Civil Procedure Prof Blog

Federal Civil Practice Bulletin

For those who want to catch up on procedure-related decisions and commentary released during break, check out Prof. Ben Spencer's blog here. --RR

Back to blogging

There's no better tool for tracking the Supreme Court's docket than the StatPack posted over at SCOTUSblog.  Looking at the cert-granted cases, am I correct in concluding that this will be a slow year for procedure and jurisdiction decisions?  While I'm sure the Court will resolve some intertwined procedural and jurisdictional issues, the main issues suggest that this year's annual casebook $upplements will be light.  Here are a few issues as framed in the StatPack that might interest our readers:

• Gonzalez v. US:  Waiver of right to Art. III judge to preside over jury selection when counsel agreed to have a U.S. magistrate instead.

• Sprint v. Mendelsohn:  Admissibility of "me,too" testimony in age discrimination suits

• Boumediene v. Bush:  Constitutional jurisdiction over habeas petitions from Guantanamo detainees

• Addition from the comments (thanks, Jeff):  John R. Sand & Gravel v. US:  Whether 28 U.S.C. s2501 limits the subject-matter jurisdiction of the Court of Federal Claims.

--RR

Claim Preclusion

We posted here about the Texas Supreme Court's recent holding that claim preclusion barred a wage claim.  Our colleague Ron Beal filed an amicus letter with the court today urging it to reconsider its decision.  You can download the amicus letter by clicking the link below.--Counseller

Download amicus_letter_brief.doc 

Thomson v. Novartis

We've been following the coverage of Thomson v. Novartis over at Drug & Device Law.   Today, Herrmann and Beck detail another case from last week, noting that this Judge "didn't like the Thomson playbook." --RR

Uncivil Litigation

Check out this article in Litigation News Online from the ABA Litigation Section.  The Board of Governors of the California Bar Association has decided that new rules are needed to reduce incivility in litigation.  Has litigation always been a nasty affair (assuming it is now)?  Or is the decrease in civility a new phenomenon (i.e., more evidence of the rise of the "abysmal tide")?--Counseller   

Certification of Largest Class in History--Affirmed

As you may know, a group of plaintiffs filed a class action lawsuit against Wal-Mart alleging sexual discrimination against Wal-Mart employees in violation of Title VII.  The district court certified the plaintiffs' proposed class (with some modifications).  Yesterday, the Ninth Circuit Court of Appeals issued its opinion in Dukes v. Wal-Mart and affirmed the district court's decision to certify the class.  What is remarkable about this decision is the size of the class it creates.  This class action is the largest certified in U.S history, consisting of more than 1.5 million members.  Many thanks to Scott Dodson for keeping an eye on this case for us.--Counseller 

9(b) Particularity and the Passive Voice

On Friday, the Southern District of Florida dismissed a group of plaintiffs' fraud case case against brokerage and financial services firms. The court held that the plaintiffs had failed to allege fraud with particularity under Rule 9(b) in part because they pled in the passive voice.

Also, a plaintiff's use of the passive voice in alleging a fraud can impermissibly obscure allegations such that the allegations fail to satisfy the particularity requirements of Rule 9(b). Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1297 (11th Cir.2002); Pension Committee of University of Montreal Pension Plan v. Banc of America Securities, L.L.C., 446 F.Supp.2d 163, 186 n. 153 (S.D.N.Y.2006) (“Plaintiffs must allege the speaker of a misrepresentation with particularity and may not obscure pleading deficiencies by casting allegations in the passive voice.”); In re Keithley Instruments, Inc. Securities Litigation, 268 F.Supp.2d 887, 898 (N.D.Ohio 2002). Plaintiffs' repeated use of the passive voice when describing misrepresentations or fraudulent acts obscures exactly who made the statements or committed the fraudulent acts. In many instances, it appears that the representations or fraudulent acts are properly attributable to PFA but, by using the passive voice (e.g., stating that misrepresentations “were made” to investors), Plaintiffs attempt to broaden responsibility and make it appear that each Defendant is responsible for each of PFA's and/or another Defendants' statements, misrepresentations, and fraudulent acts or omissions.

