Civil Procedure & Federal Courts Blog

Appeal from District Court's Denial of Exemption from PACER Fees Dismissed

The Ninth Circuit dismissed an appeal from the district court's denial of an ex parte application for an exemption from PACER fees (the fees associated with electronic access to federal court records) for lack of jurisdiction, holding that the denial was not a final decision under 28 U.S.C. Section 1291.  In Re: Application for Exemption from Electronic Public Access Fees,  No. 12-16373 (9th Cir. Aug. 29, 2013). 

Judge O'Scannlain, who wrote the opinion, also filed a concurrence acknowledging "the elephant in the room" -- if the denial was unappealable, to whom might one go for review? -- and suggesting that it "will be up to Congress to decide whether to fashion an appellate-review mechanism."   I'm not holding my breath.

PM 

Call for Papers: New Voices in Civil Justice Workshop at Vanderbilt Law School

Vanderbilt Law School's Branstetter Litigation & Dispute Resolution Program invites submissions for its 2014 New Voices in Civil Justice Scholarship Workshop, to be held May 12-13, 2014, at Vanderbilt Law School. From the announcement: 

The Branstetter Program draws on a multimillion-dollar endowment to support research and curriculum in civil litigation and dispute resolution. Held annually, the Branstetter New Voices Workshop brings together junior scholars, senior scholars, and Vanderbilt faculty in the areas of civil justice.

This year, three junior scholars will be selected via a blind review process to present at the New Voices Workshop. Past participants are listed below by year.

The New Voices format maximizes collegial interaction and feedback. Paper authors do not deliver prepared "presentations." Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.

You’ll find more information (deadlines, qualifications, and other requirements) here.

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Seventh Circuit (Posner, J.) reaffirms class certification after post-Comcast GVR

Following its decision in Comcast v. Behrend, the Supreme Court remanded a number of class actions for reconsideration (two in April and one in June). Last month, the Sixth Circuit found that class certification remained proper in Glazer v. Whirlpool, a class action involving defective washing machines. The Seventh Circuit has now done the same in a similar washing machine class action against Sears. The entire opinion (Butler v. Sears) is worth a read; Judge Posner’s discussion of Comcast starts on page 5. Here are some excerpts:

Continue reading

Vladeck on Military Courts and the All Writs Act

Stephen Vladeck (American University) has posted Military Courts and the All Writs Act to SSRN.

When it comes to the role of the federal courts in the federal system, few statutes play as significant a role — or are as routinely misunderstood — as the All Writs Act. It is the All Writs Act that rounds Article III’s sharp jurisdictional edges by investing courts of such limited subject-matter jurisdiction with a species of common-law authority; as Justice Stevens has explained, “The Act was, and is, necessary because federal courts are courts of limited jurisdiction having only those powers expressly granted by Congress, and the statute provides these courts with the procedural tools — the various historic common-law writs — necessary for them to exercise their limited jurisdiction.”

Although the All Writs Act applies on its terms to “all courts established by Act of Congress,” two recent opinions in high-profile military justice cases have rejected the power of military courts to issue relief that is routinely available from civilian courts under the All Writs Act. In the Bradley Manning court-martial proceedings, for example, the highest court in the military justice system — the Court of Appeals for the Armed Forces (CAAF) — held that it lacked the authority under the All Writs Act to issue extraordinary relief to protect the First Amendment right of public access to criminal trials identified by the Supreme Court in Richmond Newspapers and its progeny. Similar reasoning was also offered by one of the judges of the Court of Military Commission Review (CMCR), in explaining why the CMCR lacked jurisdiction to provide analogous relief in the context of the military commission trial of the 9/11 defendants.

It is easy enough to identify the analytical errors common to these two opinions, but in addition to doing so, this short essay argues that there is more behind such analysis than a mere misreading of precedent. Ultimately, both CAAF’s decision in the Manning case and Judge Silliman’s concurrence in the CMCR’s 9/11 proceedings have at their core a misplaced and outdated understanding of both the military justice system’s exceptionalism and its relationship to the civilian courts. As I conclude, the understanding common to these two opinions has the ironic — and surely unintended — effect of weakening arguments for a separate system of military justice insofar as such crabbed understandings of the All Writs Act only bolster the need for increased Article III oversight of the military justice system through actions for collateral review.

RJE

 

Bryan Garner on Judge Robert Keeton and the Restyling of the Federal Rules

The ABA Journal has this article by Bryan Garner, How attention to style improves substance.

