Civil Procedure & Federal Courts Blog

Need a Federal Rule of Civil Procedure . . .

. . . There's an app for that!

~clf

9/11 Litigation: NY state law extends time for filing a notice of claim

Governor Patterson recently signed a bill that extends the time for filing a notice of claim against a municipality by one year for claims by 9/11 rescue and recovery workers.  As the New York Law Journal reports, this could expand the number of claims pending before Judge Alvin K. Hellerstein (S.D.N.Y) from 11,000 to nearly 14,000.  Although the bill is a New York State law, the bill will likely direct the cases to Judge Hellerstein's courtroom because of a 2001 federal statute, the ATSSSA (49 U.S.C. 40101 et seq.), which grants the Southern District of New York exclusive jurisdiction over cases arising out of the events of September 11th.*

RJE

*By way of shameless self-promotion, I have written extensively about the procedural aspects of the September 11th Litigation here and here.

Upcoming Supreme Court Argument: Reed Elsevier v. Muchnick (Wednesday 10/7)

First Wednesday brings another argument that may be of interest to our readers: Reed Elsevier v. Muchnick (No. 08-103). The question presented is:

Does 17 U.S.C. s. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?

The case revisits the ongoing problem of how to distinguish jurisdictional and non-jurisdictional requirements (see, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)), and may also examine the availability of supplemental jurisdiction (28 U.S.C. s. 1367).

The Supreme Court docket is here, and the Second Circuit's decision is at 509 F.3d 116 2d Cir. 2007). The procedural posture is somewhat unusual, as the briefs (courtesy of the ABA) indicate...

• Brief for Petitioners
• Brief for Respondents Pogrebin et al. in Support of Petitioners
• Brief for the Muchnick Respondents
• Amicus Brief for the American Intellectual Property Law Association in Support of Petitioner
• Amicus Brief by the Solicitor General in Support of Vacatur and Remand
• Amicus Brief for Publishers in Support of Reversal
• Amicus Brief for Court Appointed Attorney in Support of Judgment

Only the last amicus brief listed argues that the Second Circuit's judgment was correct.

For more detailed information, see SCOTUS Blog's wiki on the case; and LII's preview. As reported here, Justice Sotomayor has recused herself from this case.

--A

PS: See here for a preview of Monday's argument (10/5) in Mohawk Industries v. Carpenter.

Buxbaum on Personal Jurisdiction in Cross-Boarder Securities Litigation

Hannah L. Buxbaum of Indiana University School of Law has posted the article Personal Jurisdiction Over Foreign Directors in Cross-Border Securities Litigation on SSRN and forthcoming in the Journal of Corporation Law.

Abstract:     
Securities litigation against non-U.S. companies – on the rise over the past decade – forces U.S. courts to address a variety of procedural and jurisdictional issues. This article considers one such issue: the circumstances under which the directors of foreign companies that engage in U.S. securities markets may be subject to the personal jurisdiction of U.S. courts. It argues that jurisdictional standards are sometimes applied in a way that undermines the effectiveness of private litigation in enforcing director accountability norms. This result is particularly problematic in cases based upon a director’s failure to meet an accountability obligation expressly imposed upon it by statute. The article considers possible ways of resolving this tension, and ultimately advocates that courts adopt a two-part presumption: (1) In a claim against a foreign director based upon a corporate filing with respect to which Congress has expressly created a director accountability requirement, there should be a strong presumption that the director is subject to the personal jurisdiction of the U.S. court; and (2) In a claim against a foreign director based only upon allegations that the director failed to meet his or her oversight responsibilities over management, there should be a strong presumption that the director is not subject to the personal jurisdiction of the U.S. court. The article argues that these presumptions will satisfy the due-process protections embodied in jurisdictional law while bringing that law into better alignment with regulatory expectations regarding the responsibility of corporate directors for an issuer’s securities activity.

RJE

Update on Google Book Class Action, Proposed Settlement, and Postponed Fairness Hearing

Many have been following the federal class action lawsuit against Google: The Authors Guild, Inc. v. Google Inc., No. 05 CV 8136 (S.D.N.Y.). The suit was filed in 2005 by authors and publishers who alleged that Google's digital copies of copyrighted works constituted "massive copyright infringement."

The parties reached a settlement agreement last year, but that settlement has spawned even more controversy. It would create a "Book Rights Registry" that would (among other things) allow Google to sell digital versions of the books. The settlement (in the words of the New York Times) "has prompted dozens of opposing filings from individuals, rival companies like Amazon and Microsoft, advocacy organizations, groups representing authors and publishers and even some foreign governments."

