Civil Procedure & Federal Courts Blog

D.C. Circuit Denies Motion to Intervene in ACA Appeal

Yesterday the U.S. Court of Appeals for the D.C. Circuit denied an attempt by two consumers to intervene in U.S. House of Representatives v. Burwell (No. 16-5202). The case involves, among other things, whether the House of Representatives has Article III standing to sue regarding the Executive Branch’s administration of the Affordable Care Act.

Here is the text of yesterday’s order:

Upon consideration of the motion for leave to intervene, the responses thereto, and the reply, it is

ORDERED that the motion for leave to intervene be denied. Movant-intervenors have not demonstrated that they are entitled to intervene in this case. See Fed. R. Civ. P. 24; Building and Const. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (enumerating the requirements for intervention under Rule 24 and applying those factors to a motion to intervene in an appellate proceeding). This case shall continue to be held in abeyance, with motions to govern further proceedings due February 21, 2017. See Order (Dec. 5, 2016).

Download DC Circuit Order

Here is the initial motion to intervene:

Download DC Circuit Motion to Intervene

 

 

 

Volokh & Levy on suspicious court cases seeking to get web pages taken down

Eugene Volokh and Paul Levy have an interesting post over at the Washington Post/Volokh Conspiracy. It begins:

There are about 25 court cases throughout the country that have a suspicious profile:

• All involve allegedly self-represented plaintiffs, yet they have similar snippets of legalese that suggest a common organization behind them. (A few others, having a slightly different profile, involve actual lawyers.)
• All the ostensible defendants ostensibly agreed to injunctions being issued against them, which often leads to a very quick court order (in some cases, less than a week).
• Of these 25-odd cases, 15 give the addresses of the defendants — but a private investigator (Giles Miller of Lynx Insights & Investigations) couldn’t find a single one of the ostensible defendants at the ostensible address.

Now, you might ask, what’s the point of suing a fake defendant (to the extent that some of these defendants are indeed fake)? How can anyone get any real money from a fake defendant? How can anyone order a fake defendant to obey a real injunction?

 

 

Check it out to find the answers.

 

 

 

Third Circuit Decision on Standing, Pleading, and NSA Surveillance

Last week, the U.S. Court of Appeals for the Third Circuit issued its decision in Schuchardt v. President of the United States (3d Cir. No. 15-3491). The plaintiff filed a lawsuit challenging NSA surveillance activities, but the district court dismissed for lack of standing. The Third Circuit reversed, with an opinion that begins:

This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.

The court goes on to discuss the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA, as well as the general pleading standard set forth in Twombly and Iqbal.

Download Schuchardt (3d Cir)

It’s worth noting that a case similar to Schuchardt is currently pending in the Fourth Circuit. Wikimedia Foundation  v. NSA (4th Cir. No. 15-2560) is scheduled for oral argument in December. If readers are interested, below is a link to an amicus brief in the Wikimedia case that I filed on behalf of various civil procedure and federal courts professors:

Download Wikimedia v NSA (4th Cir) Law Professor Amicus Brief

 

 

 

 

 

 

The Justice Against Sponsors of Terrorism Act: Congress Narrows Foreign Sovereign Immunity

Last week Congress voted to override President Obama’s veto of the Justice Against Sponsors of Terrorism Act (JASTA). Although there’s apparently been some “buyer’s remorse” by members of Congress who voted to override the veto, JASTA’s provisions narrowing sovereign immunity are now in effect.

Among other things, JASTA adds a new provision to Title 28 of the U.S. Code: 28 U.S.C. § 1605B. Subsection (b) of the new provision states:

(b) RESPONSIBILITY OF FOREIGN STATES.—A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by—

(1) an act of international terrorism in the United States; and

(2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.

Subsection (d) provides: “A foreign state shall not be subject to the jurisdiction of the courts of the United States under subsection (b) on the basis of an omission or a tortious act or acts that constitute mere negligence.’’

Download Justice Against Sponsors of Terrorism Act (JASTA)

 

 

 

House to Explore Expanding Diversity Jurisdiction

The House Judiciary Committee, Subcommittee on the Constitution and Civil Justice, will hold a hearing on Tuesday, September 13 at 11:00 a.m. on "Exploring Federal Diversity Jurisdiction."

Witnesses:

• Mr. Charles Cooper, Partner, Cooper & Kirk, PLLC
• Ms. Joanna Shepherd, Professor of Law, Emory Law School
• Mr. Ronald Weich, Professor of Law, University of Baltimore

In 2014, Mr. Cooper co-authored an article, Complete Diversity and the Closing of the Federal Courts, which argued for minimal diversity as the jurisdictional standard and was published in the Harvard Journal of Law & Public Policy, a forum for conservative scholarship.

