Saturday, August 30, 2014
Continuing my ongoing review of the proposed amendments to the Federal Rules of Civil Procedure currently pending before the Judicial Conference of the United States, I move on to one of the changes proposed to Rule 16: the shortening by 30 days of the time for the court to issue a scheduling order. As noted in my last post, the time within which the plaintiff must serve process on the defendant has also been shortened by 30 days.
The cumulative effect is that the scheduling order will potentially issue 60 days earlier than it does now. The hypothetical effect of the proposed changes in scheduling is illustrated in the table below.
Tuesday, August 26, 2014
In my intended continuing series reviewing the proposed amendments to the Federal Rules of Civil Procedure currently pending before the Judicial Conference of the United States, I move on to Rule 4(m). For background, see my earlier post here.
The proposed change to Rule 4(m) is:
(m) Time Limit for Service. If a defendant is not served within 120 90 days after the complaint is filed, the court -- on motion or on its own after notice to the plaintiff -- must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f) or 4(j)(1) or to service of a notice under Rule 71.1(d)(3)(A).
The Advisory Committee had originally proposed a reduction of the time within which plaintiff must serve process from 120 days to 60 days, but after public comment, it split the difference at 90 days.
Monday, August 25, 2014
The New York Times reports that Burger King is in talks to buy Tim Hortons and move its headquarters to Canada. Will civil procedure ever be the same? Start drafting those new choice-of-law clauses now!
Also, I have been informed by several friends that I am way too excited about this piece of news.
Sunday, August 24, 2014
The controversial proposed amendments to the Federal Rules of Civil Procedure that were first published for comment in August 2013, somewhat modified after vociferous public comment, and approved by the Advisory Committee and the Standing Committee, are making their way to a vote by the full Judicial Conference at its meeting in September.
I thought it might be useful to review the proposals, a bit at a time, here. Needless to say, my comments are my own and I do not speak for any of my co-editors or the Law Professor Blogs Network. As I noted earlier on this blog, I submitted written comments in opposition to the amendments.
Since the 2010 Duke Conference, the Advisory Committee has repeated the mantra "that the disposition of civil actions could be improved, reducing cost and delay, by advancing cooperation among the parties, proportionality in the use of available procedures, and early and active judicial case management." (May 2014 Advisory Committee Report to the Standing Committee.)
Taking the "advancing cooperation" objective first, the only rule change that supposedly addresses this is the following addition to Rule 1:
These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. [Proposed deletions from the current rule are struck through; proposed additions to the current rule are underlined.]
Rule 1 remained substantively unchanged from its adoption in 1938 until 1993, when the words "and administered" were inserted into the second sentence after the word "construed." The Advisory Committee Notes explained in 1993 that the addition of those words was "to recognize the affirmative duty of the court to exercise the authority conferred by these rules to ensure that civil litigation is resolved not only fairly, but also without undue cost or delay. As officers of the court, attorneys share this responsibility with the judge to whom the case is assigned." (Adv. Comm. Notes to 1993 Amendments to Rule 1 (emphasis added).) Now, twenty years later, the Advisory Committee apparently feels that attorneys have snubbed this responsibility, and proposes adding a reference to "the parties" in the text of the rule, rather than in the Committee Note.
The newly proposed Committee Note reads in its entirety:
Rule 1 is amended to emphasize that just as the court should construe and administer these rules to secure the just, speedy, and inexpensive determination of every action, so the parties share the responsibility to employ the rules in the same way. Most lawyers and parties cooperate to achieve these ends. But discussions of ways to improve the administration of civil justice regularly include pleas to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay. Effective advocacy is consistent with — and indeed depends upon — cooperative and proportional use of procedure. [emphasis added]
This amendment does not create a new or independent source of sanctions. Neither does it abridge the scope of any other of these rules.
As you can see, the actual text of the newly proposed rule still does not use any form of the word "cooperation." The use of that word appears only in the proposed Note.
The Committee does not define or give an example of "cooperation," stating only that it means "to discourage over-use, misuse, and abuse of procedural tools that increase cost and result in delay" -- terms that are not further elaborated. The Committee does not address whether or how this envisioned duty of cooperation is enforceable. It rejects, without explaining why, concerns that the rule change may prompt "ill-founded attempts to seek sanctions for violating a duty to cooperate" or "the strategic use of 'Rule 1 motions.'" (May 2014 Adv. Comm. Rep.)