The FRCP 23(e)(2) fairness hearing on the proposed settlement was originally scheduled for next Wednesday (10/7). Last week, U.S. District Judge Denny Chin ordered that the hearing be postponed in light of "ongoing negotiations with the Department of Justice that, according to plaintiffs, will result in significant changes to the existing settlement agreement." Instead, the court will hold a status conference "to determine how to proceed with the case as expeditiously as possible."

In addition to PACER, filings in the case can be accessed via Justia.

Google's website about the settlement is here. Wikipedia's entry is here.

(Hat Tip: Michael W. Carroll)

--A

Yung on Judicial Activism

Corey Rayburn Yung (The John Marshall Law School) has posted "Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals" as part of the Working Paper Series.  The abstract states:

Existing empirical scholarship about judicial activism has almost exclusively focused on the United States Supreme Court and actions by the judiciary that invalidate legislative, executive, and state actions. This article contends that such limitations give an extremely narrow, and potentially flawed, vision of activism and judicial decisionmaking. The Supreme Court is a less than ideal institution to study because the ever-shrinking docket of the Court creates small population sizes, the writ of certiorari process creates significant selection effects, the lack of restraints on Justices makes it difficult to identify a “correct” baseline to measure against, and the areas of law reviewed by the Court are quite limited. Studying the United States Courts of Appeals gives a fuller picture of activism, restraint, and decisionmaking among federal court judges. For the federal appellate courts, focusing on interbranch and intergovernmental actions offers little insight because cases involving such issues constitute a very small percentage of the overall docket. Instead, this article considers the activity that is the primary duty of such courts: reviewing the judgments of federal district courts.

Activism, at its core, is about judges elevating their judgment above other constitutionally significant actors when a formal model of the law would predict otherwise. By analyzing how individual judges respect both deferential and non-deferential standards of review of district court judgments, this study captures, in the aggregate, a judge’s privileging of his or her judgment above others. The study utilizes a newly created dataset which includes 7,516 cases and 22,548 judicial votes from 2008 cases in all eleven numbered circuits in which a standard of review was applied. The article finds that there is no statistically significant correlation between activism of judges and: (1) the political party of the appointing President; (2) the particular President who appointed the judge; (3) the ideology of the judge based upon common space scores; and (4) whether the majority of the Senate and the President were of the same party at the time of appointment. However, the study does find that individual judges and Courts of Appeals vary substantially in their levels of judicial activism in a statistically significant manner. Further, the study explores in greater detail the judicial activism measurements of four notable judges: Frank Easterbrook, Richard Posner, now Justice Sonia Sotomayor, and J. Harvie Wilkinson III.

~clf

Upcoming Supreme Court Argument: Mohawk Industries v. Carpenter (Monday 10/5)

Civil procedure will make a "First Monday" appearance in Mohawk Industries, Inc. v. Carpenter (No. 08-678). The question presented is:

Whether a party has an immediate appeal under the collateral order doctrine, as set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), of a district court's order finding waiver of the attorney-client privilege and compelling production of privileged materials.

The Supreme Court docket is here, and the Eleventh Circuit's decision is here. For the parties' merits briefs (courtesy of the ABA), see...

• Brief for Petitioner (Defendant)

• Brief for Respondent (Plaintiff)

• Reply Brief for Petitioner (Defendant)

There are also several amicus briefs. On the petitioner's side, see briefs by the ABA, US Chamber of Commerce, and DRI-The Voice of the Defense Bar. On the respondent's side, see briefs by the Solicitor General and by Former Article III Judges and Law Professors.

For more detailed information, see SCOTUS Blog's argument preview and wiki on the case.

For my own thoughts on the collateral order doctrine (and the appealability of interlocutory orders more generally), see Reinventing Appellate Jurisdiction, 48 Boston College L. Rev. 1237 (2007).

--A

Conference: Judicial Review in US/Canadian comparative perspective at SEALS

Procedure and fed courts folks might be interested in the following announcement for a panel at SEALS:

A U.S./Canada Comparative Law Workshop will be held at the SEALS 2010 Annual Meeting at the Breakers Resort in Palm Beach, Florida. The workshop will consist of four discussion sessions of two hours each, which will take place over two days during the SEALS annual meeting. Two of the sessions will focus on public international law issues, and two will focus on private international law matters.  The purpose of the discussion sessions is to facilitate roundtable discussion in a non-traditional, non-panel format.

The public law and private law discussion topics for this workshop are as follows.  Each topic is intentionally broad, so as to facilitate discussion from a variety of angles.

