Civil Procedure & Federal Courts Blog

Civil Litigation Has Low Priority in Justice Department's Plan for Government Shutdown

The BLT: The Blog of LegalTimes reports that the Justice Department has released a Contingency Plan for FY 2014 (which starts tomorrow) "in the event of a lapse in appropriations" (the phrase used in the Contingency Plan).  Most Civil Division employees will be subject to furlough because their activities do not relate to "emergencies involving the safety of human life or the protection of property," or meet some other category of exemption.  Although the Administrative Office of the U.S. Courts has indicated "that federal courts will continue to hear and decide cases without interruption," Justice is directing its civil litigators "to approach the courts and request that acvtive cases, except for those in which posponement would compromise . . . the safety of human life or the protection of property, be postponed until funding is available."

State Peer Review Statute Shields Documents from Medical Malpractice Discovery

The Legal Intelligencer reports a ruling by a Pennsylvania state trial judge protecting certain hospital documents from discovery in a medical malpractice case under Pennsylvania's Peer Review Protection Act.  Nurses created the documents, "including a chronology of events and a staff re-education plan," after receiving a report of an alleged injury at the hospital. The judge "found that the documents were created for peer-review purposes, and were therefore confidential" under the Act.

Federal Courts to Remain Open For Ten Days If Government Shuts Down

The federal judiciary, which has been releasing dire warnings about its financial situation for months, has just released an announcement on Third Branch News that reads:

In the event of a government shutdown on October 1, 2013, the federal Judiciary will remain open for business for approximately 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance. All proceedings and deadlines remain in effect as scheduled, unless otherwise advised. Case Management/Electronic Case Files (CM/ECF) will remain in operation for the electronic filing of documents with courts.

International Court of Justice Conference: The ICJ in the Service of Peace and Justice

On Monday, September 23, 2013, the International Court of Justice (ICJ) will celebrate the Centenary of the Peace Palace with a conference that will consider the following four topics:

1.  A Century of International Justice and Prospects for the Future;

2. The International Court of Justice and the International Legal System;

3. The Role of the International Court of Justice for Enhancing the Rule of Law; and 

4. The International Court of Justice and the United Nations: Relationship of the ICJ with other UN Organs.  

A detailed conference agenda can be found here: http://www.icj-cij.org/presscom/files/4/17524.pdf.

And, information about how to view the conference either by live streaming or on-demand can be found  here: http://www.icj-cij.org/presscom/files/4/17534.pdf. 

 

Kritzer, Liu, and Vidmar on Non-Economic Damages in Civil Jury Awards

Herbert M. Kritzer, Guangya Liu, and Neil Vidmar have posted on SSRN their article An Exploration of Non-Economic Damages In Civil Jury Awards.  This article is forthcoming in William & Mary Law Review.

Abstract:

Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of economic damages increased. We found less consistency in our simple regression models where we predicted the log of noneconomic damages from the log of economic damages. In all of those models, the slopes of the fitted line were positive, but the slopes and the measures of fit (r2) varied from dataset to dataset, and among type of case within those datasets with multiple case types. Also, where we had the same type of case across datasets, we found variation in the fit and slope. With two of the datasets we were able to extend our regression models with regard to medical malpractice cases. Using the RAND jury study from 1995-99 we were able to separate out California’s medical malpractice cases which were governed by the MICRA cap on noneconomic damages from the cases coming from five other states included in the study. We found that MICRA dampened the relationship between economic and non-economic damages. Using the data we coded from on Cook County, Illinois jury verdicts, we were able to expand our regression model to include the NAIC severity index plus the gender and age of the plaintiff. We found no evidence that the two demographic variables systematically influenced the amount of non-economic damages, but the severity of injury did make a difference. Most importantly, we found that the severity of the injury conditioned the relationship between economic and non-economic damages.

Symposium at Penn Law School: The Federal Rules at 75

On November 15 & 16, 2013, the University of Pennsylvania Law Review is hosting a symposium entitled “The Federal Rules at 75.” It’s taking place at Penn Law School, 3501 Sansom Street, Philadelphia, PA. Registration is free for all students and scholars.