For more information, you can find the entire opinion with this citation (2007 WL 4287729) or by reading Ben Spencer's post on the subject here.--Counseller

Claim Preclusion in the Texas Supreme Court

A closely divided Texas Supreme Court held today that claim preclusion barred a wage claim.  The dissent has the better of the argument. 

The context is pretty simple.  Plaintiff had a wage claim against his former employer.  The legislature created a quick administrative process to file such wage claims, but plaintiffs seeking to use this process had to file within 180 days of when the wages were due.  This process is not exclusive--plaintiffs are free to pursue breach-of-contract actions, which are governed by a four-year statute of limitations.  Plaintiff filed an administrative claim.  It was too late for the 180-day period but well within the four years to file a private civil suit.  The Commission dismissed his claim as untimely, and the plaintiff filed a civil suit.  The majority concluded that the Commission's dismissal was claim preclusive.  Writing for four in his dissent, Justice Brister concisely, but persuasively, provides several reasons why the Texas Workforce Commission’s order is not a claim-preclusive judgment on the merits, including:

First, the Commission itself says so. In its amicus brief supporting Plaintiff's right to file suit in court, the Commission says “res judicata does not apply . . . because TWC’s order was not a judgment on the merits but a procedural dismissal for untimeliness.” How can the Court hold the Commission intended a merits dismissal when the Commission itself stipulates that it did not? *** 

Fifth, judgments based on limitations are usually considered rulings on the merits because a late claim can never be refiled any earlier (barring time travel). But an important exception applies here because there are two different limitations periods. As the First Restatement of Judgments stated in a comment:

Thus, if the plaintiff brings an action to enforce a claim in one State and the defendant sets up the defense that the action is barred by the Statute of Limitations in that State, the plaintiff is precluded from thereafter maintaining an action to enforce the claim in that State. He is not, however, precluded from maintaining an action to enforce the claim in another State if it is not barred by the Statute of Limitations in that State.

The Second Restatement of Conflict of Laws now makes the same point:

Thus, the plaintiff’s suit may be dismissed in state X on the ground that it is barred by the X statute of limitations. This judgment will preclude the plaintiff from thereafter maintaining an action to enforce the claim in state X. This judgment, however, binds the parties only with respect to the issue that was decided. It will preclude the plaintiff from maintaining an action to enforce the claim in another state only if the courts of the other state would apply the X statute of limitations . . .

The First, Second, Fifth, Seventh, and Tenth federal circuit courts all agree that while dismissals based on limitations are usually preclusive, they are not preclusive when a case is filed in two different systems that apply two different limitations periods. In such cases, as Wright and Miller state: “[i]f the second forum would decide independently to apply a longer period of limitations . . . the traditional rule has been that it is free to proceed with the second action.” While dismissal of an untimely claim may be preclusive if based on the substantive law governing the claim (Texas contract law’s four years), it is not preclusive if based on a shorter period designed as a procedural protection for the first forum (the Commission’s 180 days):   

Dismissal based on the limitations period established by the law that governs the claim is a judgment on the merits that precludes application of a different limitations period by another court. Dismissal based on application of the forum’s own shorter period for purposes of protecting the forum is not a judgment on the merits and does not preclude an action on the same claim in a court that would apply a longer limitations period.

Formatted without notation for readability.  The case name is  Igal v. Brightstar Information Technology Group. -- RR

The Law Firm Holiday Party, Texas Style

Check out this article in the ABA Journal.  Apparently the going rate for law firm holiday parties is $100k in Houston, Texas.  The defense firms' clients aren't happy, believing that $100k for party favors like, oh, I don't know, acrobats is a $100k in attorney fees they didn't need to pay.  The plaintiff's firms' "clients" (i.e., the lawyers who refer them cases) don't seem upset by extravagant spending on parties.  For more on that angle, read this article.--Counseller   

Claims, Civil Actions, Congress and the Courts

Chicago-Kent Prof. Joan E. Steinman recently posted on SSRN an article tentatively titled Claims, Civil Actions, Congress and the Courts.  The abstract follows:

In Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005), the Supreme Court took its first stab at construing the supplemental jurisdiction statute, 28 U.S.C. § 1367 - a statute that has provoked a great outpouring of scholarly criticism and debate since its enactment in 1990, and generated several conflicts among the lower federal courts. This Article focuses on important features of the Court's reasoning in Exxon Mobil v. Allapattah, including the Court's conflation of a "civil action" with a "claim."

