Thursday, June 26, 2008


The Court decided Heller, striking down D.C.'s ban.  Justice Scalia wrote for the five-person majority.   Click here to visit SCOTUSBlog, whose extensive coverage has already begun.   

Today was the final opinion day for the Court this term.  Am I wrong in observing that this seemed to be a slow term for decisions relating to jurisdiction and procedure?    --RR

June 26, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 24, 2008

Converting a Rule 12c motion to a rule 56 motion: Sensations Inc. v. City of Grand Rapids

In case you haven’t seen this yet on the Federal Civil Practice Bulletin, the Sixth Circuit recently decided  Sensations Inc. v. City of Grand Rapids. There, Plaintiffs-Appellants argued that by considering the legislative record attached to Defendants' motion, the district judge improperly converted a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) into a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Sixth Circuit had  previously held that a district court improperly converts a Rule 12(c) motion into a Rule 56 motion when the district judge merely “fail[s] to exclude presented outside evidence.”  In this case, however, the court held that the legislative record did not constitute such an external document because Sensations attached a copy of the ordinance to its complaint as Exhibit A.  Therefore, under Rule 10(c), the court treated the ordinance as part of the pleadings.

A more in-depth synopsis of this case can be found on the Federal Practice Bulletin here:

The case in full may be found here.  --Counseller/eh

June 24, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, June 20, 2008

An Eye For Personal Jurisdiction?

In Philips v. Prairie Eye Center, the First Circuit recently held that an eye treatment center did not meet the “minimum contacts” standard by negotiating an employment contract via e-mail with an eye doctor in the forum state.  When addressing “relatedness” in relation to a contract claim, the court looks at whether the defendant's activity in the forum state was instrumental either in the formation of the contract or its breach. Here, the court noted that negotiations by e-mail are inherently different from actually negotiating a contract in the forum state. Thus, the claim underlying the litigation did not directly arise out of, or relate to, the defendant's forum-state activities.--Counseller

June 20, 2008 | Permalink | Comments (1) | TrackBack (1)

Thursday, June 19, 2008

Republic of Philippines v. Pimentel and FRCP 19b

Last Thursday, the Supreme Court ruled on Republic of Philippines v. Pimentel, holding that Federal Rule of Civil Procedure Rule 19 required the dismissal of an interpleader in the absence of one of the parties, the Republic of the Philippines. Rule 19b provides that when a person that is required to be joined if feasible cannot be joined, the court must determine whether the action should proceed among the existing parties or should be dismissed. Rule 19b also gives a number of factors the court should consider. In this suit, the district court dismissed the Republic of the Philippines, and awarded the assets of the interpleader to another party. Here, the Court held that the Philippines would be prejudiced if the case were to proceed in its absence and further, no alternative remedies or forms of relief would be available that would lessen or eliminate the prejudice. The in depth recap of the opinion, brought to you by SCOTUS Blog can be found here:

More information about the case can be found here:


June 19, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 17, 2008

“Out of Bounds” — Bush Administration’s Executive Privilege Claims

On, David Iglesias posted an article titled “Out of Bounds – The Bush Administration’s Executive Privilege Claims Almost Make Watergate Look Like a Fond Memory.” To read the entire article discussing executive privilege claims, click here.  --Counseller/nc

June 17, 2008 | Permalink | Comments (0) | TrackBack (2)

E.D. Pa. Finds Claim Inadequately Pleaded under Twombly

In George v. American Baptist Churches USA, 2008 WL 226581, the Eastern District of Pennsylvania dismissed Plaintiff’s claim of discriminatory discipline. The only paragraph in the complaint which could possibly be read to state such a claim is paragraph 16, which states:

Defendant discriminated against [plaintiff] by denying her the same rights as are enjoyed by White employees with respect to the terms and conditions of her employment relationship with defendant and to the enjoyment of all benefits, privileges, terms, and conditions of that relationship, in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981, as amended.

