Thursday, November 29, 2007
On Tuesday, we summarized and linked to Drug and Device Law's discussion of Thomson v. Novartis. Apparently the forum-state-defendant issue discussed in Novartis is also the subject of other pending remand motions. See the update here. --RR
**Update: Beck and Herrmann note that the New Jersey State Judge was apparently unamused and link to an order the judge issued earlier today. Let's be candid, though, this practice is no more sinister than the other games that parties play. Preservice removal to secure a federal forum doesn't offend sensibilities any more than a plaintiff serving a fringe, local defendant to secure a state forum against the primary out-of-state defendants.
Wednesday, November 28, 2007
How many student cellphones have gone off in your classes? What do you do about it? Ignore it? Embarrass the student? When it happens, I think it's a real teaching moment. RR and I have taken to assigning the offending student a memo about the sanctions judges have imposed on lawyers whose cellphones have gone off in court. We may have to change our tactic because of this tidbit from NPR about a judge who went a bit too far in response to a cell phone ringing in court.--Counseller
Tuesday, November 27, 2007
Suppose complete diversity exists. The amount in controversy easily exceeds the jurisdictional amount. Yet, the plaintiff wants to keep the case in state court. The next step in the common forum-fight template is that the plaintiff sues in a forum of which at least one defendant is a citizen. It's commonplace: a forum-state-citizen defendant defeats removal. Or perhaps, as illustrated by James Beck and Mark Herrmann at Drug and Device Law, we should review 28 U.S.C. 1441(b) more carefully.
What if a defendant removes before the forum-state defendant has been served? What if a defendant monitors the docket and removes before any defendant (including the removing defendant and the forum-state defendant) has been served? 1441(b) only bars removal when a forum-state defendant has been "properly joined and served." Most folks reading that provision naturally think of fraudulent joinder -- of course we can disregard the citizenship of a jurisdiction killer who has been fraudulently joined to the lawsuit. But relying upon the plain language of the statute, several defendants have succeeded in using 1441(b) to defeat removal despite the presence of a not-fraudulently-joined forum-state defendant, by simply removing before that defendant has been served. Discussing the recent case, Thomson v. Novartis, Beck and Herrmann note:
We're not mentioning this case only because it's curious. It also has practical implications for drug companies. If your company is facing mass tort litigation -- and non-resident plaintiffs are running to sue you in your home state court, to prevent removal -- monitor your state court dockets. Remove diverse (but otherwise non-removable) cases before the plaintiffs serve the company. Presto! Federal jurisdiction in seemingly nonremovable cases.
Monday, November 26, 2007
As some of you might have noticed, it has been a while since I have written a Civil Procedure post. I don’t have a particularly compelling excuse to offer, except to say that I am a one L—a first semester law student whose finals are drawing quite near.
I am currently sitting in my room surrounded by my casebook, the Federal Rules of Civil Procedure and, of course, Example and Explanations. I need a break. I suppose I will take this opportunity to write about the thing that is constantly on my mind: the elusive outline. I’m not sure exactly when it started, but a couple of weeks ago a few of my classmates began casually asking each other, “How is the outline coming?” Since then, it has been a constant topic of conversation and a constant source of stress for me.
The first time I sat down to make my Civil Procedure outline I was armed only with the voluminous (and sometimes incoherent) notes I have taken this semester and my casebook. I worked for an hour or so before I realized I was really doing nothing more than copying my notes and adding in facts from the cases. Though I am still not entirely sure I understand how to outline well, I realized pretty quickly that what I was doing was not right.
On my second attempt, I tried to start very broadly. I thought about the class a whole and created headings that represented what I thought of as the major topics. Then I thought about each topic and tried to create subheadings from there. I attempted to do this primarily from memory, using the book and my notes as references rather than templates from which to copy. At first, I found this to be a useful exercise; it helped me begin to think about how the ideas we had discussed relate to each other. However, as I tried to move down another level of specificity, I found myself copying straight from the book and constantly rearranging my original categories. I realized I was not yet ready to synthesize the ideas on my own; I still had some learning left to do. This method may prove to be a useful way to test my understanding after I have completed an in-depth outline. However, it did not turn out to be a very useful way to produce an outline that will aid me during the exam.
