Civil Procedure & Federal Courts Blog

Mullenix on Dodge, Gardner & Whytock on State Forum Non Conveniens

This week on the Courts Law section of JOTWELL is Linda Mullenix’s essay, Deconstructing Forum Non Conveniens in the Context of Procedural Federalism. Linda reviews a recent article by Bill Dodge, Maggie Gardner, and Chris Whytock, The Many State Doctrines of Forum Non Conveniens, 72 Duke L.J. (forthcoming 2023).

 

 

 

 

 

Texas Supreme Court Decision on S.B. 8

This morning, the Supreme Court of Texas issued its decision in Whole Woman’s Health v. Jackson. It is the latest development in the litigation over Texas’s abortion law, S.B. 8. After the U.S. Supreme Court’s decisions in December (covered here), the Fifth Circuit certified to the Texas Supreme Court the following question, which implicates one narrow path for challenging S.B. 8 that the U.S. Supreme Court left open:

Whether Texas law authorizes the Attorney General, Texas Medical Board, the Texas Board of Nursing, the Texas Board of Pharmacy, or the Texas Health and Human Services Commission, directly or indirectly, to take disciplinary or adverse action of any sort against individuals or entities that violate the Texas Heartbeat Act, given the enforcement authority granted by various provisions of the Texas Occupations Code, the Texas Administrative Code, and the Texas Health and Safety Code and given the restrictions on public enforcement in sections 171.005, 171.207, and 171.208(a) of the Texas Health and Safety Code.

23 F.4th 380, 389 (5th Cir. 2022).

In today’s opinion by Justice Boyd, the Texas Supreme Court gives the following answer:

Senate Bill 8 provides that its requirements may be enforced by a private civil action, that no state official may bring or participate as a party in any such action, that such an action is the exclusive means to enforce the requirements, and that these restrictions apply notwithstanding any other law. Based on these provisions, we conclude that Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly. We answer the Fifth Circuit’s certified question No.

 

 

 

Effron on Sudeall & Pasciuti on Eviction Court

Today on the Courts Law section of JOTWELL is Robin Effron’s essay, “Day-in-Court Theater” in Eviction Court. Robin reviews Lauren Sudeall & Daniel Pasciuti’s recent article, Praxis and Paradox: Inside the Black Box of Eviction Court, 74 Vand. L. Rev. 1365 (2021).

 

 

 

 

Bookman on Summers on Eviction Procedure As Civil Probation

Today on the Courts Law section of JOTWELL is Pamela Bookman’s essay, Circumventing Procedure in Eviction Court. Pam reviews Nicole Summers’ recent article, Civil Probation.

 

 

 

SCOTUS Cert Grant on PSLRA Discovery Stays in State Court

Today the Supreme Court granted certiorari in Pivotal Software, Inc. v. Superior Court. Here is the question presented: 

Section 77z-1(b)(1) of the Private Securities Litigation Reform Act (“Reform Act”) provides:

In any private action arising under [the Securities Act of 1933], all discovery and other proceedings shall be stayed during the pendency of any motion to dismiss, unless the court finds, upon the motion of any party, that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.

15 U.S.C. § 77z-1(b)(1) (emphasis added).

The question presented is:

Whether the Reform Act’s discovery-stay provision applies to a private action under the Securities Act in state or federal court, or solely to a private action in federal court.

 

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.

 

 

 

 

 

 

Juries, Voir Dire, Batson, and Beyond: Achieving Fairness in Civil Jury Trials (Pound Civil Justice Institute Webcast, 7/17/2021)

The Pound Civil Justice Institute’s 2021 Forum for State Appellate Court Judges will be held by webcast on Saturday, July 17 (11:00 am – 5:30 pm EDT). The topic is “Juries, Voir Dire, Batson, and Beyond: Achieving Fairness in Civil Jury Trials,” and it will feature papers by Valerie Hans and Shari Diamond.