After citing Twombly, the court found that this paragraph was inadequate to state a claim because it simply stated the legal standard and provided no factual detail to support the claim.  --Counseller/nc

June 17, 2008 | Permalink | Comments (0) | TrackBack (1)

Monday, June 16, 2008

2d Cir: Federal Magistrates Lack Power to Remand’s Mark Hamblett discusses the Williams v. Beemiller,, in his piece, “2nd Circuit Holds Magistrate Lacks Power to Remand.” In Williams, the Second Circuit challenges a federal magistrate’s power under 28 U.S.C. § 1447 to remand cases to state court. Click here to read Hamblett’s article and here to read the Second Circuit’s decision. –Counseller/jm

June 16, 2008 | Permalink | Comments (0) | TrackBack (2)

"Of Pre-Service Removals, Yet Again"

Over at Drug & Device Law, Beck and Herrmann note the latest development in a topic we've both been covering: removal games and 28 U.S.C. s1441(b)'s joined-and-served provision.  Click here to read today's DDL post;  click here to read our earlier, related posts; and click here to read the opinion inspiring today's post. --RR

June 16, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, June 13, 2008

5-4 Supreme Court Rulings Fade

The New York Times’ Linda Greenhouse recently worte a piece here about the absence of 5-to-4 decisions this term. A year ago at this time, the Supreme Court decided thirteen cases by a vote of 5-to-4, but so far this year, of the 35 cases decided with full opinions, only one yielded a 5-4 split. Greenhouse discusses some of the cases decided this term and some potential reasons for the lack of 5-to-4 decisions. –Counseller/md

June 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Pleading Civil Rights Claims Post-Conley

The Federal Civil Practice Bulletin recently posted an abstract from Professor A. Benjamin Spencer’s article, “Pleading Civil Rights Claims in the Post-Conley Era.”  Spencer (Washington & Lee) attempts to examine and distill the impact of Twombly on pleading standards the lower federal courts apply when scrutinizing civil rights claims. Twombly abrogated Conley v. Gibson’s “no set of facts” formulation and supplanted it with a new plausibility pleading standard. An abstract and full text version of this article can be accessed via SSRN by clicking here. –Counseller/md

June 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2008

Taylor v. Sturgell

In Taylor, the Supreme Court rejected the virtual-representation doctrine in the preclusion context and remanded for the lower court to determine whether plaintiff's suit was barred under established preclusion principles.

Taylor was the plaintiff in the second of two similar suits seeking injunctions under the Freedom of Information Act against the Federal Aviation Administration.  The first suit was brought by an individual named Herrick, who lost on the merits.  About one month after Herrick's judgment became final, Taylor requested the same information under the Act and requested an injunction when the FAA denied his request.  Taylor raised some arguments Herrick failed to make. 

Taylor and Herrick knew each other, and the lower courts held that their relationship rose to the level of "virtual representation."   They were friends and both antique airplane enthusiasts.  Taylor was the President of Antique Aircraft Association; Herrick was a member.  Taylor hired Herrick's lawyer.   While Taylor was not a party to the first suit, the lower court held that the final judgment on the merits against Herrick was claim preclusive of Taylor's suit because Herrick "virtually represented" Taylor.   

Before Taylor, the Supreme Court had never considered the virtual-representation doctrine by name, and the lower courts were split on its existence and definition.  Some lower courts had rejected it; some had accepted it, though in different multi-factor variations. Today, the Supreme Court rejected the doctrine by name--and in principle to the extent it precluded suits beyond the established grounds for nonparty preclusion. 

Typically, neither claim nor issue preclusion operates to preclude a person from litigating a claim or issue unless that person was a party to the proceeding that generated the preclusive judgment.  For issue preclusion, a party is not barred unless he has litigated and lost.  For claim preclusion, the bar against claim splitting only applies to a party to a judgment on the merits.  Due process and common-law preclusion principles generally give a person one day in court -- not two, and not zero.

In Taylor, writing for a unanimous Court, Justice Ginsburg does essentially three things.  She:  (1) lists the six established exceptions that can justify precluding a nonparty; (2) rejects virtual representation as a seventh category; and (3) remands the case to see if Taylor's suit fits one of the established categories (the 5th).

First, the Court notes the six established exceptions to precluding nonparties:

  1. A nonparty may agree to be bound to a judgment;
  2. A nonparty may be in privity with a party--in other words, there may be an existing substantive legal relationship between the two persons that justifies binding the nonparty to the party's judmgent;
  3. A nonparty may be adequately represented by a party acting in a representative capacity.  Adequate representation requires that the party and representative have aligned interests and EITHER (a) the representative capacity was understood; or (b) the deciding court took care to protect the interests of the nonparty.
  4. A nonparty may assume control over litigation to which he is not a formal party;
  5. If a party is bound by a judgment, the party may not use a representative or an agent to relitigate an adverse judgment.
  6. A special statutory scheme may foreclose successive litigation (this scheme, like any exception to nonparty preclusion, must satisfy the Due Process Clause).

