Friday, May 29, 2020

Notre Dame Law Review Symposium Issue on State Standing

The Notre Dame Law Review has published its symposium issue, Federal Courts, Practice & Procedure: State Standing. It features contributions by Tara Grove, Ernie Young, Andy Hessick, Brad Mank & Mike Solimine, Jonathan Nash, Ann Woolhandler & Michael Collins, Robert Mikos, Katherine Crocker, Seth Davis, and Aziz Huq.  

 

 

May 29, 2020 in Conferences/Symposia, Federal Courts, Recent Scholarship, Standing | Permalink | Comments (0)

Tuesday, May 26, 2020

Ninth Circuit Rejects Federal Jurisdiction in Two Climate Change Lawsuits

Today the Ninth Circuit rejected federal jurisdiction over two lawsuits against various energy companies based on the effect of fossil fuels on climate change. One action (County of San Mateo v. Chevron) was initially filed in state court but removed to federal court. Another (City of Oakland v. BP) was initially filed in federal court. Judge Ikuta writes the opinion in both cases, joined by Judges Christen and Lee.

The San Mateo decision begins:

In this appeal, we consider a district court’s order remanding complaints to state court after the defendants had removed the complaints to federal court on eight separate grounds. Under 28 U.S.C. § 1447(d), we have jurisdiction to review the remand order only to the extent it addresses whether removal was proper under § 1442(a)(1), see Patel v. Del Taco, Inc., 446 F.3d 996, 998 (9th Cir. 2006), which authorizes removal by “any person acting under” a federal officer, 28 U.S.C. § 1442(a)(1). We conclude that the defendants did not carry their burden of establishing this criteria for removal. Because we lack jurisdiction to review other aspects of the remand order, we dismiss the remainder of the appeal.

The Oakland decision begins:

Two California cities brought actions in state court alleging that the defendants’ production and promotion of fossil fuels is a public nuisance under California law, and the defendants removed the complaints to federal court. We hold that the state-law claim for public nuisance does not arise under federal law for purposes of 28 U.S.C. § 1331, and we remand to the district court to consider whether there was an alternative basis for subject-matter jurisdiction.

 

May 26, 2020 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, May 21, 2020

I Sue Dead People? An Interesting Decision from the Ninth Circuit

Last month, the Ninth Circuit issued an interesting decision in LN Management v. JPMorgan Chase Bank. The opinion is authored by Sixth Circuit Judge Danny Boggs (sitting by designation). It begins:

There are a number of ways to accomplish litigation regarding interests once held by a dead person. One can institute or join probate proceedings, for instance, or sue the executor of an estate in courts of general jurisdiction, or in some circumstances proceed directly against the successors of the deceased. Rarely do we see efforts to actually engage the dead in litigation. This case turns on such a question, which is of first impression in this circuit: can you sue a dead person?1

The answer may seem obvious. Yet strangely, in the 129-year history of this court, we have never been called upon to rule on this issue. We do so today, and we resolve the question in the negative.

And here is footnote 1:

There is ample extrajudicial literature bearing on this question. Dead men, we know from multiple authorities, would not make good litigants. They “tell no tales,” so they would be bad witnesses and deponents. See PIRATES OF THE CARIBBEAN: DEAD MEN TELL NO TALES (Walt Disney Pictures 2017). Since “you can’t take it with you,” they are judgment-proof defendants. See GEORGE S. KAUFMAN & MOSS HART, YOU CAN’T TAKE IT WITH YOU 75 (Dramatists Play Svc., Inc. 1937). And there is persuasive authority that, in whichever of the two traditional locations the deceased is now to be found, obtaining personal jurisdiction and serving of process would be difficult. See U. S. ex rel. Mayo v. Satan & his Staff, 54 F.R.D. 282, 283 (W.D. Pa. 1971) (finding no personal jurisdiction over defendant notwithstanding the “unofficial account” of The Devil and Daniel Webster); State Senator Ernie Chambers v. God, No. 1075-462, (Neb. Douglas Cty. Dist. Ct. Oct. 8, 2008) (dismissing case due to impossibility of service on Defendant), appeal dismissed; order vacated (Neb. Ct. App., No. 08-1180, Feb. 25, 2009).

 

 

May 21, 2020 in Federal Courts, Recent Decisions, Standing | Permalink | Comments (0)

Monday, May 18, 2020

Erbsen on Nash & Collins on Certificates of Division and the Early Supreme Court

Today on the Courts Law section of JOTWELL is Allan Erbsen’s essay, Discretion, Division, and the Supreme Court’s Docket. Allan reviews Jonathan Nash and Michael Collins’ recent article, The Certificate of Division and the Early Supreme Court, 94 S. Cal. L. Rev. (forthcoming 2021).

