Monday, April 30, 2007
Weems v. Touro (5th Cir. 2007) involved the CAFA and the plaintiff's burden in establishing the local-controversy exception. Cheryl Weems filed a class-action petition against some medical defendants in Louisiana state court based on events following Hurricane Katrina. The proposed class comprised patients staying at a hospital when Katrina hit. The defendants removed under the CAFA, and Weems successfully moved to remand under the local-controversy exception. The Fifth Circuit reversed, holding that she failed to prove that more than 2/3 of the members of the proposed plaintiff classes were citizens of Louisiana at the time of filing.
Weems filed the suit about a year after Katrina. To prove the citizenship of the class, Weems produced hospital forms on which more than 2/3 of the class identified a Louisiana primary residence. Of course, these forms were filled out before Katrina hit. The court held that Weems did not meet her burden of proving domicile at the time of filing. The relevant time to determine citizenship is at filing, not at the injury-causing event. Plaintiff sued a year after the event (and the forms were signed before then). Given the mass relocations after Katrina a year-old indication of residency was not sufficient. Anyway, residence does not equal domicile--the party must prove residence plus an intent to remain indefinitely. Weems argued for a presumption of continuing domicile. The problem with that was she never proved an initial domicile to continue -- she proved an initial residence. Thus, Weems failed to prove current domicile directly (because the forms were too old and only indicated residence), and plaintiff's allegation of previous residence did not establish a previous domicile and therefore could not give rise to a presumption of continuing domicile. --RR
Friday, April 27, 2007
Current Scholarship Round-Up for the 2007 Spring Submission Cycle
This post inaugurates what will hopefully be a continuing feature here at PrawfsBlawg: a round-up of current legal scholarship that has been placed during each submission cycle. Although this may be changing, law reviews generally accept articles for submission during two time periods: a spring cycle beginning in February and a fall cycle beginning in August. Although the articles have been submitted and accepted during the cycle, they may not come out for six months to a year from when they have been placed. SSRN and Bepress have filled in this gap to some extent, but at present there is no community forum for getting out the news of your new article and its (forthcoming) home.
In order to provide a community-wide source about placement news, I'll be compiling a list of articles that have been chosen for publication during this spring's submission cycle. If you wish to be included in this spring’s round-up, please send an email to this address with the following information:
- Author[s ]
- Law review or other journal placement
- Volume and year of publication (if available)
- Link to your article at SSRN, Bepress, or institutional web site (if available)
I’ll collect the information and post it in about a week, with updates to follow as further submissions come in.
UPDATE: Just to clarify, I am looking only for articles, rather than essays, symposia pieces, or book reviews. If there is interest, we could also do round-ups for these separate categories. Let me know your thoughts. And thanks to all of you who have already submitted news of your placements.
Thursday, April 26, 2007
Click the link at the bottom of this post to listen to this week's installment of the Thursday Interview. This week's interview is with Bradford Clark of George Washington University Law School about his most recent paper, Erie's Constitutional Source. Brad was kind enough to talk with us about his article and the constitutional rationale of the Erie decision. Thanks to Brad for a great interview.
Wednesday, April 25, 2007
Ryan Zempel, Managing Editor of the Institute for Legal Reform ("ILR"), gave us a heads-up on the release of the 2007 US Chamber of Commerce Lawsuit Climate Rankings. The study explores "how reasonable and balanced the tort liability system is perceived to be by U.S. business." The rankings are based on interviews with a "nationally representative sample of in-house general counsel or other senior corporate litigators" of companies with annual revenues of at least $100 million.
According to these lawyers, my state (Texas) is 44th on the list, while Delaware has the best climate in the country and West Virginia has the worst. Being last on the list has consequences. The ILR is using television ads in West Virginia to "spotlight legislators for backing trial lawyers over ordinary people."
Tuesday, April 24, 2007
In Waste Services, Inc. v. Waste Management Inc., 2007 WL 1174116 (M.D.Fla 2007), U.S. Magistrate Judge Baker (whose report was adopted by Judge Conway) referenced the new federal rules on electronic-discovery as support for the notion that terms like "paper" in 28 U.S.C. section 1920 ought to be read broadly to include electronically stored information. I mention the opinion here because I think Magistrate Baker summarizes nicely technology's impact on modern litigation.