Public Law Topic:  Comparative U.S./Canadian Perspectives on Judicial Review and the Role of Courts in Enforcing Fundamental Human Rights.  Participants will consider the role of courts in enforcing constitutional norms, as well as the proper function of a constitutional court in a democratic polity. Relevant potential discussion paper topics might address, for example, the ways in which judicial review in the United States and Canada is similar (or different), whether the federal courts in both jurisdictions perceive their roles in similar ways, and the question (problem?) of institutional legitimacy, for example, does Bickel*s famous "countermajoritarian" problem have any transborder significance?  Other potential questions within the scope of this topic would include, but not be limited to, (1) whether the express grant of a power of judicial review matters or affects the strength of judicial review, (2) the proper role of courts  vis-à-vis the national legislature, (3) the question of *balancing* competing constitutional considerations, and (4) the appropriate role of foreign and international law in construing the scope and content of domestic human rights.  Papers should consider a topic related to the role and function of courts and judges in establishing and enforcing constitutional limitations on the more democratically accountable branches of government.

Private Law Topic:  Comparative U.S./Canadian Perspectives on Free Markets, Regulation, and the Government's Role in Responding to the Financial Crisis.  Participants will consider a broad range of U.S. and Canadian views on market regulation and the role of government in the
marketplace.  Relevant potential paper topics might address, for example, Canadian versus U.S. approaches to transnational and multilateral regulatory cooperation or harmonization,  considerations of federalism in market reform and regulation in each country, and the effect of U.S. and/or Canadian regulatory or deregulatory measures during the recent financial crisis (such as in the banking sector).  Other potential topics to be addressed might include, but not be limited to, (1) Canadian and U.S. perceptions regarding market operation and wealth redistribution policies, (2) comparative perspectives on labor market regulation, (3) proposals for greater transnational U.S.-Canada financial policy coordination, and (4) trans-border environmental considerations in market regulation.

Individuals wishing to participate in the discussion of either topic are invited to submit a brief discussion paper of approximately 5-10 pages on a subject of their choice.  Papers longer than 20 pages (double-spaced) will not be considered.  All papers will be reviewed, and accepted papers will be distributed to all workshop participants prior to SEALS 2010.  Accepted papers will not count for the SEALS "one panel rule," meaning that persons whose papers are accepted
still may participate as a panelist or moderator on another panel at SEALS 2010.

Papers must be received by Friday, January 22, 2010 in order to be considered.  Please submit papers by e-mail to Professor Greg Bowman (Mississippi College School of Law; visiting at West Virginia University in 2009-2010) at [email protected]. Submitted papers will be reviewed by
Mark Drumbl (Washington & Lee), Bruce Elman (Windsor), Mike Floyd (Samford), Ian Holloway (Western Ontario), Ron Krotoszynski (Alabama),and Greg Bowman.  Our plan is to try to publish these papers in a symposium format.

Space for participants is limited, so if you are interested in participating, please contact co-chairs Ron Krotoszynski ([email protected]; 205-348-0420) or Greg Bowman [email protected]; 601-906-4422).

RJE

Jenks on the Political Question Doctrine Applied to "Battlefield" Government Contractors

Chris Jenks (JAG) has posted "Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine" (forthcoming Berkley Journal of International Law) on SSRN.  The abstract states: 

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political question doctrine as a defense. The political question doctrine addresses whether the judiciary should review government action or decisions and yet contractors are asserting the doctrine in cases where the government is not a named party and has remained conspicuously silent. This article analyzes the confused application of the political question doctrine to battlefield related contractor tort litigation and proposes a methodology to bring clarity to future decisions. Absent a more rigid analytical approach by the judiciary and a change in the government's attitude, the confusion surrounding the political question doctrine and the inconsistency of its application to the inevitable future contractor cases will only grow.

~clf

The Honorable Jerry Buchmeyer (1933-2009)

U.S. District Judge Jerry Buchmeyer passed away this week. I was Judge Buchmeyer's law clerk a decade (or so) ago when he was the Chief Judge of the Northern District of Texas. While I won't detail here his impact as a jurist, or his many contributions to the legal community in Dallas, the State of Texas and beyond, I did want to take a moment to mark the passing of this remarkable man. His compassion, warmth and sense of humor were legendary. As an employer, mentor and friend, he was an inspiration.

But the thing I'm most thankful for is that, without Judge Buchmeyer, I would not have met my wife. She was trying to call another number in the courthouse, misdialed, and reached Judge Buchmeyer's chambers instead. I picked up the phone and the rest -- as they say -- is history.

Happy trails, Judge Buchmeyer. You'll be missed.

