Civil Procedure & Federal Courts Blog

Cases on Tap for Tomorrow’s SCOTUS Conference: Are Cert Grants Coming on Pleading and Personal Jurisdiction?

A couple of cases on the calendar for tomorrow's Supreme Court conference are worth a quick mention. Both appear on SCOTUSblog’s "relist" list. (That they had already been calendared for previous conferences and avoided a quick cert. denial presumably means they generated at least some interest or need for further inquiry.) 

One is Johnson v. City of Shelby, a case out of the Fifth Circuit that raises some interesting questions about pleading standards that we covered earlier. This is the second time Johnson has been relisted.

Another is AEP Energy Services v. Heartland Regional Medical Center, a case out of the Ninth Circuit on personal jurisdiction. Here are the questions presented in AEP:

1. Whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants based on the plaintiffs’ bare allegation that the defendants engaged in a nationwide conspiracy outside the forum that had an intended effect inside the forum (as well as presumably in every other state).

2. Whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants when the defendants’ limited forum conduct bears no causal relationship to the plaintiffs’ claim.

You can find all of the AEP cert-stage briefs at SCOTUSblog. The Ninth Circuit’s opinion is In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716.

 

Epstein on Black & Spriggs on the Depreciation of U.S. Supreme Court Precedent

Over on the Courts Law section of JOTWELL is an essay by Lee Epstein entitled The Depreciation of Precedent. It reviews an article by Ryan Black and James Spriggs that was recently published in the Journal of Empirical Legal Studies.

 

 

The Advisory Committee's Gargantuan New Agenda

Far from resting on its laurels after pushing through the latest round of defense-oriented amendments to the FRCP, the Advisory Committee on Civil Rules continues its assault.  This time, among many other things, it's tackling class actions – as if the Supreme Court wasn't already doing a pretty good job of eviscerating class actions by itself.

The 588-page agenda book for the Committee's meeting in Washington, D.C. on October 30-31, 2014 is on the U.S. Courts website here.

Standing, Subject Matter Jurisdiction, and Rule 60(b)

The Supreme Court of Ohio issued an interesting decision last week involving standing, subject matter jurisdiction, and whether they can be challenged via Ohio Rule 60(b) after the opportunity for a direct appeal has passed. The case is Bank of America, N.A. v. Kutcha.

Marianna Bettman has an analysis of the opinion, calling it a “Field Day for Civil Procedure Geeks.”

 

 

Wasserman on Redish and Aronoff on Judicial Selection and Due Process

Over on the Courts Law section of JOTWELL is an essay by Howard Wasserman entitled Judicial Retention Meets Due Process.

It reviews a recent article by Martin Redish and Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process Judicial Retention and the Dangers of Popular Constitutionalism, which will appear in the William & Mary Law Review. 

 

 

Interesting Cert. Petition on Pleading (Just Relisted)

John Elwood's most recent SCOTUSblog Relist Watch identifies Johnson v. City of Shelby, which presents these questions:

1. Is a federal complaint subject to dismissal when it fails to cite the statute authorizing the cause of action?

2. Do the lower federal courts have authority to create pleading requirements for complaints when those requirements are not contained in the Federal Rules of Civil Procedure?

3. Should a federal complaint be dismissed when it alleges the elements of a 42 U.S.C. § 1983 claim, but does not cite 42 U.S.C. § 1983?

It's been re-calendared for this Friday's conference (10/10). Here's the Fifth Circuit's decision below.

Stay tuned.

(Hat Tip: Shaun Shaughnessy)

 

 

GSK Loses Its Bid to Re-Remove

We've been following the diversity-jurisdiction saga of a GlaxoSmithKline holding company ("GSK").  Last year in Johnson v. SmithKline Beecham Corp., No. 12-2561 (3d Cir. June 7, 2013), the Third Circuit ruled that GSK's ten-by-ten foot subleased office in Delaware makes Delaware its principal place of business and thus a Delaware citizen for diversity purposes.