Although this particular statute has yet to be amended to reflect the realities of the digital age, the Federal Rules of Civil Procedure have recently undergone a major revision in this area, and issues of electronic discovery and evidence are being regularly presented to federal courts nationwide. Indeed, technology has led to major changes in the construction and design of courthouses themselves, with courtrooms being fitted with monitors and hardware to accommodate electronic presentation of evidence. It does not escape the Court's attention that the entire docket of this case has been electronically filed, and the briefs are nothing more than PDF files, existing so far as the Court is concerned, only in cyberspace.
Lest you think Magistrate Baker is as obsessed with electronic discovery as I have apparently become, he also cites the statutes of Gloucester and Henry VIII.
Monday, April 23, 2007
At the National Law Journal, Michael P. Shea writes about the Philip Morris case, which the Supreme Court will hear this Wednesday. The essay begins:
What does cigarette maker Philip Morris USA Inc. have in common with a 19th century customs officer who is sued by New England ship owners to prevent him from enforcing an embargo on trade with England during the War of 1812? ... If you are having trouble answering that question, you are not alone.
Howard Bashman predicts a 9-0 reversal. --RR
Friday, April 20, 2007
Today, in Jaskolski, the Seventh Circuit distinguished the Supreme Court's recent decision in Osborn v. Haley and dismissed an appeal from a Westfall-Act-related remand order under 1447(d). In Osborn, The Supreme Court held that in removed cases, once the Attorney General issues a scope-of-employment certification, a district court has no authority to remand the case, even if it rejects the certification. And such a remand is reviewable on appeal because the Westfall Act creates an exception to 1447(d) when the AG issues the certification. Jaskolski was also a state-court suit, but the AG refused to certify that defendants were acting in the scope of employment. Rather than certifying and removing, the AG refused to certify and removed under 28 U.S.C. s2679(d)(3) to allow the district court to review the refusal to certify. The district court agreed with the AG, remanded the case, and the defendants appealed. Writing for the court, Judge Easterbrook distinguished Osborn and wrote:
[Osborn drew a] distinction between removed cases in which the Attorney General issues a scope-of-employment certification and those in which he does not” In the former situation, §2679(d)(2) supersedes §1447(d) because the district court has no authority to remand, no matter what the judge thinks about the propriety of the certification. In the latter, remand follows from the decision that the person seeking certification is not entitled to it. The district judge’s authority to review the Attorney General’s non-certification decision under §2679(d)(3) includes authority (indeed, an obligation) to remand. The Court wrapped up: “Only in the extraordinary case in which Congress has ordered the intercourt shuttle to travel just one way—from state to federal court—does today’s decision [limiting the scope of §1447(d)] hold sway.”
When the Attorney General declines to make a scope-of-federal-employment certification, the case properly may move in both directions: to federal court for review of the decision, then back to state court if the district judge finds that the Attorney General acted within his discretion. The “extraordinary case” of a statute forbidding remand does not obtain. -RR
Thursday, April 19, 2007
Click the link at the bottom of this post to listen to this week's installment of the Thursday Interview. This weeks interview is with Prof. Jean Sternlight of the University of Nevada-Las Vegas about her essay, Separate and Not Equal: Integrating Civil Procedure and ADR in Legal Academia, published in the Notre Dame Law Review. In the age of the "vanishing trial," I think this interview and Jean's essay need the attention of all CivPro Profs. Many thanks to Jean for a great interview.
Wednesday, April 18, 2007
Last week, in Lowery v. Alabama Power Co., the Eleventh Circuit confronted a "matter of first impression" when it interpreted CAFA's mass action provisions. The court identified four requirements for an action to be deemed a mass action under CAFA:
(1) an amount in controversy requirement of an aggregate of $5,000,000 in claims; (2) a diversity requirement of minimal diversity; (3) a numerosity requirement that the action involve the monetary claims of 100 or more plaintiffs; and (4) a commonality requirement that the plaintiffs' claims involve common questions of law or fact.