Second, the Court examined its precedents and policy arguments, ultimately concluding that it need not and should not recognize virtual representation as a seventh exception.

Finally, the Court remanded so the lower courts could evaluate whether the fifth exception applied--that is, whether Taylor was acting as Herrick's "undisclosed agent" for relitigating.  The lower courts, understandably, were concerned about "tactical manuevering," which was one of the factors in the virtual-representation test.  But the Court instructed, on remand, that a "whiff of tactical maneuvering will not suffice; instead, principles of agency law are suggestive.  They indicate that preclusion is appropriate only if the putative agent's conduct of the suit is subject to the control of the party who is bound by the prior adjudication."   And because claim preclusion is an affirmative defense, the defendant must prove the existence of the agency relationship.

Justice Ginsburg's opinion strikes a sensible balance.  While wait-and-see games aren't efficient, there are disincentives to playing a Taylor game.  If the related suits are brought in the same jurisdiction, stare decisis operates like preclusion.  Offensive collateral estoppel (even if this weren't the government) is not available to game players.  The rules generally don't require compulsory joinder of plaintiffs, and the sustained efforts of the lower courts to use virtual representation to fill gaps had yielded tests that hardly promoted efficiency.  --RR

June 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Supreme Court disapproves "virtual representation."

Today, the Supreme Court decided Taylor v. Sturgell, which we earlier mentioned here .  Justice Ginsburg, writing for a unanimous Court, "disappove[d] the doctrine of preclusion by virtual reprsentation" and vacated the lower-court opinion.  More to come on this opinion.  --RR

June 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Interview with Bryan A. Garner

Sunday’s editions of The Dallas Morning News included an interview with Bryan A. Garner, author of The Art of Persuasion. Mr. Garner began interviewing eight of the nine Supreme Court justices on legal writing and advocacy two years ago and now uses those videotaped interviews at his legal seminars. He also collaborated with Justice Scalia on Making Your Case. To read the full interview with Mr. Garner regarding the art of advocacy, his book, and the insight he gained from Justice Scalia, click here. -–Counseller/nc

June 12, 2008 | Permalink | Comments (1) | TrackBack (2)

Court Will Review Punitive Damage Case for Third Time

The Supreme Court will review a $79.5 million punitive damages award against Philip Morris USA in a suit brought by the widow of a smoker who died of cancer in 1997.  With interest, the award has grown to about $145 million.  Philip Morris contends the Oregon state court refused to apply the Supreme Court’s most recent ruling which was a clear victory for the tobacco company.  The new appeal, Philip Morris USA v. Williams (07-1216), poses significant constitutional issues regarding the Court’s authority to have its ruling applied and a state court’s authority to manage its own state procedural rules.  For more on this issue, click here.--Counseller/nc

June 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 10, 2008

Jurors and Sudoku

This link needs little introduction:  The game's Up:  jurors playing Sudoku abort trial.

(Hat Tip to How Appealing)--RR

June 10, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, June 9, 2008

Judge or Jury

Last week, the Seventh Circuit decided Pavey v. Conley, a case worth reading for its analysis of whether judges or juries resolve disputed fact questions.  There,  a prisoner alleged excessive force in his s1983 claim.  Defendants answered, asserting that the prisoner failed to exhaust his administrative remedies.  The prisoner countered with an affidavit that stated he had been unable to exhaust those remedies because he was injured and because he was transferred to another prison.  Defendants and the prisoner disputed whether the judge or the jury resolved the factual issues relating to the defense of failure to exhaust administrative remedies.   The court held and explained (with citations omitted):

Not every factual issue that arises in the course of a litigation is triable to a jury as a matter of right, even if it is a suit at law (rather than in equity) within the meaning of the Seventh Amendment. The clearest example is subject-matter jurisdiction; often it turns on factual issues that may be genuinely debatable, but even if so the issues are resolved by the judge.  The same is true of factual issues relating to the defense of lack of personal jurisdiction or venue, though these defenses are not jurisdictional in the sense of requiring the judge to decide them even if the parties do not make an issue of them-and to motions to abstain in favor of another court, or an agency.  A decision to relinquish supplemental jurisdiction to the state courts, see 28 U.S.C. § 1367, is likewise made by the judge even if there are contestable factual questions bearing on the decision.

