Wednesday, June 28, 2017
The Northern District of Illinois launched a mandatory pilot program last month that requires parties to engage in a series of mandatory discovery requests and disclosures. The FJC reports that this will help them study "whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery reduces the cost and delay of civil litigation."
This pilot program could also have an effect on pleading and Twombly-style 12(b)(6) fact motions: Under the program, parties are required to file answers simultaneously with 12(b) motions unless they show good cause that the court is considering a jurisdictional dismissal.
A few interesting highlights from the discovery order:
Paragraph 1: "State the names and, if known, the addresses and telephone numbers of all persons who you believe are likely to have discoverable information relevant to any party’s claims or defenses, and provide a fair description of the nature of the information each such person is believed to possess." Compare this to Federal Rule 26(a)(1)(A)(i): "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment."
Paragraph 2: "State the names and, if known, the addresses and telephone numbers of all persons who you believe have given written or recorded statements relevant to any party’s claims or defenses. Unless you assert a privilege or work product protection against disclosure under applicable law, attach a copy of each such statement if it is in your possession, custody, or control. If not in your possession, custody, or control, state the name and, if known, the address and telephone number of each person who you believe has custody of a copy."
Paragraph 4: "For each of your claims or defenses, state the facts relevant to it and the legal theories upon which it is based."
This program will be interesting to watch, and I'm looking forward to seeing what the FJC (and perhaps other scholars) produce. More info here.
Tuesday, June 27, 2017
The US Federal Judicial Center recently published International Human Rights Litigation: A Guide for Judges. This Guide was written to assist federal judges in managing and resolving federal cases involving international human rights claims, and it provides a comprehensive analysis of all substantive and procedural issues involved. A detailed analysis is provided on the Alien Tort Statute, Torture Victim Protection Act, and other federal statutes. The book also includes a model scheduling order for human rights cases as well as case summaries, tables, and research references, current as of Dec 31, 2016.
The Guide was drafted to be neutral as between human rights plaintiffs and defendants, and thus should provide useful information for all. Because it was commissioned by a federal government agency (the FJC) for the benefit of federal judges, lawyers, and agencies, the Guide has been placed in the public domain and is available as a free resource. Readers can freely distribute, print, and otherwise use and transmit the Guide in its present form, provided that no changes are made to the manuscript itself. You can find and download the Guide by searching on the FJC website or via this link to the author’s SSRN site (Abstract ID # 2978170).
Recommended citation: David Nersessian, International Human Rights Litigation: A Guide for Judges 1-178 (Federal Judicial Center 2016).
On the last day of opinions for the October 2016 Term, the Court handed down decisions involving a range of civil procedure and federal courts issues:
- In California Public Employees’ Retirement System v. ANZ Securities, Inc., the Court held that the American Pipe tolling rule for class actions does not apply to the 3-year statute of repose in § 13 of the 1933 Securities Act.
- In Davila v. Davis, the Court held that, for purposes of a federal habeas petition, ineffective assistance by the prisoner’s state postconviction counsel cannot excuse a defaulted claim of ineffective assistance of appellate counsel.
- In Hernandez v. Mesa, which “involves a tragic cross-border incident in which a United States Border Patrol agent standing on United States soil shot and killed a Mexican national standing on Mexican soil,” the Court remanded the case for the Fifth Circuit to reconsider its rulings on Bivens and qualified immunity.
- In Trump. v. International Refugee Assistance Project, the Court granted certiorari to review two rulings that enjoined Trump’s executive orders on immigration. Pending review, the Court stayed those injunctions “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”
Thursday, June 22, 2017
I have posted my newest article, "Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion" to SSRN.