In its proposed Note, the Advisory Committee has linked "proportional," one of the watchwords of the day, to "cooperation," and admonished lawyers that these are necessary for "effective advocacy." Professor Paul Carrington, who was the Reporter for the Advisory Committee under Chief Justice Warren Burger, spoke at the first public hearing on the proposed amendments in November 2013. He criticized the proposed amendment to Rule 1 as suggesting "that lawyers are supposed to be not too vigorous on behalf of their clients if it would somehow be a pain to the other side." (Nov. Hearing at 60.)
Henry Kelston of Milberg LLP noted in response to a question:
There are genuine cooperators, there are pretend cooperators and then there are parties that don't even pretend to cooperate. And it makes a lot of difference in the way the litigation proceeds, which variety you're working with or against. (Jan. 2014 Hearing at 60-61.)
It seems doubtful that the change to Rule 1 will incentivize the "pretend cooperators" and those "that don't even pretend to cooperate" to change.
Saturday, August 23, 2014
Does the Advisory Committee on Civil Rules ever sleep? A new round of proposed amendments to the Federal Rules of Civil Procedure has been published for comment. These, however, appear to be housekeeping measures, not significant changes to the rules like the currently pending bunch, which go to the Judicial Conference next month.
The three proposed amendments:
Rule 4. Summons * * *
(m) Time Limit for Service. * * * This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(j)(1) * * *.
Explanation: "The Committee recommends publication of a clarifying amendment to ensure that service abroad on a corporation is excluded from the time for service set by Rule 4(m)."
Rule 6. Computing and Extending Time; Time for Motion Papers * * *
(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served1 and service is made under Rule 5(b)(2)(C)(mail), (D)(leaving with the clerk), (E), or (F)(other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).
Rule 6(d) is amended to remove service by electronic means under Rule 5(b)(2)(E) from the modes of service that allow 3 added days to act after being served.
82. Jurisdiction and Venue Unaffected
These rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts. An admiralty or maritime claim under Rule 9(h) is governed by 28 U.S.C. § 1390 not a civil action for purposes of 28 U.S.C. §§ 1391-1392.
Rule 82 is amended to reflect the enactment of 28 U.S.C. § 1390 and the repeal of § 1392.
Comments are due by February 17, 2015. Hearings on the civil rules will be held in Washington, D.C., on October 31, 2014, and in Phoenix, Arizona, on January 9, 2015.
Friday, August 22, 2014
In response to yesterday's posting regarding the NCBE's release of Sample Civil Procedure Test Questions for the MBE, Professor Kevin Clermont in dialogue with others points out that the answer to Sample Question 9 is "probably wrong."
Question 9 is:
9. A motorcyclist was involved in a collision with a truck. The motorcyclist sued the truck driver in state court for damage to the motorcycle. The jury returned a verdict for the truck driver, and the court entered judgment. The motorcyclist then sued the company that employed the driver and owned the truck in federal court for personal-injury damages, and the company moved to dismiss based on the state-court judgment.
If the court grants the company’s motion, what is the likely explanation?
(A) Claim preclusion (res judicata) bars the motorcyclist’s action against the company.
(B) Issue preclusion (collateral estoppel) establishes the company’s lack of negligence.
(C) The motorcyclist violated the doctrine of election of
(D) The state-court judgment is the law of the case.
The NCBE's Answer Key states that "A" is the correct answer. If you, like me, thought that B was the correct answer, you're not alone. Here is Professor Clermont's email:
I think you could argue for Answer 1 (CP) or Answer 2 (IP), but in no way is Answer 1 right and Answer 2 wrong. I would have answered Answer 2.
I can’t say that Answer 1 is wrong, however. And the examiners do make the point that one shouldn’t reach IP if CP is available.
Nonetheless, the argument for CP is not theirs, resting on claim and privity. The claim against employer is a different claim from the one against employee, and the E’er and E’ee are not in privity.