Finally, I asked an upperclassman for advice. I was promptly presented with 4 outlines from “A” students who had taken Civil Procedure with my professor in the past. My first reaction upon opening these outlines was despair: most were over 100 pages and all seemed meticulously organized and utterly complete. I felt fortunate to have them, but terrified that somewhere my classmates were creating similar masterpieces from scratch. It produced one of those temporary but increasingly frequent moments of doubt when I am sure that I am missing some secret of law school that all my classmates know. Fortunately, I have, for the most part, been able to put this doubt aside as use these outlines as tools as I develop my own.
I have heard mixed opinions on whether it is a good idea to use other peoples’ outlines as templates, or whether it is always better to start from scratch. The jury is still out for me, but my opinion from halfway through the process is that, while having four outlines seems useful, I would rather use zero outlines than just one. I think that using just one outline would make it too easy to copy and paste without thinking about the material. On the other hand, working from 4 outlines, my notes, my casebook and E and E is truly forcing me to think about what is important and how things fit together.
Because I am mid-process I have no grand conclusions about outlining. Instead, I have a few questions about the process. First, I am not sure how much information about particular cases to put in my outline. I know I will not be asked to describe the facts of any particular case, but never having taken a law exam, I am not sure how helpful it will be to have key facts at hand so I can distinguish hypotheticals from cases we have discussed. Second, I do not know how I can make my outline more helpful in answering the theory and policy questions that, based on the way class has been structured, I assume will comprise a large part of my exam. I have been tempted to spend some time thinking and writing my thoughts about each issue as I outline it. My hope is that, if I have at least a few ideas jotted down, I will be less likely to freeze on the exam. However, I wonder if doing that wastes space and time.
Ultimately, I realize these questions may not matter. I’ve been told the exam period goes by so quickly that I will likely not have much time to look at my outline, but I try to block that thought out of my mind. I do this not so much because I am afraid to take an exam without an outline, but rather because I see how much trying to produce the perfect outline is benefiting me. I believe that whether or not I give it a single glance, the process of trying to produce an exam worthy outline is the best preparation for exams. So, I suppose I should get back to it. --Crash
Click here to find Crash's last post and links to all his previous posts.
Tuesday, November 20, 2007
American University Profs Stephen Vladeck and Amanda Frost are organizing a workshop for all junior Federal Courts professors (and aspiring Fed Courts teachers) to be hosted at American University Washington College of Law, on Friday, April 4, 2008. Please see the attached flyer for details and contact information. Download junior_faculty_workshop_flyer.pdf --RR
Monday, November 19, 2007
Parting ways with several other Courts of Appeals, the Federal Circuit recently decided that 28 U.S.C. § 1447(d) bars an appeal from a remand order based on declining supplemental jurisdiction under 28 U.S.C. § 1367(c). The Federal Circuit read the recent Powerex decision as undercutting the persuasive force of the contrary Court of Appeals decisions. After contrasting a § 1367(c) decline with abstention, the court summarized its reasoning:
In short, because every § 1367(c) remand necessarily involves a predicate finding that the claims at issue lack an independent basis of subject matter jurisdiction, a remand based on declining supplemental jurisdiction can be colorably characterized as a remand based on lack of subject matter jurisdiction. Accordingly, a remand based on declining supplemental jurisdiction must be considered within the class of remands described in § 1447(c) and thus barred from appellate review by § 1447(d).
It wouldn't be too surprising for the Supreme Court to take this case, given that it has twice noted the issue's unresolved status and that now a circuit split exists. --RR
Thursday, November 15, 2007
What kinds of conditions can a trial judge place on a forum non conveniens (FNC) dismissal? Essentially, the FNC inquiry asks whether the forum proposed by the defendant is more convenient than the one the plaintiff chose. Judges often condition dismissals on defendants agreeing to waive certain rights and defenses in the allegedly more convenient forum, such as personal jurisdiction or statute of limitations. Such conditions ensure that the plaintiff can sue in the alternate forum after dismissal.
