Civil Procedure & Federal Courts Blog

New Journal: Stanford Journal of Complex Litigation

The editors of the newly minted Stanford Journal of Complex Litigation have asked us to post their launch announcment.  We are looking forward to seeing the material that they publish!

We are proud to announce the founding of the Stanford Journal of Complex Litigation (SJCL). Beginning in the 2012-2013 academic year, SJCL will publish articles and essays that are timely and make a significant, original contribution to the field of complex litigation. We are currently seeking article and essay manuscripts on a range of topics including the rules of civil procedure, aggregate litigation, mass torts, jurisdictional disputes, complex litigation reform, actions by private attorneys general, and transnational litigation.

 

We hope you will consider publishing with SJCL for a few reasons:

 

·         Specialization: SJCL is the first student-edited journal devoted exclusively to topics relating to complex litigation. Publishing with SJCL will ensure your important contribution will be read within the broader field it is engaging. SJCL will serve as a forum for dialogue on complex litigation issues. We also expect that because SJCL is devoted exclusively to complex litigation, it will quickly become a source of guidance for courts and practitioners.  

 

·         Expedited publishing: Because we are currently accepting submissions for the first volume of SJCL, we will be able to publish many of the submissions we accept in our fall issue. That means you can expect your article with SJCL to be in print faster than almost any other journal. There will be no need to update through a lengthy editing process.

 

·         Modified peer review: SJCL will follow a modified peer-review system. Meaning, after a first-level review by SJCL’s editorial staff, any submission that is a candidate for publication will be submitted to at least one scholar in the field of complex litigation or civil procedure who will review the piece. We will take any unanimous decision from our peer reviewers as a binding decision on publication. This will ensure that SJCL is publishing significant contributions to this field.  

 

·         “Light edit”: Our editorial policy is to afford substantial deference to authors, in both tone and substance. As a result, all articles must be well written, well cited, and completely argued at the time of submissions. SJCL will only edit to ensure readability and Bluebook compliance, which means that the editing process will be faster but also requires that authors vouch for the accuracy of their citations.

 

·         Outreach: We are committed to generating interest in the articles published with SJCL. That is why we will actively promote all scholarship we publish at symposia and on the blogosphere. We are also committing to distributing hundreds of copies of our first issue to grow our readership base.

 

·         Volume 1: There is something to be said for publishing in the very first volume of a journal. We hope you appreciate this significance and decide to submit your manuscript to SJCL.

 

We review and accept articles year-round on a rolling basis. SJCL strongly prefers electronic submissions through the ExpressO submission system, which can be found online at http://www.law.bepress.com/expresso. You may also e-mail your manuscript to [email protected]. We do not accept submissions in hard copy.

 

SJCL is also seeking faculty with expertise in areas such as civil procedure or complex litigation to serve as reviewers. If you are interested, please contact [email protected].

 

A website with more information is forthcoming. For the time being please refer to our Stanford Law School site: http://www.law.stanford.edu/publications/journals/sjcl/.

 

Please contact us with any questions. We look forward to working with you.

 

Regards,

 

Nick Landsman-Roos & Matt Woleske

Editors-in-Chief, Stanford Journal of Complex Litigation

[email protected]

RJE

More Civ Pro Video

We covered earlier the Full Faith & Credit video from the Columbia Law Revue, which won a narrow victory in Above The Law’s Law Revue Video Contest.

Now comes a video, courtesy of the 2012 Emory Law Follies, that features civil procedure prof Rich Freer expertly channeling Michael Bolton (and others):

 

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(Hat Tip: Thom Main)

New Consumer Bureau Asks for Input on Arbitrarion Clauses in Consumer Contracts

The National Law Journal reports that the Consumer Financial Protection Bureau, as authorized by the Dodd-Frank Act, is studying pre-dispute arbitration clauses in consumer contracts.  In connection with that, the Bureau has published a Request for Information Regarding Scope, Methods, and Data Sources for Confucting Study of Pre-dispute Arbitration Agreements.  Comments are due June 23, 2012.