Academics who wish to attend can register here (deadline: July 8). Here is the full program:

Download 2021 Forum Agenda

 

 

 

 

D.C. Circuit Certifies Personal Jurisdiction Questions to D.C. Court of Appeals

In an interesting decision, the U.S. Court of Appeals for the D.C. Circuit has certified four questions to the D.C. Court of Appeals. The case is Akhmetshin v. Browder, which involves a defamation claim against a citizen of the United Kingdom. Personal jurisdiction in D.C. federal court depends on the District of Columbia’s long-arm statute, which the panel’s original opinion summarized as follows:

Section 13-423(a)(4) authorizes the “exercise [of] personal jurisdiction over a person” who has “caus[ed] tortious injury in the District of Columbia by an act or omission outside the District of Columbia.” Any such party over whom personal jurisdiction is sought must have satisfied one of three “plus factors” within the District. See Crane v. Carr, 814 F.2d 758, 763 (D.C. Cir. 1987). These factors are “[1] regularly do[ing] or solicit[ing] business, [2] engag[ing] in any other persistent course of conduct, or [3] deriv[ing] substantial revenue from goods used or consumed, or services rendered.” D.C. CODE § 13-423(a)(4). However, “entr[ies] into the District ... by nonresidents for the purpose of contacting federal governmental agencies [or instrumentalities]” do not factor into the jurisdictional calculus. Env't Rsch. Int'l, Inc. v. Lockwood Greene Eng'rs, Inc., 355 A.2d 808, 813 (D.C. 1976) (en banc) (explaining the “government contacts exception”).

Here are the certified questions:

1. May nonresident aliens who are citizens only of foreign countries invoke the government contacts exception?

2. If the first question is answered in the affirmative, must those nonresident aliens possess cognizable rights pursuant to the First Amendment generally, or any specific clause thereunder, in order to invoke the exception?

3. Does the government contacts exception extend to efforts to influence federal policy other than direct contacts with agents, members, or instrumentalities of the federal government?

4. If the third question is answered in the affirmative, what standard governs in determining whether activities not involving direct contacts with the federal government are covered under the exception?

 

 

 

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.

 

 

 

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.

 

 

 

October Term 2020 SCOTUS Arguments Begin Today (Remotely)

The Supreme Court begins oral argument by telephone conference this morning. If you want to listen in, here’s some information from the Supreme Court’s press release:

The Court will hear oral arguments by telephone conference on October 5, 6, 7, 13, and 14. In keeping with public health guidance in response to COVID-19, the Justices and counsel will all participate remotely. The oral arguments are scheduled to begin at 10 a.m. On days when more than one case will be heard, there will be a three minute pause before the second case begins.

The Court will provide a live audio feed of the arguments to ABC News (the network pool chair), the Associated Press, and C-SPAN, and they will in turn provide a simultaneous feed for the oral arguments to livestream on various media platforms for public access. * * *

The oral argument audio and a transcript of the oral arguments will be posted on the Court's website following oral argument each day.

Today’s arguments include Carney v. Adams, which presents some interesting standing and severability issues.

 

Pound Civil Justice Institute's 2020 State Appellate Judges Forum: Confidentiality & Public Courts

The Pound Civil Justice Institute has posted video and materials from its 2020 Forum for State Appellate Court Judges, Dangerous Secrets: Confronting Confidentiality in Our Public Courts, including papers by Dustin Benham and Sergio Campos and a state-by-state and federal compendium of statutes, decisions, and articles on confidentiality in litigation.

 

 

California Supreme Court Decision on the Hague Convention and Contractual Waivers of Service of Process

In April, the Supreme Court of California issued a unanimous decision in Rockefeller Technology v. Changzhou SinoType Technology, 460 P.3d 764 (Cal. 2020), on the ability of parties to contractually consent to service of process by methods contrary to those allowed by the Hague Convention. Justice Corrigan’s opinion begins:

The parties here, sophisticated business entities, entered into a contract wherein they agreed to submit to the jurisdiction of California courts and to resolve disputes between them through California arbitration.  They also agreed to provide notice and “service of process” to each other through Federal Express or similar courier.  The narrow question we address is whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (Hague Service Convention or “the Convention”) preempts such notice provision if the Convention provides for a different method of service.  Consistent with United States Supreme Court authority, we conclude that the Convention applies only when the law of the forum state requires formal service of process to be sent abroad.  We further conclude that, because the parties’ agreement constituted a waiver of formal service of process under California law in favor of an alternative form of notification, the Convention does not apply. 

