Civil Procedure & Federal Courts Blog

SCOTUS Cert Grant on Appellate Jurisdiction: Gelboim v. Bank of America

While everyone waits with bated breath for the Supreme Court to wrap up the current Term with decisions in Hobby Lobby and Harris, the Court granted certiorari in Gelboim v. Bank of America (No. 13-1174). From the cert petition, here is the question presented (with the usual wind-up):

The question “whether consolidated cases retain their separate identity or become one case for purposes of appellate jurisdiction has divided the courts of appeals.” United States ex rel. Hampton v. Columbia/HCA Healthcare Corp., 318 F.3d 214, 216 (D.C. Cir. 2003). “Some circuits hold that consolidated cases remain separate actions and no Rule 54(b) certification is needed to appeal the dismissal of any one of them. Others treat consolidated cases as a single action, or presume that they are, allowing the presumption to be overcome in highly unusual circumstances. Still other circuits apply no hard and fast rule, but focus on the reasons for the consolidation to determine whether the actions are one or separate.” Id. (citations and alterations omitted). This Court granted certiorari to resolve the conflict in Erickson v. Maine Central Railroad Co., 111 S. Ct. 38 (1990) (mem.), but the petition was subsequently dismissed, 111 S. Ct. 662 (1990) (mem.).

The Question Presented is:

Whether and in what circumstances is the dismissal of an action that has been consolidated with other suits immediately appealable?

Here is SCOTUSblog’s Gelboim case file, and here is the link to the Supreme Court docket. 

 

 

 

KBR Internal Investigation Documents Are Privileged, D.C. Circuit Says

Plaintiff Barko worked for Kellogg Brown & Root, a defense contractor and former subsidiary of Halliburton.  He filed a False Claims Act claim against KBR:

In essence, Barko alleged that KBR and certain subcontractors defrauded the U.S. Government by inflating costs and accepting kickbacks while administering military contracts in wartime Iraq. During discovery, Barko sought documents related to KBR’s prior internal investigation into the alleged fraud.  KBR had conducted that internal investigation pursuant to its Code of Business Conduct, which is overseen by the company’s Law Department.

KBR argued that the internal investigation had been conducted for the purpose of obtaining legal advice and that the internal investigation documents therefore were protected by the attorney-client privilege. . . .

After reviewing the disputed documents in camera, the District Court determined that the attorney-client privilege protection did not apply because, among other reasons, KBR had not shown that “the communication would not have been made ‘but for’ the fact that legal advice was sought.” . . . KBR’s internal investigation, the court concluded, was “undertaken pursuant to regulatory law and corporate policy rather than for the purpose of obtaining legal advice.”

. . . The District Court . . . ordered KBR to produce the disputed documents to Barko . . .

The D.C. Circuit granted KBR's petition for writ of mandamus, holding that the District Court's privilege ruling was clearly legally erroneous under Upjohn v. United States, and that it was otherwise appropriate to grant the writ: 

[T]he District Court also distinguished Upjohn on the ground that KBR’s internal investigation was undertaken to comply with Department of Defense regulations that require defense contractors such as KBR to maintain compliance programs and conduct internal investigations into allegations of potential wrongdoing. The District Court therefore concluded that the purpose of KBR’s internal investigation was to comply with those regulatory requirements rather than to obtain or provide legal advice. In our view, the District Court’s analysis rested on a false dichotomy. So long as obtaining or providing legal advice was one of the significant purposes of the internal investigation, the attorney-client privilege applies, even if there were also other purposes for the investigation and even if the investigation was mandated by regulation rather than simply an exercise of company discretion.

The D.C. Circuit rejected KBR's request to reassign the case to a different District Judge.  In re Kellogg Brown & Root, Inc., No. 14-5055 (D.C. Cir. June 27, 2014).