PM   

SCOTUS Decision in Wood v. Milyard

Today the Supreme Court decided Wood v. Milyard, a case involving the authority of a federal court of appeals to raise sua sponte a limitations defense to a habeas petition. The case builds on the Court’s previous decisions in Granberry v. Greer, 481 U. S. 129 (1987), and Day v. McDonough, 547 U. S. 198 (2006). Justice Ginsburg’s opinion of the Court (joined by Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan) holds: "Consistent with Granberry and Day, we decline to adopt an absolute rule barring a court of appeals from raising, on its own motion, a forfeited timeliness defense. . . . [C]ourts of appeals, like district courts, have the authority—though not the obligation—to raise a forfeited timeliness defense on their own initiative." [Slip Op. at 9].

As for how that authority should be exercised, Justice Ginsburg clarifies that "[a]lthough a court of appeals has discretion to ad­dress, sua sponte, the timeliness of a habeas petition, appellate courts should reserve that authority for use in exceptional cases." [Slip Op. at 9]. Applying that idea to the facts of Wood, she writes that "[a] court is not at liberty . . . to bypass, override, or excuse a State’s deliberate waiver of a limita­tions defense. The Tenth Circuit, we accordingly hold, abused its discretion by resurrecting the limitations issue instead of reviewing the District Court’s disposition on the merits of Wood’s claims." [Slip Op. at 2].

Justice Thomas authors a concurring opinion, joined by Justice Scalia, that would give courts less ability to resurrect a state’s potential defenses to a habeas petition [Concurring Op. at 1, 3 (some citations omitted)]:

"Because I continue to think that Day was wrongly decided and that Granberry is inapposite, I cannot join the Court’s opinion. See Day, 547 U. S., at 212–219 (SCALIA, J., joined by THOMAS and BREYER, JJ., dissenting). As the dissent in Day explained, the Federal Rules of Civil Procedure apply in habeas corpus cases to the extent that they are consistent with the Habeas Corpus Rules, the habeas corpus statute, and the historical practice of habeas proceedings. As relevant here, the Rules of Civil Procedure provide that a defendant forfeits his statute of limitations defense if he fails to raise it in his answer or in an amendment thereto. 547 U. S., at 212 (citing Rules 8(c), 12(b), 15(a)). That forfeiture rule is fully consistent with habeas corpus procedure. . . .

"In light of these considerations, I cannot join the Court’s holding that a court of appeals has discretion to consider sua sponte a forfeited limitations defense."

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Dodson on Rule 60(b)

Prof. Scott Dodson (William & Mary) has posted on SSRN his essay Rethinking Extraordinary Circumstances, which will appear in the Northwestern University Law Review. Here’s the abstract:

This short Essay seeks to rationalize the “extraordinary circumstances” requirement of Rule 60(b)(6) of the Federal Rules of Civil Procedure. Under the Supreme Court’s Ackermann decision, any extraordinary circumstances justifying relief must not have been caused by the movant’s own litigation conduct. I argue that the Ackermann rule, at its broadest, would be unjust to those litigants most in need of Rule 60(b)(6) relief and would overserve finality interests. A case study of the recent Fourth Circuit case Aikens v. Ingram illustrates these points. I propose, contrary to Aikens, that the Ackermann rule should apply more narrowly: only to a movant who intentionally abandons the litigation.

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Chiappinelli on Director Consent After Nicastro

Eric Chiappinelli (Creighton University) has posted The Myth of Director Consent: After Shaffer, Beyond Nicastro to SSRN.

Abstract:      
Delaware, the most important state in corporate America, routinely invokes an unconstitutional statute, section 3114, to assert personal jurisdiction over virtually every non-resident director and officer. The Supreme Court’s June 2011 decision in J. McIntyre Machinery, Ltd. v. Nicastro underscores section 3114’s constitutional problems, which were plain in 1977 when Delaware adopted it in the wake of Shaffer v. Heitner. 

My article is the first in a generation to challenge section 3114 and the first ever to consider it in light of Nicastro. I expose the Delaware Court of Chancery’s rationalizations upholding the statute and bring to light that court’s failure to conduct the required minimum contacts analysis. The reality is that the Court of Chancery routinely claims personal jurisdiction over virtually everyone sued for breach of duty as a director or officer of a Delaware corporation. 

