Civil Procedure & Federal Courts Blog

Second Circuit Decision in Nicosia v. Amazon

Last week the U.S. Court of Appeals for the Second Circuit issued its decision in Nicosia v. Amazon.com, Inc., holding that the plaintiff’s suit against Amazon should not be dismissed for failure to state a claim based on the mandatory arbitration provision in Amazon’s Conditions of Use.

Of course there’s considerable discussion of the Federal Arbitration Act and substantive contract law, but the court also addresses pleading standards, the relationship between Rule 12(b)(6) motions and motions to compel arbitration, and standing (the latter with respect to the plaintiff’s request for a preliminary injunction).

Download Nicosia v Amazon (2d)

 

 

 

Civil Procedure Bar Exam Refreshers on YouTube

Just in time for the July bar exam . . . Professor Ira Nathenson has posted seven new YouTube videos reviewing various aspects of Civil Procedure.   Enjoy!

Seiner on Class Actions in the Technology Sector

Joe Seiner has posted on SSRN a draft of his essay, Tailoring Class Actions to the On-Demand Economy, which will be published in the Ohio State Law Journal. Here’s the abstract:

In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.

The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.

Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important — yet unexplored — area of the law.

 

Professor Nathenson Posts New Civil Procedure Resources For the Bar Exam

Know anyone studying for the bar exam who needs help in Civil Procedure?  My esteemed colleague, Professor Ira Nathenson (a member of the Executive Committee of the AALS Section of Civil Procedure, as well as its webmaster and co-manager of the CivProMentor listserv), has recently posted some fine resources on his website. 

Professor Nathenson’s site includes a Resources page for Civil Procedure on the Multistate Bar Examination (MBE).  The resources include numerous Civil Procedure YouTube videos as well as problem sets, explanations, flowcharts, and handouts.  (If you thought that the Erie doctrine could not be reduced to a flow chart, check out his Coggle flowchart here.) 

The substantive materials are grouped by topic (such as subject-matter jurisdiction, personal jurisdiction, joinder, and much more), allowing you to zero in on Civ Pro issues of interest. Many of the YouTube videos are annotated, pointing you to related resources. The site also includes an overview of which Civ Pro topics topics are more likely to be tested. 

As most people in the US legal world know by now, federal Civil Procedure was added to the Multistate Bar Examination only recently.  It was first tested on the MBE during the February 2015 administration.  Professor Nathenson's excellent materials should help to ease the panic for some new graduates preparing for the bar. 

California Bar Publishes Ethical Opinion on ESI for Public Comment

The State Bar of California has published a proposed formal opinion for public comment on the question, "What are an attorney’s ethical duties in the handling of discovery of electronically stored information?"

The digest of the opinion states:

An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.

The deadline for public comments is 5 p.m., June 24, 2014.      

Extended Deadline for Submitting Comments on the Proposed FRCP Amendments

Today was, originally, the deadline for submitting comments on the proposed amendments to the Federal Rules of Civil Procedure. The deadline has been extended to Tuesday, Feb. 18. The following announcement appears on the U.S. Courts website:

NOTE: To accommodate scheduled website maintenance, the deadline for submitting public comments has been extended. Comments must be submitted by 11:59 PM ET on February 18, 2014.

Download USCourts.gov pdf 

 

Federal Courts Celebrate 25 Years of PACER and CM/ECF

The Third Branch News reports "25 Years Later, PACER, Electronic Filing Continue to Change Courts."

Apparently without irony, Third Branch notes,  "Lawyers speak of reduced stress at a workday’s end, knowing they can electronically file a document until midnight, without fear that the courthouse doors will close on them."

Court Implicitly Upholds Document Request Seeking Bitcoin Transaction Information

Okay, I've succombed to bitcoin madness.  A search today of the ALLCASES library in the Westlaw database yielded three cases with the word "Bitcoin" in them.  The only one of any recency was the following.