In 2015, Professor Shepherd published a study conducted for the National Association of Manufacturers entitled Estimating the Impact of a Minimal Diversity Standard on Federal Court Caseloads, which concluded:

This study shows that concerns of diversity jurisdiction burdening the federal courts are largely unfounded. Empirical analysis of almost 3,600 complaints filed in state court shows that replacing complete diversity with a minimal diversity standard would increase existing federal district court caseloads by less than 8 percent. Distributed evenly over existing federal judgeships, this caseload increase translates into an additional 43 cases per year for each judgeship.

Ronald Weich is the dean of University of Baltimore College of Law. 

Hat tip: Altom Maglio.

 

Eighth Circuit Refuses to Set Aside Order that Missouri Disclose Its Execution Drug Suppliers

Last week the U.S. Court of Appeals for the Eighth Circuit issued its decision in In re: Missouri Department of Corrections. The case involves a subpoena that two Mississippi death row inmates served on the Missouri Department of Corrections (MDOC) seeking discovery relating to Missouri’s use of pentobarbital in lethal injections, including the identities of its pentobarbital suppliers. The inmates are challenging Mississippi’s execution method (which does not use pentobarbital) as violating the Eighth Amendment. 

MDOC moved to quash the subpoena, but the district court in Missouri denied the motion and ordered MDOC to produce most of the information sought by the inmates. The Eighth Circuit has now denied MDOC’s request for a writ of mandamus challenging that order. It’s a short six-page opinion, but it covers a lot of ground—from appellate mandamus, to whether a subpoena creates an undue burden under FRCP 45(d)(3)(A)(iv), to sovereign immunity, to the state secrets privilege.

Download In re Missouri DOC (8th Cir)

 

 

 

 

 

Federal Court Dismisses Alien Tort Statute Claim Against U.S.-Based Turkish Cleric

Earlier this summer, Judge Robert Mariani of the U.S. District Court for the Middle District of Pennsylvania issued an opinion dismissing an Alien Tort Statute claim brought against Muhammed Fethullah Gülen, a Turkish cleric who has been a U.S. permanent resident since the 1990s. (Gülen has been in the news more recently following the attempted coup that took place in Turkey last month; Turkey is currently seeking Gülen’s extradition.)

Judge Mariani’s ruling in Ates v. Gülen contains a detailed discussion of the U.S. Supreme Court’s decision in Kiobel (an important Alien Tort Statute decision from 2013) as well as some of the post-Kiobel case law in the lower federal courts.

Download Ates v Gulen (MD Pa)

 

 

 

Federal Judge Orders Hillary Clinton to Answer Interrogatories in FOIA Case

Today U.S. District Judge Emmet Sullivan issued an opinion in Judicial Watch v. U.S. Department of State, a FOIA case seeking employment records relating to Huma Abedin, long-time aide to Hillary Clinton. In connection with the plaintiff’s request for discovery under FRCP 56(d), the court ordered that the plaintiff may serve interrogatories on Hillary Clinton but could not depose her.

From the opinion:

The Court directs Judicial Watch to propound questions that are relevant to Secretary Clinton’s unique first-hand knowledge of the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action.

Download Opinion 2016-08-19 Hillary Clinton Interrogatories

 

 

 

 

Federal Court Dismisses Roy Moore’s Lawsuit Based on Younger Abstention

Alabama Chief Justice Roy Moore’s federal lawsuit against the Alabama Judicial Inquiry Commission was dismissed today on Younger abstention grounds. Here’s the order:

Download Moore v JIC

Coverage here and here.

 

 

 

How the Current Version of Rule 5 Frustrates Public Access to Discovery in the “Trump University” Lawsuit and Other Cases

            Most people know by now that Cohen v. Donald Trump, No. 3:13-cv-02519, is a class action in federal court in San Diego alleging that Trump University defrauded thousands of consumers who purchased real estate courses.  What is less widely reported is that the complaint alleges that Donald Trump violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), a federal statute passed in 1970 to make it easier to prosecute members of organized crime – e.g., the Mafia.  Specifically, the complaint alleges that Donald Trump violated RICO by conducting Trump University (the alleged criminal enterprise) through a “pattern of racketeering activity” consisting of crimes of mail fraud and wire fraud. 