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NY Times Story on Justice Ginsburg

Adam Liptak has this story in today’s New York Times: Court Is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay

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Panel Discussion on the 75th Anniversary of the Federal Rules of Civil Procedure at the University of Cincinnati

This Tuesday, August 27, the University of Cincinnati College of Law is hosting a panel discussion celebrating the 75th anniversary of the Federal Rules of Civil Procedure. From the announcement:

Date: August 27, 2013                                               

Time: 3:00 p.m. - 5:00 p.m.

Location: Patricia Corbett Theater (CCM)         

CLE:     2 hrs CLE credits approved for OH and KY

RSVP: Contact Mindy Lawson at [email protected]       

The College of Law’s fall event schedule kicks off with the “75th Anniversary of the Federal Rules of Civil Procedure,” a panel discussion to be held on August 27, 2013 at 3:00 p.m.  A star-studded panel of judges, academics, politicians, lawyers, and business people will come together to discuss the impact of the Federal Rules of Civil Procedure and the importance of this anniversary. The panel will be taking a wide angle view of what the rules were designed to achieve, how they have been applied, what is happening now, and what the future of the Federal Rules might be.  Arthur R. Miller, University Professor at New York University, the nation’s leading scholar in the field of American civil procedure and coauthor with the late Charles Wright of Federal Practice and Procedure, will moderate this event.

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Trammell on Jurisdictional Sequencing

Alan Trammell (Brooklyn Law School) has posted Jurisdictional Sequencing to SSRN.

This Article offers a critical re-assessment of subject matter jurisdiction, arguably the most fundamental constraint on federal courts. The project examines the nature and purposes of subject matter jurisdiction through the lens of jurisdictional sequencing, a practice that allows a federal court to decide certain issues — and even dismiss cases — before it has verified subject matter jurisdiction.

Despite many scholars’ antipathy toward jurisdictional sequencing, it is a legitimate practice that reveals a nuanced understanding of jurisdiction’s unique structural role in protecting federalism and separation of powers. Specifically, elected institutions have principal responsibility for crafting conduct rules that regulate people’s primary activities. Federal courts may interpret and apply conduct rules — and thus in a meaningful sense “make law” — only when they have verified their subject matter jurisdiction. By contrast, federal adjudication does not implicate the structural concerns at the heart of subject matter jurisdiction when courts dismiss cases based on other rules (what I term allocative rules). Re-imagining the precise role of subject matter jurisdiction reveals how federal courts can decide cases more efficiently and also respect essential constraints on the allocation of powers.

RJE

Proposed Amendments to FRCP Are Reminiscent of New Texas Civil Procedure Rules

JD Supra Law News has a recent post on the new Texas Rules of Civil Procedure, effective March 1, 2013.  One change is the tracking of cases depending on the size of the relief requested and creating an "Expedited Action Rule" for claims less than $100,000.  "Expedited Actions" are subject to a limit of 15 interrogatories (down from 25) "and only 15 requests for production and 15 requests for admission (both of which were not limited under the old rules)," as well as other time limitations.

Sounds a lot like some of the proposed amendments to the FRCP (reported on here), except the proposed amendments to the FRCP are not limited to claims under $100,000.  

PM

Green on the Twin Aims of Erie

Michael Steven Green (William & Mary) has posted The Twin Aims of Erie to SSRN.

We all remember the twin aims of the Erie rule from first-year civil procedure. A federal court sitting in diversity must use forum state law if it is necessary to avoid "forum shopping" and the "inequitable administration of the laws." This Article offers a reading of the twin aims and a systematic analysis of their proper role in federal and state court. I argue that the twin aims apply in diversity cases not because they protect state interests, but because they serve the federal purposes standing behind the diversity statute. So understood, they are about separation of powers, not federalism. Through the twin aims, state law is incorporated into federal procedural common law in order to serve federal interests.

This reading does not merely have important consequences for diversity cases. It also has an impact on the role of the twin aims outside diversity. If the twin aims have their source in the purposes standing behind the congressional grant of jurisdiction, rather than respect for state interests, the fact that a federal court entertains a state law action is neither a necessary nor a sufficient reason for the twin aims to apply. The twin aims might apply to federal courts when entertaining federal causes of action. Conversely, they might not apply to a federal court when entertaining state law actions under jurisdictional statutes other than diversity.

I therefore examine four jurisdictional scenarios in order to assess the role of the twin aims in each: a federal court entertaining a federal cause of action, a state court entertaining a federal cause of action (sometimes called reverse-Erie), and a federal court entertaining a state law action under supplemental jurisdiction and under bankruptcy. In the course of my argument, I suggest a resolution to the current circuit split about whether a federal court sitting in bankruptcy should use forum state choice-of-law rules. I also argue that the Supreme Court has wrongly assumed that the twin aims apply in a reverse-Erie context. As a result, it has improperly limited state courts’ powers when entertaining federal civil rights actions — most recently in Haywood v. Drown, 556 U.S. 729 (2009).