 

 

 

May 18, 2020 in Federal Courts, Recent Scholarship, Weblogs | Permalink | Comments (0)

Friday, May 15, 2020

En Banc Fourth Circuit Issues Decisions in the Trump Emoluments Litigation

Yesterday the en banc Fourth Circuit issued its decisions in In re Trump and District of Columbia v. Trump, which arise from a lawsuit alleging violations of the Emoluments Clauses.

There are major political implications, obviously, but these decisions are all about appellate jurisdiction—the majority declines to review the district court’s denial of Trump’s motions to dismiss without addressing the substantive merits of those rulings. Stay tuned, of course: it’s quite likely that this case is headed to the Supreme Court.

Continue reading

May 15, 2020 in Current Affairs, Federal Courts, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, May 14, 2020

Get Lucky: SCOTUS decision in Lucky Brand Dungarees v. Marcel Fashions

Today the Supreme Court issued a unanimous decision in Lucky Brand Dungarees, Inc. v. Marcel Fashions Group, Inc. The Court rejects the application of what Justice Sotomayor’s opinion describes as “so-called ‘defense preclusion,’” which would preclude a party from invoking a defense in a later lawsuit because of its failure to invoke that defense in an earlier lawsuit. This case arises from “protracted litigation” between Lucky Brand and Marcel over alleged infringement of Marcel’s “Get Lucky” trademark:

In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties. This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later suit. Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not—Lucky Brand was not barred from raising its defense in the later action.

Justice Sotomayor notes that the Supreme Court “has never explicitly recognized ‘defense preclusion’ as a standalone category of res judicata, unmoored from the two guideposts of issue preclusion and claim preclusion. Instead, our case law indicates that any such preclusion of defenses must, at a minimum, satisfy the strictures of issue preclusion or claim preclusion.” Given that the defense asserted in the later case had not been actually litigated in the earlier lawsuit, issue preclusion could not apply. So any application of defense preclusion must at least satisfy claim preclusion’s general requirement that the two lawsuits share a “common nucleus of operative facts.” That wasn’t the case here: “At bottom, Marcel’s 2011 Action challenged different conduct—and raised different claims—from the 2005 Action. Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses.”

In footnote 2, Justice Sotomayor leaves open the question of whether claim preclusion can ever be applied to defenses:

There may be good reasons to question any application of claim preclusion to defenses. It has been noted that in suits involving successive claims against the same defendant, courts often “assum[e] that the defendant may raise defenses in the second action that were not raised in the first, even though they were equally available and relevant in both actions.” Wright & Miller §4414. This is because “[v]arious considerations, other than actual merits, may govern” whether to bring a defense, “such as the smallness of the amount or the value of the property in controversy, the difficulty of obtaining the necessary evidence, the expense of the litigation, and [a party’s] own situation.” Cromwell v. County of Sac, 94 U. S. 351, 356 (1877). Here, however, this Court need not determine when (if ever) applying claim preclusion to defenses may be appropriate, because a necessary predicate—identity of claims—is lacking.

 

 

 

 

May 14, 2020 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, May 12, 2020

Today’s Online Civil Procedure Workshop: Wasserman on Erie, SLAPP Suits & the First Amendment

After listening to this morning’s Supreme Court oral argument in the Trump Documents cases, join us for the second installment of the “Unavailability” Civil Procedure Workshop. Howard Wasserman will discuss Erie, SLAPP Suits, and the First Amendment.

 

 

May 12, 2020 in Conferences/Symposia, Federal Courts | Permalink | Comments (0)

Friday, May 8, 2020

SCOTUS orders supplemental briefing in Google v. Oracle on the Seventh Amendment and the standard of review for a jury's fair-use finding

Google LLC v. Oracle America, Inc. is one of the Supreme Court cases that has been postponed until the October Term 2020 in light of the COVID-19 situation. It presents the following questions: (1) whether copyright protection extends to a software interface; and (2) whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.

This week, the Supreme Court directed the parties to file supplemental briefs addressing “the appropriate standard of review” for the jury’s fair-use finding, “including but not limited to the implications of the Seventh Amendment, if any, on that standard.”

You can follow the briefing at SCOTUSblog and at the Supreme Court website.

