Civil Procedure & Federal Courts Blog

Return to blogging

It's time to catch up on the reading list and return to blogging.  As I proceed through my list, I'll link to the decisions and articles I think will interest our readers.  For today, readers might be interested in the controversy regarding Pharma experts, disclosure, conflict of interest, and especially the discussion in the comments by Ted Frank.  And where do we look for controversy?  Here, of course. --RR

Prof. McMillan Posts New Article

The American Journal of Trial Advocacy recently published Prof. Lance McMillian's new article on frivolous litigation--The Nuisance Settlement 'Problem':  The Elusive Truth and a Clarifying Proposal. The article challenges the conventional wisdom that nuisance/frivolous litigation is a widespread problem.  It then proposes a test and procedural legislation for determining whether particular civil settlements are the product of nuisance filings and whether sanctions should be awarded against particular plaintiffs.--Counseller

Texas Questions World Court’s Jurisdiction

As reported on SCOTUSblog and the Wall Street Journal Law Blog, the World Court, also known as the International Court of Justice, ordered the U.S. to stop the execution of five Mexican nationals currently residing on Texas’ death row. This order comes after Texas and then the U.S. Supreme Court, in Medellin v. Texas, rebuffed a 2004 World Court order claiming that the executions were a violation of international law as Mexico contends that the its citizens were denied their rights under the Vienna Convention to be told, after their arrest and during their prosecution, that they had a right to consult with a diplomat from their own country. The World Court ordered the US to take “whatever means necessary” to halt the executions. The power of their order will soon be tested as the first execution is scheduled for August 5.

Click here to read the opinion, click here to read the press release summarizing the ruling, click here to read the post on SCOTUSblog and click here to read the post on Wall Street Journal Law Blog. –Counseller/jm

D.C. Council’s Response to Heller

As noted on SCOTUSblog, in response to D.C. v. Heller, the Washington, D.C., council recently made available the final versions of its new gun laws. View SCOTUSblog’s coverage and a link to the new laws here. –Counseller/eh

Why Potential Jurors Should not Curse Judges

How Appealing has recently posted an article entitled, “Woman Gives Judge Earful, Lands in Jail.”  This article discusses how a 23-year old woman called the presiding judge a two-syllable curse word in front of 178 potential jurors because she was denied her request for dismissal citing health reasons. She is upset because as she put it, “I didn’t know I would go to jail for freedom of speech.” --Counseller/md

Important Cases Denied Cert by the Supreme Court

SCOTUSblog recently added a post, The Grants That Got Away, which discusses how the Justices heard oral argument in 70 cases. This amount is fewer than any term in more than half a century. This post goes on to discuss the most interesting and important petitions that the Justices declined to grant during this light term. –Counseller/md

Exxon Uninterested in Interest

In further Exxon v. Baker news, as pointed out on SCOTUS Blog, the oil giant has asked the Supreme Court to forbid the class of fishermen and others harmed by the Exxon Valdez spill from collecting around $488 million in interest which has accrued on the now $507.5 million punitive damage award. Exxon claims that because the majority opinion failed to explicitly address whether the plaintiff’s were entitled to interest, the plaintiffs can't collect any. Click here to read Exxon’s filling and click here to read the article on SCOTUS blog. –Counseller/jm

5th Circuit Vacates Order of Monetary Sanctions

In Marlin v. Moody Nat. Bank, 2008 WL 2568823 (5th Cir. 2008), the Fifth Circuit held that a district court abused its discretion in ordering the plaintiffs to pay $640,000 in monetary sanctions because Fed. R. Civ. P. 11 was not followed. The district court erred in ordering sanctions when neither a motion had been filed nor a show cause order issued, and by imposing costs as “simple equity” rather than determining if Rule 11(b) had been violated. –Counseller/nc

Chat with Hazard Gillespie on WSJ law blog.

The folks over at the Wall Street Journal Law Blog recently interviewed Hazard Gillespie. Hazard, now 98, has worked at Davis Polk & Wardwell since cutting his teeth on Erie v. Tompkins as their first summer intern in 1934. Click here to read the full interview. –Counseller/jm

“The Era of Punitive Damages is Not Over”

Ted Frank writes this opinion piece in The Wall Street Journal discussing the recent Exxon decision reducing punitive damages and the effect of the Court’s 1:1 ratio. –Counseller/nc

6th Cir.: Tax Court Not “Court”

As noted on Tax Prof Blog and Federal Civil Practice Bulletin, The Sixth Circuit affirmed in Mobley v. Commissioner, No. 07-2019 (6 th Cir. July 08, 2008), that a Tax Court is not a “court” for purpose of 28 U.S.C. § 610 and thus lacked the authority to transfer a case to a federal district court to cure want of jurisdiction under 28 U.S.C. § 1631.