The argument for CP is nonmutual CP. See W&M 4464.1. If you sue the indemnitor first and then the indemnitee, the latter can use CP. This would be the way to go if the plaintiff lost the first suit by failure to prosecute, so that no issues were litigated and determined. But here there is no need to push the frontiers of the law (where nonmutual CP resides). Every court I have seen goes the standard nonmutual IP route if it is available.
. . . A court would go [with] Answer 2. But I think an academic could construct an argument for Answer 1.
He concludes that Question 9 is not, therefore, an ideal bar question.
Thanks to Professor Clermont for sharing his thoughts on this.
Thursday, August 21, 2014
The National Conference of Bar Examiners has released ten Civil Procedure Sample Multistate Bar Examination questions.
As we reported earlier, Civil Procedure will be included for the first time on the MBE administration in February 2015.
Monday, August 18, 2014
We covered earlier the upcoming Hastings Law Journal symposium on the Supreme Court’s recent decision in Atlantic Marine Construction Co. v. U.S. District Court. It will take place in San Francisco on Friday, September 19th. Here’s an announcement/invitation with more details:
You are cordially invited to attend a symposium on Atlantic Marine v. U.S. District Court, a decision by the U.S. Supreme Court last Term that held forum-selection clauses to be enforceable under Sec. 1404(a)'s authorization of venue transfer. The symposium, co-sponsored by UC Hastings and Hastings Law Journal, will bring renowned scholars from across the country to discuss the importance of the decision and its implications for civil litigation. Up to 3.5 hours of California MCLE credit is available. Free and open to the public, the symposium will be held at UC Hastings College of the Law, 198 McAllister St., in the Louise B. Mayer Room from 1:00-4:30pm on Friday, September 19, 2014. A reception for all attendees will immediately follow. Register here: http://www.hastingslawjournal.org/symposium/.
Sunday, August 17, 2014
Rhonda Wasserman (Pittsburgh) has posted on SSRN a draft of her article, Future Claimants and the Quest for Global Peace, which will appear in the Emory Law Journal. Here’s the abstract:
In the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants will not have contacted attorneys whose participation is critical to those alternative methods of dispute resolution.
In lieu of class actions and non-class aggregate settlements, this Article proposes a hybrid public-private claims resolution process designed to provide many of the benefits of global peace, while preserving the constitutional rights of future claimants and ensuring them fair compensation as their injuries manifest. Under this proposal, defendants would secure judicial approval of a fair and reasonable class action settlement of the current claims and then, through an extra-judicial process, make fair offers on comparable terms to future claimants as their claims mature, adjusted to take into account the time value of money and intervening changes in legal doctrine and medical advances. Since the class action settlement would not purport to bind the future claimants, their constitutional rights would be protected. And even though the future claimants would not be bound by the class action judgment nor obligated to accept the fair offers on comparable terms, they would have an incentive to accept them, rather than sue in tort, because they would be assured fair compensation without incurring the costs of litigation.
Saturday, August 16, 2014
Stephen Burbank and Sean Farhang have posted on SSRN their article Federal Court Rulemaking and Litigation Reform: An Institutional Approach (forthcoming in Nevada Law Journal).
Since the bold rulemaking reforms of 1993 were very nearly blocked by Congress, it has seemed that the important lessons for some rulemakers had to do with the epistemic deficits or overreaching of proposed reforms, while for others the lessons focused attention on the locus of partisan control in Congress. The former group may have learned from the Court’s strategy of incrementalism – death by a thousand cuts – in litigation reform involving the interpretation of federal statutes. The latter group may regret, if not the loss of leadership in procedural lawmaking, then the loss of leadership in retrenchment, which some rulemaking critics have seen signaled in the Court’s recent use of decisions effectively to amend the Federal Rules.
Thursday, August 14, 2014
Echoing the May 2, 2014 Report to the Standing Committee by the Advisory Committee on Civil Rules, the chair of the Advisory Committee, Judge David G. Campbell, has signaled that he would adopt the position of the proposed change to FRCP 37(e). Vicente v. City of Prescott, No. CV–11–08204–PCT–DGC (D. Ariz. Aug. 8, 2014), 2014 WL 3894131.
