Civil Procedure & Federal Courts Blog

Pennsylvania Supreme Court Decision on Personal Jurisdiction

The Supreme Court of Pennsylvania has issued an interesting decision on personal jurisdiction: Hammons v. Ethicon, Inc., 240 A.3d 537 (2020). The majority opinion by Justice Baer begins:  

This case presents a challenge to the exercise of specific personal jurisdiction in Pennsylvania over New Jersey corporate defendants in a case filed by an Indiana resident regarding injuries allegedly caused by a pelvic mesh medical device implanted in Indiana. While the device was assembled by the defendants out of state, the mesh component of the device was manufactured by a separate entity in Pennsylvania. After reviewing recent decisions from the United States Supreme Court revising its personal jurisdiction jurisprudence, we conclude that the imposition of personal jurisdiction in this case meets the relevant constitutional and statutory requirements.

The opinion contains a nice discussion of the scope of specific jurisdiction in the wake of the Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court (BMS), which concludes:

We conclude that the Court in BMS did not reject its prior phrasings of specific personal jurisdiction, but rather incorporated the broader terminology emphasizing the connections between the controversy, litigation, or suit and the defendant’s actions in the forum state. Accordingly, absent further clarification from the High Court, we decline to restrict jurisdiction by focusing narrowly on the elements of plaintiff’s specific legal claims, which could unnecessarily restrict access to justice for plaintiffs. Instead, we look more broadly to determine whether the case as a whole establishes ties between the defendant’s actions in the forum state and the litigation.

A concurring opinion by Justice Donohue addresses “the propriety of considering evidence adduced for the first time at trial in support of the trial court’s ruling on preliminary objections that specific jurisdiction was established.”

Chief Justice Saylor dissents.

 

 

 

University of Chicago Law Review Special Edition Dedicated to Judge Diane Wood

The University of Chicago Law Review has published a special edition that is dedicated to the life and work of Seventh Circuit Judge (and civil procedure professor) Diane Wood. It features essays by Douglas Baird, Lee Anne Fennell, Tom Ginsburg, William Hubbard, Aziz Huq, Saul Levmore, Martha Nussbaum, Julie Roin, Lior Strahilevitz, and David Strauss.

 

 

 

2021 AALS Annual Meeting (January 5-9, 2021)

It’s going to be an unusual, entirely virtual 2021 annual meeting for the Association of American Law Schools. Here’s the full program, and here’s a list of panels that may be of particular interest (all times are eastern)…

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Dangerous Secrets: Confronting Confidentiality in Our Public Courts

The Pound Civil Justice Institute has published the report of its 2020 Judges Forum, Dangerous Secrets: Confronting Confidentiality in Our Public Courts. It features academic papers by Dustin Benham and Sergio Campos, plus commentary and discussion by the legal experts and judges who attended.

You can find previous Judges Forum reports here.

 

 

 

SCOTUS Rejects Challenge to Trump's Census Policy on Standing and Ripeness Grounds

Today the Supreme Court issued a decision in Trump v. New York, a case involving the Trump administration’s policy to exclude aliens without lawful status from the 2020 census count. In a per curiam opinion, the majority finds the case to be non-justiciable on standing and ripeness grounds, vacating the district court’s judgment against Trump. It concludes:

At the end of the day, the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature. Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time.

Justice Breyer authors a dissenting opinion, joined by Justices Sotomayor and Kagan. From the dissent (citations omitted):

Waiting to adjudicate plaintiffs’ claims until after the President submits his tabulation to Congress, as the Court seems to prefer, risks needless and costly delays in apportionment. Because there is a “substantial likelihood that the [plaintiffs’] requested relief . . . .will redress the alleged injury,” I would find that we can reach plaintiffs’ challenge now, and affirm the lower court’s holding.

 

 

 

 

 

SCOTUS Cert Grant on Class Actions

Today the Supreme Court granted certiorari in TransUnion LLC v. Ramirez, which presents the question: “Whether either Article III or Rule 23 permits a damages class action where the vast majority of the class suffered no actual injury, let alone an injury anything like what the class representative suffered.”

