Sunday, June 7, 2009
Readers may be interested in a case currently pending before the Supreme Court called Reed Elsevier v. Muchnick. It’s a copyright case, but it raises neat civil procedure issues.
The case is a class action on behalf of authors who contributed works to print periodicals, which then entered into agreements to publish the authors’ works in electronic databases. The class sued the print publishers and electronic databases, claiming that the authors had not consented to reproduction in electronic publication. All parties entered into a settlement agreement that, in grossly simplified form, would provide monetary compensation in exchange for electronic publication.
The settlement purports to cover works that were timely registered with the Copyright Office (and thus entitled to statutory damages), those that were untimely registered, and those that were never registered. Objectors, led by Irvin Muchnick, a freelance writer covered by the class definition, argued that the settlement was unfair to authors of unregistered works and that the class representation was inadequate. The district court certified the class and approved the settlement over the objections. Muchnick and other objectors appealed.
And here is where the mundane copyright issues become subordinate to the sexy civil procedure issues. The Second Circuit, acting sua sponte, ordered briefing on whether the district court ever had subject-matter jurisdiction over the claims based on unregistered copyrights. Why? Well, 17 U.S.C. § 411(a) provides: “No action for infringement of the copyright in any United States work shall be instituted until . . . registration of the copyright claim has been made.” All parties, including objectors, argued that § 411(a) was nonjurisdictional and that its requirement had been waived. Nevertheless, a divided panel held that § 411(a) deprived the district court of subject-matter jurisdiction over unregistered works. The panel also held that the supplemental jurisdiction statute, 28 U.S.C. § 1367(a), does not permit supplemental jurisdiction over unregistered copyright claims even when joined with properly registered copyright claims.
The Supreme Court granted certiorari to review whether § 411(a) is jurisdictional and, because all parties challenged the Second Circuit’s holding, appointed an amica curiae (Ohio State’s Deborah Jones Merritt) to argue in support of the judgment.
The write-up on the case and all of the merits briefs challenging the judgment are here. Note that the amica’s brief has not yet been filed.
The case presents, in a nutshell, two jurisdictional questions that are prime fodder for civil proceduralists. First, does § 411(a) restrict the subject-matter jurisdiction of the federal courts—at least such that a district court cannot approve of a class action settlement resolving purported copyright claims for unregistered works? Second, if so, does the supplemental jurisdiction statute nevertheless allow the exercise of jurisdiction when unregistered copyright claims are joined with claims over which the district court does have independent subject-matter jurisdiction under § 411(a)?
The first implicates the mess that is jurisdiction, on which the Court has been fairly active in recent years, deciding cases such as Kontrick v. Ryan, Eberhart v. U.S., Scarborough v. Principi, Arbaugh v. Y&H Corp., Bowles v. Russell, and John R. Sand v. U.S. As I have written (somewhat extensively—see my papers here, here, here, here, and here, and my blog posts here and here), the Court’s pronouncements have failed to provide a clear framework for resolving jurisdictional characterization issues. My latest piece, entitled “Mandatory Rules” and published in Stanford Law Review last year, argues that some limitations could be formally nonjurisdictional but yet have jurisdictional functionalities, such as being immune to waiver. (That piece, along with another, was cited by the petitioners’ merits brief, though not for that proposition.)
The second implicates the extent to which the supplemental jurisdiction statute extends jurisdiction to claims that do not otherwise exist under state law. Thus, the question is somewhat different than that presented in Exxon Mobile v. Allapattah Services, in which the Court held that the supplemental jurisdiction statute extends jurisdiction to state claims that did not meet the amount-in-controversy requirement for diversity jurisdiction. The issue also implicates the meaning of § 1367(a)’s “except as otherwise expressly provided” language that might exempt a claim from supplemental jurisdiction.
-- Scott Dodson