Civil Procedure & Federal Courts Blog

Missing Pro Se Litigant With SCOTUS-worthy Rule 4(m) Issue Resurfaces

We covered earlier the Supreme Court’s grant of certiorari in Chen v. Mayor and City Council of Baltimore (No. 13-10400), which promised to resolve a conflict in the circuits over extensions of time to serve process under Rule 4(m).  The petitioner was proceeding pro se, and on January 9 the Court dismissed the case with this order:

Petitioner has not filed a brief on the merits within 45 days of the order granting the writ of certiorari, as required by Rule 25.1. Petitioner has neither requested an extension of time nor responded to correspondence directed to the mailing address provided under Rule 34.1(f). Additional efforts to contact petitioner have been unsuccessful. The writ of certiorari is accordingly dismissed.

But the story doesn’t end there. Yesterday Mr. Chen—represented by Paul Clement—filed a petition for rehearing asking for his case to be reinstated. From today’s Wall Street Journal story:

Mr. Clement’s eight-page submission said Mr. Chen left his New York residence last fall to make what was intended to be a short business trip to California. But while there, Mr. Chen suffered a “slip-and-fall injury” that postponed his return for more than two months.

The court filing said Mr. Chen arrived back in New York on Jan. 22 and was “surprised and dismayed” to learn the Supreme Court had accepted, and subsequently dismissed, his case.

Stay tuned.

 

 

 

 

 

Dart Cherokee and Class-Certification Appeals under Rule 23(f)

We covered earlier the Supreme Court’s decision in Dart Cherokee Basin Operating Co. v. Owens, a case where cert. was granted to resolve what had to be contained in a notice of removal, only to have a 5-4 fight erupt over questions of Supreme Court jurisdiction and the proper standard of review.

Scott Gant and Christopher Hayes have now posted a piece entitled 'Dart' and Class Certification Order Jurisdiction, which argues the Dart Cherokee “also resolves uncertainty about whether the Supreme Court has jurisdiction to review a district court’s interlocutory order granting or denying class certification when the court of appeals has declined to review the order.”