 

 

 

SCOTUS Upholds Basic v. Levinson, But Gives Halliburton A Partial Victory

In the latest Supreme Court round of Halliburton Co. v. Erica P. John Fund, Inc., the Court declined Halliburton's invitation to overrule Basic v. Levinson,  but remanded to allow Halliburton, at the class certification stage, to attempt to rebut the presumption that the alleged misrepresentations actually affected the price of the stock.  The Court's final two paragraphs:

More than 25 years ago [in Basic], we held that plaintiffs could satisfy the reliance element of the Rule 10b–5 cause of action by invoking a presumption that a public, material misrepresentation will distort the price of stock traded in an efficient market, and that anyone who purchases the stock at the market price may be considered to have done so in reliance on the misrepresentation. We adhere to that decision and decline to modify the prerequisites for invoking the presumption of reliance. But to maintain the consistency of the presumption with the class certificationrequirements of Federal Rule of Civil Procedure 23, defendants must be afforded an opportunity before class certification to defeat the presumption through evidencethat an alleged misrepresentation did not actually affect the market price of the stock.

Because the courts below denied Halliburton that opportunity, we vacate the judgment of the Court of Appeals for the Fifth Circuit and remand the case for further proceedings consistent with this opinion.

Some coverage of the case:

New York Times

Wall Street Journal

Schaefer on Professionalism for Doctrinal Professors

Paula Schaefer of the University of Tennessee College of Law has posted on SSRN her article, A Primer on Professionalism for Doctrinal Professors, forthcoming in Tennessee Law Review.

Abstract:

Legal education reform advocates agree that law schools should integrate “professionalism” throughout the curriculum. Ultimately, it falls to individual professors to decide how to incorporate professionalism into each course. This can be an especially difficult task for doctrinal professors. The law — and not the practice of law — is the focus of most doctrinal casebooks. Law students typically do not act in role as lawyers in these classes, so they are not compelled to resolve professional dilemmas in class, as students would be in a clinic or simulation-based course. As a result, it takes some additional preparation and thought to introduce professionalism issues into these courses. Some professors may resist making this change — not knowing which aspect or aspects of professionalism should be the focus, fearing that time spent on professionalism will detract from the real subject matter of the class, or believing professionalism is adequately covered elsewhere in the curriculum.

This Article considers how and why doctrinal professors should address the challenge of integrating professionalism into the classroom. Part I briefly discusses the multitude of meanings ascribed to attorney professionalism and argues that the lack of a clear, concise, and shared definition is a substantial barrier to effectively incorporating professionalism into the law school curriculum. Next, Part II provides a more coherent, streamlined definition of attorney professionalism. This Part also identifies and describes three primary aspects of lawyer professionalism: fulfilling duties to clients, satisfying duties to the bar, and possessing core personal values essential to being a good lawyer. This simplified conception of professionalism should begin to address the concerns of professors who do not know where to begin to incorporate professionalism into their classes. It is also intended to persuade skeptics that professionalism is something they can and should teach as part of their doctrinal classes.

Thereafter, Part III provides guidance for developing course outcomes that connect course subject matter and professionalism. Questions prompt doctrinal professors to look for the natural connections between their course subject matter and issues of professionalism. Then, Part IV considers various methods doctrinal professors can use to introduce professionalism topics into their courses. Integrating professionalism into the classroom does not require professors to abandon their casebooks; using case law can be an effective method. This Part also considers other teaching methods and materials for combining doctrine, skills, and professionalism. Finally, Part V concludes with thoughts on how students benefit when professors make the effort to incorporate professionalism into every law school classroom.

SCOTUS: IRS Summons Challenger Must Show Facts Giving Rise to Plausible Inference of Improper IRS Motive

The IRS examined the tax returns of Dynamo Holdings Limited Partnership, and issued summonses to the respondents, "four individuals associated with Dynamo whom the Service believed had information and records relevant to Dynamo’s tax obligations.  None of the respondents complied with those summonses."  

The IRS instituted proceedings in District Court to compel the respondents to comply with the summonses.  The IRS submitted an investigating agent’s declaration that the testimony and records sought were necessary to “properly investigate the correctness of [Dynamo’s] federal tax reporting” and that the summonses were “not issued to harass or for any other improper purpose.”  In reply, the respondents pointed to circumstantial evidence suggesting that the IRS had “ulterior motives” for issuing the summonses: to “punish[] [Dynamo] for refusing to agree to a further extension of the applicable statute of limitations,” and to “evad[e] the Tax Court[’s] limitations on discovery.”  Accordingly, the respondents asked for an opportunity to question the agents about their motives.

The District Court ordered the respondents to comply with the summonses.  The Court of Appeals for the Eleventh Circuit reversed, holding that a simple “allegation of improper purpose,” even if lacking any “factual support,” entitles a taxpayer to “question IRS officials concerning the Service’s reasons for issuing the summons.”