In addition to setting out these four threshold requirements, the court also did some "interpretational heavy-lifting" when it addressed section 1332(d)(11)(B)(i), which provides, in pertinent part, that "jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a)." Section 1332(a) requires the amount in controversy to exceed $75 thousand. The Plaintiffs argued that, if any plaintiff's claim falls below the jurisdictional amount, the district court does not have subject matter jurisdiction over the case. The Defendants argued that the court need only remand those plaintiffs claims that fall below the jurisdictional amount.
The Eleventh Circuit sided with the Defendants' basic appraoch, but what should a district court do if the aggregate $5 million amount in controversy requirement or the 100 plaintiff numerosity requirement is no longer met after remanding those plaintiffs' claims who fall below the jurisdictional amount? The Eleventh Circuit followed the the Senate Judiciary Committee Report, which states:
If a mass action satisfies the criteria set forth in the section (that is, it involves the monetary relief claims of 100 or more persons that are proposed to be tried jointly on the ground that the claims involve common questions of law or fact and it meets the tests for federal diversity jurisdiction otherwise established by the legislation), it may be removed to a federal court, which is authorized to exercise jurisdiction over the action. Under the proviso, however, it is the Committee's intent that any claims that are included in the mass action that standing alone do not satisfy the jurisdictional amount requirements of section 1332(a) (currently $75,000), would be remanded to state court. Subsequent remands of individual claims not meeting the section 1332 jurisdictional amount requirement may take the action below the 100- plaintiff jurisdictional threshold or the $5 million aggregated jurisdictional amount requirement. However, so long as the mass action met the various jurisdictional requirements at the time of removal, it is the Committee's view that those subsequent remands should not extinguish federal diversity jurisdictional over the action.
The Court also decided that, where a defendant removes a case to federal district court under CAFA, the burden is on the defendant to establish jurisdiction. The court also determined that the defendant must establish jurisdiction by a preponderance of the evidence but did not seem happy about its decision.
We are bound to adhere to circuit precedent. Defendants must establish the jurisdictional amount by a preponderance of the evidence. We note, however, that in situations like the present one--where damages are unspecified and only the bare pleadings are available--we are at a loss as to how to apply the preponderance burden meaningfully. We have no evidence before us by which to make any informed assessment of the amount in controversy. All we have are the representations relating to jurisdiction in the notice of removal and the allegations of the plaintiffs' third amended complaint. As such, any attempt to engage in a preponderance of the evidence assessment at this juncture would necessarily amount to unabashed guesswork, and such speculation is frowned upon . . .
we conclude that the removal-remand scheme set forth in 28 U.S.C. §§ 1446(b) and 1447(c) requires that a court review the propriety of removal on the basis of the removing documents. If the jurisdictional amount is either stated clearly on the face of the documents before the court, or readily deducible from them, then the court has jurisdiction. If not, the court must remand. Under this approach, jurisdiction is either evident from the removing documents or remand is appropriate. Significantly, if a defendant can only carry the burden of establishing jurisdiction under these circumstances, then the defendant could have satisfied a far higher burden than preponderance of the evidence. Regardless, our precedent compels us to continue forcing this square peg into a round hole.
Despite the length of this post, I'm hardly scratching the surface of this opinion. I think CAFA is going to require a lot of posts for many years. I can't decide if I'm happy about that fact.
Tuesday, April 17, 2007
On September 7, Charleston School of Law will host a one-day symposium entitled "Punitive Damages, Due Process, and Deterrence: The Debate After Williams." The symposium will focus on the impact of the Supreme Court's decision in Philip Morris USA v. Williams and will include a distinguished list of speakers and panelists. Click the link at the bottom of this post for a copy of the program and a list of confirmed speakers and panelists. For even more information, you can contact Sheila B. Scheuerman, the conference organizer.
Monday, April 16, 2007
Last week was the first ever hearing of the Baylor Court of Appeals. Given the feedback from the lawyers and students involved, it won't be the last. This court had the typical players flipped. Instead of students arguing a mock case from a mock record with guest judges, the students were the ones in robes. The advocates were two local lawyers, one of whom is scheduled to argue this case before an appeals court soon. The other was a colleague who agreed to prepare the other side. The idea was to provide a testing ground to the lawyers that would simulate an important audience at the court of appeals and to expose the students to a real-life appeal, filled with procedural complexities and an obnoxiously voluminous record.