The current fiduciary duty litigation against Berkshire Hathaway head Warren Buffett and David Sokol, his former second-in-command turned antagonist, exemplifies the statute’s continuing harm. None of the defendants and none of the named plaintiffs lives in Delaware. Berkshire Hathaway has no business office, no assets, and no employees there. No relevant events took place in Delaware, nor has any harm been suffered in Delaware. This lack of any connection to Delaware is nearly universal in Delaware corporate litigation. Simply put, no defendant has minimum contacts with Delaware.

Yet Delaware claims that Buffett, Sokol, and every other Berkshire officer and director “impliedly consents” to in personam jurisdiction simply because Berkshire Hathaway is incorporated there. The Supreme Court has rejected jurisdiction by “implied consent” for over 50 years. Sokol vehemently contests that claim and is spending a significant amount of money to litigate jurisdiction.

I propose an amenability statute for officers and directors rooted in their actual consent. This statute is workable and is constitutional under Nicastro. It will help stem the migration of corporate litigation away from Delaware, and will provide a desirable measure of neutrality in Delaware between management and stockholders.

RJE

Supreme Court of Canada Issues Major Decisions on Personal Jurisdiction

On Wednesday, the Supreme Court of Canada issued a series of decisions on personal jurisdiction:

• Club Resorts Ltd. v. Van Breda, 2012 SCC 17
• Éditions Écosociété Inc. v. Banro Corp., 2012 SCC 18
• Breeden v. Black, 2012 SCC 19

According the Vancouver Sun, the decisions "set national standards, bringing much-needed guidance to a very complex area of Canadian law." Reports of widespread jealousy in the United States have yet to be confirmed. Cf., e.g., J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011); Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987).

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(Hat Tip: Linda Silberman)

New FJC report on Rules 26(f) and 16(b)

Posted to the Civ Pro prof listserv by Emery Lee of the Federal Judicial Center:

The report [from here on quoting Mr. Lee's email]:

Can be accessed at this link:

http://www.fjc.gov/public/pdf.nsf/lookup/leeearly.pdf/$file/leeearly.pdf

Executive Summary
At the request of the Judicial Conference Advisory Committee on Civil
Rules, the
Federal Judicial Center designed and conducted a closed-case survey about
the
early stages of litigation, especially Federal Rules of Civil Procedure 26
(f) and
16(b). The survey was sent to almost 10,000 attorneys of record in civil
cases
terminated in July–September 2011 and yielded a 36% response rate.
Key findings of the survey include:
• 72% of all survey respondents reported that, in the sampled case, they
met
and conferred with the opposing side to plan for discovery, as required by
Rule 26(f). Among respondents also reporting a Rule 16(b) scheduling
conference
with a judge in the sampled case, the comparable figure was 92%.
• The most common method of conducting the Rule 26(f) meeting was by
telephone
or videoconference, reported by 86% of respondents with a meeting.
• Most respondents with a Rule 26(f) meeting in person and/or by telephone
reported that the meeting lasted between 10 and 30 minutes.
• 71% of respondents with a Rule 26(f) meeting reported that the meeting
assisted
them in making arrangements to make initial disclosures in the sampled
case, 60% reported that it helped in developing a proportional discovery
plan, 50% reported that it helped them to better understand the opposing
side’s claims and/or defenses, 40% reported that they discussed discovery
of
electronically stored information, and 30% reported that the meeting
increased
the likelihood of a prompt resolution of the sampled case.
• Of the 40% of respondents reporting a discussion of discovery of
electronically
stored information at the Rule 26(f) meeting, 60% reported discussing
preservation obligations.
• 50% of all respondents, and 60% of respondents with a Rule 26(f) meeting,
reported a Rule 16(b) scheduling conference, either in person or by
telephone,
with a judge in the sampled case.
• Most respondents with a Rule 16(b) conference in person or by telephone
reported that the conference lasted between 10 and 30 minutes.
• 94% of respondents with a Rule 16(b) conference also reported a
scheduling
order in the sampled case.
• Attorneys representing plaintiffs at least half of the time were asked
whether
their pleading practices have changed since the Twombly and Iqbal
decisions.
Half said yes, half said no. The most common change in pleading
practices reported was including more factual detail in complaints,
reported
by 92% of those with changed practices. --PM

