Civil Procedure & Federal Courts Blog

FRAP 42 and the Monkey Selfie

Last week the Ninth Circuit issued an order denying a joint motion to dismiss the appeal in NARUTO, a Crested Macaque, by and through his Next Friends, People for the Ethical Treatment of Animals, Inc., v. DAVID JOHN SLATER (a.k.a. the Monkey Selfie case). Here is the full order:

Download Naruto v Slater (Order 4-13-2018)

Having reached a settlement, the parties moved—two months after oral argument—to dismiss the appeal and to vacate the lower court’s judgment. In denying the motion, the court noted that voluntary dismissals are permissive, not mandatory, under FRAP 42, and that “denying the motion to dismiss and declining to vacate the lower court judgment prevents the parties from manipulating precedent in a way that suits their institutional preferences.”

The court also observed that Naruto himself was not a party to the settlement between PETA and the appellees.

More coverage here and here. 

 

 

 

McPeak on Disappearing Data and the Implications for Discovery

Agnieszka McPeak (Toledo Law) has published an article entitled Disappearing Data at 2018 Wis. L.R. 17, which considers the discovery implications of ephemeral social media platforms like Snapchat. Here's the abstract:

“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization.

But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined.

This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms — indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.

Gluck, Hall & Curfman on Courts and the Opioid Epidemic

Abbe Gluck, Ashley Hall, and Gregory Curfman have posted on SSRN a draft of their article, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, which will be published in the Journal of Law, Medicine & Ethics. Here’s the abstract:

The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits. The plaintiffs -- who range from states, to counties, to Indian tribes, and individuals -- have cast an exceedingly broad net for defendants. They have sued not only the opioid manufacturers and the doctors who prescribed the drugs, but also the companies that distribute them, the pharmacies that sell them, and even the hospital accreditation organization that encouraged doctors to stop undertreating pain -- which they were -- two decades ago. 

This is not the first major national public health litigation effort -- tobacco, fast food, and guns offer earlier blueprints -- but it has some unique features. First, unlike the litigation it most resembles -- tobacco -- the opioid narrative has a far more complicated chain of causation. Opioids, unlike tobacco, have an important therapeutic purpose; they are FDA approved as safe and effective; they are often prescribed by doctors for sound medical reasons; and then they wind their way from manufacturer, to distributor, to pharmacy, to patient. This complicates litigation because defendants can argue that intervening factors (including other defendants) make any single defendant's culpability hard to isolate. 

Second, more than 400 of the opioid cases have now been consolidated before a single federal judge in a so-called "multidistrict litigation." That judge has chided the federal and state governments for punting the problem to the courts; he has made clear he thinks everyone is to blame; and has vowed to get a settlement, with systemic change as part of it, by the end of 2018 -- a breathtaking pace for resolution that makes his courtroom the game changer.

None of this is to say that litigation is the ideal way to solve a public health problem. Concerns abound about attorneys fees', conflicts of interests, inadequate settlement and the possible overreach of the presiding judge. But litigation has already spurred change in both the industry and the practice of medicine. It has played a central role in the public response to the epidemic. This article details that story.

 

 

 

Procedural Moves in Stormy Daniels’ Lawsuit Against Donald Trump

There has been a lot of coverage of Donald Trump’s relationship with Stephanie Clifford (known by her stage name Stormy Daniels), and the $130,000 payment she received in connection with a nondisclosure agreement during the heat of the 2016 presidential campaign.

Earlier this month, Clifford filed a lawsuit against Trump and Essential Consultants, LLC, in California state court (Los Angeles County). Essential Consultants, which was a party to the nondisclosure agreement, is apparently a Delaware LLC, and Trump attorney Michael Cohen is its sole member. Clifford’s complaint seeks a declaration that the “Hush Agreement” is unenforceable.

Download State Court Complaint

Yesterday, Essential Consultants removed the case to federal court. The notice alleges that, for purposes of diversity jurisdiction, Clifford is a Texas citizen and Trump and Essential Consultants are New York citizens. It also alleges that “the value of the object of the litigation” exceeds $75,000. The federal case has been docketed as Clifford v. Trump, No. 2:18-cv-02217 (C.D. Cal.)