I drafted 6 students to handle the case. They were divided into 3 teams of 2, each team comprising one judge and one clerk. I selected 6 students who very closely resembled (in terms of aptitude and experience) the first people who will read the briefs in the appellate court: the clerks. The lawyers provided each team with a binder that contained the appellate briefing, the trial-court order, the excerpts of the record, and a CD with the rest of the record. Each team was instructed not to discuss the case with any other team, thus ensuring the panel would come to argument with different views of what is significant. I had an assistant who arranged for robes for the judges, videotaping, and other details. The lawyers brought a court reporter, and we recorded the argument.
The students dove in, and the results and educational experience were outstanding. The students learned, not only how to sort through the procedural and factual complexities, but also about the importance of making a record in the trial court. Also, lights continued to go one regarding what truly is persuasive to a decision-maker, since now they saw things from the other side. The lawyers raved about the preparation and insight. I will not hesitate to do it again if the opportunity arises. Of course the success depends upon talented and motivated students; but that's never lacking around here. Please do share any thoughts about similar experiences or ideas to improve the process we followed. --RR
Friday, April 13, 2007
Click the link at the bottom of this post to listen to this week's special Friday edition of the Thursday Interview. This week's interview is with Prof. Adam N. Steinman of the University of Cincinnati College of Law about his article "Reinventing Appellate Jurisdiction," which was the subject of a prior post here. Thanks to Adam for a great interview.
Thursday, April 12, 2007
At this link, Cornell's Legal Information Institute details the upcoming April 25th oral argument in Watson v. Philip Morris. The question presented to the Supreme Court is:
Whether a private actor doing no more than complying with federal regulation is a “person acting under a federal officer” for the purpose of 28 U.S.C. § 1442(a)(1), entitling the actor to remove to federal court a civil action brought in state court under state law.
Thanks to Benjamin Spencer for the heads up. -- RR
Tuesday, April 10, 2007
The result the 4th Circuit reached recently in Eddy v. Waffle House was not unexpected, but it's convoluted analysis of whether an error constituted reversible error seems to unnecessarily stretch collateral estoppel principles.
In Eddy, the plaintiffs were members of an extended family who alleged Waffle House refused them service because they were black. The claim arose after a Waffle House employee allegedly made a remark to Mark about not serving black people. Mark then communicated the remark to the other family members. The district court granted summary judgment to Waffle House on the other family members' claims, reasoning that since they did not actually hear the remark, they were not denied service. Mark's claim went to trial, where the jury rejected his claims.
The Fourth Circuit concluded that the district court wrongly granted summary judgment on the other family members' claims, reasoning quite sensibly that one would not expect family members to stay and dine if another member of the family had been denied service because of his race. In a sense, the family members' claims were derivative of Mark's claim, and at the summary-judgment stage, the district court had properly concluded that there was a genuine issue of material fact as to Mark's claim. So at this point, the Fourth Circuit is faced with a jury verdict rejecting Mark's claims, and a set of claims by his family members that were wrongly dismissed but that depended upon the same set of facts the jury rejected regarding Mark's claims. A liberally edited and condensed version of the Court's harmless-error analysis follows:
That, however, is not the end of our inquiry. In view of our deciding here that summary judgment was erroneous, we must inquire whether failure to do so was prejudicial or was harmless error.The defendant argues that even if the grant of summary judgment was in error, the error was harmless because the claims of Mrs. Lander and the Eddys are the same and based on identical facts as those of Mr. Lander, which were in turn fully tried to a jury. Thus, the argument goes, there is no need to allow a separate trial on the claims of Mrs. Lander and the Eddys, because all issues relevant to their claims have been heard and rejected by a jury. We agree and have considered almost exactly the same fact situation in Street, infra.
Generally,summary judgment can be affirmed on appeal only if the evidence available to the trial judge at the time he ruled on the motion established that there was no genuine issue of material fact. This case is extraordinary, however, in that the facts material to the [defendant's] liability were fully developed in the subsequent trial against Officer Surdyka. . In the case at bar, whatever facts may have been in dispute were resolved in the subsequent jury trial which absolved the defendant. In the ordinary situation, we apply the doctrine of collateral estoppel to bar relitigation of an issue that has already been judicially decided.
