Civil Procedure & Federal Courts Blog

First Time CivPro Prof--Why Blog?

To begin, I’d like to thank Jeremy and Rory for allowing me to blog here during my first semester teaching Civil Procedure.

Obviously with a first prep (not only in Civ Pro, but also in another course this semester) some may wonder why I’m taking the time to blog about my experiences.  In fact a select few colleagues and mentors who are aware of my blogging here have posed that exact question to me. 

First, there is a personal benefit --it’s a guaranteed opportunity for me to sit down and reflect on the week, to benchmark my progress and the progress of my students and to use that reflection as a means to improve next week’s lessons.  With such obvious introspection out there for the world to see, we’ve decided that a pseudonym would be best.  I chose Alex Aebutian, a somewhat roundabout reference to the ancient Roman procedure and its evolution which allowed judges to devise a simpler form of procedure for existing causes of action, develop new causes of action, and develop written opinions on issues.  Civ Pro nerdy, but that’s what we’re here for!

In describing the second reason for blogging here, well I’m thinking of current first-time Civ Pro profs and future first-timers.  I’m reminded of the Will Allen Dromgoole poem, “The Bridge Builder”:

An old man, going a lone highway, Came, at the evening, cold and gray, To a chasm, vast, and deep, and wide.

The old man crossed in the twilight dim; The sullen stream had no fear for him; But he turned, when safe on the other side, And built a bridge to span the tide.

"Old man," said a fellow pilgrim, near, "You are wasting strength with building here; Your journey will end with the ending day; You never again will pass this way; You've crossed the chasm, deep and wide- Why build you this bridge at the evening tide?"

The builder lifted his old gray head: "Good friend, in the path I have come," he said, "There followeth after me today, A youth, whose feet must pass this way.

This chasm, that has been naught to me, To that fair-haired youth may a pitfall be. He, too, must cross in the twilight dim; Good friend, I am building this bridge for him."

So, this is my way of paying it forward and building a bridge for future first-timers, I hope I’m able to share some experiences which will prove helpful to them.  In the coming days I will address how I chose my case book, supplemental material, developed my syllabus and how Week 1 went. 

We’ll keep comments open, and I’m hopeful you will weigh in with your thoughts!  ---Alex Aebutian

This Week With Prof. Alex Aebutian

I am pleased to introduce a new regular feature on the Civil Procedure Prof Blog, which we are calling This Week with Prof. Alex Aebutian. Prof. Aebutian (a pseudonym) is teaching Civil Procedure for the first time at a well-known U.S. law school.  Each week he will post about his classroom experiences.  He'll discuss everything from selecting a casebook to creating a Civil Procedure exam.  Along the way, we'll hear straight talk about his triumphs and mistakes in the classroom.  We're hoping this feature will help and encourage all Civ Pro Profs out there, but especially those who are new to the game.  Be on the look out for Prof. A's first post later in the week.  Welcome, Prof. A.--Counseller

Bowles v. Russell Dialogue

Scott Dodson, a frequent contributor to this site, recently wrote about Bowles v. Russell in the Northwestern University Colloquy (SSRN link here).  (Our previous coverage of the case appears here and here.) Elizabeth Chamblee Burch, Prof. at Cumberland,  has a response that is forthcoming in the Colloquy and that is available now on SSRN.  If you want to add to their dialogue, leave a comment below. --RR

10th Circuit on Preclusion and Compulsory Counterclaims

The 10th Circuit recently decided an interesting preclusion case, Valley View Angus Ranch v. Duke Energy (August 8, 2007).   Duke sued Valley View in state court.  Valley view asserted defenses, but no counterclaims.  Valley View then filed a related suit against Duke in federal court.  Duke won in state court and moved for summary judgment in the federal suit contending that Valley View's federal claims were barred by the doctrines of claim and issue preclusion.  The district court agreed and granted Duke's motion.  The 10th Circuit reversed.  Several relevant passages are highlighted below, where the court explores the relationship between compulsory counterclaims and preclusion:

     The typical claim preclusion scenario unfolds as follows:  A plaintiff files suit against a defendant based on a particular transaction and the suit proceeds to a judgment.  The plaintiff then files a second action against the same defendant based on the same transaction.  The plaintiff's second action would be barred under claim preclusion regardless of the theories raised in the second lawsuit. FN5

FN5: The same preclusive result would occur where the defendant asserts a counterclaim against the plaintiff in the first action and then attempts to bring a subsequent action against the plaintiff based on the same transaction forming the basis of its counterclaim.  Wright & Miller, 18 Federal Practice and Procedure § 4414.