 

The Discovery Sought by the News Media

            What does this have to do with the Federal Rules of Civil Procedure?  Well, hang on.  One of the latest skirmishes in the case is that major news media organizations (CNN, The Washington Post, CBS, and several others) have moved to intervene for the purpose of modifying the protective order so that the videotaped depositions of Donald Trump taken in the case may be released.   

            Earlier, the plaintiff tried to file portions of the videos in court as exhibits to his brief opposing Trump’s motion for summary judgment. The court returned the videos to the plaintiff for failing to comply with a court rule.  The plaintiff promptly moved to file “a series of electronic files of video excerpts from the depositions of Trump, taken on December 10, 2015, and January 21, 2016.”  Trump opposes the motion. 

            But meanwhile, plaintiff’s motion revealed the existence of two days of depositions of Trump in videotape form, of which plaintiff is only seeking to file a fraction.  The putative intervenors (the news media) want it all. 

 

Rule 5 Prohibits the Filing of Discovery in Court Until “Used in the Proceeding”

            Perhaps one of the most somnolent of the Federal Rules of Civil Procedure is Rule 5, “Serving and Filing Pleadings and Other Papers.”  Since 2000, Rule 5(d)(1) has prohibited the filing in court of discovery requests and responses (including initial disclosures, depositions, interrogatories, requests for documents, and requests for admission).  From 1980 to 2000, Rule 5 allowed local courts to prohibit the filing of discovery.  (Of course, once a party “uses” the discovery “in a proceeding” – for example, as an exhibit to a summary judgment motion – it must be filed in court.) 

            In contrast, before 1980, Rule 5 required the filing of discovery – depositions, interrogatories, and so forth – in court.  The only reason that was publicly stated for the change to prohibiting the filing of discovery in court was that the copies for filing could be expensive and that the courts did not have enough physical storage space.  But now that everything is digital, it would seem that the issues of expense and physical storage space are moot.   

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Senate Judiciary Committee to Consider Nominations of Ten Federal Judges This Week

The Senate Judiciary Committee will hold hearings on Wednesday, May 18,  2016, at 10:00 a.m., on the nominations of:

Donald Karl Schott, to be United States Circuit Judge for the Seventh Circuit

Paul Lewis Abrams, to be United States District Judge for the Central District of California

Stephanie A. Finley, to be United States District Judge for the Western District of Louisiana

Claude J. Kelly III, to be United States District Judge for the Eastern District of Louisiana

Winfield D. Ong, to be United States District Judge for the Southern District of Indiana

 

On Thursday, May 19, 2016, at 10:00 a.m., the Committee will consider the nominations of:

Ronald G. Russell, to be United States District Judge for the District of Utah

Inga S. Bernstein, to be United States District Judge for the District of Massachusetts

Stephanie A. Gallagher, to be United States District Judge for the District of Maryland

Suzanne Mitchell, to be United States District Judge for the Western District of Oklahoma

Scott L. Palk, to be United States District Judge for the Western District of Oklahoma

Judge Merrick Garland was "a repeat moderator for Federalist Society events"

If you have been gnashing your teeth over Senate Republicans' stated refusal to vote on the nomination of Judge Merrick Garland to the Supreme Court, here is some information that may make you feel a little better.

• Judge Garland was a member of the Judicial Conference of the United States, which voted to approve the amendments to the FRCP that took effect on Dec. 1, 2015. (I and many others have described those amendments as "anti-plaintiff.")

 

• I cannot discover if Judge Garland actually is or has been a member of the conservative Federalist Society, but he has numerous links to the Society:
  • He listed in the "Experts" link of the website of the Federalist Society.  (It should be noted that the website states that a person’s listing on the Experts page does not imply any “endorsement or relationship between the person and the Federalist Society.”) 
  • Judge Garland moderated a panel called "Changing the Federal Rules of Civil Procedure: Has the Time Come?" on Dec. 9, 2010 hosted by the Federalist Society at the National Press Club in Washington, D.C.  One of the panelists argued that discovery costs should routinely be shifted to the party requesting the discovery (something that defense interests have lobbied for ever since, with partial success in the amendment to Rule 26(c)(1)(B)).  Another panelist argued that Rule 4(b), allowing a subpoena to issue against a defendant without a preliminary hearing, is unconstitutional.  A third panelist described Twombly and Iqbal as “perfectly sensible cases.”  Of course, merely by moderating the panel, Judge Garland cannot be understood to be endorsing any of these views.   
  • By my count, Judge Garland has also moderated about ten other panels hosted by The Federalist Society. See, e.g., here and here.  In fact, at the panel on the FRCP described above, the person who introduced Judge Garland as the moderator said to him, “You are a repeat moderator for Federalist Society events.”

