Civil Procedure & Federal Courts Blog

Dodge & Dodson on Personal Jurisdiction over Aliens

Bill Dodge and Scott Dodson have posted on SSRN a draft of their article, Personal Jurisdiction and Aliens, which is forthcoming in the Michigan Law Review. Here’s the abstract:

The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: how should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol-Myers Squibb v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of alienage personal jurisdiction. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole nation. This national-contacts test applies to personal jurisdiction over an alien defendant whether the cause of action is federal or state law, and whether the case is heard in federal or state court. We show that the test is both consistent with the Constitution and consonant with the practical realities of modern transnational litigation. We also explore the moderating influence of other doctrines, such as reasonableness, venue transfer, and forum non conveniens, on the expanded reach of our national-contacts test. In the end, we hope to articulate a more sensible and coherent doctrine of personal jurisdiction and alien defendants that will resonate with the Supreme Court.

 

 

Seiner on the Supreme Court, Civil Procedure & Employment Law

Joe Seiner has just published The Supreme Court’s New Workplace (Cambridge University Press 2017). Here’s the description:

The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court's new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.

 

 

 

 

AALS Section on Conflict of Laws: Call for Papers Deadline Extended

The deadline to submit papers has been extended to Tuesday, September 5, 2017. Here’s the updated announcement:

The AALS Section on Conflict of Laws invites papers for its program entitled “Crossing Borders: Mapping the Future of Conflict of Laws Scholarship” at the AALS Annual Meeting, January 3-6, 2018, in San Diego.

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Vanderbilt Law Review Symposium: The Future of Discovery

On October 13, 2017, the Vanderbilt Law Review will be hosting a symposium entitled The Future of Discovery. From the announcement:

The Vanderbilt Law Review and Professor Brian Fitzpatrick are pleased to announce the 2017 Vanderbilt Law Review Symposium: The Future of Discovery. This year’s Symposium will take place on Friday, October 13, 2017 at Vanderbilt Law School. The Symposium will feature three panels of scholars discussing their recent work in the area of e-discovery, a keynote address delivered by U.S. District Judge Paul W. Grimm, and a round-table discussion with sitting federal judges to consider advances in and future challenges of discovery. The Symposium is open to practicing attorneys, and CLE credit will be available.

Panelists presenting at the Symposium will include:

Sergio J. Campos (University of Miami School of Law)
E. Donald Elliot (Yale Law School)
Jessica Erickson (University of Richmond School of Law)
Brian T. Fitzpatrick (Vanderbilt University Law School)
Robert Klonoff (Lewis & Clark Law School)
Alexandra D. Lahav (University of Connecticut School of Law)
Johnathan R. Nash (Emory University School of Law)
Martin H. Redish (Northwestern University School of Law)
David Rosenberg (Harvard Law School)
Linda Sandstorm Simard (Suffolk University Law School)
Joanna M. Shepherd (Emory University School of Law)
Paul Stancil (Brigham Young University Law School)
Jay Tidmarsh (University of Notre Dame Law School)

 

 

 

 

Erie, Federal Courts & the Media

This week the U.S. Court of Appeals for the Fifth Circuit issued its decision in Block v. Tanenhaus, reinstating a Loyola University professor’s claims for defamation and false light against the New York Times and two of its authors. The per curiam opinion acknowledges, but does not resolve, the interesting question of whether state “anti-SLAPP” statutes—such as Louisiana’s Article 971—apply in federal court under Erie:

Block argues that Article 971 is not applicable in federal court because it is procedural and because, even if it is substantive, it is in direct collision with the Federal Rules of Civil Procedure. The applicability of state anti-SLAPP statutes in federal court is an important and unresolved issue in this circuit.² Unfortunately for Block, his arguments against application of Article 971 have been forfeited.