     These rules do not apply to the situation where, as here, a plaintiff (Duke) files suit against a defendant (Valley View) based on a particular transaction (the refusal to allow Duke entry to its easement).  The defendant (Valley View) raises a defense and the suit proceeds to judgment. The defendant (Valley View) then files an action against the plaintiff (Duke) based on the same facts forming the basis of its defense in the prior suit.  In such a situation, the defendant's claims in the subsequent action are not precluded unless (1) the defendant's success in the latter action would nullify the original judgment or impair the rights established in the original action or (2) a statute required the defendant to bring his claims in the original action.  See Meyer v. Vance, 406 P.2d 996, 999 (Okla. 1965); Restatement (Second) of Judgments § 22 (1982) (Restatement); Wright & Miller, 18 Federal Practice and Procedure § 4414 ("Apart from compulsory counterclaim rules, . . . the traditional conclusion has been that purely defensive use of a theory does not preclude a later action for affirmative recovery on the same theory.").  The rationale for the general rule applying to defendants who elected not to assert a counterclaim in the prior action is that "the defendant should not be required to assert his claim in the forum or the proceeding chosen by the plaintiff but should be allowed to bring suit at a time and place of his own selection."  Restatement § 22 cmt. a.   

     Thus, the proper analysis is 1) whether Valley View's success in its federal action would nullify the state judgment or impair the rights established in the state action or 2) a statute required Valley View to bring its federal claims in the state action as counterclaims.

The court held that neither of the two claim-preclusion rules applied, and that the identical issues were not actually litigated and decided for issue-preclusion purposes.  (edited for readability without notation)-- RR

Duplicative Litigation

Two recent abstention cases of note:

First, yesterday in Amerisourcebergen Corporation v. Roden, the 9th Circuit reversed the district court's decision to abstain under Younger v. Harris.  The case provides a thoughtful discussion of Younger and parallel proceedings.  It  begins:

We explore once again the sometimes complex relationship between state and federal civil proceedings when parties in the midst of litigation on one side of the divide file factually related proceedings on the other. Understandably concerned with judicial economy and respect for ongoing state proceedings, the district court dismissed the federal suit under the Younger abstention doctrine.

In a second recent abstention case involving parallel proceedings, a district court decided to stay litigation in favor of the state proceedings.  Craggs Construction Co. v. Federal Insurance Co., 2007 WL 1452938 (May 15, 2007).  Ordinarily, the Colorado River doctrine, requiring "exceptional circumstances" and providing a multifactor balancing test, severely limits the circumstances in which a federal court can abstain in favor of state proceedings.  When reading Craggs, I was surprised at the following statement that the Colorado River test doesn't apply when the court is only asked to stay proceedings pending the resolution of the state case:

This six-factor balancing test is only to be applied when a federal court is considering whether to dismiss an action (through abstention from the exercise of federal jurisdiction) because of parallel state court litigation, however. Dismissal is not the action this Court is taking through granting a stay in this case. As Plaintiff points out, if Plaintiff receives a defense verdict on [its]€™ claims then Defendant will owe no damages to Plaintiff and no trial in this federal action will be necessary.  Staying this case is simply a matter of using judicial resources (both state and federal) most appropriately. As the present suit could be mooted by the outcome in the related state trial, this Court finds it more than proper to grant a stay at this time.

This district court, like the one reversed in Amerisourcebergen above, was trying to craft a solution to the problem created by duplicative litigation and the Supreme Court's adherence to the principle that federal courts have a virtually unflagging obligation to exercise conferred jurisdiction.  This distinction, though, seems to have been tried and rejected in the Supreme Court long ago, in Moses H. Cone Memorial Hospital v. Mercury Construction Co :

    The Hospital argues that the Colorado River test is somehow inapplicable because in this case the District Court merely stayed the federal litigation rather than dismissing the suit outright, as in Colorado River. It contends that Mercury remains free to seek to reopen the federal suit on a showing that the state suit has failed to adjudicate its rights, and that a stay is less onerous than a dismissal. We have already rejected this distinction....

We have no occasion in this case to decide whether a dismissal or a stay should ordinarily be the preferred course of action when a district court properly finds that Colorado River counsels in favor of deferring to a parallel state-court suit. We can say, however, that a stay is as much a refusal to exercise federal jurisdiction as a dismissal. When a district court decides to dismiss or stay under Colorado River, it presumably concludes that the parallel state-court litigation will be an adequate vehicle for the complete and prompt resolution of the issues between the parties. If there is any substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal at all.  Thus, the decision to invoke Colorado River necessarily contemplates that the federal court will have nothing further to do in resolving any substantive part of the case, whether it stays or dismisses. [Also see Wilton v. Seven Falls 515 U.S. 277, 281 (describing the test articulated in Colorado River and Moses H. Cone as requiring courts to point to "exceptional circumstances to justify staying or dismissing federal proceedings."]