In Texas and Washington, pending asbestos cases raise an interesting proper-condition issue as the lawyers strategize to avoid (and reach) the federal asbestos MDL. Both cases were filed in states with little connection to the lawsuit (but with enough connection to establish personal jurisdiction). The forums were chosen, not for convenience, but because of an important jurisdictional consideration: proper defendants were citizens of the plaintiffs’ chosen forums, thus preventing removal and transfer to the federal MDL. In both cases, the defendants moved to dismiss for FNC, arguing, quite sensibly, that where the plaintiff lived and was exposed to asbestos was a more convenient forum. No defendant was a citizen of the forums proposed to be more convenient. Thus, if the case were dismissed without condition, upon plaintiffs’ refiling in the more convenient forum, the defendants could remove and the case could end up in the federal MDL.
The same type of condition was considered in both cases. The Washington Court of Appeals remanded its case because the trial judge did not condition his FNC dismissal. There, the defendant pointed to Arkansas state court as a better forum. No one disagreed that Arkansas was better; but, if the plaintiff sued in Arkansas , the defendant could remove and ultimately reach the federal MDL court. The likelihood of removal troubled the trial judge due to the plaintiff’s terminal illness and the federal MDL’s reputation for delay. Nevertheless, he dismissed the case because he felt he could not speculate about the potential removal. The Court of Appeals reversed because the judge should have conditioned dismissal on the defendant’s consent to trial in Arkansas state court.
In a similar case pending before the Texas Supreme Court, the defendants proposed Maine as a better forum. Again, there was little dispute that Maine was better because the Plaintiff lived there and all exposure occurred there. But once again, if the case reached Maine, it would be removable and ultimately might reach the federal MDL court. When the trial judge asked the defendants to waive their removal rights, the defendants objected, arguing that the Supremacy Clause prohibited the judge from putting that choice to defendants. The judge then denied the motion to dismiss. Earlier in the case, the judge had described the federal MDL as a “black hole” where nothing ever happened.
Were these proper conditions to place on a FNC dismissal? The answer may depend on framing the question. It wouldn’t raise many eyebrows for a court to hold: When defendants propose an alternative forum as more convenient, a trial judge may condition an FNC dismissal upon the defendants’ agreement to try the case in the forum they propose as more convenient. Consider an alternative framing: A state judge may not require a defendant to waive his removal rights due to the state judge’s view that the federal court is an inadequate forum. The former seems sensible; the latter reflects Supremacy Clause concerns. Yet they are the same. --RR
- Watch yesterday’s argument before the Texas Supreme Court in In Re General Electric Co.
- The Washington Supreme Court has agreed to hear argument in the case mentioned above, Sales v. Weyerhaeuser, on November 29.
Tuesday, November 13, 2007
Over at PrawsBlawg Eduardo Penalver started a thread on exam writing. I thought it appropriate to drop my thoughts here.
My approach all semester has been to use Hypotheticals in nearly every class session. I've challenged my students to pull from the cases, and hypotheticals rules they can construct into an analytical framework. How well they've created a framework which requires them to analyze issues is what I seek to test them on.
So how will I do it? First, my format. I've told my students the final exam (which is open case and rule book and open self-prepared notes) will be some multiple choice, some short answer questions, some medium answer questions, and an issue spotter. I will test on law and the policies behind those laws, as we've discussed both throughout the year. In short, I'm going to test them on what I've taught.
So what can they expect, and why did I settle on this format? Well first, the multiple choice questions serve a good purpose for me--- they are a quick standardized way to distribute the curve. Second, the short answer questions will afford me an opportunity to test on narrow issues which don't lend themselves to integration into the issue spotter or the medium answer questions. The medium answer questions are designed to be expanded versions of the hypotheticals we covered in class. Finally the issue spotter helps me see how well they can tie together all of these disparate concepts.