The generalization that emerges from these examples and others that might be given is that juries do not decide what forum a dispute is to be resolved in. Juries decide cases, not issues of judicial traffic control. Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the case or the prison authorities are to. In this case, should the defendants' contention that the prisoner inexcusably failed to file a timely grievance be sustained, he would no longer have any administrative remedies. But in many cases the only consequence of a failure to exhaust is that the prisoner must go back to the bottom rung of the administrative ladder; and in such a case one could envision a series of jury trials before there was a trial on the merits: a jury trial to decide exhaustion, a verdict finding that the prisoner had failed to exhaust, an administrative proceeding, the resumption of the litigation, and another jury trial on failure to exhaust. That distinguishes the issue of exhaustion from deadline issues that juries decide. A statute of limitations defense if successfully interposed ends the litigation rather than shunting it to another forum. If the defense is rejected, the case proceeds in the court in which it is filed.

A peculiarity of this case is a possible overlap between the factual issues relating to exhaustion and those relating to the merits of the excessive-force claim. The broken arm is of course germane to both, and while the fact that it was broken is conceded, the severity of the break could well be an issue common to both the allegedly inexcusable failure to exhaust and the excessiveness of the force that caused the break. By analogy to the cases that require that claims at law be decided before equitable claims when both types of claim are presented, so that the judge's decision on the latter does not preclude or otherwise affect the jury's determination of the former, we think that any finding that the judge makes, relating to exhaustion, that might affect the merits may be reexamined by the jury if-and only after-the prisoner overcomes the exhaustion defense and the case proceeds to the merits. The alternative of trying the merits before exhaustion, as under the Beacon Theatres line of cases, is unsatisfactory in the present setting because it would thwart Congress's effort to bar trials of prisoner cases in which the prisoner has failed to exhaust his administrative remedies.  A jury might decide the merits of a case that should never have gotten to the merits stage because the judge should have found that the prisoner had failed to exhaust his administrative remedies.

The sequence to be followed in a case in which exhaustion is contested is therefore as follows: (1) The district judge conducts a hearing on exhaustion and permits whatever discovery relating to exhaustion (and only to exhaustion) he deems appropriate. (2) If the judge determines that the prisoner did not exhaust his administrative remedies, he will then determine whether (a) the plaintiff has unexhausted remedies, and so he must go back and exhaust; (b) or, although he has no unexhausted remedies, the failure to exhaust was innocent (as where prison officials prevent a prisoner from exhausting his remedies), in which event he will be allowed to go back and exhaust; or (c) the failure to exhaust was the prisoner's fault, in which event the case is over. (3) If and when the judge determines that the prisoner has properly exhausted his administrative remedies, the case will proceed to pretrial discovery, and if necessary a trial, on the merits; and if there is a jury trial, the jury will make all necessary findings of fact without being bound by (or even informed of) any of the findings made by the district judge in determining that the prisoner had exhausted his administrative remedies.

We emphasize that discovery with respect to the merits must not be begun until the issue of exhaustion is resolved. If merits discovery is allowed to begin before that resolution, the statutory goal of sparing federal courts the burden of prisoner litigation until and unless the prisoner has exhausted his administrative remedies will be thwarted.


June 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, June 6, 2008

E-Discovery: waivers and key words

Click here to read a recent ABA Journal article about waiving privilege in E-discovery by using untested key words.  The article begins: "A federal magistrate in Baltimore has ruled a company sued for infringement has no attorney-client privilege in 165 documents mistakenly turned over to its opponent in e-discovery."  --RR

June 6, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2008

Longhorn Justice

Check out the following order.   --RR

June 5, 2008 | Permalink | Comments (1) | TrackBack (0)

Monday, June 2, 2008

Chat With Scalia on WSJ law Blog:

As part of our ongoing coverage of the Scalia media blitz, I wanted to point out that at the Wall Street Journal Law Blog there's a Q and A with Justice Scalia. Part one is on “Knowing your audience, and Italian fare” while Part two discusses Scalia’s “Master of the Dissent” moniker.--Counseller/jm

June 2, 2008 | Permalink | Comments (0) | TrackBack (0)