAA.  

You can find coverage of today’s cert. grants from SCOTUSblog’s Lyle Denniston here.

 

October 1, 2015 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, September 30, 2015

House Judiciary Committee Hearing on "Fraudulent Joinder Prevention Act"

The House Judiciary Committee held a hearing yesterday on a bill entitled “The Fraudulent Joinder Act of 2015.”  Minority witness, Professor Lonny Hoffman, testified against the bill.

The bill, H.R. 3624, provides:

Section 1447(c) of title 28, United States Code, is amended by adding at the end the following:

“A motion for remand, and any opposition thereto, may include affidavit or other evidence showing a plausible claim for relief against each nondiverse defendant, or the lack thereof, or indicating a good faith intention to prosecute the action against each nondiverse defendant or to seek a joint judgment, or the lack of such a good faith intent. The district court shall deny a motion to remand if it finds that the complaint does not state a plausible claim for relief against a nondiverse defendant under applicable state law or there is no good faith intention to prosecute the action against a nondiverse defendant or to seek a joint judgment.”

Professor Hoffman explains the bill’s effect: “The bill would replace the existing common law fraudulent joinder test with a statutory test that places the burden on the plaintiff to prove that her claims against the non-diverse defendant are ‘plausible’ and brought in ‘good faith.’ Overall, the bill would make proving fraudulent joinder much easier than it is under current law.”

One of the majority witnesses, Elizabeth Milito, Senior Executive Counsel of the National Federation of Independent Business Small Business Legal Center, asserted the need for the bill:

[F]or a small business owner being served with lawsuit generates significant trepidation, disgust, and yes, uncertainty.

Because litigation entails angst and great expense for small businesses, NFIB is pleased to see this Committee’s attention focused on the issue of fraudulent joinder. Fraudulent joinder remains a source of confusion and unnecessary litigation in our courts and impacts far too many innocent small businesses. The situation unfolds as follows: plaintiffs’ attorneys will name a small business – such as a local pharmacy or insurance agent – with little connection to the complaint in order to deny the federal courts of jurisdiction. In many instances, the plaintiff has no intention of imposing liability on the fraudulently joined party. With courts divided over the standard for finding that a defendant is fraudulently joined, the small business is forced to engage in protracted litigation when all they want is to be dismissed from the case entirely.

 

In opposition to the bill, Professor Hoffman’s introduction summarizes his testimony:

There is no warrant for amending 28 U.S.C. §1447. More than a century old, fraudulent joinder law is well-settled and strikes the proper balance among competing policies in how it evaluates the joinder of non-diverse defendants. With recognition that there are sound reasons for not trying to exhaustively examine the merits of the plaintiff’s claims immediately after removal, courts across the circuits uniformly impose a high burden on the defendant to demonstrate that a non-diverse defendant’s joinder was improper. That burden can only be met if the defendant establishes that the joinder of the diversity-destroying party in the state court action was made without a reasonable basis of proving any liability against that party. By greatly expanding the scope of the fraudulent joinder inquiry, this bill would displace the well-functioning law with wasteful adjudications that district courts are ill-equipped to undertake at the remand stage, burdening the judicial system and raising litigation costs for all parties, especially for plaintiffs on whom this bill imposes the burden of proof. Finally, by requiring that courts resolve merits inquiries that under current law are decided by state courts, the proposed amendments to §1447 raise federalism concerns.

Continue reading

September 30, 2015 in Current Affairs, Federal Courts, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, September 14, 2015

Scholars File Amicus Brief in Spokeo Case Supporting Respondent Robins

On September 8, 2015, ten current or former law professors filed their Brief of Restitution and Remedies Scholars as Amici Curiae in Support of Respondent. 

 

The brief states (at pp. 1-2):

 

If this Court were to adopt petitioner’s proposed rule — that a plaintiff who suffers no harm beyond the loss of his legal rights has no standing to sue — it could wreak havoc with the law of restitution and unjust enrichment, barring many long-established causes of action from federal courts. This important body of law long predates the American founding and serves essential functions, especially in private law but in parts of public law as well.

 

These amici take no position on the underlying statutory claim.

 

SUMMARY OF ARGUMENT

 

Petitioner’s sweeping and ill-defined argument that no plaintiff can have standing without proof of “concrete harm” is aimed at claims for statutory minimum damages. The Court should reject this frontal assault on statutory remedies. But whatever the Court does with respect to statutory damages, it should take care not to inadvertently sweep away much of the law of restitution.

