Wednesday, February 28, 2007

"In Defense of Dissents"

This post might not be right down the middle of the CivPro strike zone, but it's Time Magazine and the Supreme Court so I couldn't resist throwing it out.  In the February 26 edition of Time, Reynolds Holding authors a piece entitled "In Defense of Dissents," in which he discusses Chief Justice Roberts's push for unanimity on the court and the downsides of such an approach. For example, Holding says:   

What's troubling is just how Roberts often gets to 9 to 0:  by pushing for decisions on grounds narrow enough for each Justice to accept.  That makes for some pretty thin rulings . . .

Holding also discusses the value of dissenting and concurring opinions.

But the price of unanimity is the loss of concurrence and dissent, the expression of views that can strengthen the law by showing us how it came to be, where it should develop and why the most important rulings are never easy. Sometimes the doubters are right, and if their voices disappear, so might the prospect of not-yet-recognized freedoms or protections for many Americans.

Holding cites the Harlan dissent in Plessy v. Ferguson and the Murphy dissent in the Korematsu Japanese internment case, among others, as examples of dissenting opinions that ultimately won out over the majority opinions.  So, to bring this post back into the heart of the CivPro strike zone, what are the CivPro examples of dissenting opinions that ultimately won the day?


February 28, 2007 | Permalink | Comments (2) | TrackBack (0)

Tuesday, February 27, 2007

To stay or dismiss?

The major cases from the courts of appeals and all cases from the Supreme Court receive ample attention.   We'll continue to link to those decisions as they are decided, but many interesting procedural and jurisdictional issues arise in the more obscure recent cases, such as The Lexus Real Estate Group, Inc v. Bullitt County Bank, 2007 WL 542402.

The Bank obtained a default judgment against the debtors in an Indiana State Court foreclosure action.  The Debtors appealed, challenging improper service of process.  The intermediate appellate court noted some oddities with the service but affirmed.

While the Debtors were preparing their challenge to the Indiana Supreme Court, the Debtors also filed a federal-court action against the Bank, asserting claims related to the foreclosure.  The Bank moved for summary judgment, arguing that the Debtors were precluded from asserting the related claims.  By the time the federal district court ruled on the preclusion defense, the case was pending before the Indiana Supreme Court.

The Bank had a valid preclusion defense.  Since the allegedly preclusive judgment was rendered by an Indiana State Court, the Full Faith and Credit Act required the district court to apply Indiana preclusion principles.  Under Indiana law, the claims were precluded as compulsory counterclaims.  The Debtor argued that the state-court judgment was not entitled to preclusive effect because of improper service, but that argument was properly rejected based on the issue-preclusive effect of the state court's ruling on the service issue.  And as is common, the pendency of an appeal did not strip a judgment of preclusive effect.

The district judge dismissed the claims with prejudice.The Court then noted the challenge pending before the Indiana Supreme Court.  "If the Indiana Supreme Court ultimately decides that service of process was improper, Debtors will have an opportunity to file these claims as compulsory counterclaims...."

It seems to me that the district judge's dismissal with prejudice unnecessarily complicates matters, given the credible challenge to the validity of the judgment in state court.  If the Indiana Supreme Court reverses, the debtors will still be faced with a potentially preclusive judgment, only now it will be the federal court's judgment based on the preclusive effect of a judgment that has been reversed.  Perhaps the court's notation that the Debtors are free to refile their claims as counterclaims solves that problem.  At the least, the Debtors would succeed in reopening the federal judgment.  But isn't a stay preferable? If the Indiana Supreme Court reverses, the debtors are free to do more than the court suggests--file their claims as compulsory counterclaims in state court--they are free to refile this same federal suit, as the existence of parallel proceedings is no bar to federal jurisdiction.  If the Indiana Supreme Court affirms, then the federal district court can dismiss with "real" prejudice to the claims being filed again.  In this scenario, a stay doesn't infringe upon Colorado River Abstention policies; if anything, it advances them.


February 27, 2007 | Permalink | Comments (0) | TrackBack (0)

Monday, February 26, 2007

"Jurisdictional Exceptionalism"

At the risk of revealing my own ignorance, I must admit I was shocked by what I learned reading Prof. Michael G. Collins' new article, "Jurisdictional Exceptionalism," which is part of the University of Virginia Law School's Public Law and Legal Theory Working Paper Series. 