This Article offers an original justification of the twin aims in diversity cases, and the first comprehensive explanation of their role in a variety of other jurisdictional contexts.

 RJE 

 

Weston on Private Judging

Maureen Weston (Pepperdine) has posted Retired to Greener Pastures: The Public Costs of Private Judging to SSRN.

The trend to privatize justice and the loss of judges from the public court system to the higher pay opportunities and flexibility in the private ADR industry raises important concerns about the quality of justice, due process, and wellbeing of the public justice system. This article explores the impact of this development — the benefits and costs — on the access to quality and meaningful justice. Part II examines the process for judicial selection and appointment, the role of the judge in a public justice system, and the compensation packages typically offered to public judges, while also reporting attrition and retirement from the bench. Part III considers the reasons motivating public judges to leave the bench for work in the private ADR sector and attendant effects on the public courts. While recognizing the benefits of private dispute resolution, Part IV counsels for limitations on the marketing of one’s status and service as a public judge while pursuing work as a paid private neutral, and proposes adoption of a canon of ethics for former judges serving as private arbitrators and mediators. The article concludes with a call for increased public investment toward improvements in the public court system in order to renew the calling to judicial service and to preserve a meaningful foundation of access to public justice.

RJE

Williams and George on Empirical Study of Multidistrict Litigation

Margaret S. Williams and Tracey E. George have published in the Journal of Empirical Legal Studies their article, "Who Will Manage Complex Litigation? The Decision to Transfer and Consolidate Multidistrict Litigation."

Abstract:

The U.S. Judicial Panel on Multidistrict Litigation may transfer factually related actions filed in different federal districts to a single judge for consolidated pretrial litigation. This transferee judge has significant discretion over the management of the litigation, including ruling on dispositive pretrial motions. Nearly all cases are resolved without returning to the original district court. Thus, as a practical matter, the MDL Panel controls where these disputes will be litigated. And, the MDL Panel has substantial discretion in making that decision. In its first 44 years of existence, the Panel has transferred and consolidated nearly 400,000 lawsuits, including high-profile securities and derivative lawsuits, large-scale consumer actions, and mass torts involving products liability claims, common disasters, and air crashes. The Panel's transfer ruling has never been overturned. The current study provides the first systematic and comprehensive empirical investigation of the Panel's decision to transfer and consolidate pending federal civil lawsuits, examining the rationale for transfer and for the selection of a specific district court and judge to handle the consolidated litigation. We find that the Panel grants most motions to transfer and consolidate, but exercises meaningful discretion in choosing where and by whom the cases will be adjudicated. The MDL Panel is much more likely to assign cases to a district court where a current panelist sits and that is supported by at least one defendant and to a district judge who currently serves on the Panel. Thus, the composition of the Panel has a meaningful effect on where and how large-scale litigation will be resolved.

PM

Washington Post Op-Ed Urges Changes in ABA's Panel on Judicial Selection

The Washington Post published an Op-Ed yesterday by Professor Michael J. Yelnosky, at Roger Williams University School of Law.  Yelnosky notes that in the ABA's Standing Committee on the Federal Judiciary, which rates potential nominees for federal judicial vacancies, "Not one of the lawyers on the committee for 2013-14 regularly represents individuals who bring lawsuits alleging they were harmed by the actions of corporations or other business entities, and not one represents individuals charged with anything other than white-collar crimes."

PM

Proposed Amendments to the FRCPs: Now Published and Available for Comment

In June 2013, the Judicial Conference Committee on Rules of Practice and Procedure (a.k.a. the Standing Committee) approved a significant set of amendments to the Federal Rules of Civil Procedure for publication and comment. The proposed amendments affect Rules 1, 4, 6, 16, 26, 30, 31, 33, 34, 36, 37, 55, 84, and the Appendix of Forms. 

Anyone who is interested may submit written comments, and may also testify at a number of public hearings that are being held in the coming months (Washington, DC, on November 7, 2013; Phoenix, Arizona, on January 9, 2014; and Dallas, Texas, on February 7, 2014).

The public comment period closes on February 15, 2014. Only after this comment period is complete will the Civil Rules Advisory Committee decide whether—and with what further changes—to proceed with these proposals. That decision is likely to occur during the spring of 2014, with the Supreme Court ultimately signing off in the spring of 2015 (by May 1, 2015 at the latest). Absent intervention by Congress, any changes would go into effect on December 1, 2015. 