In litigation days of old, American courts jealously guarded their procedural powers through the doctrine of “ouster” and blocked most litigant efforts to create their own private procedural landscape. By the end of the Twentieth Century, the ouster doctrine was gone. Litigants now use an increasingly sophisticated set of contractual agreements that alter or displace standard procedural rules. But this is not to say that judicial power has been displaced. In fact, the downfall of traditional ouster doctrine was accompanied by a rise in the scope and use of judicial discretion in procedural matters, culminating in the emergence of the “managerial judge” with administrative powers and responsibilities that would have seemed entirely foreign to a modern judge’s earlier counterpart.
This Article examines the link between the scope of judicial discretion and the acceptance or even endorsement and encouragement of private procedural ordering (the use of private agreements to alter or avoid procedural rules). Examples from civil procedure demonstrate the varying dynamics of the relationship between judicial discretion and private procedural ordering, from the uneasy compatibility found in the rules of discovery to the outright clash of values in the enforcement of forum selection clauses.
The relationship between judicial discretion and private procedural ordering is not coincidental. Rather, it reveals that the civil litigation landscape is one in which litigants are “co-managers” of litigation alongside the increasingly “managerial” judges. More controversially, this relationship also shows that litigants are also “co-interpreters” of procedural rules alongside judges, sharing the authority to shape the contours of the meaning, scope, and application of many procedural rules.
Now on the Courts Law section of JOTWELL is Nancy Leong’s essay, On Gender Disparity and Dialogue. Nancy reviews Jennifer Mika’s recent article, The Noteworthy Absence of Women Advocates at the United States Supreme Court, 25 Amer. U. J. of Gender, Soc. Pol’y & Law 1 (2017).
Tuesday, June 20, 2017
Yesterday the Supreme Court issued its decision in Ziglar v. Abbasi, covered earlier here and here. By a 4-2 vote, the Court reversed the Second Circuit and ordered the dismissal of most of the plaintiffs’ claims that they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. Justice Kennedy wrote the Opinion of the Court, joined (though not in its entirety) by Chief Justice Roberts and Justices Thomas and Alito. Justice Breyer wrote a dissenting opinion, joined by Justice Ginsburg. Justices Sotomayor, Kagan, and Gorsuch took no part (Justices Sotomayor and Kagan recused themselves, and Justice Gorsuch was not on the Court at the time of oral argument). Although the cert. petitions presented three issues—Bivens, qualified immunity, and pleading standards—the bulk of the majority’s reasoning and analysis focused on Bivens.
Here are the concluding paragraphs from Justice Kennedy’s opinion:
If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected. The question before the Court, however, is not whether petitioners’ alleged conduct was proper, nor whether it gave decent respect to respondents’ dignity and well-being, nor whether it was in keeping with the idea of the rule of law that must inspire us even in times of crisis.
Instead, the question with respect to the Bivens claims is whether to allow an action for money damages in the absence of congressional authorization. For the reasons given above, the Court answers that question in the negative as to the detention policy claims. As to the prisoner abuse claim, because the briefs have not concentrated on that issue, the Court remands to allow the Court of Appeals to consider the claim in light of the Bivens analysis set forth above.
The question with respect to the §1985(3) claim is whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy. For the reasons given above, the Court answers that question, too, in the negative.
The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings.
For more detailed coverage, check out:
Monday, June 19, 2017
Today the Supreme Court issued its decision in Bristol-Myers Squibb Co. v. Superior Court, covered earlier here and here. By an 8-1 vote, the Court reverses the California Supreme Court’s conclusion that asserting personal jurisdiction over Bristol-Myers Squibb (BMS) was constitutional. Justice Alito writes the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Thomas, Ginsburg, Breyer, Kagan and Gorsuch. Justice Sotomayor is the lone dissenter.
The case involves a “group of plaintiffs—consisting of 86 California residents and 592 residents from 33 other States”—who sued BMS in California state court alleging injuries arising from BMS’s drug Plavix. The issue was whether personal jurisdiction was proper over the claims by plaintiffs who were not residents of California. The California Supreme Court concluded that although BMS was not subject to general jurisdiction in California, the nonresidents’ claims were covered by specific jurisdiction.