A party can challenge federal court subject matter jurisdiction at any time, even on appeal, even if that party invoked jurisdiction in the first place.  Without question these rules amount to exceptional treatment of challenges to subject matter jurisdiction, but the article makes the point that this "exceptionalism" is a relatively recent development. 

Here's the abstract:

Challenges to federal court subject matter jurisdiction enjoy exceptional treatment: They resist procedural regulation, they are immune to waiver, and they may be raised at any time during a case, even by the party who invoked the federal court’s jurisdiction in the first instance. Such treatment is said to arise from the limited nature of federal judicial power. Nevertheless, the current ability to raise jurisdictional challenges—however and whenever—proves to be a comparatively recent development. During the early Republic, the federal courts were governed by a highly formalized common-law pleading regime that constricted the time and manner of jurisdictional objections, that embraced a robust notion of waiver, and that created disincentives to challenging jurisdiction. The result was that federal courts heard cases in which the pleadings may have suggested subject matter jurisdiction but in which jurisdiction was lacking in fact. Mid-nineteenth century developments associated with code pleading brought an increased focus on jurisdictional facts, and the Reconstruction Congress provided greater opportunities for jurisdictional challenges than those available at common law. But it was not until the mid-1930’s that the Supreme Court fully articulated the modern notion that jurisdictional defects could be raised in any manner and at any time—a notion that was soon embodied in the Federal Rules of Civil Procedure. This underexplored history of pleading and jurisdiction—particularly that of the early Republic—suggests understandings of the federal courts’ limited jurisdiction that may be in tension with current views. It may also offer possibilities for (as well as limits on) procedural reform aimed at restricting the currently open-ended ability to raise jurisdictional challenges in federal court.

As Prof. Collins points out, many have criticized the "current treatment of jurisdictional questions."  Is what Prof. Collins uncovers ammunition for ending "jurisdictional exceptionalism?" Or as Prof. Collins puts it, "Does history support foreclosure of jurisdictional objections?


February 26, 2007 | Permalink | Comments (0) | TrackBack (0)

Friday, February 23, 2007

In Case you missed it

The week in review:

  • USSCT Update: PHILLIP MORRIS USA v. WILLIAMS The Court held that the Due Process Clause forbids a jury from partially basing a punitive-damages award upon its desire to punish the defendant for harming persons who are not before the court.  For Aaron Streett's Supreme Court newsletter, click HERE.

  • Guantanamo Bay Detainee Case from D.C. Circuit: Federal courts do not have jurisdiction over petitions for writs of habeas corpus filed by aliens captured abroad and detained as enemy combatants at the Guantanamo Bay Naval Base in Cuba.  In depriving the courts of jurisdiction over the detainees’ habeas petitions, Congress did not violate the Suspension Clause.

  • Pleading fraudish claims with particularity: The Seventh Circuit affirmed a dismissal based on the particularized-pleading requirement of FRCP 9(b) regarding averments of fraud, even though the plaintiff did not plead "fraud" as a cause of action.  "Although claims of interference with economic advantage, interference with fiduciary relationship, and civil conspiracy are not by definition fraudulent torts, Rule 9(b) applies to 'averments of fraud' not claims of fraud, so whether the rule applies will depend upon the plaintiffs' factual allegations."

  • Britney Spears shaves her head.  (Link to image mercifully omitted).


February 23, 2007 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 22, 2007

A Must Listen

Click the link at the bottom of this post to listen to my interview with Prof. Stephen I. Vladeck on his forthcoming article, The Increasingly "Unflagging Obligation":  Federal Jurisdiction after Saudi Basic and Anna Nicole, which will be part of the Tulsa Law Review's Supreme Court Symposium this summer. 

This interview should intrigue anyone even remotely interested in federal jurisdiction (not because of my questions but because of his answers).  Stephen discusses what he calls the Supreme Court's "increasingly felicitous" view of federal jurisdiction.  What's motivating the Supreme Court to expand federal jurisdiction and what are the consequences? 

A big thank you to Prof. Vladeck for giving the interview.  I should also say he had no idea he would be the inaugural interviewee when he said this.   