H/T Shaun Shaughnessy

 

 

May 8, 2020 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Thursday, May 7, 2020

SCOTUS Decision in United States v. Sineneng-Smith: The Principle of Party Presentation

Today the Supreme Court issued an interesting decision in United States v. Sineneng-Smith, a case in which the Ninth Circuit held that the federal statute making it a crime to encourage or induce illegal immigration for commercial advantage or private financial gain was facially overbroad in violation of the First Amendment. Justice Ginsburg’s unanimous opinion did not address this constitutional question, however. Rather, the Court held that the Ninth Circuit had “departed so drastically from the principle of party presentation as to constitute an abuse of discretion,” and remanded the case “for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.”

Neither party had raised the First Amendment overbreath issue in either the district court or the initial round of Ninth Circuit briefing. But “[i]nstead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel,” including “whether the statute of conviction is overbroad . . . under the First Amendment.” In today’s opinion, the Supreme Court reasons that “[n]o extraordinary circumstances justified the panel’s takeover of the appeal.” Although Justice Ginsburg recognizes that “a court is not hidebound by the precise arguments of counsel,” she writes that “the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”

Sineneng-Smith is a criminal case, but Justice Ginsburg’s opinion notes that this principle of party presentation applies in civil litigation as well:

In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in Greenlaw v. United States, 554 U. S. 237 (2008), “in both civil and criminal cases, in the first instance and on appeal . . . , we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243.

Footnote 3, in fact, cites to Ben Kaplan’s 1960 article, Civil Procedure—Reflections on the Comparison of Systems, 9 Buffalo L. Rev. 409, for the proposition that the U.S. system “exploits the free-wheeling energies of counsel and places them in adversary confrontation before a detached judge” while the “German system puts its trust in a judge of paternalistic bent acting in cooperation with counsel of somewhat muted adversary zeal.”

In footnote 4, the Court does acknowledge some tension between this “principle of party presentation” and the Supreme Court’s own practice: “In an addendum to this opinion, we list cases in which this Court has called for supplemental briefing or appointed amicus curiae in recent years. None of them bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case.” That addendum, which begins at p.10 of the slip opinion, is an interesting resource in and of itself.

Justice Thomas writes a concurring opinion, arguing that the Ninth Circuit’s decision “violates far more than the party presentation rule. The merits of that decision also highlight the troubling nature of this Court’s overbreadth doctrine.”

 

 

 

 

May 7, 2020 in Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Wednesday, May 6, 2020

SCOTUS Cert Grant on Ramos Retroactivity

As covered earlier, the Supreme Court’s April decision in Ramos v. Louisiana holds that the Constitution requires a unanimous jury verdict in order for states to convict a defendant of a serious offense. But it left open the important question of retroactivity—can the right to a unanimous jury verdict be raised on collateral/habeas review?

On Monday, the Supreme Court set itself up to answer this question. It granted certiorari in Edwards v. Vannoy, limited to the following question: “Whether this Court’s decision in Ramos v. Louisiana, 590 U. S. ___ (2020), applies retroactively to cases on federal collateral review.”

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.

 

 

May 6, 2020 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Friday, May 1, 2020

SCOTUS in May: oral arguments of interest

If you’re planning to listen in to live Supreme Court arguments over the next couple of weeks, here’s the full May calendar.

And here are some cases that present interesting procedural, jurisdictional, or other fed-courts-y issues:

Wednesday, May 6:

Little Sisters of the Poor v. Pennsylvania (19-431) and Trump v. Pennsylvania (19-454), which are consolidated for oral argument, include the following questions presented (among others):

(1) Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court; and

(2) Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.

Barr v. American Association of Political Consultants (19-631) has an interesting severance issue. Here’s the question presented: Whether the government-debt exception to the TCPA's automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

Monday, May 11:

McGirt v. Oklahoma (18-9526) presents the question: Whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction as “justiciable matter” in Indian country over Indians accused of major crimes enumerated under the Indian Major Crimes Act--which are under exclusive federal jurisdiction.

Tuesday, May 12:

In Trump v. Mazars USA (19-715) and Trump v. Deutsche Bank AG (19-760), the Court has directed the parties to file supplemental briefs addressing “political question doctrine or related justiciability principles.”

Wednesday, May 13:

Colorado Department of State v. Baca (19-518) presents this question on standing (among others): Whether a presidential elector who is prevented by their appointing State from casting an Electoral College ballot that violates state law lacks standing to sue their appointing State because they hold no constitutionally protected right to exercise discretion.