More details about the comment and hearing process are available here and here. The draft of the proposed amendments are available here. (Note that these documents also include proposed amendments to the Bankruptcy Rules, which are subject to the same comment period but with a different set of public hearings.)

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Federal Judges Send Letter to Congress Protesting the Sequestration

From Third Branch News:

The chief judges of the federal district courts have sent a letter to Vice President Joe Biden (as President of the Senate) outlining the "devastating impact" of the budget reductions on the federal courts.

PM

NY Times Story on Cy Pres Class Action Settlements

Here’s Adam Liptak’s latest story, When Lawyers Cut Their Clients Out of the Deal, which discusses a recent Ninth Circuit decision on cy pres settlements that is the subject of a pending Supreme Court cert. petition, Marek v. Lane (No. 13-136).

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Video Clip From ABA Panel "Are Courts Dying?"

For those of us unable to get to San Francisco, the ABA has made a brief video clip available from its panel on the courts funding crisis at the Annual Meeting (reported here).  The panelists are:

• Tani G. Cantil-Sakauye, chief justice of the California Supreme Court
• Jonathan Lippman, chief justice of the New York Court of Appeals
• Wallace B. Jefferson, chief justice of the Texas Supreme Court

PM

More Bad News for Fair Labor Standards Act Plaintiffs

Hot on the heels of Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523 (2013), comes a new Second Circuit decision heralding the slow strangulation of Fair Labor Standards Act cases: Sutherland v. Ernst & Young LLP, No. 12-304-cv (2d Cir. Aug. 9, 2013).

Plaintiff, a former employee of Ernst & Young, brought a class action on behalf of herself and other similarly situated to recover overtime wages under the FLSA and the New York Department of Labor's Minimum Wage Order.  Plaintiff's employment contract, naturally, contained a mandatory arbitration clause that specifically applied to the FLSA and state wage laws, as well as a provision that "disputes pertaining to different employees will be heard in separate proceedings." 

Plaintiff's individual alleged unpaid overtime wages were $1,867.02.  The district court denied Ernst & Young's motion to dismiss, stay the proceedings, or compel arbitration on an individual bases.  The district court reasoned that "[e]nforcement of the class waiver provision in this case would effectively ban all proceeings by [plaintiff] against E&Y."

The Second Circuit reversed.  Citing American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), the court held that the "effective vindication doctrine" (which might allow invalidation of a class-action waiver) was not satisfied even if the cost of proceeding individually in arbitration would exceed the potential recovery.  Further, the court held that FLSA "does not include a 'contrary congressional command' that prevents a class-action waiver provision in an arbitration agreement from being enforced by its terms."

PM

"Are Courts Dying?" ABA Program Explores Question at Annual Meeting

At the American Bar Association Annual Meeting in San Francisco, a panel entitled "Are Courts Dying? The Decline of Open and Public Adjudication" was moderated by Professor Judith Resnik.  Participants discussed "budget cuts and the generally high cost of legal representation."

PM

MDL Panel Grants Transfer in Effexor Litigation and Two Others

The Judicial Panel on Multidistrict Litigation granted three Motions to Centralize and denied eight Motions to Centralize in its July 2013 Hearing Session.

Motion granted:

MDL No. 2458 - IN RE: Effexor (Venlafaxine Hydrochloride) Products Liability Litigation (before Judge Rufe in the Eastern District of Pennsylvania)

MDL No. 2455 - IN RE: Stericycle, Inc., Steri-Safe Contract Litigation (before Judge Shadur in the Northern District of Illinois)

MDL No. 2454 - IN RE: Franck's Lab, Inc., Products Liability Litigation (before Judge Engelhardt in the Eastern District of Louisiana)

Motion denied:

MDL No. 2469 - IN RE: Capatriti Brand Olive Oil Marketing and Sales Practices Litigation

MDL No. 2467 - IN RE: Bank of America, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation

MDL No. 2466 - IN RE: Wells Fargo Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation

MDL No. 2465 - IN RE: JPMorgan Chase Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation

MDL No. 2464 - IN RE: HSBC Mortgage Corporation Force-Placed Hazard Insurance Litigation

MDL No. 2463 - IN RE: Fresh Dairy Products Antitrust Litigation (No. II)

MDL No. 2453 - IN RE: Adderall XR (Amphetamine/Dextroamphetamine) Marketing, Sales Practices and Antitrust Litigation

MDL No. 2456 - IN RE: Kashi Company Marketing and Sales Practices Litigation

 

PM