For collateral estoppel to apply, the proponent must establish that (1) the issue sought to be precluded is identical to one previously litigated; (2) the issue must have been actually determined in the prior proceeding; (3) determination of the issue was a critical and necessary part of the decision in the prior proceeding; (4) the prior judgment must be final and valid; and (5) the party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the previous forum. It is clear that criteria (1)-(4) are satisfied in this case. Certainly, whether or not the racist statement was actually made was central to the resolution of Mr. Lander's claim and is the very issue that would be litigated by Mrs. Lander and the Eddys. The only question is whether Mrs. Lander and the Eddys “had a full and fair opportunity to litigate the issue.”
*The Street case is persuasive, even if not controlling. It is on almost the same facts as the present case. *** The same logic holds with equal force in the present case. The evidence in the record at the time of summary judgment “as embellished and explained” by subsequent trial testimony, convinces us that a remand for trial on the Eddys' and Mrs. Lander's claim “would be to no avail.”
In reaching this conclusion, we are in agreement with the Ninth Circuit. In Jackson the Ninth Circuit faced a similar situation as that present here. ***The present facts are similar to the ones in Jackson. The “rights sought to be vindicated” by the Eddys and Mrs. Lander are the same as those of Mr. Lander. Both cases arose out of the same incident. All plaintiffs were represented by the same attorney. On these facts, we agree with the Ninth Circuit that the claims of the Eddys and Mrs. Lander should be barred.
Perhaps I'm missing something, but I might write:
An error is not reversible unless it has "some likelihood of affecting the result of the proceeding." The wrongly-rejected claims of the family members depended upon the same facts and issues Mark tried and lost. Had the claims gone to trial, the result would have been the same because the jury rejected the facts and issues on which their claims depended. Therefore, while the court wrongly granted summary judgment on the family members' claims, there is no likelihood that this grant affected the result, and therefore there is no reversible error. --RR
Monday, April 9, 2007
Maybe I'm becoming obsessed with electronic discovery in the wake of my interview with Judge Rosenthal, but we've had quite a lot of positive feedback (most of it from litigators) on the helpfulness of her interview so I thought a follow-up post with additional resources for all those struggling with the new federal rules might be in order. The Federal Judicial Center gathers lots of helpful information here, including a paper by Kenneth J Withers on the critical cases in the area. For federal court litigators anxious to get a handle on how judges will approach electronic discovery issues, you can check out a presentation at the National Workshop for U.S. Magistrate Judges and a copy of "Managing Discovery of Electronic Information: A Pocket Guide for Judges." For another view, click here for Professor Henry Noyes's article entitled Good Cause is Bad Medicine for the New E-Discovery Rules.
Friday, April 6, 2007
Appellate jurisdiction in the federal system is a mess. The current regime has been properly criticized for both its doctrinal incoherence and its procedural complexity, and the Supreme Court has failed to address these problems despite a consistent diet of cases raising issues of appellate jurisdiction. While the critiques of the current regime are well-founded, this Article reveals that as applied in practice, federal appellate courts have drawn sensible lines between interlocutory orders that are immediately subject to appellate review and those that are not. There is a limited category of interlocutory orders (primarily orders rejecting governmental and other immunities from suit) that are immediately appealable as of right. All other interlocutory orders are potentially eligible for discretionary appellate review, although such review is sparingly exercised. The doctrinal morass of the present framework - principally the collateral order doctrine and appellate mandamus - has obscured this basically sensible structure, and has led to unnecessarily complex and inefficient procedures for seeking appellate review of interlocutory orders. This Article proposes two new theories of appellate jurisdiction that preserve the current regime's pragmatic structure without its conceptual, doctrinal, and procedural problems. First, this Article argues that the All Writs Act authorizes discretionary appeals (not just writs of mandamus), and that this is a superior method for engaging in discretionary appellate review of interlocutory orders. Second, this Article argues that for the limited category of interlocutory orders over which appellate jurisdiction is mandatory, section 1292(a)'s provision of appellate jurisdiction over orders relating to injunctions provides a more coherent doctrinal foundation than the collateral order doctrine's awkward interpretation of the term final decision under section 1291.