--A

PS: For additional coverage (which doesn't include the part about me meeting my wife), see Associated Press; Dallas Morning News; Ft. Worth Star-Telegram; The Conglomerate; Wall Street Journal Law Blog

Judicial Conference Approves Proposed FRCP Amendments

Last week, the Judicial Conference of the United States approved proposed amendments to Federal Rules of Civil Procedure 8, 26, and 56, and Illustrative Form 52. Also approved were amendments to the Appellate Rules (Rules 1, 4, and 29, and Form 4), Evidence Rule 804, and several Bankruptcy and Criminal Rules. The amendments "will be transmitted to the Supreme Court with a recommendation that they be approved and transmitted to Congress in accordance with the Rules Enabling Act."

In addition, the Judicial Conference approved a set of "Guidelines for Distinguishing Between Matters Appropriate for Standing Orders and Matters Appropriate for Local Rules and for Posting Standing Orders on a Court's Web Site."

More details are available in the September 2009 Report of the Judicial Conference's Committee on Rules of Practice and Procedure.

(Hat Tip: Federal Civil Practice Bulletin)

--A

 

Justice Ginsburg Hospitalized

SCOTUS Blog reports on Justice Ginsburg:

Justice Ruth Bader Ginsburg was hospitalized yesterday evening after she reportedly “developed light headedness and fatigue” while working in her chambers at the Court.  The New York Times and the Washington Post both characterized the Justice’s decision to be admitted to Washington Hospital Center as “a precaution.”  Ginsburg has indicated that she plans to stay on the Court for several years to come, and has kept up an active schedule of work and speaking engagements.  The Court’s official statement on her hospitalization is available here.

~clf

Prof. Bone on Iqbal

For some more recent commentary on Iqbal, check out this essay by Professor Robert Bone (Boston University), Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal (85 Notre Dame L. Rev., forthcoming) on SSRN. Here’s the abstract:

This Essay critically examines the Supreme Court’s most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), decided in May 2009. The essay supplements and extends the analysis in my recent article, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 874 (2009), which examined the Supreme Court’s seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this essay, I argue that Iqbal does much more than clarify and reinforce key points in Twombly; it takes Twombly’s plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a 'two-pronged approach' that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well-equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress.

(Hat tip: Larry Solum)

--A

Chase & Mustes on "'Acting' Judges and the Problem of Judicial Independence"

Oscar G. Chase (NYU) and George W. Mustes have posted "'Acting Judges and the Problem of Judicial Independence."  The abstract states: 

Contemporary threats to the independence of American judges have drawn critical comment from a variety of observers. In this spirit we describe and critique New York’s under-examined practice of using “Acting” Supreme Court Justices. These are judges serving on courts of inferior jurisdiction who are temporarily appointed to the Supreme Court of the State of New York, the state’s trial court of general jurisdiction. As the “Acting” title denotes, these appointees do not enjoy significant job security in their Supreme Court judgeships. While we focus here on the “Acting” judiciary of New York that state is not alone in using temporary judges and much of what we offer is relevant to other jurisdictions. We argue that both the possibility of an “Acting” appointment and the lack of any security in the position if appointed to it, create incentives to please appointing authorities that restrict independent decision making. We recommend that New York abandon the practice of “Acting” judicial appointments. Failing that we recommend making the process fairer and more transparent.

~clf

Hyman, Black, and Silver on the Impact of "Duty to Settle" on Settlement

David Hyman, Bernard Black, and Charles Silver have posted The Impact of the Duty to Settle" on Settlement: Evidence from Texas.

Abstract:
All insurance has coverage limits, and insurers usually control whether a case is settled or tried. If the insurer rejects a within-limits settlement offer, the risk of an above-limits verdict is borne by the insured. In response, virtually every state has enacted a “duty to settle,” which creates incentives for plaintiffs to make at-limits offers and for insurers to accept those offers where expected damages exceed limits. We study how the duty to settle affects claim duration and defense costs using detailed closed claims data from Texas for 1988-2005.

We find that medical malpractice cases against physicians that settle at limits close about five months faster than similar below-limits cases - a 20% reduction in time from suit filing to settlement, controlling for payout, type of harm, and other observable factors. At-limits cases also have substantially lower defense costs, controlling for case duration and complexity. It is difficult to obtain an at-limits payout without a lawyer. When there is an above-limits payout, it is primarily paid by the insurer. We find consistent results for other types of personal injury cases.

RJE

Court Budgets Are Tight All Over

Court clerks in Spain's Andalusa region now must take the bus instead of a taxi, their traditional mode of transportation, when they have to serve a summons. 