Click here to read the opinion. –Counseller/jm

Rhyme and Reason

As many of you may have already seen on the Wall Street Journal Law Blog, in response to a 465-page racketeering law suit filed in Washington State federal judge Ronald Leighton wrote this limerick:

Plaintiff has a great deal to say,

But it seems he skipped Rule 8(a).

His Complaint is too long,

Which renders it wrong,

Please rewrite and refile today.

Click here to read the full article. –Counseller/jm

2d Circuit and Renewal of Rule 50 Motion for Judgment as a Matter of Law.

As noted over at Federal Civil Practice Bulletin, the Second Circuit in Brady v. Wal-Mart Stores, Inc., --- F.3d ---, 2008 WL 259736 (2d Cir. July 02, 2008), discusses the prerequisites for a motion for judgment as a matter of law post verdict. In this matter, a jury awarded the appellee, Brady, $7.5 million. The court reduced the award to $900,000 and Brady appealed. In one point of error, Brady sought a reversal of the courts findings based on his claim that the Appellants had waived their right to move for judgment as a matter of law post verdict by failing to properly move for judgment as a matter of law at the close of all evidence pursuant to the standard set forth in Fed. R. Civ. P. 50. The court sided with the appellants holding that, “where a trial judge has indicated that renewing a previously made motion for judgment as a matter of law at the close of all the evidence was not necessary, and where the opposing party could not reasonably have thought that the motion was dropped, then judgment as a matter of law may be sought post verdict.”

Click here to read the full post over at Federal Civil Practice Bulletin and click here to read a copy of the opinion. –Counseller/jm

“Facial Challenges Are Out”

David G. Savage writes this article in July’s issue of the ABA Journal discussing the movement of civil rights cases in the Supreme Court. As he puts it: “Facial challenges are out. As-applied challenges are in.” Recent cases reveal that the Roberts court has placed a heavy burden of persuasion on plaintiffs seeking to have state laws ruled facially unconstitutional. –Counseller/nc

Justice Kennedy: “An Accident of History”?

David Broder writes an interesting article discussing the career of Justice Kennedy, his appointment to the Supreme Court, and his role as the Court’s “most influential member.”

The full article, which is posted on washingtonpost.com, can be read here. –Counseller/nc

5th Circuit Proposes Amendment Concerning Admission Fee to Practice

Click here to see the proposed amendment to Fifth Circuit Rule 46.1, concerning admission fees to practice in the Fifth Circuit. The proposed amendment seeks to increase the number of attorneys who are exempt from paying the admission fee. –Counseller/nc

The Supreme Court Limits the Mentally Ill’s Right of Self-Representation

The New York Times recently published an article entitled "Self-Representation by the Mentally Ill is Curbed," which can be accessed here, that discusses the 7-2 decision of Indiana v. Edwards. This ruling denies mentally ill defendants, who are nonetheless determined to be competent to stand trial, the right to dispense with a lawyer and represent themselves. The majority stated that judges could “take realistic account of the particular defendant’s mental capacity” and, deny the constitutional right of self-representation in the interest of achieving a fair trial.  --Counseller/md

Supreme Court Just as Divided as Ever

We recently posted a link to an article which noted the lack of 5-4 decisions on the Supreme Court this year as compared to last year. But, an article published Monday on SCOTUSblog looks at the overall statistics of the court and notes that this year, although the court did not have as many 5-4 decisions, the court was just as divisive as last year. As evidence, the two most notable decisions this term, Heller and Boumediene, the court was split 5-4.

The entire post is located here. 

Supreme Court Grants Cert in Foreign Property Attachment Case

The Federal Civil Practice bulletin has recently added a post, which can be access here, regarding the Supreme Court’s granting of cert. in Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi. This case involves a dispute between the Iranian Ministry of Defense and the holders of U.S. default judgments against Iran who want to execute their judgments or attach property located in the U.S. According to the BNA’s summary the question is, “Is an attachment against foreign sovereign property permissible when that property is ‘at issue in claims against the U.S. before an international tribunal,’ and the property is not a ‘blocked asset,’ under terms of the 2000 Victims of Trafficking and Violence Protection Act and 2002 Terrorism Risk Insurance Act?”  --Counseller/md

Class Actions and Hospital Bills

As noted by Law.com, the third circuit in DiCarlo v. St. Mary’s Hospital recently decided in a unanimous decision to reject a class action suit brought against the hospital by uninsured patients for price gouging. The court reasoned that dismissal was proper because in effect the plaintiffs were asking the courts to solve a political problem, namely the health care system. Click here to read the Third Circuit's opinion and click here to read the article on Law.com. –Counseller/jm