Details are posted on the Law Review website, where you can register online. A full schedule – including a list of all the speakers, moderators, and panelists –  is here. 

CFP: Social Justice and Social Media Symposium

Here is a Call For Papers for a symposium on Social Justice and Social Media to be held at Pace Law School on March 28, 2014: 

Pace Law Review will host a one-day symposium entitled Social Justice and Social Media, on March 28, 2014 on the Pace Law School campus in White Plains, NY.  The Symposium will address themes concerning the interplay between social media and the administration of justice, both civil and criminal.  The Pace Law Review invites (10+) page papers for inclusion in its Summer 2014 Symposium Edition. The committee will consider a broad range of topics.  Selected participants will be invited to present their papers at the symposium. Travel expenses to White Plains (30 minutes outside NYC), including hotel, transportation and meals will be provided.

Submission information and key dates:

Interested persons should submit an abstract of between 250 and 300 words suitable for a 15 minute presentation and to serve as the basis of a 10+ page paper (including footnotes).  Longer papers are welcomed.  Submissions should be made electronically to Prof. Leslie Y. Garfield, [email protected].  Please include name, affiliation and contact details in the body of the email.  Submissions should be emailed no later than October 1, 2013.  Final papers submission will be due June 1, 2014. 

SCOTUS Maps in the Classroom

Professor Colin Starger of the University of Baltimore suggested that we repost his Prawfsblawg posting describing his use of SCOTUS Mapper software to explain Twombly and Iqbal.  I've not tried this software, but anything that can help explain Supreme Court pleading jurisprudence to 1Ls is worth a look.   

Eighth Circuit Opinion on Iqbal and Twombly

The Eighth Circuit's decision last week in Horras v. American Capital Strategies, Ltd. (No. 12-3886), __ F.3d __, 2013 WL 4711389, includes a partial dissent by Judge Colloton that is worth a read for his approach to pleading standards after Iqbal and Twombly. (Hat tip to Ryan Koopmans, who covers the case in this post.) The majority in Horras affirms the district court's dismissal of Horras’s complaint. Judge Colloton dissents as to Horras's claim for breach of fiduciary duty.

Judge Colloton writes that while the Supreme Court's approach to pleading in Iqbal and Twombly is an “important development,” courts “must be careful not to embellish it.” Citing Erickson, Swierkiewicz, Form 11, and articles by Judge, Dean, and chief drafter of the original FRCPs Charles E. Clark, he concludes: “Under the simplified pleading standard of Rule 8(a), I think the complaint here was sufficient to give ACS fair notice of the fiduciary duty claim that Horras has amplified in his briefing.”  

Here are some excerpts from Judge Colloton's opinion:  

Continue reading

"Breaking Bad" Season 5 Purchasers File Class Action Against Apple

Of interest to devotees of the AMC show "Breaking Bad": 

Purchasers of Season 5 of the show on iTunes have filed a putative class action against Apple in federal court in the Northern District of California for attempting to charge them again for the last eight episodes.   The complaint is available here.  Plaintiff asserts federal jurisdiction under the Class Action Fairness Act.

Sheehan et al.: A Comparative Perspective on "Haves" and "One-Shotters"

Reginald Sheehan, Stacia Haynie, Kirk A. Randazzo, and Donald R. Songer have posted on SSRN their article, "Winners and Losers in Appellate Court Outcomes: A Comparative Perspective."

Abstract:

The question of who wins and loses in appellate courts may be the most important question we seek to answer as judicial scholars. In fact, "Who gets what ?" has traditionally been viewed as the central question in the study of politics generally. Therefore, understanding who wins in the courts is an essential component of a full appreciation of "the authoritative allocation of values" in society (Easton 1953). In this paper we examine the relationship between the status of litigants, especially the comparison of repeat player "haves" (RP) to one-shotters (OS) who are usually "have-nots," and their rates of success in top appellate courts in the common law world. A number of prior studies employing what is generally referred to as "party capability theory" have examined how the resources and litigation experience of litigants affect their chances for success. Using data from the highest courts of appeals across six countries we explore winners and losers in a comparative context. The results indicate that there is greater variation in who wins and who loses than party capability theory would suggest.