Since then, GSK has tried to use its newfound Delaware citizenship to forum-shop in several other diversity cases.  Before Johnson, GSK had removed one of these cases, A.S. v. SmithKlineBeecham Corp. d/b/a GlaxoSmithKline, a personal injury case alleging that GSK's drug Paxil caused birth defects, from Pennsylvania state court.  The district court remanded the case in 2012, holding that GSK was a Pennsylvania citizen.  After Johnson held in 2013 that GSK was a Delaware citizen, GSK removed the case a second time.  This time, the district court denied plaintiffs' motion to remand.

On an interlocutory appeal by permission, the Third Circuit reversed and remanded with instructions to remand to Pennsylvania state court.  The court held that the second removal was untimely under 28 U.S.C. §1446(b), both because it was filed more than 30 days after GSK's receipt of the complaint, and because in a diversity case, removal may not occur more than one year after the commencement of the action.  The court rejected both equitable tolling of the time period and the notion that the second notice of removal "related back" to the first notice of removal.  A.S. v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, No. 14-1229 (3d Cir. Oct. 9, 2014).

Hat tip: Howard Bashman of the How Appealing blog, who argued the successful appeal for the plaintiffs.

SCOTUS Oral Argument in Dart Cherokee

Here is the transcript from today's oral argument in Dart Cherokee Basin Operating Co. v. Owens. Some pretty interesting exchanges--although many of them had nothing to do with the actual question presented. The Justices spent a considerable amount of time on the jurisdictional/abuse-of-discretion argument first raised by Public Citizen in an amicus brief.

The question for which cert. was granted was this:

"Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required 'short and plain statement of the grounds for removal' enough?"

As to that issue, Justice Kagan commented to Petitioner's counsel that "most of us agree with you on the merits," although Justice Alito quickly responded, "That might be a little premature." [p.21]

The whole transcript is worth a read (if you're into that sort of thing), but here's one exchange between Justice Breyer and Respondent's counsel that speaks volumes about the state of pleading standards after Twombly and Iqbal: 

MR. SHARP: [T]hat was part of the district court's opinion.  There were two parts.  One was that there wasn't any evidence; and the second part was that it was conclusory, that there were no facts. All you said was 8.2 million. And so both of those were possible ­--­

JUSTICE BREYER:  Isn't that a fact?

MR. SHARP:  Excuse me, Your Honor?

JUSTICE BREYER:  Isn't 8.2 million a fact?

MR. SHARP:  It's a conclusory fact.

JUSTICE BREYER:  Well, it's a fact.  They said in their view ­­--

MR. SHARP:  It's a conclusion.

JUSTICE BREYER:  All right.  I don't know what a conclusory fact is as opposed to a regular fact.

 

 

Are you ready for some SCOTUS?

First Monday, baby. And right out of the gate is Dart Cherokee Basin Operating Co. v. Owens, which will be argued on First Tuesday (October 7). The SCOTUSblog argument preview by Ron Mann (Columbia) says the case “could have come straight out of a law-school exam.” Here’s the question presented:

Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required “short and plain statement of the grounds for removal” enough?

There’s also an interesting side issue regarding the extent of the Supreme Court’s jurisdiction when a federal appellate court has exercised discretion to deny leave to appeal under the special appellate provisions of the Class Action Fairness Act [28 U.S.C. § 1453(c)]. An amicus brief filed by Public Citizen argues that “the only question properly before the Court in this case is whether the court of appeals abused its discretion when it denied leave to appeal.”

 

 

First Annual Civil Procedure Workshop: Seattle, July 2015

Below is a link to the announcement and call for papers for the First Annual Civil Procedure Workshop, which is being organized by Brooke Coleman (Seattle University), Liz Porter (University of Washington) and Dave Marcus (University of Arizona). It will be held at Seattle University on July 16-17, 2015. Future conferences will take place at the University of Washington and the University of Arizona. The deadline to submit abstracts is December 15, 2014. 

Download Civil Procedure Workshop Call for Papers