Mulligan and Reinert on Reframing Bivens After Minneci

Alex Reinert (Cardozo) and Lumen Mulligan (Kansas) have posted Asking the First Question: Reframing Bivens After Menneci to SSRN.

Abstract:      
In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a doctrinal level, the opinion destroys Bivens’ long-established parallelism with 42 U.S.C. § 1983 actions, where suits against privately employed individuals are allowed. Additionally, it creates asymmetries between the constitutional liability faced by privately and federally employed prison employees. More significantly, it conflicts with congressional intent as expressed in the Westfall Act, which codified the Bivens remedy in 1988, by conflating two distinct questions: whether a suit requires the courts to extend Bivens jurisprudence to a new context and whether, assuming an extension is necessary, such an extension is warranted. This piece offers the only full discussion to date of the importance of this “first question” to the Bivens canon. We end this Article by offering several strategies for limiting Minneci’s impact and for returning Bivens jurisprudence to its separation-of-powers roots.

RJE

Conference on Summary Judgment, Iqbal, and Employment Discrimination (New York Law School, Apr. 23, 2012)

As covered earlier, New York Law School is hosting a conference next Monday entitled, Trial by Jury or Trial by Motion? Summary Judgment, Iqbal and Employment Discrimination. Details available here.

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Law Revue Land Shows Some Love For Civil Procedure

Video here. And it's one of the finalists for Above The Law's Law Revue Video Contest.

(Hat tip: Chris Newman)

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Workshop Announcement: New Voices in Civil Justice Workshop at Vanderbilt

Vanderbilt will be hosting its annual New Voices in Civil Justice Workshop on May 7, 2012.

Congratulations to the presenter's at this year's event: 

Elizabeth Chamblee Burch, Assistant Professor of Law, University of Georgia, “Financiers as Monitors in Aggregate Litigation”

Christina Boyd, Assistant Professor of Public Law, University at Buffalo, SUNY, “Litigating Toward Settlement”

Alexandra Lahav, Professor of Law, University of Connecticut School of Law, “The Case for ‘Trial by Formula’”

Ariana Levinson, Assistant Professor of Law, University of Louisville-Brandeis School of Law, “What the Awards Tell Us About Labor Arbitration of Employment Discrimination Claims”

Corey Yung, Associate Professor of Law, University of Kansas, John Marshall Law School, “How Judges Judge”

RJE

Benham on the Constitutional Aspects of Inherent Power

Dustin Benham (Texas Tech) has posted Beyond Congress's Reach: Constitutional Aspects of Inherent Power to SSRN.

Congress believes it has plenary authority to limit the inherent power of federal courts to police their own final judgments for fraud by a court officer. Surprisingly, some lower courts agree and have recently interpreted a federal statute in a way that restricts traditionally inherent judgment-relief powers. Both Congress and the courts are wrong. Their error stems from confusion about the scope of Article III “judicial power” and the so-called inherent powers necessary to support it. The resulting ill-considered abrogation of federal court power sheds light on broader questions regarding the scope of judicial power and Congress’s ability to limit it.

The propriety of any congressional restriction on a so-called inherent power should be analyzed through a two-step framework. First, courts should determine whether the power is absolutely essential to the exercise of the core, or irreducible nucleus, of Article III judicial power. If the power is not essential to support judicial power, Congress has plenary authority to abolish or limit it. Second, assuming the power is essential, courts should determine whether the statute restricting it prevents the full exercise of core Article III judicial power. If so, Congress has exceeded its power.

Based on this analysis, several traditional inherent powers are beyond Congress’s reach, including the direct contempt power, the power to take evidence and develop a factual record, and the power to vacate judgments for fraud on the court. Notably, the fraud on the court power provides courts with an essential tool to remedy litigation wrongs ranging from bribing a federal judge to creating false documents or other evidence.