Download Notice of Removal

Donald Trump filed a separate document joining in Essential Consultants’ notice of removal. This appears to be his effort to comply with 28 U.S.C. § 1446(b)(2)(A), which provides: “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”

Download Trump Joinder in Notice of Removal

You can find more coverage of the removal to federal court here: 

• Bloomberg
• New York Times
• Politico

 

 

 

Bill to Expand Diversity of Citizenship Introduced in House

Representative Steve King (R-IA) introduced H.R. 3487, a bill to expand diversity jurisdiction by defining diversity as minimal diversity:

Section 1332 of title 28, United States Code, is amended by adding at the end the following:

“(f) For the purposes of this section, diversity of citizenship exists if at least one party adverse to any other party to the civil action does not share the same citizenship with that adverse party.”.

The bill has been referred to the House Judiciary Committee.  We reported last year on a hearing held before the House Judiciary Committee that explored the adoption of minimal diversity.

Hat tip: Valerie Nannery

 

 

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)

 

 

 

Betty Dukes, Lead Plaintiff in Walmart Class Action, Dies

Betty Dukes, the lead plaintiff in the historic class action Dukes v. Wal-Mart Stores, Inc., No. C-01-2252 (N.D. Calif.), has died at age 67.   Although the lower courts granted and affirmed class certification in a gender- and race-based discrimination suit, the Supreme Court, in a 5-4 decision authored by Justice Antonin Scalia for the majority,   reversed the grant of class certification.

Hat tip: Janet Alexander.

House of Representatives Passes H.R. 725 & H.R. 985

We covered earlier several bills that could make significant changes to federal civil procedure. Two of these passed the House of Representatives yesterday.

• H.R. 725 (the Innocent Party Protection Act) passed by a vote of 224–194.
• H.R. 985 (the Fairness in Class Action Litigation Act) passed by a vote of 220-201-1.

Stay tuned. Getting to 60 votes in the Senate will be a more difficult proposition.

 

 

 

 

Professor Thomas Creates a TED-Ed Video on the Vanishing Jury

Professor Suja Thomas (Illinois) has produced an entertaining TED-Ed video called "What Happened to Trial by Jury?"   Ten online review questions follow the video.

In my opinion, the video is suitable for law students and also the general public.  I think there is a great need for clear, brief videos on various aspects of the U.S. government.  There appears to be a dearth of knowledge on that score.  For example, the Annenberg Public Policy Center recently found that only 27% of Americans could name all three branches of government, and 31% could not name any of the three branches.  

 

House May Receive Amendments to Bills on Rule 11, Class Actions, MDLs, and Joinder

The House of Representatives Committee on Rules has announced that it will meet the week of March 6 “to grant a rule that may provide a structured amendment process for floor consideration of” H.R. 720 (amendments to FRCP 11), H.R. 725 (on so-called “fraudulent” joinder), and H.R. 985 (on class actions and MDLs).

Hat tip: Adam Zimmerman

More Proposed Federalization of Tort Law by House Republicans

In addition to the six bills already reported here and here, House Republicans have also introduced H.R. 1118, the so-called “Innocent Sellers Fairness Act,” which would federalize the law of product liability by limiting liability for the sellers of a product.  The bill is sponsored by Rep. Blake Farenthold (R-TX 27), Rep. John Duncan (R-TN 2), and Rep. Lamar Smith (R-TX 21).

The operative provisions of the bill provide:

(a) In general

No seller of any product shall be liable for personal injury, monetary loss, or damage to property arising out of an accident or transaction involving such product, unless the claimant proves one or more of the following activities by the seller:

(1) The seller was the manufacturer of the product.

(2) The seller participated in the design of the product.

(3) The seller participated in the installation of the product.

(4) The seller altered, modified, or expressly warranted the product in a manner not authorized by the manufacturer.

(5) The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant.

(6) The seller had actual knowledge of the defect in the product at the time the seller supplied the product.

(7) The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer.

(8) The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.

(b) Liability of seller in cases of negligence

If the claimant proves one or more of the activities described in subsection (a) and such activity was negligent, the seller’s liability is limited to the personal injury, monetary loss, or damage to property, directly caused by such activity.

These provisions resemble Section 8 of the American Legislative Exchange Council's so-called “model policy” on product liability for state legislators to copy.

Unlike the other six bills, this one has not passed the House Judiciary Committee.

Republicans Introduce Sweeping Federalization of Tort Law, Limiting Recovery to Victims

The Republicans in Congress are intent on expropriating ordinary citizens’ right to sue wrongdoers and allowing corporations and other defendants to violate the law without consequence.   

Not content to protect corporations from accountability by hobbling class actions and intimidating plaintiffs' lawyers with mandatory Rule 11 sanctions, Republicans are going for the full monty: federalized so-called “tort reform” (or what I call “tort elimination”).