President Obama’s political calculation in nominating Judge Garland may be even shrewder than anyone’s given him credit for. 

 

Bills to Curb Forced Arbitration, Split Ninth Circuit Introduced

A bill to prohibit corporations from forcing arbitration of certain disputes, Restoring Statutory Rights Act, S.2506, was introduced on February 4 by Senator Patrick Leahy (D-VT).

Separately, bills were introduced in both the House, H.R. 4457, and the Senate, S.2490, to divide the Ninth Judicial Circuit into two circuits.  The bills are sponsored by Republicans from Arizona.   

Bill to Federalize Trade Secrets Claims Moves Forward

A bill to extend federal jurisdiction to claims for theft of trade secrets, the Defend Trade Secrets Act of 2015 (S. 1890), has been reported out of committee to the full chamber.  Trade secrets are largely the subject of state law, and the federal courts currently lack jurisdiction of a claim for theft of trade secrets, unless there is diversity of citizenship or joinder with a transactionally-related federal-question claim such as trademark infringement.

The bill is co-sponsored by Republicans and Democrats.

The bill creates a civil action with original federal jurisdiction brought by “an owner of a trade secret that is misappropriated . . . if the trade secret is related to a product or service used in, or intended for use in, interstate or foreign commerce.”  The bill sets conditions for the “seizure of property necessary to prevent the propagation or dissemination of the trade secret that is the subject of the action.”

The bill would also create a cause of action by “a person who suffers damage by reason of a wrongful or excessive seizure.”

One of the remedies that is authorized is, of course, damages:

[a court may] (B) award—

(i)

(I) damages for actual loss caused by the misappropriation of the trade secret; and

(II) damages for any unjust enrichment caused by the misappropriation of the trade secret that is not addressed in computing damages for actual loss; or

(ii) in lieu of damages measured by any other methods, the damages caused by the misappropriation measured by imposition of liability for a reasonable royalty for the misappropriator’s unauthorized disclosure or use of the trade secret . . .

(As an aside: Could (B)(ii) be characterized as an award of statutory damages, currently under attack in the Supreme Court in Spokeo, Inc. v. Robins?)

A brief description of the bill’s background by David J. Kappos, former director of the United States Patent & Trademark Office, is in thehill.com.

House Passes Bill Aimed to Stifle Class Actions

On January 8, the House of Representatives passed the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016.  (The L.A. Times called the "fairness in class action" part of the title "Orwellian" and "shameless[].")

For additional coverage of the bill, see our post from last Friday.

The bill goes to the Senate next for consideration.  

 

House to Vote on Bill Strictly Limiting Class Actions

The House of Representatives is close to taking up a bill (H.R. 1927) that some are calling the "Volkswagen bail-out bill" due to its stymieing effect on class actions.  Another part of the bill, the Huffington Post charges, "would force the online disclosure of sensitive personal information of sick and dying asbestos victims seeking compensation for their illnesses."

When we last reported on this bill, it dealt only with class actions.  That bill has now been amended and combined with another bill on asbestos claims, resulting in the "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2015." 

The latest draft of the portion of the bill on class actions reads as follows:

SEC. 2. FAIRNESS IN CLASS ACTION LITIGATION.

(a) IN GENERAL.—No Federal court shall certify any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.

(b) CERTIFICATION ORDER.—An order issued under Rule 23(c)(1) of the Federal Rules of Civil Procedure that certifies a class seeking monetary relief for personal injury or economic loss shall include a determination, based on a rigorous analysis of the evidence presented, that the requirement in subsection (a) of this section is satisfied.

The House Judiciary Committee has issued House Report 114-328 on the class action portion of the bill.  The Democrats opposing the bill stated in their dissenting views that the bill is “a solution in search of a problem” and “represents the latest attempt to shield corporate wrongdoers and deny plaintiffs access to justice.”  They concluded: 

H.R. 1927 is an unnecessary bill that threatens to deny millions of plaintiffs access to Federal courts by creating potentially insurmountable obstacles to class action certification and raising litigation costs. Moreover, it disrespects the Federal courts by imposing new burdens on them and by circumventing the congressionally created Rules Enabling Act process by which Federal civil procedure rules are amended after extensive input from the bench and bar.

Meanwhile, at the annual meeting of the Association of American Law Schools, members of the Advisory Committee on Civil Rules are scheduled to discuss potential class actions reforms today.  I am not at the conference this year, and would be interested to learn if anyone mentions H.R. 1927 and how that bill might relate to proposals before the Advisory Committee. 