And while the outer parameters of core judicial power are notoriously difficult to locate, some so-called inherent powers are plainly not necessary for courts to exercise even the most expansive view of the power. These include the power to dismiss cases for forum non conveniens and the power to dismiss cases for want of prosecution.

RJE

SCOTUS decision in Mohamad v. Palestinian Authority

Today the Supreme Court issued a unanimous decision in Mohamad v. Palestinian Authority (covered earlier here and here). Justice Sotomayor’s opinion begins:

The Torture Victim Protection Act of 1991 (TVPA or Act), 106 Stat. 73, note following 28 U. S. C. §1350, au­thorizes a cause of action against “[a]n individual” for acts of torture and extrajudicial killing committed under au­thority or color of law of any foreign nation. We hold that the term “individual” as used in the Act encompasses only natural persons. Consequently, the Act does not impose liability against organizations.

If you’re looking for tea leaves about how the Court will resolve the companion case of Kiobel v. Royal Dutch Petroleum (which concerns liability of corporations under the Alien Tort Statute, and is now on hold pending supplemental briefing and re-argument), you might be disappointed. Check out this excerpt from Mohamad (Slip Op. at 8):

We also decline petitioners’ suggestion to construe the TVPA’s scope of liability to conform with other federal statutes that petitioners contend provide civil remedies to victims of torture or extrajudicial killing. None of the three statutes petitioners identify employs the term “in­dividual” to describe the covered defendant, and so none assists in the interpretive task we face today. See 42 U. S. C. §1983; 28 U. S. C. §§1603(a), 1605A(c) (2006 ed., Supp. IV); 18 U. S. C. §§2333, 2334(a)–(b), 2337. The same is true of the Alien Tort Statute, 28 U. S. C. §1350, so it offers no comparative value here regardless of whether corporate entities can be held liable in a federal common­ law action brought under that statute.

Justice Breyer wrote a concurring opinion, and Justice Scalia did not join the portion of the Court’s opinion discussing the TVPA’s legislative history (Part III-B).

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Supreme Court Allows Generic Drug Manufacturer to Counterclaim To Challange Use Code in Patent Infringement Action

The Supreme Court yesterday issued a unanimous opinion, per Justice Kagan, in CARACO PHARMACEUTICAL LABORATORIES, LTD. v. NOVO NORDISK A/S, No. 10–844 (U.S. April 17, 2012), 2012 WL 1288732:

When the Food and Drug Administration (FDA) evaluates an application to market a generic drug, it considers whether the proposed drug would infringe a patent held by the manufacturer of the brand-name version. To assess that matter, the FDA requires brand manufacturers to submit descriptions of the scope of their patents, known as use codes. The FDA does not attempt to determine if that information is accurate. Rather, the FDA assumes that it is so and decides whether to approve a generic drug on that basis. As a result, the breadth of the use code may make the difference between approval and denial of a generic company's application.

In this case, we consider whether Congress has authorized a generic company to challenge a use code's accuracy by bringing a counterclaim against the brand manufacturer in a patent infringement suit. The relevant statute provides that a generic company “may assert a counterclaim seeking an order requiring the [brand manufacturer] to correct or delete the patent information [it] submitted ... under [two statutory subsections] on the ground that the patent does not claim ... an approved method of using the drug.” 117 Stat. 2452, 21 U.S.C. § 355(j)(5)(C)(ii)(I). We hold that a generic manufacturer may employ this provision to force correction of a use code that inaccurately describes the brand's patent as covering a particular method of using the drug in question.

PM

Supreme Court denies cert in DeBeers Diamond class action settlement

Well, that was quick.  Days after we reported that some objectors to the settlement (earlier approved en banc by the Third Circuit) had petitioned for certiorari,  the Supreme Court denied the petition.  Murphy v. Sullivan, 2012 WL 779996 (U.S. Apr 02, 2012) (NO. 11-1111).