Without a hearing, H.R. 1215  (Download HR1215) goes to straight to markup in the House Judiciary Committee this Tuesday.  The bill was sponsored by Rep. Steve King (R-IA 4th Dist.). 

H.R. 1215 has the Orwellian name of “Protecting Access to Care Act of 2017” (because all Republican-sponsored bills about the civil justice system are named just the opposite of what they would actually do to ordinary citizens).  The name of this bill should be “Protecting Doctors and Hospitals from Liability for Wrongdoing and Protecting Insurance Companies from Having to Pay Legitimate Claims.”

Although Republicans supposedly care about “states’ rights,” this bill would eliminate (by preempting) vast swaths of state tort law.  Among the many draconian provisions of the bill:

• It would impose a uniform 3-year statute of limitations on “health care lawsuits.”* States would be free to have a shorter one, but not a longer one.
• It would impose a uniform $250,000 limit on noneconomic damages.
• The bill would not limit economic damages, but it would allow states to limit economic damages, noneconomic damages, and the total amount of damages.
• Naturally, “the jury shall not be informed about the maximum award for noneconomic damages.” Because then they might at last understand what “tort reform” means.
• The bill would eliminate joint-and-several liability. This could deprive an innocent injured person of full compensation, while shielding a wrongdoing defendant from paying for an injury he helped to cause.
• “Any party” would be allowed to introduce evidence of collateral source benefits.
• An award of future damages over $50,000 would be required, at the request of “any party,” to be paid in periodic payments.
• The bill would completely release health care providers (as defined) from any liability in a products liability action for prescribing a product approved by the FDA.

Finally, no Republican-sponsored civil justice bill would be complete without denigrating plaintiffs’ attorneys and making it even more uneconomical for plaintiffs’ attorneys to represent clients.  This bill goes so far as to call the payment to attorneys of an agreed-upon fee a “conflict of interest.”  The bill would give the court the power to restrict a contingent fee.  And “in no event shall” the contingent fee exceed 40% of the first $50,000 recovered, 33-1/3% of the next $50,000, 25% of the next $500,000, and 15% of any amount in excess of $600,000.  

So now the federal government would be dictating to the states what attorneys’ fees they could allow.  Those limits would apply even in settlement, mediation, or arbitration.

Really, guys?  This bill isn’t even getting a hearing?  Maybe to talk about its practical elimination of citizens’ ability to sue or the fact that the bill is a gift to the insurance industry?  Maybe to talk about the experience that many states, swept up in “tort reform” over the last several decades, have had with similar provisions (many of which have been held unconstitutional)?  How about the fact that the bill slavishly follows the positions of the American Tort Reform Association and the shadowy American Legislative Exchange Council?

H.R. 1215 joins five other bills introduced in the past few weeks that tilt the table in favor of corporate defendants in litigation.  Is there any item on the corporate defense wish list that we haven’t seen introduced in Congress yet?

It is possible, though, that this bill could have one positive effect.  It may induce doctors, hospitals, and insurance companies who currently refuse to participate in federal programs to do so, based upon the limited liability the bill would ensure. 

*Definition: “The term ‘health care lawsuit’ means any health care liability claim concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, or any health care liability action concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, brought in a State or Federal court or pursuant to an alternative dispute resolution system, against a health care provider regardless of the theory of liability on which the claim is based . . .”  This would presumably include Medicare, Medicaid, and the Affordable Care Act.

Five Questionable Bills About Civil Lawsuits Pass House Judiciary Committee

Five bills that would generally operate to favor corporate defendants in civil lawsuits have passed the House Judiciary Committee with blinding speed and have been referred to the full House: 

Bill	Title	Original sponsor
H.R. 985	Fairness in Class Action Litigation Act	Bob Goodlatte (R-VA-6)
H.R. 906	Furthering Asbestos Claim Transparency (FACT) Act	Blake Farenthold (R-TX-27)
H.R. 732	Stop Settlement Slush Funds Act	Bob Goodlatte (R-VA-6)
H.R. 725	Innocent Party Protection Act	Ken Buck (R-CO-4)
H.R. 720	Lawsuit Abuse Reduction Act	Lamar Smith (R-TX-21)

            We briefly described four of the bills here.  The bills are opposed by over 50 advocacy groups for civil rights, consumer protection, and environmental protection.  