 

 

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).

 

 

Delaware Supreme Court Upholds Federal-Forum Provisions in Corporate Charters

Yesterday the Delaware Supreme Court issued an important decision on federal-forum provisions (FFPs)—that is, provisions in corporate charters requiring that actions arising under the Securities Act of 1933 be filed in a federal court. In Salzberg v. Sciabacucchi, the Delaware Supreme Court overturned the Delaware Court of Chancery’s decision that FFPs were invalid under Delaware law: “Because such a provision can survive a facial challenge under our law, we reverse.”

 

 

Aggregate Litigation in State Courts: Report from the Pound Civil Justice Institute's Judges Forum

The Pound Civil Justice Institute has published the report of its 2019 Judges Forum, Aggregate Litigation in State Courts: Preserving Vital Mechanisms, which features academic papers by Teddy Rave and Myriam Gilles, plus commentary and discussion by the legal experts and judges who attended.

You can find previous Judges Forum reports here.

 

 

SCOTUS cert grant on Article III standing (and severability and political balance on the Delaware courts)

Today the Supreme Court granted certiorari in Carney v. Adams, which presents the following questions:

(1) Does the First Amendment invalidate a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a “bare majority” on the State’s three highest courts, with the other seats reserved for judges affiliated with the “other major political party”?

(2) Did the Third Circuit err in holding that a provision of the Delaware Constitution requiring that no more than a “bare majority” of three of the state courts may be made up of judges affiliated with any one political party is not severable from a provision that judges who are not members of the majority party on those courts must be members of the other “major political party,” when the former requirement existed for more than fifty years without the latter, and the former requirement, without the latter, continues to govern appointments to two other courts?

The Court also directed the parties to brief and argue “whether respondent has demonstrated Article III standing.”

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.

 

 

 

Sixth Circuit Judge Larsen on State Courts in a Federal System

The Case Western Reserve Law Review has published Judge Joan Larsen’s Sumner Canary Memorial Lecture, State Courts in a Federal System, 69 Case W. Res. L. Rev. 525 (2019).

 

 

Clopton on state deviations from federal procedural retrenchment

Zach Clopton has published Procedural Retrenchment and the States, 106 Cal. L. Rev. 411 (2018). Here’s the abstract:

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.

While I have much sympathy for the Court’s critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court’s decisions to limit court access—and despairing further developments in the age of Trump—we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are not binding on state courts, and many states have declined to follow their reasoning. This Article documents state courts deviating from Twombly and Iqbal on pleading; the Celotex trilogy on summary judgment; Wal-Mart v. Dukes on class actions; and Supreme Court decisions on standing and international law. Similarly, many of the Court’s highly criticized procedural decisions do not apply to public enforcement, and many public suits have proceeded where private litigation would have failed. This Article documents successful state-enforcement actions when class actions could not be certified, when individual claims would be sent to arbitration, and when private plaintiffs would lack Article III standing.

In sum, this Article evaluates state court and state-enforcement responses to the Roberts Court’s procedural decisions, and it suggests further interventions by state courts and public enforcers that could offset the regression in federal court access. At the same time, this analysis also illuminates serious challenges for those efforts, and it offers reasons to be cautious about state procedure and enforcement. Leveling down to state actors may not completely escape the political forces that have shaped federal procedure, and it may exacerbate some of the political economies that have undermined private enforcement and private rights to date.

Steinman on Davis & Whytock on State-Level Remedies for Human Rights Violations

Now on the Courts Law section of JOTWELL is my essay, Human Rights Litigation and the States. I review a recent article by Seth Davis and Chris Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018).

 

 

Wisconsin Requires Disclosure of Litigation Funding

Yesterday’s story in the National Law Journal begins: “All litigation funding arrangements in Wisconsin state courts will have to be disclosed in civil cases under a new measure signed into law by the state’s governor Tuesday.”

Here’s the text of the bill.