Thursday, April 5, 2007
Click the link at the bottom of the post to listen to this week's installment of the Thursday Interview. This week's interview is with Judge Lee H. Rosenthal about the new federal rules on electronic discovery, which took effect on December 1, 2006. Judge Rosenthal is a United States District Judge for the Southern District of Texas and is the Chair of the Judicial Conference Advisory Committee on Civil Rules. Judge Rosenthal recently authored a seven-part series for the Yale Pocket Part on the new rules, which we featured here. She was kind enough to speak with us yesterday about "one of [her] favorite topics in the world." Many thanks to Judge Rosenthal for a great interview.
Wednesday, April 4, 2007
When you ask a question of a student, what kind of answer do you want? When I first started teaching just four years ago, I would have replied, "the correct answer, of course." Now, I say, "I want an answer that's wrong in a helpful way." The process of bringing the student from helpfully wrong to precisely right is, in my opinion, more valuable to the rest of the class than hearing the correct answer from a student the first time you ask the question. I can't give you a precise definition of "helpfully wrong," except to say that such an answer is usually the product of a talented student's valiant struggle with difficult and unfamiliar material.
Of course, the helpfully wrong answer is not the only kind of wrong answer. There's also what I call the "grinding halt" answer, named for what it does to the class. That's the answer where other students (ordinarily sympathetic to the person being questioned) do one or more of the following: turn and stare at the answering student, sigh loudly, bury their face in their hands, and/or roll their eyes. The grinding halt answer is the one that makes me wonder if I've just called upon a college freshman who got lost on the way to his American History seminar. It's the answer that flies in the face of every CivPro concept, rule, and doctrine with which the student ought to be familiar. As often as not, the grinding halt answer is a product of the student's fear of being called on, not a lack of aptitude or preparation.
Most students feel some anxiety the first time they are called on, but every so often I find a student who is paralyzed by fear. As a teacher, I struggle with this issue. I fear this fear. On the one hand, the student's anxiety at being called on may have no affect on test performance. On the other hand, isn't the paralyzing fear going to be a bigger problem for the student than not knowing some detail of the law of procedure?
Tuesday, April 3, 2007
Yesterday, in Ambrosia Coal v. Morales, the Eleventh Circuit held that a subsidiary's assignment of a claim to its parent does not give rise to a presumption of collusion under section 1359, at least where the assignee has "business purposes beyond the litigation of the assigned claims and is the real party in interest."
The opinion is worth mentioning here based on the importance of the holding, but it caught my attention for an entirely different reason. To support the notion that the motives of a transfer are irrelevant in determining whether an assignment is collusive, the Eleventh Circuit cites the Supreme Court's opinion in Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co.--the case you probably cover between Swift and Erie in your Civil Procedure class.
This citation struck me as extremely odd because, in Erie, I see the Supreme Court saying "mea culpa" for Swift, and the Court uses the Taxicab case to illustrate the extent of its culpa. The Taxicab case certainly does (or at least did) support the proposition for which the Eleventh Circuit cites it, but using the Taxicab case in such a way, to me, is like writing an opinion with a skeleton from the Supreme Court's closet. --Counseller
Monday, April 2, 2007
Today the Supreme Court decided Massachusetts v. EPA, holding that Massachusetts (because it's a State and all) gets to play by special Article III rules. Professor Jonathan H. Adler provides a thoughtful review here, which is titled after the following cites-removed passage from the Chief Justice's dissent:
Today’s decision recalls the previous high-water mark of diluted standing requirements, United States v. Students Challenging Regulatory Agency Procedures (SCRAP). SCRAP involved “[p]robably the most attenuated injury conferring Art. III standing” and “surely went to the very outer limit of the law”—until today. In SCRAP, the Court based an environmental group’s standing to challenge a railroad freight rate surcharge on the group’s allegation that increases in railroad rates would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods. According to the group, some of these resources might be taken from the Washington area,resulting in increased refuse that might find its way into area parks, harming the group’s members.
Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer’s game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today’s decision is SCRAP for a new generation.