(The cert petition presented a second question relating to punitive damages, but the grant is limited to Question 1.)

You can find all the cert-stage briefing—and follow the merits briefs as they come in—at SCOTUSblog and at the Supreme Court website.

 

 

 

 

Carroll on Martinez on Investigating Judicial Misconduct

Today on the Courts Law section of JOTWELL is Maureen Carroll’s essay, Judges Behaving Badly… Then Slinking Away. Maureen reviews Veronica Root Martinez’s recent essay, Avoiding Judicial Discipline, 115 Nw. U. L. Rev. 953 (2020).

 

 

 

 

SCOTUS Decision on RFRA Damages Claims: Tanzin v. Tanvir

Today the Supreme Court issued a unanimous (8-0) decision in Tanzin v. Tanvir, covered earlier here. Justice Thomas’s opinion begins:

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the Federal Government from imposing substantial burdens on religious exercise, absent a compelling interest pursued through the least restrictive means. 107 Stat. 1488, 42 U. S. C. §2000bb et seq. It also gives a person whose religious exercise has been unlawfully burdened the right to seek “appropriate relief.” The question here is whether “appropriate relief” includes claims for money damages against Government officials in their individual capacities. We hold that it does.

First, the Court finds that government officials can be sued in their personal capacities. Justice Thomas explains: “A suit against an official in his personal capacity is a suit against a person acting under color of law. And a suit against a person acting under color of law is a suit against ‘a government,’ as defined under RFRA. §2000bb–1(c).”

Second, the Court approves of claims for monetary damages against such officials: “A damages remedy is not just ‘appropriate’ relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations.” In a footnote, however, Justice Thomas raises the possibility of qualified immunity:

Both the Government and respondents agree that government officials are entitled to assert a qualified immunity defense when sued in their individual capacities for money damages under RFRA. Indeed, respondents emphasize that the “qualified immunity defense was created for precisely these circumstances,” Brief for Respondents 22, and is a “powerful shield” that “protects all but the plainly incompetent or those who flout clearly established law,” Tr. of Oral Arg. 42; see District of Columbia v. Wesby, 583 U. S. ___, ___–___ (2018) (slip op., at 13–15).

 

 

 

 

 

 

SCOTUS Decision on Article III Standing: Carney v. Adams

Today the Supreme Court issued a unanimous (8-0) decision in Carney v. Adams, covered earlier here. Justice Breyer’s opinion begins:

This case concerns a Delaware constitutional provision that requires that appointments to Delaware’s major courts reflect a partisan balance. Delaware’s Constitution states that no more than a bare majority of members of any of its five major courts may belong to any one political party. Art. IV, §3. It also requires, with respect to three of those courts, that the remaining members belong to “the other major political party.” Ibid.

The plaintiff, a Delaware lawyer, brought this lawsuit in federal court. He claimed that Delaware’s party-membership requirements for its judiciary violate the Federal Constitution. We agreed to consider the constitutional question, but only if the plaintiff has standing to raise that question. We now hold that he does not.

The Court’s analysis looks closely at the summary judgment record, including Adams’ answers to interrogatories and deposition testimony, noting that “[t]his is a highly fact-specific case.” It ultimately concludes that “the record evidence fails to show that, at the time he commenced the lawsuit, Adams was ‘able and ready’ to apply for a judgeship in the reasonably foreseeable future.” He therefore “failed to show that ‘personal,’ ‘concrete,’ and ‘imminent’ injury upon which our standing precedents insist.”

Justice Sotomayor authors a concurring opinion. Although she agrees that Adams lacked standing, she observes that the constitutional challenge to Delaware’s system “will likely be raised again.” Accordingly, she briefly identifies “two important considerations” relevant to such a challenge, including the difficulty in determining whether Delaware’s major party and bare majority requirements are severable from one another. On severability, Justice Sotomayor suggests that federal courts may be “well advised to consider certifying such a question to the State’s highest court.”