What can they actually expect? Some of the questions will be nearly identical to those we covered in class. Some will be adaptations of those hypotheticals we covered in class. Finally, some will be questions premised upon issues we extensively discussed in class. Because I believe that law school exams have the potential to be extremely unfair, I'm trying to make my final as close to what we covered in class as possible. I don't want a student who prepared for every class, actively participated, took great notes and developed an analytical framework to walk out of my exam thinking "that was unfair, none of that looked like what we learned."
My big challenges are 1) with an open book exam how close to the hypos I covered in class do I want to go 2) how do I ensure that there is some differentiation in the scores and 3) how do I not assign so much that the students can't finish the exam. I don't want to test their ability to race, I want to test their ability to analyze, and an exam that is too long won't make for a fair assesment, whereas an exam that is too short won't sort itself out very well.
I'll let you know in a few weeks what I settled on, I anticipate it will be a busy few weeks.
Recently the Sixth and Ninth Circuits addressed issues related to the burden a defendant bears to establish that CAFA's amount in controversy requirement is met in cases removed to federal court. Check out Smith v. Nationwide Prop. & Cas. Ins. Co. from the Sixth Circuit (holding that defendant failed to establish it was "more likely than not" that the jurisdictional amount was met where in a contract case plaintiff specifically disclaimed punitive damages altogether and compensatory damages in excess of the jurisdictional amount) and take a look at Guglielmino v. McKee Foods Corp. from the Ninth Circuit (holding that the defendant must establish that the amount in controversy requirement is satisfied "by a preponderance of the evidence" where the plaintiffs move to remand and specifically plead that they seek damages less than the jurisdictional amount).--Counseller
Monday, November 12, 2007
Fulbright & Jaworski, LLP has released the results of its Fourth Annual Litigation Trends Survey. Each year the law firm commissions an independent research firm to survey senior corporate counsel (this year its US and UK counsel) on their opinions as to litigation trends and related matters. You can download the complete report here, but you'll find a few of its highlights below.--Counseller
--The number of lawsuits filed against companies in the survey is down from last year.
--Suits with more than $20 million at stake are on the rise
--27% of U.S. Companies believe that the new federal rules on e-discovery have made the problem more difficult.
Friday, November 9, 2007
As December 1 approaches, so too does the "restyling" of the federal rules. We first noted the amendments a few days after the Supreme Court approved the rules. Since then, we've linked to writings by Professors Dorf and Hartnett here, interviewed Hartnett, and interviewed Prof. Parker about his letter urging Congress to postpone the effectiveness of the amendments. Thanks to everyone who contributed on this topic, and especially to those who commented on an earlier draft of our essay, which now appears at Washington University's Slip Opinions: The Restyling of the Federal Rules of Civil Procedure: A Solution in Search of a Problem. --RR
Wednesday, November 7, 2007
On SSRN, Professor Debra Lyn Bassett recently posted a draft of Statutory Interpretation in the Context of Federal Jurisdiction. The abstract follows:
Recently the Supreme Court has suggested that despite the distinctive nature of jurisdictional statutes, such statutes implicate only traditional notions of statutory construction. Indeed, the Court's most recent jurisdictional statutory interpretation decision, Exxon Mobil Corp. v. Allapattah Services, Inc., seemed to suggest that there was nothing special about jurisdictional statutes. But, as this Article explains, this has not been, and is not, true.
The distinctive nature of federal jurisdiction statutes demands a more constitutionally-oriented interpretive approach - traditional methods of statutory interpretation are inadequate because they fail to take this unique character into account. Jurisdictional statutes are subject to unique interpretive difficulties not encountered in the judicial construction of ordinary congressional legislation. These unique interpretive difficulties necessitate a wider range of considerations in the jurisdictional arena, including the traditional rules of statutory construction plus the Constitution itself as an interpretive document - all the while being cognizant of the potential for separation of powers and conflict of interest issues. In short, this Article proposes that in approaching their tasks of statutory construction in this area involving the reach of their own powers, federal courts should be guided by rules as understood and informed by the gravitational pull of Article III, and saving constructions are inappropriate. I explore these interpretive issues in the specific context of the interpretation of the 1988 amendment to 1332 pertaining to permanent resident aliens - an odd and interesting provision that has generated three different interpretive results from the three circuit courts that have examined it, despite the unconstitutionality of the statute's unambiguous plain language.