Footnote 2 describes the state of play in the Fifth Circuit:

We have noted on several occasions that this is an open question. See, e.g., Block, 815 F.3d at 221; Cuba v. Pylant, 814 F.3d 701, 706 & n.6 (5th Cir. 2016); Lozovyy, 813 F.3d at 582–83; Culbertson v. Lykos, 790 F.3d 608, 631 (5th Cir. 2015); Mitchell v. Hood, 614 F. App’x 137, 139 n.1 (5th Cir. 2015); NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 752–53 (5th Cir. 2014). These opinions post-date our decision in Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164 (5th Cir. 2009), which stated without explanation that “Louisiana law, including the nominally-procedural Article 971, governs this diversity case.” Id. 168–69. In Lozovyy, we noted the possibility that, particularly in light of our subsequent decisions, Henry could be interpreted as assuming the applicability of Article 971 for purposes of that case without deciding its applicability in federal courts more generally. Lozovyy, 813 F.3d at 582–83. Similarly, we noted in Pylant that Henry did not address “whether, under the Erie doctrine, the array of state procedural rules surrounding anti-SLAPP motions to dismiss (viz. discovery stays, accelerated timetables for decision, and the like) follow the core anti-SLAPP motion to dismiss into federal court.” Pylant, 814 F.3d at 706 n.6; cf. id. at 719 (Graves, J., dissenting) (addressing Erie question not reached by majority opinion and stating that similar anti-SLAPP statute in Texas is inapplicable in federal court because it is procedural (citing Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015)).

Download Block v Tanenhaus (5th Cir)

 

 

 

Cal Western is Hiring in Civil Procedure!

California Western School of Law (CWSL) is seeking applications from entry-level and junior-lateral candidates for a tenure-track position to begin on or about August 1, 2018.  We are looking for candidates with strong academic backgrounds, a commitment to excellence in teaching, and demonstrated potential to be productive scholars.  The Appointments Committee is particularly interested in candidates with a strong desire to teach civil procedure, family law, immigration law, tax, or trusts/estates.  CWSL welcomes applications from individuals who would contribute to the vibrancy and diversity of our faculty.

Established in 1924, CWSL is an ABA accredited and AALS member, non-profit law school located in downtown San Diego, California.  We have the distinction of being San Diego’s oldest law school and are known for our commitment to preparing students to be practice-ready lawyers.  Notably, our graduates regularly outperform the statewide average on the California bar exam.  CWSL is the recipient of numerous community service awards, including the State Bar of California President’s Pro Bono Service Award, and the federal government’s President’s Higher Education Community Service Honor Roll.  We are also home to numerous outstanding programs, including the California Innocence Project, Community Law Project, and the New Media Rights Program.  Members of the faculty have national and international reputations for their scholarly contributions.  Our faculty is dedicated to the community, teaching, and scholarship.

A substantial percentage of CWSL students come from diverse cultural, ethnic, and socioeconomic backgrounds.   We are committed to developing a faculty that better reflects this reality, and to this end, we are particularly interested in candidates who are committed to teaching a diverse student body.   All candidates are encouraged to submit a statement to our Appointments Committee addressing their commitment to diversity and how they can contribute to the educational experience of our students.

Please direct application materials (including cover letter, CV, and diversity statement) and questions to the chair of the Appointments Committee, Professor William Aceves, at the following email address: [email protected]  The other committee members are Professors Hannah Brenner, Nancy Kim, and Joanna Sax.  The Appointments Committee is attending the AALS faculty recruitment conference in November 2017.  Please reference your AALS FAR form number in any correspondence.  For candidates seeking consideration outside of the AALS faculty recruitment conference, we encourage the submission of applications before September 1, 2017. 

Another Amendment to FRCP 4

Last year we covered an interesting but somewhat obscure issue that came up in connection with the 2015 and 2016 amendments to Rule 4 of the Federal Rules of Civil Procedure. Inconsistencies in the text of these two amendments left it unclear which kinds of service were explicitly exempted from Rule 4(m)’s presumptive 90-day deadline for serving process. The situation prompted a letter to Congress by Sixth Circuit Judge Jeffrey Sutton, who was then the chair of the Standing Committee, seeking to clarify what the “net effect” of the two amendments would be.

This spring, the Supreme Court approved a new amendment that will remove any uncertainty on this question. Under the 2017 amendment, Rule 4(m) will read as follows:

If a defendant is not served within 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), 4(h)(2), or 4(j)(1), or to service of a notice under Rule 71.1(d)(3)(A).

Unless Congress intervenes, this amendment will go into effect on December 1, 2017.

 

 

 

The Federal Rules of Civil Procedure in Haiku Form

To take our minds off the start of school and, possibly, nuclear winter, here is a haiku for each FRCP.

 

Hat tip: Levi Jones