 

 

May 1, 2020 in Federal Courts, Recent Decisions, Standing, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 29, 2020

SCOTUS asks for supplemental briefing on the political question doctrine and justiciability in Trump documents cases

Among the Supreme Court’s October Term 2019 cases that will be argued remotely in the coming weeks are two cases relating to Congress’s attempt to obtain documents from President Trump’s banks and accountant (Trump v. Mazars USA & Trump v. Deutsche Bank AG). Those cases are set for oral argument on Tuesday, May 12.

Monday’s order list directed the parties to file “supplemental letter briefs addressing whether the political question doctrine or related justiciability principles bear on the Court’s adjudication of these cases.” Stay tuned!

 

 

April 29, 2020 in Current Affairs, Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Monday, April 27, 2020

The Question is Moot: SCOTUS Remands Challenge to NYC Firearms Rule

Today the Supreme Court issued its decision in New York State Rifle & Pistol Assn., Inc. v. City of New York, a case challenging New York City’s rule on transporting firearms (covered earlier here). The rule was amended after certiorari was granted, and today’s per curiam opinion finds that the “claim for declaratory and injunctive relief with respect to the City’s old rule is therefore moot.” The Court remands the case for the lower courts to consider claims the plaintiffs may have regarding the City’s new rule, as well as whether the plaintiffs may add a claim for damages with respect to the old rule.

Justice Kavanaugh authors a concurring opinion.

Justice Alito authors a dissenting opinion, joined in full by Justice Gorsuch and in part by Justice Thomas, arguing that the case should not have been dismissed as moot and that the City’s rule violated the Second Amendment.

 

 

April 27, 2020 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 22, 2020

Some interesting issues in Ramos v. Louisiana

This week’s Supreme Court decision in Ramos v. Louisiana will primarily be of interest to criminal law/procedure folks: the main takeaway is that the Constitution requires a unanimous jury verdict in order for states to convict a defendant of a serious offense. But there are some really interesting federal courts/procedure issues as well.

As an initial matter, Ramos has an opinion breakdown that is sure to intrigue SCOTUS head-counters:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.

In its broadest strokes, the decision is an unusual 6-3 split: Gorsuch, Breyer, Ginsburg, Sotomayor, Kavanaugh, and Thomas vote in favor of the unanimous-jury requirement; Alito, Roberts, and Kagan dissent.

Ramos also prompts an important retroactivity question. Gorsuch, Ginsburg, Breyer & Sotomayor (in Part IV-B-2 of the Gorsuch opinion) recognize that they can’t formally decide the retroactivity issue in Ramos itself: “Whether the right to jury unanimity applies to cases on collateral review is a question for a future case where the parties will have a chance to brief the issue and we will benefit from their adversarial presentation.” But they note that: “[u]nder Teague v. Lane, newly recognized rules of criminal procedure do not normally apply in collateral review”; “Teague’s test is a demanding one, so much so that this Court has yet to announce a new rule of criminal procedure capable of meeting it”; and the Teague test “is demanding by design, expressly calibrated to address the reliance interests States have in the finality of their criminal judgments.” Justice Kavanaugh is more aggressive on the retroactivity point in his concurring opinion: “assuming that the Court faithfully applies Teague, today’s decision will not apply retroactively on federal habeas corpus review and will not disturb convictions that are final.” (Ramos would, of course, apply to convictions that are currently on direct appeal.) 

Finally, the Ramos decision confronts stare decisis. The key question—and the crux of the disagreement between the justices in the majority and those in dissent—is whether the Court should overrule its 1972 decision in Apodaca v. Oregon, which had upheld state convictions based on non-unanimous jury verdicts. But there’s an intriguing threshold issue that the Ramos opinions address: what, if anything, was the precedential content of Apodaca in the first place? (In general, this content-identification question is an aspect of stare decisis that gets less attention than the question of when precedent should be overruled—for my own thoughts, see here, here, and here.) As for Apodaca, this inquiry is complicated by the fact that Apodaca was a 4-1-4 decision: a four-justice plurality found that the Sixth Amendment did not require unanimity; Justice Powell concurred on the basis that the Sixth Amendment required unanimity but that this aspect of the Sixth Amendment was not applicable against the states; and the Apodaca dissenters would have required state convictions to be based on unanimous verdicts.