The proposed amendment to Rule 37(e) provides:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court may:
(1) upon finding prejudice to another party from loss of the information, order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Thus, the proposal rejects cases that permit an adverse inference instruction on a showing of negligence or gross negligence. As the Advisory Committee reported to the Standing Committee:
Circuits that permit adverse inference instructions on a showing of negligence or gross negligence adopt [the] rationale . . . that the adverse inference restores the evidentiary balance, and that the party that lost the information should bear the risk that it was unfavorable. See, e.g., Residential Funding Corp. v. DeGeorge Finan. Corp., 306 F.3d 99 (2d Cir. 2002). Although this approach has some logical appeal, the Advisory Committee has several concerns with this approach when applied to ESI. First, negligently lost information may have been favorable or unfavorable to the party that lost it. Consequently, an adverse inference may do far more than restore the evidentiary balance; it may tip the balance in ways the lost evidence never would have. (click here and go to page 314)
In Vicente, Judge Campbell stated that "the Court tends to believe that such an instruction requires a showing of bad faith," although the case did not require a decision on the point. (n. 10) Footnote 10 goes on to use the sentences quoted above almost verbatim, but without attribution.
Tuesday, August 12, 2014
Via our friends at the Drug and Device Law blog: Court Holds that Claim Against a Doctor Who Served as a Designer (or Possibly Just a Consultant) Can Defeat Diversity. From the post:
. . .
Now, the disconnect here may be that, even though federal, the court was not applying TwIqbal or anything resembling it. The court believed instead that it could not dismiss the doctor as fraudulently joined if there was “any possibility that plaintiff may prevail.” Id. at *5. That’s different from the TwIqbal standard, and we have addressed (here) that we believe federal courts considering fraudulent joinder should apply TwIqbal, or at least aTwIqbal-like standard. This court didn’t.
VANDERBILT LAW SCHOOL
CECIL D. BRANSTETTER LITIGATION & DISPUTE RESOLUTION PROGRAM
2015 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP
CALL FOR PAPERS
Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its 2015 New Voices in Civil Justice Scholarship Workshop, to be held May 11-12, 2015, at Vanderbilt Law School.
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.
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.
1. Subject matter. Submitted papers should address an aspect of civil justice, broadly defined. Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.
2. Author qualifications. To be eligible to submit a paper, scholars must currently hold either a faculty position or a fellowship.
3. Format / Anonymity. We will consider preliminary drafts, drafts under submission, or accepted papers that will not be published by the time of the workshop. Papers should be formatted either in Microsoft Word or Adobe Acrobat. To maintain the anonymity of the process, please remove any self-identifying information from the submission.
4. Deadline. Submissions should be e-mailed to Branstetter.Program@vanderbilt.edu no later than January 1, 2015. Please include your name, current position, and contact information in the e-mail accompanying the submission. We will contact you with our decision by February 15. Final drafts are due no later than April 15.
The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. Additional information can be found at http://law.vanderbilt.edu/newvoices. If you have any questions, please email the New Voices Workshop Chair, Professor Erin O’Hara O’Connor.
NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP
Tara Grove, William & Mary Law School
Scott Dodson, UC Hastings College of Law
Hiro Aragaki, Loyola Law School of Los Angeles
Invited Senior Scholar: Tobias Wolff
Sergio Campos, University of Miami
Robin Effron, Brooklyn Law School
Christopher Robertson, University of Arizona
Invited Senior Scholars: Benjamin Spencer & Neil Vidmar
Elizabeth Chamblee Burch, University of Georgia
Christina Boyd, SUNY Buffalo
Alexandra Lahav, University of Connecticut School of Law
Ariana Levinson, University of Louisville-Brandeis School of Law
Corey Yung, University of Kansas
Invited Senior Scholars: Robert Bone, Myriam Gilles & Kevin Clermont
2011 (began as an annual event)
Nora Freeman Engstrom, Stanford Law School
Maria Glover, Georgetown Law School (then at Harvard Law School (Climenko Fellow))
Margaret Lemos, Duke Law School (then at Cardozo School of Law)
Jonathan Mitchell, George Mason University School of Law
Invited Senior Scholar: Jay Tidmarsh
Myriam Gilles, Cardozo School of Law
Donna Shestowsky, U.C. Davis School of Law
A. Benjamin Spencer, University of Virginia School of Law (then at University of Richmond)
Amanda Tyler, U. C. Berkeley School of Law (then at George Washington University Law School)
Tobias Wolff, University of Pennsylvania Law School (then at U.C. Davis School of Law)
Invited Senior Scholar: Catherine Struve
Thursday, August 7, 2014
In Walsh v. U.S. Bank, N.A., No. A13-0742 (Aug. 6, 2014), the Minnesota Supreme Court held:
[W]e now decline to engraft the plausibility standard from Twombly and Iqbal onto our traditional interpretation of Minn. R. Civ. P. 8.01. We decline to do so despite the fact that the relevant text of Fed. R. Civ. P. 8(a)(2) is identical to the text of Minn. R. Civ. P. 8.01. . .