The Supreme Court, in a unanimous opinion authored by Justice Kagan, vacated the Eleventh Circuit's opinion and remanded, holding that the Eleventh Circuit had applied an incorrect legal standard:

A person receiving an IRS summons is . . . entitled to contest it in an enforcement proceeding. . .  .  As part of the adversarial process concerning a summons’s validity, the taxpayer is entitled to examine an IRS agent when he can point to specific facts or circumstances plausibly raising an inference of bad faith.  Naked allegations of improper purpose are not enough: The taxpayer must offer some credible evidence supporting his charge.  But circumstantial evidence can suffice to meet that burden; after all, direct evidence of another person’s bad faith, at this threshold stage, will rarely if ever be available.  And although bare assertion or conjecture is not enough, neither is a fleshed out case demanded: The taxpayer need only make a showing of facts that give rise to a plausible inference of improper motive.  That standard will ensure inquiry where the facts and circumstances make inquiry appropriate, without turning every summons dispute into a fishing expedition for official wrongdoing. . . .  But that is not the standard the Eleventh Circuit applied. . . .  [T]he Court of Appeals viewed even bare allegations of improper purpose as entitling a summons objector to question IRS agents.

United States v. Clarke, No. 13-301 (U.S. June 19, 2014).

ABA Pretrial Practice and Discovery Committee Spring Newsletter

The Pretrial Practice and Discovery Committee of the Section of Litigation of the American Bar Association has issued its

Spring 2014 newsletter.

 

Spring 2014, Vol. 22 No. 2

TABLE OF CONTENTS

______________________________________________________________________

___________________________________

Articles »

The Changing Landscape of General Jurisdiction Post-Bauman

By Adam W. Braveman

This decision will have an immense impact on a foreign corporation's amenability to bring suit in U.S

courts.

 

"Self-Serving Testimony" and Summary Judgment Standards

By Jeffrey G. Close

Is there a split between the Fifth and Seventh Circuits?

 

The Problem of the Old Deposition and a New Party at Trial

By Michael Lowry

A deposition needs to be admissible, and that may depend on who is a party at the time of trial.

 

Supreme Court's CAFA Decision Changes Law in Fifth Circuit

By Paul Thibodeaux and Danny Dysart

The Court's decision on CAFA removal of parens patriae mass-action suits and how it impacts future

mass-tort litigation.

 

News & Developments

»

NV Court Expands Mandate of Production of Memory-Refreshing Documents

The mandate now applies to depositions as well as in-court hearings.

 

Considering a 30(b)(6) Deposition to Explore E-Discovery Methods?

A couple of recent decisions address a party's ability to use a Rule 30(b)(6) deposition to inquire about an

opponent's e-discovery methodology.

 

Supreme Court Allows Subpoenas on Banks With Argentina's Accounts

In the continuing worldwide drama over Argentina's 2001 debt default, Argentina loses another round.  Republic of Argentina v. NML Capital, Ltd., No. 12-842 (U.S. June 16, 2014).  Its creditor, NML Capital, which Argentina owes about $2.5 billion, has pursued postjudgment execution on Argentina's property since 2003.  In 2010, NML subpoenaed two nonparty banks, Bank of America and an Argentinian bank with a branch in New York City.  The subpoenas sought documents relating to accounts maintained by Argentina. 

Argentina and BoA moved to quash the BoA subpoena (the Argentinian bank just didn't comply), and NML moved to compel.  The district court granted the motion to compel, and the Second Circuit affirmed.

The Supreme Court also affirmed, rejecting Argentina's argument that the Foreign Sovereign Immunities Act prohibited discovery of Argentina's extraterritorial assets.  Before its discussion of the FSIA, the Court discussed a Federal Rule of Civil Procedure -- Rule 69 -- that is rarely, if ever, mentioned in first-year civil procedure casebooks.  (Hint, hint, casebook authors!)  The Court noted that "[t]he rules governing discovery in postjudgment execution proceedings are quite permissive," citing Rule 69(a)(2), which allows a judgment creditor to take discovery "from any person -- including the judgment debtor -- as provided in the rules or by the procedure of the state where the court is located."  The Court assumed without deciding that "in a run-of-the-mill execution proceeding [one where the judgment debtor is not a foreign state] . . . the district court would have been within its discretion to order the discovery from third-party banks about the judgment debtor's assets located outside the United States."