We plan to post a new interview every Thursday, with topics ranging from upcoming articles to teaching ideas to practitioner views on hot procedural issues.  If you have an idea for an interview or an article that needs the attention of both our readers, don't hesitate to tell us about it.

Download interview.mp3 (The interview is 16' 33" in length and should take about 90 seconds or so to download.)



February 22, 2007 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 21, 2007

A confession ... then a case

Before my first post, I suppose I should confess:  I'm a B-list CivPro Prof.  Although I teach Federal Courts regularly, I only teach CivPro while Jeremy is sabbaticalling.  There's enough of an overlap between the courses to encompass most of what I'll post, but I hope neither of our readers mind when I stray.

In re Hot-HedAn ostensibly insignificant recent case from the 5th Circuit.

At first, the litigation proceeded according to the forum-fight template.  Plaintiff filed in state court.  Defendant removed.  Plaintiff moved to remand, arguing that the district court had no subject-matter jurisdiction.  The court denied the motion to remand. 

From the 5th Circuit's (per curiam but to-be-released-for-publication) opinion, one would think that the next procedural step also fit the template--Plaintiff petitioned the 5th Circuit for a writ of mandamus ordering the district court to remand the case.  The extent of the 5th Circuit's analysis regarding the interlocutory challenge disguised as an original proceeding was:

The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." In this case, a writ is an appropriate means by which we may review the denial of the motion to remand: “When the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course.”

The court granted the petition in part and vacated the order denying the motion to remand.  Is the court suggesting that petitioning for mandamus is, as a "matter of course," the a proper procedure for challenging a district court's interlocutory ruling that rejects a challenge to subject-matter jurisdiction?  Without regard to whether the challenger has an adequate remedy by appeal or any exceptional circumstances?   --RR   


February 21, 2007 | Permalink | Comments (2) | TrackBack (0)

Tuesday, February 20, 2007

Where to Start?

What topic do you cover first in Civil Procedure? 

This is an issue I’ve struggled with since leaving practice for teaching a few years back.  On the first day of class, I tell my students that learning Civil Procedure is difficult because the topics are interrelated.  A student can’t fully appreciate the importance of forum choice without understanding its effect on the law to be applied to the case.  On the other hand, sometimes I think a primer on the traditional approach to choice of law might help students unravel Pennoyer v. Neff.   

The problem, of course, is that we have to start somewhere.  We have to pick our poison.  For better or worse, my poison is territorial jurisdiction.  I spend the first two class days providing the students with an overview of the litigation process—my “anatomy of a lawsuit” lecture.  Then I assign Pennoyer and watch panic fill their eyes.  My students are smart, but Pennoyer makes them feel as though they are reading Greek. 

Oddly enough, I suppose that’s why I begin with Pennoyer—it makes a powerful impression.  Pennoyer teaches students that law school is damned hard and different from anything they’ve done before.  Pennoyer won’t tolerate a student simply taking what he wants from it and leaving the rest. It requires a struggle—a fitting metaphor for law school in the first week. 

Then again, starting with territorial jurisdiction has its downsides.  I’ve discussed this issue with other CivPro Profs, and many of them advocated starting with pleading (or even judgments) rather than Pennoyer.  Thoughts?


February 20, 2007 | Permalink | Comments (4) | TrackBack (0)

Monday, February 19, 2007


Welcome to the Civil Procedure Prof Blog.  Our hope is that this blog will become a sort of Civil Procedure “town square” for those with a passion for this area of the Law—a place where we can discover and discuss the latest developments in our field, share teaching advice, and bounce scholarship/research ideas off one another.  While we do want to provide a forum to discuss major developments, we have no plans to create a daily digest for all cases CivPro.  We’ll start the conversation but hope you’ll continue it via the comments section for each post.  We also invite you to steer the conversation.  If you think there’s something that needs our attention—such as a recent opinion or an interesting new article (even if it‘s your own)—e-mail us, and we’ll make it the subject of a post.  We hope you’ll add a quick visit to the Civil Procedure Prof Blog to your daily routine.  Let the conversation begin. 

February 19, 2007 | Permalink | Comments (1) | TrackBack (0)