However, this money-saving strategy has significantly reduced efficiency.  Using taxis, a clerk can run about 20 judicial errands a day, but using the bus means only about seven or eight errands per day. The clerks complain that taking the bus is not only inconvenient and inefficient, but it is also unsafe.  "We have even had serious incidents of having to flee under gunfire," said Francisco Rueda, a court clerk and union leader. 

But, Andalusian Justice Minister Begona Alvarez chalked the resistance up to habit and said that the new bus rule is an appropriate response to a budgetary crisis.

The region's court system will soon benefit from a 600 million Euro plan to expand courts, hire more judges, and purchase more computers, but the money will come slowly over time and will not provide any immediate relief for the clerks' transportation woes.

For more information, see here.

~clf

New Articles on Sports and Procedure

Two recent articles posted on SSRN address the intersection of sports and procedure. 

Off-Court Misbehavior: Sports Leagues and Private Punishment by Janine Kim and Matthew Parlow at Marquette University School of Law focuses on criminal law and theory, but the emphasis on private disciplinary tribunals may be of interest to civil procedure folks, especially those of us who teach Rose v. Giamatti, 721 F. Supp. 906 (S.D.Ohio 1989).


Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review by Chad Oldfather and Matthew Fernholz, also of Marquette, uses the analogy of a judge as baseball umpire "as a vehicle for illustrating some general characteristics of a process of decisional review."

RJE

The Harshest Sanction of All?

Last week, in the case of Nault v. The Evangelical Lutheran Good Samaritan Foundation, No. 6:09-CV-1229 (M.D. Fla.), U.S. District Judge Gregory A. Presnell ordered that the plaintiff's attorney "shall re-read the Local Rules and the Federal Rules of Civil Procedure in their entirety."

The order was in response to an ill-conceived motion that the court found was, among other things, "riddled with unprofessional grammatical and typographical errors that nearly render the entire Motion incomprehensible."

(Hat Tip: Above the Law)

--A

Tasty solution to bitter discovery dispute

A federal judge has ordered a litigant who cursed at an adversary during a discovery dispute to take a CLE class in professionalism and to have dinner with his adversary.  One wonders if the judge picked up the tab. 

The Legal Intelligencer reports here. 

RJE

Hot off the Presses: Recent Publications of Interest

Following up on Cynthia's post earlier today, the St. Louis University Law Journal has published a symposium entitled Teaching Federal Courts. Here are some of the contributions (with a hat tip to the Current Index of Legal Periodicals):

Richard H. Fallon, Jr., Why and How to Teach Federal Courts Today, 53 St. Louis U. L.J. 693 (2009)

Michael J. Gerhardt, Teaching Federal Courts: Federal Judges as Problem Solvers, 53 St. Louis U. L.J. 729 (2009)

Roger Goldman, Why Law Students Should Take the Federal Courts Course, 53 St. Louis U. L.J. 745 (2009)

Arthur D. Hellman, Another Voice for the “Dialogue”: Federal Courts as a Litigation Course, 53 St. Louis U. L.J. 761 (2009)

Evan Tsen Lee, Federal Jurisdiction According to Professor Frankfurter, 53 St. Louis U. L.J. 779 (2009)

Laura E. Little, Teaching Federal Courts: From Bottom Line to Mystery, 53 St. Louis U. L.J. 797 (2009)

Richard A. Matasar, Teaching Federal Courts Where Outcomes Matter: A Curricular Conjecture, 53 St. Louis U. L.J. 807 (2009)

James E. Pfander, Triangulating Standing, 53 St. Louis U. L.J. 829 (2009)

Georgene Vairo, Why I Don’t Teach Federal Courts Anymore, but Maybe Am or Will Again, 53 St. Louis U. L.J. 843 (2009)

Michael L. Wells, A Litigation-Oriented Approach to Teaching Federal Courts, 53 St. Louis U. L.J. 857 (2009)

Other recent publications that may be of interest to our readers include:

William N. Eskridge, Jr. and John Ferejohn, Constitutional Horticulture: Deliberation-Respecting Judicial Review. 87 Tex. L. Rev. 1273 (2009)

Tom Ginsburg and Zachary Elkins, Ancillary Powers of Constitutional Courts, 87 Tex. L. Rev. 1431 (2009)

Miguel Schor, The Strange Cases of Marbury and Lochner in the Constitutional Imagination, 87 Tex. L. Rev. 1463 (2009)

Aaron Bernay, Finding the Nexus: Measuring Jurisdiction under the First Clause of the Commercial Activity exception to the Foreign Sovereign Immunities Act, 77 U. Cin. L. Rev. 1581 (2009)

--A