 

 

 

 

 

 

 

 

 

 

 

 

2021 Pound Institute Civil Justice Scholarship Award

This week the Pound Civil Justice Institute announced the winners of its 2021 Civil Justice Scholarship Award: Sandra Sperino, Suja Thomas, and Mark Wojcik. From the announcement:

Professor Sperino, of the University of Cincinnati College of Law, and Professor Thomas, of the University of Illinois College of Law, are honored for their book, Unequal: How America’s Courts Undermine Discrimination Law (Oxford University Press 2017), in which they examine the ways in which courts have impeded private enforcement of anti-discrimination laws through civil litigation.

Professor Wojcik, of UIC John Marshall Law School, is honored for his article, Extending Batson to Peremptory Challenges of Jurors Based on Sexual Orientation and Gender Identity, 40 No. Ill. U. L. Rev. 1 (2019), in which he argues that it is time to extend the U.S. Supreme Court’s decision in Batson v. Kentucky to all federal and state trial courts, and to prohibit expressly the exclusion of jurors based on their actual or perceived sexual orientation or gender identity.

High Distinction Honorees

The Institute also recognized two publications for high distinction among the 35 nominations received: Rights and Retrenchment: The Counterrevolution against Federal Litigation (Cambridge University Press 2017), in which Professors Stephen Burbank, of the University of Pennsylvania Law School, and Sean Farhang, of the University of California, Berkeley, examine responses to the “rights revolution” that unfolded in the United States during the 1960s and 1970s, and trace the increasing hostility to the enforcement of rights through lawsuits; and The Trouble with Trial Times Limits, 106 Geo. L. J. 933 (2018), in which Professor Nora Freeman Engstrom, of Stanford Law School, examines an issue that is quietly and negatively affecting trials at a time when few cases go to trial. She looks at specific trials and data that demonstrate the random implementation of time limits of trials, and how they add additional limitations on plaintiffs.

Congratulations!

 

 

 

 

Freer on Defense Preclusion

Rich Freer has posted on SSRN a draft of his article, "Defense Preclusion": Exploring a Narrow Gap in Preclusion Law, 40 Rev. Litig. (forthcoming 2021). Here's the abstract:

All litigators know something about claim and issue preclusion. But “defense preclusion” does not ring a bell, even for most civil procedure enthusiasts. Accordingly, the Supreme Court’s 2020 decision in Lucky Brand Dungarees v. Marcel Fashions Group was doubly surprising. Not only did the Court use the term “defense preclusion” for the first time; it also told us that the doctrine is vibrant enough to have generated a split of authority.

Defense preclusion fills a little-recognized gap in traditional preclusion doctrine. Claim preclusion requires a claimant to seek, in Case 1, all rights to relief encompassed in the claim asserted. If that claimant brings Case 2 on the same claim, the doctrine precludes her from seeking relief she could have sought in Case 1. But claim preclusion applies only to claimants, not defendants. Defense preclusion is the defendant analogue: it bars a defendant in Case 2 from asserting a defense she could have raised in Case 1.

Lucky Brand establishes that defense preclusion is occasionally appropriate but does not define the limits of the doctrine. My goals are to (1) define defense preclusion by situating it within the broader context of preclusion law and (2) outline the scope of the doctrine, based upon suggestions in Lucky Brand and core principles of preclusion. Defense preclusion is narrow, likely to arise only in cases involving a distinct minority approach to claim preclusion and particular types of contract claims.

 

 

 

 

 

 

 

 

 

 

Vladeck on the latest edition of Supreme Court Practice

Now on the Courts Law section of JOTWELL is Steve Vladeck’s essay, Bringing the Supreme Court Out of the Shadows. Steve reviews the eleventh edition of Supreme Court Practice, authored by the late Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett, and Dan Himmelfarb (but known to many by the names of the treatise’s original authors, Robert L. Stern and Eugene Gressman).