The question was thus whether the FSIA required a different result when the judgment debtor was, in fact, a foreign state.  The FSIA, passed in 1976, confers two kinds of immunity on foreign states, jurisdictional (which Argentina waived) and execution immunity, which immunizes property in the United States of a foreign state from attachment and execution, with some exceptions.  

"There is no third provision forbidding or limiting disocvery in aid of execution of a foreign-sovereign judgment debtor's assets," notes Justice Scalia for the majority.  "[T]he reason for these subpoenas is that NML does not yet know what property Argentina has and where it is, let alone whether it is executable under the relevant jurisiction's law."   The Court also dismissed concerns about international relations, suggesting that such an argument was better addressed to Congress.

Justice Ginsburg dissented.  Justice Sotomayor took no part.      

   

Reminder: Call for Papers for Fed Cts Jr Faculty Workshop at Georgia

The University of Georgia School of Law will host the Seventh Annual Junior Faculty Federal Courts Workshop on October 10-11, 2014.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars include, at this time, Janet Alexander (Stanford), A.J. Bellia (Notre Dame), Heather Elliott (Alabama), Evan Lee (UC-Hastings), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Amanda Tyler (UC-Berkeley), and Steve Vladeck (American).

The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

The conference will begin with a dinner on Thursday, October 9, then panels on Friday, October 10 and Saturday, October 11. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Georgia Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs.

Those wishing to present a paper must submit an abstract by June 20, 2014. Papers will be selected by a committee of past participants, and presenters will be notified by early July. Those planning to attend must register by August 29, 2014. 

Please send abstracts to [email protected]. Please contact Matt Hall or Kent Barnett with questions.

Appeals Court Reverses Denial of Sanctions Motion Against Merrill Lynch's Law Firm

The opinion of the Massachusetts Appeals Court begins:

The plaintiffs appeal from the denial of their motion for sanctions against Bingham McCutchen LLP (Bingham), intervener, the law firm that defended Merrill Lynch, Pierce, Fenner & Smith, Inc. (Merrill), in the 2002 jury trial of this action. The plaintiffs claim that in that litigation Bingham wrongfully withheld documents relevant to the issue whether Merrill, in handling the accounts of Benistar Property Exchange Trust Company, Inc. (Benistar), knew that Benistar was trading with money belonging to third parties. We hold that Bingham lacked an adequate legal basis, under the guise of the work product doctrine, for its decisions to withhold information that Merrill employees had viewed certain Benistar Web pages describing its business as an intermediary for third-party funds and then to present a defense claiming that no Merrill employees had viewed the very same Web pages.  As a result, we vacate that portion of the final judgment entering judgment in favor of Bingham on the plaintiffs' motion for sanctions.  As explained below, there remain certain issues that require resolution by a fact finder, and thus, we remand for further proceedings consistent with this opinion.

Cahaly v. Benistar Property Exchange Trust Co., Inc. No. 12-P-956 (Mass. Ct. App. June 6, 2014).

Hat tip: The American Lawyer

AALS Section on Federal Courts: Annual Award for Best Untenured Article on the Law of Federal Jurisdiction

Announcement below...

The AALS Section on Federal Courts is pleased to announce the third annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2015 AALS Annual Meeting in Washington, D.C.
 
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2014 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2014), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
 
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School ([email protected]), Chair of the AALS Section on Federal Courts. Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2014. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Allan Erbsen (Minnesota), Tara Leigh Grove (William & Mary), James Pfander (Northwestern), and Judith Resnik (Yale), with the result announced at the Federal Courts section program at the 2015 AALS Annual Meeting. 

 

 

Standing Committee Approves Proposed FRCP Amendments

We've been covering (see here and here, among others) the path of the controversial proposed amendments to the FRCP as they (inexorably, in my view) wend their way toward final approval.

The Standing Committee met on May 29-30, 2014 in D.C. and unanimously approved the amendments as they were modified by the Advisory Committee at its meeting in April. 

Hat tip: Center for Constitutional Litigation

Rhodes and Robertson on the New PJ Decisions

Charles "Rocky" Rhodes (South Texas College of Law) and Cassandra Burke Robertson (Case Western) have posted Toward a New Equilibrium in Personal Jurisdiction to SSRN.