In Entrepreneur Media, Inc. v. Smith, No. 2:10–mc–55–JAM–EFB (E.D. Cal. Nov. 26, 2013), a judgment creditor/plaintiff moved to compel the production of documents sought in aid of enforcement of its judgment against the judgment debtor/defendant.  The document request included, "Any and all books, letters, papers, files, or documents . . . which show any wire transfer, electronic distribution and/or transmission of funds, purchase of debit cards, acquisition and use of any online digital banking services, such as Bitcoin, and/or any and all other papers which show any account in YOUR name, and moreover, any account by any entity, including any digital entity, for the TIME PERIOD."  Without addressing any issue that might have been presented by the inclusion of Bitcoin transactions in the document request, the court granted the motion to compel this particular request (although it denied the motion as to other requests).

More Federal Courts' Opinions Available on Federal Digital System

From The Third Branch News:

A project providing free online access to federal court opinions has expanded to include 64 courts. The federal Judiciary and the Government Printing Office partner through the GPO’s Federal Digital System, FDsys, to provide public access to more than 750,000 opinions, many dating back to 2004.

The Judicial Conference approved national implementation of the project in September 2012, expanding participation from the original 29 courts. FDsys currently contains opinions from 8 appellate courts, 20 district courts, and 35 bankruptcy courts.

Federal court opinions are one of the most heavily used collections on FDsys, with millions of retrievals each month. Opinions are pulled nightly from the courts’ Case Management/Electronic Case Files (CM/ECF) systems and sent to the GPO, where they are posted on the FDsys website. Collections on FDsys are divided into appellate, district or bankruptcy court opinions and are text-searchable across courts. FDsys also allows embedded animation and audio – an innovation previously only available with opinions posted on a court’s own website or on the Public Access to Court Electronic Records (PACER).

 

International Court of Justice Conference: The ICJ in the Service of Peace and Justice

On Monday, September 23, 2013, the International Court of Justice (ICJ) will celebrate the Centenary of the Peace Palace with a conference that will consider the following four topics:

1.  A Century of International Justice and Prospects for the Future;

2. The International Court of Justice and the International Legal System;

3. The Role of the International Court of Justice for Enhancing the Rule of Law; and 

4. The International Court of Justice and the United Nations: Relationship of the ICJ with other UN Organs.  

A detailed conference agenda can be found here: http://www.icj-cij.org/presscom/files/4/17524.pdf.

And, information about how to view the conference either by live streaming or on-demand can be found  here: http://www.icj-cij.org/presscom/files/4/17534.pdf. 

 

CFP: Social Justice and Social Media Symposium

Here is a Call For Papers for a symposium on Social Justice and Social Media to be held at Pace Law School on March 28, 2014: 

Pace Law Review will host a one-day symposium entitled Social Justice and Social Media, on March 28, 2014 on the Pace Law School campus in White Plains, NY.  The Symposium will address themes concerning the interplay between social media and the administration of justice, both civil and criminal.  The Pace Law Review invites (10+) page papers for inclusion in its Summer 2014 Symposium Edition. The committee will consider a broad range of topics.  Selected participants will be invited to present their papers at the symposium. Travel expenses to White Plains (30 minutes outside NYC), including hotel, transportation and meals will be provided.

Submission information and key dates:

Interested persons should submit an abstract of between 250 and 300 words suitable for a 15 minute presentation and to serve as the basis of a 10+ page paper (including footnotes).  Longer papers are welcomed.  Submissions should be made electronically to Prof. Leslie Y. Garfield, [email protected].  Please include name, affiliation and contact details in the body of the email.  Submissions should be emailed no later than October 1, 2013.  Final papers submission will be due June 1, 2014. 

SCOTUS Maps in the Classroom

Professor Colin Starger of the University of Baltimore suggested that we repost his Prawfsblawg posting describing his use of SCOTUS Mapper software to explain Twombly and Iqbal.  I've not tried this software, but anything that can help explain Supreme Court pleading jurisprudence to 1Ls is worth a look.   