The House yesterday passed a resolution limiting amendments to and debate on the bill.

Professor Alexandra D. Lahav testified against the bill last April.  

 

 

Now on JOTWELL: Effron on Moore on the 2015 FRCP Amendments

Up on the Courts Law section of JOTWELL this week is Robin Effron’s essay, Anti-Plaintiff Bias in the New Federal Rules of Civil Procedure. Robin reviews Patricia Hatamyar Moore’s recent article, The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Committees, 83 U. Cin. L. Rev. 1083 (2015).

 

 

2015 FRCP Amendments Feature Prominently in Chief Justice’s Year-End Report

As if New Year’s Eve wasn’t exciting enough, Chief Justice Roberts has released his 2015 Year-End Report on the Federal Judiciary. He emphasizes the recent amendments to the Federal Rules of Civil Procedure (prefaced by a two-page wind-up about 19th-century dueling practices).

 

House Judiciary Committee Hearing on "Fraudulent Joinder Prevention Act"

The House Judiciary Committee held a hearing yesterday on a bill entitled “The Fraudulent Joinder Act of 2015.”  Minority witness, Professor Lonny Hoffman, testified against the bill.

The bill, H.R. 3624, provides:

Section 1447(c) of title 28, United States Code, is amended by adding at the end the following:

“A motion for remand, and any opposition thereto, may include affidavit or other evidence showing a plausible claim for relief against each nondiverse defendant, or the lack thereof, or indicating a good faith intention to prosecute the action against each nondiverse defendant or to seek a joint judgment, or the lack of such a good faith intent. The district court shall deny a motion to remand if it finds that the complaint does not state a plausible claim for relief against a nondiverse defendant under applicable state law or there is no good faith intention to prosecute the action against a nondiverse defendant or to seek a joint judgment.”

Professor Hoffman explains the bill’s effect: “The bill would replace the existing common law fraudulent joinder test with a statutory test that places the burden on the plaintiff to prove that her claims against the non-diverse defendant are ‘plausible’ and brought in ‘good faith.’ Overall, the bill would make proving fraudulent joinder much easier than it is under current law.”

One of the majority witnesses, Elizabeth Milito, Senior Executive Counsel of the National Federation of Independent Business Small Business Legal Center, asserted the need for the bill:

[F]or a small business owner being served with lawsuit generates significant trepidation, disgust, and yes, uncertainty.

Because litigation entails angst and great expense for small businesses, NFIB is pleased to see this Committee’s attention focused on the issue of fraudulent joinder. Fraudulent joinder remains a source of confusion and unnecessary litigation in our courts and impacts far too many innocent small businesses. The situation unfolds as follows: plaintiffs’ attorneys will name a small business – such as a local pharmacy or insurance agent – with little connection to the complaint in order to deny the federal courts of jurisdiction. In many instances, the plaintiff has no intention of imposing liability on the fraudulently joined party. With courts divided over the standard for finding that a defendant is fraudulently joined, the small business is forced to engage in protracted litigation when all they want is to be dismissed from the case entirely.

 

In opposition to the bill, Professor Hoffman’s introduction summarizes his testimony:

There is no warrant for amending 28 U.S.C. §1447. More than a century old, fraudulent joinder law is well-settled and strikes the proper balance among competing policies in how it evaluates the joinder of non-diverse defendants. With recognition that there are sound reasons for not trying to exhaustively examine the merits of the plaintiff’s claims immediately after removal, courts across the circuits uniformly impose a high burden on the defendant to demonstrate that a non-diverse defendant’s joinder was improper. That burden can only be met if the defendant establishes that the joinder of the diversity-destroying party in the state court action was made without a reasonable basis of proving any liability against that party. By greatly expanding the scope of the fraudulent joinder inquiry, this bill would displace the well-functioning law with wasteful adjudications that district courts are ill-equipped to undertake at the remand stage, burdening the judicial system and raising litigation costs for all parties, especially for plaintiffs on whom this bill imposes the burden of proof. Finally, by requiring that courts resolve merits inquiries that under current law are decided by state courts, the proposed amendments to §1447 raise federalism concerns.

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Podcast of Professors Thomas and Lerner in Debate on the Civil Jury

Professor Suja Thomas (University of Illinois College of Law) and Professor Renee Lettow Lerner (George Washington University School of Law) recently participated in a debate on civil juries under the auspices of the Federalist Society's Litigation Practice Group.  Professor Thomas argued in favor of the civil jury, while Professor Lerner argued the civil jury's downsides.