PM

Pedagogical Approaches to Civ Pro II

Over at Prawfsblawg, Howard Wasserman has a call for information about content for an advanced civil procedure course.  From the post:

When Civ Pro profs get together to talk shop, conversation inevitably turns to the pedagogical horror of the four-hour basic course (as opposed to the old six or seven hours). A related question is whether to offer a three-hour upper-level elective (whether called "Civ Pro II" or "Advanced Civ Pro" or "Complex Lit" or whatever) to fill-in the gaps and what to include in that class.

So a question for the Civ Pro types: What do/should/would you put in that course? And how would that affect what you include in the basic course. Does it still cover the  basics (Pleading, basic joinder, discovery, summary judgment, PJ, SMJ, Venue, Erie)? Or do you move some stuff around? Does it depend on what sort of enrollment you expect to get?

Anyone with good ideas or information should leave comments on the Prawfs post or email Howard directly ([email protected]).

RJE

 

Cheng on Trial Sampling

Ed Cheng (Vanderbilt University) has posted When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling to SSRN.

Abstract:      
In many mass tort cases, separately trying all individual claims is impractical, and thus a number of trial courts and commentators have explored the use of statistical sampling as a way of efficiently processing claims. Most discussions on the topic, however, implicitly assume that sampling is a “second best” solution: individual trials are preferred for accuracy, and sampling only justified under extraordinary circumstances. This Essay explores whether this assumption is really true. While intuitively one might think that individual trials would be more accurate at estimating liability than extrapolating from a subset of cases, the Essay offers three ways in which the “second best” assumption can be wrong. Under the right conditions, sampling can actually produce more accurate outcomes than individualized adjudication. Specifically, sampling’s advantages in averaging (reducing variability), shrinkage (borrowing strength across cases), and information gathering (through nonrandom sampling), can result in some instances in which ten trials are better than a thousand.

RJE

 

Symposium at DePaul to Honor Professor Marc Galanter

On April 26 to 27, 2012, DePaul University College of Law in Chicago will hold its annual Clifford Symposium on Tort Law and Social Policy.  Further information is available here.

Sessions include The Impact of Institutional Arrangements on the Delivery of Justice, Access to Justice, The Changing Organization and Structure of the Bar, Vanishing Trials, and The Impact of Rhetoric and Perception on the Civil Justice System.  Presenters include honoree Marc Galanter, Tom Baker, Michelle Goodwin, Shauhin Talesh, Robert Gordon, Herbert Kritzer, Gowri Ramachandran, Eric Feldman, Brian Tamanaha, Paul Carrington, Sida Liu, Ann Southworth, Richard Abel, John Miexner, Shari Diamond, Ted Eisenberg, Anne Bloom, David Engel, Lawrence Friedman, and Valerie Hans.  

PM

Helfand on AT&T Mobility v. Concepcion

Michael Helfand (Pepperdine University) has posted Purpose, Precedent, and Politics: Why Concepcion Covers Less Than You Think to SSRN.

Abstract:      
This article sketches some possible limitations on the impact AT&T Mobility v. Concepcion will have going forward. While many have seen the Supreme Court’s decision as simultaneously signaling an end to the viability of class action lawsuits and undermining principles of federalism, there may be reasons to believe that it will not have implications quite so far reaching. Specifically, this article proposes three reasons why Concepcion’s impact may be limited. First, the decision lends itself to a more narrow reading, which simply demands that courts take the entire of an arbitration agreement into account before deploying common law defenses to render them invalid. Second, Justice Thomas’s concurrence may limit the precedential value of Concepcion by narrowing the Court’s holding to cases where the defense speaks to the revocation of an otherwise valid agreement as opposed to where the defense speaks to a failure of the agreement’s formation. Third, state courts may demonstrate increasing willingness to chip away at Concepcion by narrowly construing its holding. Such a willingness may flow from a recognition that Concepcion’s five-justice majority is deeply divided on the applicability of the Federal Arbitration Act to state courts, making it unlikely that the Court would ever reverse state court decisions that employed aggressive use of state laws to invalidate an arbitration agreement.

RJE