The article, which will appear in the George Washington Law Review, is definitely worth the read. Prof. Bassett provides a very readable and thoughtful discussion of statutory interpretation in the jurisdictional context and of alienage jurisdiction. I do disagree, though, with her conclusion about the proper construction of the permanent-resident-alien provision in section 1332, as I noted recently in Consistent "Deeming": A Cohesive Construction of 28 U.S.C. s1332 in Cases Involving International Corporations and Permanent-Resident Aliens:
Two categories of alienage-jurisdiction cases have proven troublesome: cases involving permanent-resident aliens and cases involving international corporations. Jurisdiction in these categories depends upon the construction of 28 U.S.C. § 1332’s deeming provisions. The permanent-resident deeming provision and the corporate deeming provision operate uncontroversially to remove certain cases from federal jurisdiction, but controversy exists as to what extent they create jurisdiction that did not exist before the amendments that added the deeming provisions. The results and analytical approaches in these categories have varied, and the resulting confusion is unsatisfactory. The cases in this area are plagued by a structural flaw—while framing their analyses in terms of “clear” or “unambiguous” text, the courts have actually imposed no construction at all, instead jumping extra-textually to the what-would-Congress-have-wanted question. Further, courts faced with cases in each category have decided the cases without reference to the other category. My solution is a modest one but provides the consistency needed in a jurisdictional inquiry. I give the words “shall be deemed” a consistent construction in the two deeming provisions and resolve the missing-word problem that lurks in the background. Under my solution, the words “shall be deemed” perform a simple function in the deeming provisions—they confer State citizenship on certain litigants. But they do not strip a party of preexisting alien status. When construed this way and combined with the § 1332(a) jurisdiction-granting subcategories, the deeming provisions create no jurisdiction that did not exist before the deeming provisions.
This solution provides several benefits. First, it provides the consistency and coherence needed in a jurisdictional inquiry. Second, it is textually faithful and gives effect to similar language used in the deeming provisions and differing language used elsewhere in § 1332. Third, it avoids the constitutional problems that arise under alternative construction. To be sure, one might conjure up scenarios where, in the view of the conjurer, exercising jurisdiction would better serve the purposes of alienage jurisdiction. But those scenarios are rare, and desirability of results cannot distort the task—giving effect to the statute. Among permissible solutions, mine yields the best results. It simply is not accepted as an acceptable method of statutory interpretation that when no construction yields the construer’s desired result in every case, the statute need be given no construction except what Congress should have intended in each case.
Monday, November 5, 2007
Late last month the Fifth Circuit handed down In re Volkswagen of America Inc., an opinion in which the court reevaluates the appropriate weight to be given the plaintiff's choice of forum when deciding whether to make a 1404(a) transfer. The district court refused to transfer because the balance of public and private interest factors did not weigh substantially in favor of transfer. The Fifth Circuit found error in the trial court's analysis. Before saying that its "precedents have not been the model of clarity," the court of appeals said:
We agree, then, with the contention that the district court erred in requiring Volkswagen to show that the balance of convenience and justice substantially weighs in favor of transfer. Plaintiff's choice of forum is entitled to deference. Indeed, this deference establishes the burden that a moving party must meet in seeking a s 1404(a) transfer. But the appropriate standard for this burden is that established by Humble Oil. Namely, a party seeking a transfer "must show good cause." When viewed in the light of s 1404(a), to show good cause means that a party must demonstrate that a transfer is "for the convenience of parties and witnesses, in the interest of justice." When the transferee forum is no more convenient than the chosen forum, the plaintiff's choice should not be disturbed. When the transferee forum is clearly more convenient, a transfer should be ordered (emphasis added).