Monday, June 12, 2017
Today the Supreme Court issued its long-awaited decision in Microsoft Corp. v. Baker, a case for which cert was granted nearly a year and a half ago. The plaintiffs in the case had sought certification of a class action, but the district court refused. After failing to receive permission to appeal the class-certification ruling under Rule 23(f), the plaintiffs (in the words of Justice Ginsburg’s majority opinion) “stipulated to a voluntary dismissal of their claims ‘with prejudice,’ but reserved the right to revive their claims should the Court of Appeals reverse the District Court’s certification denial.”
Today’s decision finds that such a stipulated voluntary dismissal did not create appellate jurisdiction, although the Court splits 5-3 on the basis for that conclusion. Joined by Justices Kennedy, Breyer, Sotomayor and Kagan, Justice Ginsburg writes:
We hold that the voluntary dismissal essayed by respondents does not qualify as a “final decision” within the compass of §1291. The tactic would undermine §1291’s firm finality principle, designed to guard against piecemeal appeals, and subvert the balanced solution Rule 23(f) put in place for immediate review of class-action orders.
A concurring opinion by Justice Thomas (joined by Chief Justice Roberts and Justice Alito) concludes that there was a “final decision” for purposes of § 1291, because the district court’s order “dismissed all of the plaintiffs’ claims with prejudice and left nothing for the District Court to do but execute the judgment.” Justice Thomas, however, reasons that “the Court of Appeals lacked jurisdiction under Article III of the Constitution,” because “[w]hen the plaintiffs asked the District Court to dismiss their claims, they consented to the judgment against them and disavowed any right to relief from Microsoft.”
Justice Gorsuch—who was not yet on the Court at the time of oral argument—took no part in the case.
Today the U.S. Supreme Court granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, limited to the following question:
Whether inter partes review—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents— violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.
You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog.
Wednesday, June 7, 2017
This week on the Courts Law section of JOTWELL is Marin Levy’s essay, Rethinking Judicial Independence. Marin review’s Tara Grove’s recent article, The Origins (and Fragility) of Judicial Independence, which is forthcoming in the Vanderbilt Law Review.
Tuesday, June 6, 2017
Yesterday the Supreme Court issued a unanimous decision in Town of Chester v. Laroe Estates, Inc., covered earlier here and here. Justice Alito’s opinion for the Court decides the case on very narrow grounds—here’s how it begins:
Must a litigant possess Article III standing in order to intervene of right under Federal Rule of Civil Procedure 24(a)(2)? The parties do not dispute—and we hold—that such an intervenor must meet the requirements of Article III if the intervenor wishes to pursue relief not requested by a plaintiff. In the present case, it is unclear whether the intervenor seeks different relief, and the Court of Appeals did not resolve this threshold issue. Accordingly, we vacate the judgment and remand for that court to determine whether the intervenor seeks such additional relief.
Friday, June 2, 2017
Nease v. Ford Motor Co., distributed for next week’s Supreme Court conference, presents some interesting questions regarding the procedure surrounding Daubert motions:
1) When a district court grants or denies a motion in limine concerning expert testimony, need it state only its ultimate ruling on admissibility (as permitted in the First and Second Circuits), or must it also set forth explicit findings of fact regarding each aspect of the expert testimony rules cited in the motion (as required by most other circuits, including the Fourth Circuit below)?
2) When a federal appellate court concludes that a district court erred procedurally by admitting or excluding expert testimony in a jury trial without explicit Daubert factfinding, is the appropriate remedy for such procedural error: (a) a remand so that the omitted findings can be made by the district court (the rule applied in at least two circuits); (b) a remand for a mandatory new trial (the rule applied in the Ninth and Tenth Circuits); or (c) de novo decision of the admissibility issue on appeal (the rule applied by the Fourth Circuit below and by the Seventh Circuit)?
Here is the full cert. petition:
And here is the Fourth Circuit’s decision below.