There’s lots of interesting stuff in the Ramos opinions on this content-identification question, including what role the Marks rule plays for a decision like Apodaca. To summarize, Gorsuch, Ginsburg, and Breyer (in Part IV-A of the Gorsuch opinion) reason that Apodaca did not create a “governing precedent,” because the unusual breakdown Apodaca deprived it of any “ratio decidendi” that would “allow[] it to have life and effect in the disposition of future cases.” Kavanaugh disagrees on this point, most forcefully in footnote 6 of his concurring opinion, writing that Apodaca’s “bottom-line result” that “state criminal juries need not be unanimous” was binding precedent. Alito, Roberts, and Kagan also treat Apodaca as creating a binding precedent; Part II of Alito’s dissenting opinion begins: “It is remarkable that it is even necessary to address this question, but in Part IV-A of the principal opinion, three Justices take the position that Apodaca was never a precedent. The only truly fitting response to this argument is: ‘Really?’”

 

 

April 22, 2020 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, April 21, 2020

SCOTUS Decision in Atlantic Richfield v. Christian

There were some interesting jurisdictional issues in yesterday’s Supreme Court decision in Atlantic Richfield Co. v. Christian.

First, the Court ruled that the Montana Supreme Court’s ruling was a “final judgment” that the Supreme Court had jurisdiction to review under 28 U.S.C. § 1257, even though the Montana court’s ruling allowed the case to proceed to trial. Chief Justice Roberts’ majority opinion reasoned that the Montana Supreme Court had “exercised review in this case through a writ of supervisory control” and that “[u]nder Montana law, a supervisory writ proceeding is a self-contained case, not an interlocutory appeal.”

Second, the Supreme Court found that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) did not forbid state courts from exercising jurisdiction over actions based on state law. CERCLA “deprives state courts of jurisdiction over claims brought under the Act. But it does not displace state court jurisdiction over claims brought under other sources of law.” Chief Justice Roberts reasoned:

Section 113(b) of the Act provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter,” so state courts lack jurisdiction over such actions. 42 U. S. C. §9613(b). This case, however, does not “arise under” the Act. The use of “arising under” in §113(b) echoes Congress’s more familiar use of that phrase in granting federal courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. §1331. In the mine run of cases, “[a] suit arises under the law that creates the cause of action.” American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 260 (1916).4

Footnote 4 clarifies:

There is a “special and small category of cases” that originate in state law yet still arise under federal law for purposes of federal question jurisdiction. Gunn v. Minton, 568 U. S. 251, 258 (2013) (internal quotation marks omitted). To qualify for this narrow exception, a state law claim must “necessarily raise[]” a federal issue, among other requirements. Ibid. No element of the landowners’ state common law claims necessarily raises a federal issue. Atlantic Richfield raises the Act as an affirmative defense, but “[f]ederal jurisdiction cannot be predicated on an actual or anticipated defense.” Vaden v. Discover Bank, 556 U. S. 49, 60 (2009).

 

 

April 21, 2020 in Federal Courts, Recent Decisions, State Courts, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Monday, March 23, 2020

Steinman on Notice Pleading in Exile

I just posted to SSRN my article, Notice Pleading in Exile, 41 Cardozo L. Rev. 1057 (2020). Here’s the abstract:

According to the conventional wisdom, the Supreme Court’s 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article—part of a symposium commemorating the Iqbal decision’s tenth anniversary—highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework that the original drafters of the Federal Rules of Civil Procedure had in mind.

Shout out to the Cardozo Law School, the Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy for hosting such an excellent symposium last spring. I’ll post links to all of the symposium pieces once they’re available.

 

March 23, 2020 in Adam Steinman, Conferences/Symposia, Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink | Comments (0)

Thursday, March 12, 2020

7th Circuit Decision in Mussat v. IQVIA: Bristol-Myers, Personal Jurisdiction & Class Actions

Yesterday the Seventh Circuit did what the D.C. Circuit refrained from doing one day earlier—it weighed in on the hotly-contested question of whether the Supreme Court’s Bristol-Myers decision applies to class actions filed in federal court. Judge Wood’s unanimous panel decision in Mussat v. IQVIA, Inc. begins:

Florence Mussat, an Illinois physician doing business through a professional services corporation, received two unsolicited faxes from IQVIA, a Delaware corporation with its headquarters in Pennsylvania. These faxes failed to include the opt-out notice required by federal statute. Mussat’s corporation (to which we refer simply as Mussat) brought a putative class action in the Northern District of Illinois under the Telephone Consumer Protection Act, 47 U.S.C. § 227, on behalf of itself and all persons in the country who had received similar junk faxes from IQVIA in the four previous years. IQVIA moved to strike the class definition, arguing that the district court did not have personal jurisdiction over the non-Illinois members of the proposed nationwide class.