The Volkswagen decision was an appeal from the Eastern District of Texas, Marshall Division, which reminds me of this article last year in the New York Times about the little Texas town of Marshall--home of both the Fire Ant Festival and some of the most significant patent litigation in the world.--Counseller
Sunday, November 4, 2007
Well, it sure has been a busy few weeks on my end (I’m writing this on an airplane). This post is intended for the first time Civ Pro prof who is not yet in a tenure track position (all the VAP’s out there). One of the things I did not anticipate as a new professor, was just how much out of class prep time I would require.
Civil Procedure is one of my two new preps this semester, I’m also teaching a required upper level course. For each class session I spend approximately 4 hours prepping. My more experienced mentors informed me that I should expect to spend that much time preparing, but I didn’t believe them. Those of you reading this who are coming up on your first prep in Civ Pro (or any other class for that matter) take heed. Similarly, students reading this who think all professors do is show up and teach for 4-5 hours a week, bear this in mind: Your professor probably spends 4 hours preparing for each class session, that’s because they not only read the material which they’ve assigned, but they’re also reading other materials, developing examples, hypotheticals, slides, etc. 4.5 hours of teaching a week plus 12 hours of prep, just for one course. If they’re teaching another course, you can see how the prep time adds up. Factor in 3 hours a week answering student questions, maybe an hour (or more) for faculty and committee meetings, way too much time responding to emails, work shopping papers, trying to mentor students and help them in their career search, chatting with colleagues, blogging, plus attempting to engage in some scholarship, and very quickly the time seems to disappear.
Now let me be honest, the job is unbelievable, the work I’ve described above is intellectually challenging and overwhelmingly rewarding and it is the best job I’ve ever had in my life, and the best I think I ever will have. But juggling being the best professor one can be and developing an ambitious scholarly agenda is very difficult while prepping a course for the first time, let alone while prepping two new courses. I’m getting about 25% of the research done that I want to, and none of the writing! So I clearly did not anticipate the amount of time required for all of these tasks.
And I left out perhaps the biggest time drain in the middle of the fall semester--- the AALS Recruitment Market! Of course Sept-Oct was consumed with fretting over and worrying about getting interviews, then preparing for the interviews I was offered. This involved the time consuming task of researching each school in depth, cyberstalking the professors who will be interviewing me, researching the towns where the schools are located, reading the scholarship of all of the interviewers, and preparing for the actual interview questions (what’s your research agenda, what’s your ideal teaching package, tell us about article x that you wrote years ago, tell us about page __ in your book, etc. etc.). Plus the 4 days of the conference itself.
November is of course consumed by the call-back interviews. I was lucky enough to get 4 (some candidates out there with double digit call backs are probably laughing, but I consider 4 to be pretty lucky!). With that said, I don’t know how someone with double digit call backs who’s also teaching could possibly work that schedule out (nice problem to have). I have an interview a week through the end of November, and need to have my job talk polished. That’s in addition to prepping my classes (while I look elsewhere for work---weird). I know some may be tempted to shirk their teaching responsibilities at this stage of the game, however I can’t stomach the thought of half a$$ing my teaching when my students are shelling out as much cash as they are. No matter how self interested I may want to be, I’m trying to do it all and not let myself or anyone else down. It’s exhausting. Believe it or not, I’m actually looking forward to grading exams in the solitude of a Starbucks somewhere this December. First though, I need to write those exams!
New VAPs take heed, no matter how much you plan, it is tough to find enough time to do it all!
Friday, November 2, 2007
Click the link at the bottom of this post to listen to our interview with Peter J. Smith of George Washington University Law School about his article Jurisdiction and Textualism. Thanks to Peter for giving a great interview.--Counseller
As we mentioned here, some law firms are creating two tiers of associates in the wake of the latest round of associate pay hikes. The ABA Journal follows up its earlier report on the two-tiers of associates with this story about a law firm that is creating a "B Team" of associates who get paid less and can't make partner but work less than partnership-track associates.--Counseller