In early 2014, the Supreme Court decided two new personal jurisdiction cases that will have a deep and wide-ranging impact on civil litigation in the coming decades: Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and Walden v. Fiore, 134 S. Ct. 1115 (2014). Bauman eliminates the traditional “continuous and systematic” contacts test for general jurisdiction, and Walden significantly retracts the ability of courts to exercise personal jurisdiction over out-of-state defendants whose actions have in-state effects. Taken together, both cases will make it significantly more difficult for plaintiffs to exercise control over where lawsuits are filed. In some cases — such as large-scale class actions — the new decisions may make it impossible to identify a single forum where multiple defendants can be sued together, and will therefore shift the balance of litigation power from plaintiffs to defendants.

This Article examines the effect that these decisions will have on future litigation and suggests solutions to the problems that will arise in the wake of these decisions. It analyzes how the Court’s new jurisprudence has shifted the balance of power in the jurisdictional framework, and it explores areas of future litigation. We predict four areas in which disputes are likely to become more salient: first, the “connectedness” requirement of specific jurisdiction; second, the availability of personal jurisdiction over pendent claims that form part of a single case or controversy; third, the future availability of personal jurisdiction over a defendant whose out-of-state conduct has caused effects within the forum state; and fourth, the availability of “consent jurisdiction” based on the appointment of a registered agent for service of process. Even before the Court’s 2014 cases, circuit splits had arisen over the propriety of jurisdiction in each of these four areas. Now that the Court has limited other grounds for personal jurisdiction, we predict those pre-existing splits will become more critical to resolve and will take on a central role in future litigation. 

Our Article suggests solutions to the problems that will inevitably arise in the wake of these decisions, and it proposes a method of recalibrating specific jurisdiction to account for the demise of general contacts jurisdiction and the limitation on effects-test jurisdiction. It recognizes that International Shoe described two categories of specific jurisdiction — not just one — and it builds on this two-tier framework to reach a new equilibrium. When the defendant’s forum activities fall within Shoe’s “continuous and systematic” category, the balance of individual and state interests should tilt toward authorizing jurisdiction as long as some loose connection exists between the forum and the actions that give rise to the litigation. Thus, in cases that would have been eligible for general jurisdiction in the past, the forum relatedness requirement should be relaxed. In contrast, for adjudicatory jurisdiction in the “single or occasional” acts scenario, the state must have a tighter link to its sovereign regulatory interests. This rebalanced jurisdictional framework would therefore take into account the defendants’ liberty interests as protected by Bauman and Walden without sacrificing the states’ sovereign interest in protecting their citizens.

RJE

Appeals Court Lacks Jurisdiction Over District Court's Third Order Remanding to State Court

            Some people really, really want to be in federal court instead of state court.  In Arnold Crossroads v. Gander Mountain, No. 13-2020 (8th Cir. Jun. 2, 2014), defendant Gander tried and failed to remove the case three times.  Plaintiff filed this breach-of-lease case on February 24, 2009 in Missouri state court, seeking one month's damages of $40,000.  Defendant's first attempt at removal on the basis of diversity failed for lack of the amount-in-controversy requirement.  Defendant then filed a declaratory judgment action in federal court, which was dismissed on abstention grounds in light of the pending state case.

 

            Plaintiff eventually amended its complaint to seek millions of dollars in damages for breach of the lease's entire 15-year period, and defendant attempted to remove again, but this time failed because the effort to remove was untimely under 28 U.S.C. §1446 (one year for diversity actions). 

 

A year later, the City where the lease was to have operated intervened as a plaintiff, seeking $750,000 from defendant.  Defendant attempted a third time to remove, purporting to remove only the City.  The federal district court once again remanded, and defendant appealed. 

 

The Eighth Circuit dismissed the appeal for lack of appellate jurisdiction under 28 U.S.C. §1447(d) (an order remanding a case to the state court from which it has been removed "is not reviewable on appeal or otherwise"), because the district court's remand order was based on the "§1447(c) procedural flaw of untimely removal."  Judge Smith dissented: "I would reach the primary issue in this case and hold that Gander can remove the City's claim because that civil action involved a new party who asserted a new and original claim."