A quick citation check on Colorado River reveals just how frequently this situation arises.  Appeals courts continue to follow the Supreme Court guidance that only truly "exceptional circumstances" justify abstention in favor of parallel state proceedings under Colorado River.  It's natural to assume that identical simultaneous lawsuits constitute exceptional circumstances, but that is not so -- instead, the existence of such lawsuits is the trigger for the exceptional-circumstances test. (In fact, the Fifth Circuit has never approved a stay or dismissal under Colorado River abstention).  Concurring in the Ninth Circuit's decision yesterday, Judge Ferguson aptly noted that the solution must come from the legislature:

    The majority is correct that current abstention doctrine mandates a reversal, but this case presents a problem that requires a larger solution. Although the Colorado River doctrine does not provide a basis for the dismissal below, its underlying principle of wise judicial administration counsels in favor of permitting a stay. The first-to-file rule, crafted in the interest of judicial economy, allows a federal district court to stay a proceeding where another matter involving the same issues and parties is already pending before a different district court. Similarly, where the first suit was filed in a state court and the second suit is a diversity jurisdiction case with no federal question at issue, I believe the federal court should maintain the discretion to stay its proceeding pending the outcome in the state forum. Absent legislation to that effect, however, I must concur.

Also see Martin H. Redish, Intersystemic Redundancy and Federal Court Power:  Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 Notre Dame Law Review 1347 (May 2000). Quotations have been edited for readability -- RR

A few links

A few items of recent note:

• The Fourth Circuit recently issued a decision applying the relitigation exception to the Anti-Injunction Act in Bryan v. Bellsouth Communications, Inc.  Bryan follows the same two-bites-at-the-apple approach I noted in an earlier post, and is subject to the same criticisms.  although in a reversed-remand scenario that raised different comity concerns.

• Professor Lonnie Hoffman has posted an article on SSRN entitled Burdens of Jurisdictional Proof. The abstract follows:

• Having passed the most significant legislative reform of complex litigation in American history, advocates of the Class Action Fairness Act have now set their sights on more technical battles of statutory interpretation and application. One of the most important post-enactment questions with regard to CAFA concerns the burden of jurisdictional proof. In the broadest sense, the issue is who bears the burden of proving the existence (or nonexistence) of the federal district court's subject matter jurisdiction under the new statute. Traditionally, the party who desires to maintain the suit in federal court always has had the obligation of demonstrating the court's authority to hear the case. Shifting the burden so that the other side (which, as a practical matter, means shifting the burden to the plaintiff, since a challenge to the federal court's authority occurs most often after the defendant has removed the case from state court and the plaintiff has asked that it be moved back) to prove that federal jurisdiction is lacking constitutes a sea-change of enormous proportions. Yet, this is exactly what the vast majority of courts—and every circuit court to consider the question—has found Congress intended. In this paper, I describe (in Part I) how a statute that is entirely silent on the question of jurisdictional proof under CAFA has come to spawn two different burden of proof debates, producing, most remarkably, two opposing answers. In Part II, I then consider all of the arguments credited by courts that have adjudged Congress intended to shift the burden of proof onto the party opposing federal jurisdiction. I will endeavor to show that these arguments rest on a number of highly suspect doctrinal and empirical assumptions. Against the prevailing view, I argue that there are sound reasons to conclude that CAFA does not shift any of the burden of jurisdictional proof from the party who desires to maintain the suit in federal court.

• Finally,  two of our colleagues have joined the Law Professor Blogs  Network.  Welcome to Larry Bates and Kristin Simpson at the Secured Credit Blog.   --RR

Recent Scholarship

First, Jeremy and I would like to thank Scott for contributing this past month.  Scott, you're always welcome back.  If anyone else is interesting in a guest gig, e-mail us. 

As the summer winds up, I hope readers will help us keep up with the significant scholarship appearing on SSRN or elsewhere.  (Shameless plugs for your own pieces are encouraged.) Three pieces I've seen recently warrant a read.   The first two relate to Bell Atlantic v. Twombly, a case not unfamiliar to this blog.  First, Scott Dodson, recently published Pleading Standards after Bell Atlantic v. Twombly in the Virginia Law Review in Brief.  Second, Benjamin Spencer, author of the Federal Civil Practice Bulletin, posted Plausibility  Pleading on SSRN.  And the third is by a newcomer to Case Western Reserve, Cassandra Burke Robertson: Reviewing Jury Verdicts in Federal Court: The Overlooked  Distinction between the Sufficiency and Weight of the Evidence.  --RR