While Trump Distracts, Republicans Introduce Four Bills Restricting Ordinary Citizens’ Access to the Courts

Four bills have been introduced in Congress that would limit plaintiffs' access to the courts.  The title of each bill is misleading, in that the effect of each bill would be very different from what its title indicates. 

1.  Probably the most far-ranging bill is the so-called "Fairness in Class Action Litigation Act of 2017," H.R. 985.   

This bill would critically hobble class actions by making them much more difficult to certify and reducing the compensation to plaintiffs’ class action lawyers. 

The major provisions of the bill with respect to class actions are (this is not an exhaustive list):

Continue reading

Ninth Circuit Refuses to Stay District Court’s TRO Against Trump’s Executive Order

Today the Ninth Circuit issued its opinion in Washington v. Trump, refusing to grant the federal government’s request for a stay of Judge Robart’s TRO:

Download WA v Trump (9th Cir 2-9-17)

• Yes to appellate jurisdiction
• Yes to Article III standing for Washington and Minnesota
• No to the federal government’s request to narrow the TRO

Although this resolves the federal government’s request for a stay, the Ninth Circuit also issued a briefing schedule for the federal government’s appeal of the TRO itself:

Download 2-9-17 Procedural Order

 

 

Wasserman on Segall on Keeping an Eight-Justice SCOTUS

Now on the Courts Law section of JOTWELL is Howard Wasserman’s essay, Eight Is Enough. Howard reviews Eric Segall’s article, Eight Justices Are Enough: A Proposal to Improve the United States Supreme Court.

 

 

 

 

Perennial "Lawsuit Abuse Reduction Act" Introduced Again in House and Senate

In what is beginning to feel like the Groundhog Day of civil procedure bills, LARA has been reintroduced in the Senate and the House for the umpteenth (I think the fifth) time.  Although the text of the bills is not yet available, they are likely to be the same as the last version, which was described on this blog here.  Essentially, the bills would amend Rule 11 of the Federal Rules of Civil Procedure to eliminate the 21-day "safe harbor" and to make sanctions mandatory instead of discretionary if a violation is found. 

The press release by Senator Grassley, one of the co-sponsors of the bill in the Senate, is a rehash of all the alternative facts repeated for years by defendants to discredit civil litigation.  

The Advisory Committee, however, knows that there are not "thousands of frivolous lawsuits" in our federal courts and would be unlikely to amend Rule 11 based upon that falsehood.  I assume that is one reason the bills propose an end run around the Rules Enabling Act process.        

Legal Challenges to Trump Executive Orders on Immigration and Refugee Policy

Yesterday several legal challenges to Trump’s Executive Orders were filed. If you want to keep track of the various filings and orders as these cases proceed, the University of Michigan’s Civil Rights Litigation Clearinghouse is collecting them here.

 

 

 

Today's Lawsuit Challenging Trump's Executive Order on Immigration

Here is the complaint in Darweesh v. Trump, which was filed early this morning in U.S. District Court for the Eastern District of New York:

Download Darweesh v Trump Complaint

Some coverage of the case:

• Seung Min Kim (Politico)
• Nicholas Kulish & Manny Fernandez (NY Times)

 

 

 

 

Trump Litigation Update

Recent lawsuits against Donald Trump may end up raising some interesting civil procedure and federal courts issues. Here are some documents and reports relating to pending litigation:

 

CREW v. Trump
(This is the Emoluments Clause challenge filed Monday in the U.S. District Court for the Southern District of New York)

• Complaint
• Jonathan Adler (Washington Post, 1/23/2017)
• Michael Dorf (Dorf on Law, 1/24/2017)
• Chris Geidner (BuzzFeed, 1/22/2017)
• Eric Lipton & Adam Liptak (NY Times, 1/22/2017)
• Eric Segall (LA Times, 1/25/2017)
• Jim Zarroli (NPR, 1/26/2017)

 

Zervos v. Trump
(Defamation action against Trump in New York State Court)

• Complaint
• Michael Dorf (Dorf on Law, 1/19/2017)
• Rosalind Helderman (Washington Post, 1/17/2017)
• Megan Twohey (NY Times, 1/17/2017)

 

AES Electrical v. Trump Old Post Office LLC
(This case was filed yesterday in D.C. Superior Court by an electrical contractor that claims it wasn’t paid for $2 million worth of work on Trump’s DC hotel.)

• Complaint
• Michael Biesecker (McClatchy’s 1/25/2017)
• Josh Gerstein (Politico, 1/25/2017)