. . . A claim is sufficient against a motion to dismiss for failure to state a claim if it is possible on any evidence which might be produced, consistent with the pleader’s theory, to grant the relief demanded.
Hat tip: James Pielemeier
Wednesday, August 6, 2014
Now, I know you were just sayng to yourself, "Why hasn't another article about the empirical study of Twombly and Iqbal come out recently? I'm having withdrawal symptoms." Rejoice -- here it is.
Professor Jonah Gelbach of the University of Pennsylvania Law School has published in the most recent issue of the Stanford Journal of Complex Litigation (and earlier posted on SSRN) his article Can the Dark Arts of the Dismal Science Shed Light on the Empirical Reality of Civil Procedure?
Empirical questions in civil procedure are too important to be answered as if motivated people weren’t involved in the legal system. Parties don’t conduct their primary behavior that way, lawyers don’t plead or brief that way, and judges don’t decide cases that way. We ought not to study litigation that way, either. This paper is a step toward a better alternative.
Empirical researchers must take seriously the fact that litigation involves human beings, who are motivated and have agency. To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research. I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover important empirical relationships by disregarding behavioral aspects of human action.
I then show how these concerns permeate a prominent empirical issue in contemporary civil procedure debates: the changes in pleading policy wrought by Bell Atlantic, Corp. v. Twombly and Ashcroft v. Iqbal. Revisiting my own earlier work, I embed the question of how changes in the pleading standard will affect case outcomes in a broad behavioral framework that takes parties’ agency seriously. In the process, I address recent critiques, both of the very idea of using behavioral frameworks to understand civil litigation policy changes, and of my use of real-world litigation data collected by the Federal Judicial Center. These criticisms implicate all aspects of the process of empirical research: the notion of using a behavioral framework at all, the type of data needed, and the question of how best to estimate effects that the behavioral framework indicates are important, given the data. As I show, these criticisms are straightforwardly (if verbosely) refuted on the merits.
The alternative to taking seriously the behavioral context created by the civil justice system — what has occurred so far in too much of the debate over Twombly and Iqbal — is, as one critic of early 20th-century empirical research by legal scholars once put it, “a mindless amassing of statistics without reference to any guiding theory whatsoever.” To do better, we will need to take behavior seriously in studying civil litigation.
Saturday, August 2, 2014
From the summary prepared by court staff of the Ninth Circuit:
Reversing the district court’s denial of a motion for a remand to state court, the panel held that neither the federal question statute nor the Class Action Fairness Act provided the district court with subject matter jurisdiction over the Hawaii Attorney General’s complaints against six credit card providers, alleging that each violated state law by deceptively marketing and improperly enrolling cardholders in add-on credit card products.
Joining the Fifth Circuit, the panel held that the Attorney General’s claims were not preempted by National Bank Act provisions completely preempting state law claims challenging interest rates charged by national banks. . . . [T]he complaints’ state law claims were not preempted because they did not challenge the “rate of interest” that the card providers charged. Instead, . . . the complaints’ unfair and deceptive practice claims targeted alleged marketing misrepresentations, and their unjust enrichment claims arose from the purported failure to obtain consent before enrolling consumers in debt protection products.
Agreeing with the Second, Third, and Fourth Circuits, the panel held that CAFA did not provide an alternate basis for jurisdiction because the Attorney General brought civil enforcement actions or common law parens patriae suits, rather than class actions, and the complaints specifically disclaimed class status.
State of Hawaii ex rel. Louie v. HSBC Bank Nevada, N.A., No. 1:12-cv-00266-LEKKSC (Aug. 1, 2014).