 

The ten individual amici are Mark P. Gergen, Andrew Kull, Douglas Laycock, Colleen P. Murphy, Phil C. Neal, Doug Rendleman, Caprice Roberts, Chaim Saiman, Emily L. Sherwin, and Michael Traynor.  Nine of the ten amici participated in drafting the Restatement (Third) of Restitution and Unjust Enrichment as Reporter, Adviser, or on the Members Consultative Group.

September 14, 2015 in Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Friday, September 4, 2015

Court Cites (but Does Not Rely on) FRCP Form 7, Holds Diversity Allegations Sufficient

            The Third Circuit has held that a plaintiff may survive a facial attack on diversity jurisdiction in a suit against an LLC without specifically alleging the state of citizenship of each member of the LLC.  Lincoln Benefit Life Co. v. AEI Life, LLC, No. 14-2660 (3d Cir. Sept. 2, 2015).  The plaintiff life insurance company (incorporated and with its principal place of business in Nebraska) sought a declaratory judgment voiding two policies that it alleged were procured by fraud.  Among the defendants were two LLCs.   

 

            An LLC’s citizenship for purposes of diversity jurisdiction is determined by the citizenship of its members.  Not able to ascertain the citizenship of these two LLCs’ members through publicly-available sources, the plaintiff alleged “upon information and belief” that the two defendants were citizens of New York and New Jersey, respectively, based on their mailing addresses.

 

            The defendants moved to dismiss for lack of subject matter jurisdiction, arguing that plaintiff was required to allege the citizenship of each member of the LLC defendants.  The district court granted the motion to dismiss and denied plaintiff’s request for jurisdictional discovery.

 

            The Third Circuit reversed.  It distinguished between a facial attack and a factual attack when made in a 12(b)(1) motion: “A facial attack ‘concerns an alleged pleading deficiency’ whereas a factual attack concerns ‘the actual failure of [a plaintiff’s] claims to comport [factually] with the jurisdictional prerequisites.’”  (some internal quotation marks omitted) 

 

            The defendants here had mounted a “facial challenge to the adequacy of the jurisdictional allegations in [the] complaint.”  None of the defendants had actually alleged that it was a citizen of Nebraska (which would have destroyed diversity). 

 

            Turning to Rule 8(a)(1), which requires a complaint to make a “short and plain statement of the grounds for the court’s jurisdiction,” the court “found it useful to consider” FRCP Form 7, which illustrates the “simplicity and brevity” of pleading jurisdiction.  (Rule 84.)  The court recognized that Rule 84 and all the forms would be abrogated as of December 1 absent congressional action, however, and stated that it was not relying on them “in reaching our ultimate conclusion.”

Continue reading

September 4, 2015 in Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Monday, May 18, 2015

SCOTUS Cert Grant on Article III, Mootness, Class Actions & Sovereign Immunity

Today the Supreme Court granted certiorari in Campbell-Ewald Company v. Gomez, which presents the following questions:

1. Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.

2. Whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified.

3. Whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), for government contractors is restricted to claims arising out of property damage caused by public works projects.

You can see all of the cert-stage briefing, and keep track of the merits briefs as they come in, at SCOTUSblog.

 

 

May 18, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, April 27, 2015

Today’s SCOTUS Cert Grant on Article III Standing: Spokeo v. Robins

The Supreme Court granted certiorari today in Spokeo, Inc. v. Robins, which presents the question:

Whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.

The Court granted cert. notwithstanding an invited brief from the Solicitor General arguing against review. That brief explained:

The court of appeals held that respondent had established Article III standing to sue petitioner “for publishing inaccurate personal information about [respondent]” because petitioner allegedly had violated respondent’s “statutory rights” protecting his “personal interests in the handling of his credit information.” Pet. App. 1a, 8a. The court below correctly concluded that the publication of such false information is a cognizable Article III injury.

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

 

 

April 27, 2015 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 22, 2015

SCOTUS Decision in Wong (& June): Equitable Tolling & the Federal Tort Claims Act

Today the Supreme Court issued its decisions in United States v. Wong and United States v. June. As covered earlier, the cases address whether two time limits contained in the Federal Tort Claims Act are subject to equitable tolling. (Although Wong and June were not formally consolidated, the Court explains in footnote 1 that “we address them together because everyone agrees that the core arguments for and against equitable tolling apply equally to both of §2401(b)’s deadlines.”)

It’s a 5-4 split. Once again, the Justices examine—and disagree about—whether a statutory time limitation is “jurisdictional.” Justice Kagan writes the majority opinion, joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor. Here’s the opening paragraph (emphasis added):

The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States “shall be forever barred” unless it is presented to the “appropriate Federal agency within two years after such claim accrues” and then brought to federal court “within six months” after the agency acts on the claim. 28 U. S. C. §2401(b). In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that §2401(b)’s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.