Maybe We Should Try to Be More Interesting? Just a Thought

The National Law Journal reports on a recent article by Jeff Sovern (St. John's University School of Law) entitled "Law Student Laptop Use During Class for Non-Class Purposes: Temptation v. Incentives," 51 U. Louisville L. Rev. 483 (2013).  The article concludes that first-year students have more incentives to pay attention during class and therefore are less distracted by laptop use than second- and third-year law students. 

My own classroom policy seems somehow misguided in light of this conclusion.  I don't allow laptops in first-year Civil Procedure, but allow them in upper-class courses.   My reasoning is that 1Ls need to be weaned from their slacker college ways, that it is almost impossible for them to multitask Civil Procedure, and that they have no choice in being assigned to my section, so they can't transfer out.  After they survive the first year, I treat them like the adult graduate students they are and try (not always successfully) to make the class valuable enough to pay attention to. 

By now, most professors have fairly strong views on their laptop-in-class policy, but the article may provide some food for thought.

 

 

 

Second Circuit Vacates Class Certification in the Google Books Case

Here is the opinion in The Authors Guild, Inc. v. Google Inc. The opinion begins: 

We consider in this appeal whether the United States District Court for the Southern District of New York (Denny Chin, Circuit Judge, sitting by designation) erred in certifying the plaintiff class—authors claiming that defendant-appellant Google Inc. committed copyright infringement by copying and displaying “snippets” of millions of books in the Library Project of its Google Books search tool. On the particular facts of this case, we conclude that class certification was premature in the absence of a determination by the District Court of the merits of Google’s “fair use” defense. Accordingly, we vacate the June 11, 2012 order certifying the class and remand the cause to the District Court, for consideration of the fair use issues, without prejudice to any future motion for class certification.

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What do Ronald Reagan and Bob Marley have in common?

Answer #1: Today is their birthday.

Answer #2: They were never on Twitter.

If any of our readers would like to get links to this blog’s posts via Twitter, follow @Adam_Steinman. That’s likely to be the bulk of my Twitter feed (I don’t know how to make cat GIFs.)

Here are some other folks in the civil-procedure-federal-courts-o-sphere that I’ve come across so far…

• Cynthia Fountaine (Southern Illinois University), @clfountaine
• Jasminka Kalajdzic (University of Windsor), @JKal
• Benjamin Spencer (Washington & Lee University), @PROFSPENCER
• Beth Thornburg (Southern Methodist University), @btSMU
• Steve Vladeck (American University), @steve_vladeck
• Kevin Walsh (University of Richmond), @kevincwalsh
• Mr. T, @MrT

I’m new at this, so if you know of others please feel free to share.

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WSJ on the Launch of Modria, an Online Small Claims Court

“Modria Launches to Become the Online ‘Small Claims Court for the 21st Century,’” from the WSJ’s Venture Capital Dispatch Blog.

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(Hat Tip: Suja Thomas)

Civ Pro Professor Beth Thornburg on Twitter

SMU Dedman School of Law Professor Beth Thornburg is tweeting about civil procedure, legal education, higher education, and other topics of interest.  Follow her on Twitter at @btSMU.

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Law Student Research & Writing Competition on E-Discovery

Details are available here. From the announcement:

The DISH® “Best in Class” eDiscovery Legal Research and Writing Competition encourages law students to develop a thorough understanding of the evolution and practice of Information Governance and Discovery in civil litigation.  The competition is the only one of its kind designed to challenge law students to explore the evolving issues of document management, electronically stored information, and ever-expanding technology—along with their application to the law.

The 2012 competition asks students to address the following topic: Under what standard should a court subject an employee's non-business personal computing activities (e.g., social media, documents stored on a personal computer, and/or personal email accounts) to civil discovery involving her or his employer?