The district court granted the motion to strike, reasoning that under the Supreme Court’s decision in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017), not just the named plaintiff, but also the unnamed members of the class, each had to show minimum contacts between the defendant and the forum state. Because IQVIA is not subject to general jurisdiction in Illinois, the district court turned to specific jurisdiction. Applying those rules, see Walden v. Fiore, 571 U.S. 277, 283–86 (2014), it found that it had no jurisdiction over the claims of parties who, unlike Mussat, were harmed outside of Illinois. We granted Mussat’s petition to appeal from that order under Federal Rule of Civil Procedure 23(f). We now reaffirm the Rule 23(f) order, and we hold that the principles announced in Bristol-Myers do not apply to the case of a nationwide class action filed in federal court under a federal statute. We reverse the order of the district court and remand for further proceedings.

(emphasis added).

In reaching this conclusion, Judge Wood also clarified that Rule 23(f) permitted an immediate appeal of the district court’s ruling on the motion to strike—even though that ruling did not formally grant or deny class status. She explained that “[t]he district court’s order eliminates all possibility of certifying the nationwide class Mussat sought, and so to that extent it operates as a denial of certification for one proposed class.”

 

 

March 12, 2020 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions | Permalink | Comments (0)

Wednesday, March 11, 2020

D.C. Circuit Panel Decision in Molock v. Whole Foods

Yesterday the D.C. Circuit issued its decision in Molock v. Whole Foods Market Group, Inc. The case raises important questions about personal jurisdiction in the wake of the Supreme Court’s Bristol-Myers decision, particularly whether Bristol-Myers applies to class actions filed in federal court. The panel majority, however, found that it would be premature to address that issue. Judge Tatel’s majority opinion, joined by Judge Garland, begins:

In this not yet certified class action, the defendant moved to dismiss all nonresident putative class members for lack of personal jurisdiction. The district court denied the motion on the merits. We affirm, but on alternative grounds. Absent class certification, putative class members are not parties before a court, rendering the defendant’s motion premature.

Judge Silberman writes a dissenting opinion, which begins:

The majority disposes of this appeal by concluding that Whole Foods’ motion to dismiss was premature, notwithstanding the plaintiffs’ repeated failure to raise the issue to the district court. I would not excuse that forfeiture. * * * Because I would reach the Bristol-Myers question and hold that class claims unrelated to Whole Foods’ contacts with the District of Columbia cannot proceed, I respectfully dissent.

 

 

 

March 11, 2020 in Class Actions, Federal Courts, Recent Decisions | Permalink | Comments (0)

Friday, March 6, 2020

Fourth Circuit panel rejects federal officer removal in Baltimore's climate-change suit

Today the Fourth Circuit issued a unanimous panel decision in Mayor and City Council of Baltimore v. BP P.L.C. Judge Floyd’s opinion begins:

This appeal is about whether a climate-change lawsuit against oil and gas companies belongs in federal court. But this decision is only about whether one path to federal court lies open. Because 28 U.S.C. § 1447(d) confines our appellate jurisdiction, the narrow question before us is whether removal of this lawsuit is proper under 28 U.S.C. § 1442, commonly referred to as the federal officer removal statute. And because we conclude that § 1442 does not provide a proper basis for removal, we affirm the district court’s remand order.

Here is the full opinion:

Download Baltimore v BP (4th Cir)

March 6, 2020 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction | Permalink | Comments (0)

Thursday, March 5, 2020

The 21st Century Courts Act (HR 6017)

Last week, the Twenty-First Century Courts Act (H.R. 6017) was introduced in the House of Representatives. The bill would require: a Code of Conduct for Supreme Court Justices (§ 2); written recusal explanations, including for Supreme Court Justices (§ 3); online publication of financial disclosure reports (§ 4); same-day audio release of Supreme Court oral arguments (and live audio within two years), and live audio of oral arguments in the federal courts of appeals (§ 5); improvements to electronic case management systems (§ 6); and free access to electronic documents via PACER (§ 7).

Here is the full text:

Download Twenty-First Century Courts Act

And here are press releases from two of the sponsors (Hank Johnson and Mike Quigley), and coverage from SCOTUSblog.

You can follow the bill’s progress here.

 

 

March 5, 2020 in Current Affairs, Federal Courts, Web/Tech | Permalink | Comments (1)