Pennsylvania Appellate Court Overturns $14.5 Million Asbestos Verdict

From The Legal Intelligencer:

A divided state Superior Court panel has thrown out a $14.5 million asbestos verdict awarded to the widow of a man who died from mesothelioma, determining that her counsel's suggestion of a specific sum for damages to the jury was improper and that the plaintiff's expert's testimony was inadmissable.  Read more . . .

PM

Denial of Motion to Reconsider Remand Order Not Appealable

Plaintiffs filed suit in Pennsylvania state court asserting state-law claims arising from a plane crash.  Defendants removed the case to federal district court, asserting diversity jurisdiction.  Plaintiffs moved to remand the case, asserting that one of the defendants was a citizen of Pennsylvania, and therefore not diverse from all plaintiffs.  The district court granted plaintiffs' motion and ordered the case remanded to state court.  One of the defendants moved for reconsideration.  The district court also denied the motion for reconsideration.  Defendants appealed.

The Third Circuit dismissed the appeal for lack of appellate jurisdiction.  28 U.S.C. 1447(d) provides that "[a]n order remanding a case to the State court from which it was removed is not reviewble on appeal or otherwise . . ."  The court noted that the purpose of this provision "is to prevent a party to a state lawsuit from using federal removal provisions and appeals as a tool to introduce substantial delay into a state action."  Allowing an appeal from a denial of a motion to reconsider an order to remand would circumvent this purpose.

The district court itself had jurisdiction to consider the motion to reconsider, however, because "at the time when the District Court considered the motion for reconsideration, a certified copy of the remand order had not yet been mailed from the District Court Clerk to the state court."  Agostini v. Piper Aircraft Corp., No. 12-2098 (3d Cir. Sept. 5, 2013).      

 

Maybe We Should Try to Be More Interesting? Just a Thought

The National Law Journal reports on a recent article by Jeff Sovern (St. John's University School of Law) entitled "Law Student Laptop Use During Class for Non-Class Purposes: Temptation v. Incentives," 51 U. Louisville L. Rev. 483 (2013).  The article concludes that first-year students have more incentives to pay attention during class and therefore are less distracted by laptop use than second- and third-year law students. 

My own classroom policy seems somehow misguided in light of this conclusion.  I don't allow laptops in first-year Civil Procedure, but allow them in upper-class courses.   My reasoning is that 1Ls need to be weaned from their slacker college ways, that it is almost impossible for them to multitask Civil Procedure, and that they have no choice in being assigned to my section, so they can't transfer out.  After they survive the first year, I treat them like the adult graduate students they are and try (not always successfully) to make the class valuable enough to pay attention to. 

By now, most professors have fairly strong views on their laptop-in-class policy, but the article may provide some food for thought.

 

 

 

Discovery and Lance Armstrong

Jim Vertuno (AP) covers a recent order by a Texas state court judge compelling Lance Armstrong to respond to discovery requests. Here are some excerpts from the report, Judge Orders Armstrong to Answer Doping Questions:

Nebraska-based Acceptance Insurance Holding is seeking the information in its lawsuit to recover $3 million in bonuses it paid Armstrong from 1999 to 2001.***

Travis County District Judge Tim Sulak last week ordered Armstrong to provide documents and written answers to a series of questions by the end of September. The case has been set for trial in April 2014.

The questions seek information dating to 1995 and ask Armstrong to detail who was paid for delivered performance-enhancing drugs, who determined what amount to use and administered them, and who was aware of his drug use. Acceptance specifically asks for information on when and how Armstrong's closest friends, advisers, ex-wife and business partners learned of his doping.

 

UCLA Law Review Symposium Issue in Honor of Stephen Yeazell - Twenty-First Century Litigation: Pathologies and Possibilities

The UCLA Law Review's Volume 60 symposium issue is now available. You can find links to the symposium contributions here. The current posts on UCLA Law Review’s Discourse continue the theme.