And:

The first-place selection will receive a $2,500 cash award along with an invitation to present his/her paper on a webinar hosted by Redgrave LLP. Two runners-up will also be selected and will each receive a $1,000 cash award.

The deadline for submissions is October 13, 2012.

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Facebook and Subject Matter Jurisdiction: With Friends Like These...

Earlier this summer, Paul Ceglia filed a lawsuit in a Buffalo, New York state court claiming he’s entitled to an 84% stake in Facebook. Mark Zuckerberg, the defendant and Facebook CEO, removed the case to U.S. District Court for the Western District of New York on diversity grounds. Zuckerberg contends that he’s a citizen of California and the plaintiff is a citizen of New York.

Last month the plaintiff filed a motion to remand the case, arguing that Zuckerberg is still domiciled in New York, thus destroying diversity of citizenship. Zuckerberg filed his opposition to remand this week.

For additional coverage of the pending litigation, see here, here, and here.

The docket is available via Justia and PACER (case number 1:10-cv-569, Ceglia v. Zuckerberg), and oral argument is scheduled for October 13.

Zuckerberg’s citizenship for diversity purposes has already been the subject of a published federal court decision. In ConnectU LLC v. Zuckerberg, 482 F. Supp. 2d 3 (D. Mass. 2007) (Hat Tip: Kevin Clermont), the court held that as of September 2, 2004, Zuckerberg was still domiciled with his parents in New York. That decision was reversed on other grounds.

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Music Industry's $675K Judgment Against File-Sharing College Student Reduced as Unconstitutionally Excessive

In a closely-watched federal lawsuit brought by several major recording companies, U.S. District Judge Nancy Gertner has reduced a damage award against a defendant who illegally downloaded 30 songs when he was in college. The case is Sony BMG Music Entertainment v. Tenenbaum, 07cv11446-NG (D. Mass. July 9, 2010).

Judge Gertner’s opinion begins: “This copyright case raises the question of whether the Constitution’s Due Process Clause is violated by a jury’s award of $675,000 in statutory damages against an individual who reaped no pecuniary reward from his infringement and whose individual infringing acts caused the plaintiffs minimal harm. I hold that it is.” Here’s more from the opinion’s introduction:

Joel Tenenbaum (“Tenenbaum”), the defendant in this action, was accused of using filesharing software to download and distribute thirty copyrighted songs belonging to the plaintiffs. The plaintiffs are a group of the country’s biggest recording companies. Their lawsuit against Tenenbaum is one of thousands that they have brought against file sharers throughout the country. Tenenbaum, like many of the defendants in these suits, was an undergraduate when his file-sharing was detected.

Although the plaintiffs presented evidence that Tenenbaum illegally downloaded and shared thousands of recordings, the trial focused on his infringement of the plaintiffs’ copyrights in thirty songs. As to these songs, Tenenbaum’s liability for infringement was not seriously in question. . . . The only questions for the jury were whether Tenenbaum’s infringements were willful and what amount of damages was appropriate. . . . The jury did find that Tenenbaum willfully infringed the plaintiffs’ copyrights and imposed damages of $22,500 per song, yielding a total award of $675,000.

. . .

I conclude that the jury’s award of $675,000 in statutory damages for Tenenbaum’s infringement of thirty copyrighted works is unconstitutionally excessive. This award is far greater than necessary to serve the government’s legitimate interests in compensating copyright owners and deterring infringement. In fact, it bears no meaningful relationship to these objectives. . . . It cannot withstand scrutiny under the Due Process Clause.

For the reasons I discuss below, I reduce the jury’s award to $2,250 per infringed work, three times the statutory minimum, for a total award of $67,500. Significantly, this amount is more than I might have awarded in my independent judgment. But the task of determining the appropriate damages award in this case fell to the jury, not the Court. I have merely reduced the award to the greatest amount that the Constitution will permit given the facts of this case.

For additional coverage see the AP and How Appealing.

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(Hat Tip: Howard Bashman)