Justice Alito writes a dissenting opinion, joined by Chief Justice Roberts and Justices Scalia and Thomas. He argues that these limitations are jurisdictional and create an “absolute bar” that “is not subject to equitable tolling.”

 

 

April 22, 2015 in Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, February 23, 2015

Dodge on International Comity

Bill Dodge has posted on SSRN a draft of his article, International Comity in American Law, which will be published in the Columbia Law Review. Here’s the abstract:

International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity — from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government’s privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and an analytic framework for thinking about its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge two widespread myths — that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch. I show that international comity doctrines are frequently expressed as rules rather than standards, and that courts are usually in a better position to apply them than the executive branch.

 

 

 

February 23, 2015 in Federal Courts, International Courts, International/Comparative Law, Recent Scholarship, Subject Matter Jurisdiction | 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)

Monday, December 15, 2014

SCOTUS Decision in Dart Cherokee: What Must a Notice of Removal Contain? (And More!)

Today the Supreme Court issued a 5-4 decision in Dart Cherokee Basin Operating Co. v. Owens. It’s an interesting breakdown. Justice Ginsburg writes the majority opinion, joined by Roberts, Breyer, Alito, and Sotomayor. The dissenters are Scalia, Kennedy, Thomas, and Kagan. 

The question presented in Dart Cherokee involves what a party must include in a notice of removal. The answer, from Justice Ginsburg’s majority opinion:

To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount plausibly, or must the defendant incorporate into the notice of removal evidence supporting the allegation? That is the single question argued here and below by the parties and the issue on which we granted review. The answer, we hold, is supplied by the removal statute itself. A statement “short and plain” need not contain evidentiary submissions.

And later:

In sum, as specified in §1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required by §1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s allegation.

The dissenters in Dart Cherokee don’t challenge the majority on this. The cause of the disagreement, rather, is an issue that received considerable attention during the oral argument—one that was first flagged by Public Citizen in an amicus brief questioning the proper standard of review and the extent to which the Supreme Court could review a Court of Appeals’ decision to deny permission to appeal under the Class Action Fairness Act (CAFA). Review of the Tenth Circuit’s decision was complicated by the fact that it issued only a short order that failed to explain why it denied permission to appeal the district court’s remand order.

Justice Ginsburg finds that these concerns did not prevent Supreme Court review in this case, noting that “[t]he case was ‘in’ the Court of Appeals because of Dart’s leave-to-appeal application, and we have jurisdiction to review what the Court of Appeals did with that application. See 28 U. S. C. §1254; Hohn v. United States, 524 U. S. 236, 248 (1998),” and that “[t]here are many signals that the Tenth Circuit relied on the legally erroneous premise that the District Court’s decision was correct” in denying permission to appeal. In remanding the case, however, Justice Ginsburg notes that “[o]ur disposition does not preclude the Tenth Circuit from asserting and explaining on remand that a permissible ground underlies its decision to decline Dart’s appeal.”

Justice Scalia writes the dissenting opinion, arguing that the Court should have dismissed the writ as improvidently granted.

“Because we are reviewing the Tenth Circuit’s judgment, the only question before us is whether the Tenth Circuit abused its discretion in denying Dart permission to appeal the District Court’s remand order. Once we found out that the issue presented differed from the issue we granted certiorari to review, the responsible course would have been to confess error and to dismiss the case as improvidently granted.”

The most amusing part of the Dart Cherokee decision comes in Justice Scalia’s dissent, where he responds to Justice Ginsburg’s observation that a 2013 case, Standard Fire v. Knowles, came to the Court in a similar posture, yet Justice Scalia joined that decision without raising these concerns. Justice Scalia writes:

As for my own culpability in overlooking the issue, I must accept that and will take it with me to the grave. But its irrelevance to my vote in the present case has been well expressed by Justice Jackson, in a passage quoted by the author of today’s opinion: “I see no reason why I should be consciously wrong today because I was uncon­sciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion), quoted in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___, n. 11 (2014) (slip op., at 12, n. 11) (GINSBURG J., dissenting).

Finally, it’s worth noting that Justice Thomas does not join the final sentence of Justice Scalia’s dissenting opinion, where Justice Scalia writes that he would vote “to affirm” the Tenth Circuit if the writ were not dismissed as improvidently granted. This is because, as Justice Thomas explains in a separate dissenting opinion, he believes that the Supreme Court lacks jurisdiction even to review the Tenth Circuit’s decision under 28 U.S.C. § 1254. 

 

 

 

December 15, 2014 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)