Part I discusses the reasoning in Allapattah and Rosario Ortega in detail, showing among other things when and why the Court conflated a "civil action" with a "claim." As part of that discussion, Part I addresses the Court's treatment of "indivisibility theory" and "contamination theory" and how that treatment influenced the Court's view of civil actions. It also considers the relevance of the Supreme Court's decision in City of Chicago v. International College of Surgeons, 522 U.S.156 (1997), to its reasoning and conclusions in Allapattah. Finally, Part I compares the reasoning and ultimate holdings of Allapattah and Rosario Ortega - and the views of the dissent - with the recommendations in the American Law Institutes Federal Judicial Code Revision Project, published in 2004, and with my own thoughts on the issues raised. While my views are more similar to those of the dissent than to those of the majority, I believe that the outcome in Allapattah (but not in del Rosario) is correct because of the presence of a civil action within the original jurisdiction of the federal courts before any class is certified.

Part II provides many illustrations of how, if the lower federal courts were to accept the Court's redefinition of "civil action" and "claim," and carry it into other contexts in which the terms have long been understood to share the meanings of those words and phrases as they are used in the federal question and diversity subject-matter jurisdiction statutes, significant and undesirable changes in doctrine would result - particularly in cases removed from state court. Part III then ponders why the federal courts nonetheless have forgone the opportunity to extend the redefinition or conflation into such other statutory contexts, despite some reasons to do so. It considers the jurisprudential question of the propriety of eschewing the precedent set by Allapattah and Rosario Ortega in their treatment of "claim" and "civil action," and argues that the courts are wise to ignore - but would do better to distinguish and limit - the reasoning of Allapattah and Rosario Ortega and to decline to extend it into the interpretation of other jurisdictional statutes. Finally, Part III urges better drafting by Congress, to avoid strained interpretations invited by poor legislative drafting.

--RR

Worth a Read

Late last month, in In re: Literary Works, the Second Circuit decided that the registration requirement of section 411(a) of the Copyright Act is jurisdictional and that, in a class action wherein the representative plaintiffs' claims concerned registered copyrights but the class members' claims concerned primarily unregistered copyrights, the court could not exercise supplemental jurisdiction under 28 U.S.C. s1367 over the unregistered copyright claims of the class members.--Counseller 

Restyling Complete

Yesterday, FIU's Howard Wasserman wished us a Happy Restyling Day over at Prawfsblawg.   It's true, December 1 has passed, and the restyled FRCPs are now effective.  Howard is probably right that the results will not be particularly tragic, but in the spirit of the season, a "bah, humbug" is probably warranted.  --RR

More on Thomson v. Novartis

On Tuesday, we summarized and linked to Drug and Device Law's discussion of Thomson v. Novartis.  Apparently the forum-state-defendant issue discussed in Novartis is also the subject of other pending remand motions.  See the update here.  --RR

**Update:  Beck and Herrmann note that the New Jersey State Judge was apparently unamused and link to an order the judge issued earlier today.  Let's be candid, though, this practice is no more sinister than the other games that parties play.  Preservice removal to secure a federal forum doesn't offend sensibilities any more than a plaintiff serving a fringe, local defendant to secure a state forum against the primary out-of-state defendants.

Cell Phones in the Classroom/Courtroom

How many student cellphones have gone off in your classes?  What do you do about it?  Ignore it?  Embarrass the student?  When it happens, I think it's a real teaching moment.  RR and I have taken to assigning the offending student a memo about the sanctions judges have imposed on lawyers whose cellphones have gone off in court.  We may have to change our tactic because of this tidbit from NPR about a judge who went a bit too far in response to a cell phone ringing in court.--Counseller 

A Call For Papers

The University of Ottawa Law & Technology Journal has issued a call for papers for both its general issues and its special issue on Science and the Courts.  Submission information is here.--Counseller

Removing despite a named forum-state defendant

Suppose complete diversity exists.  The amount in controversy easily exceeds the jurisdictional amount.  Yet, the plaintiff wants to keep the case in state court.  The next step in the common forum-fight template is that the plaintiff sues in a forum of which at least one defendant is a citizen.  It's commonplace:  a forum-state-citizen defendant defeats removal.  Or perhaps, as illustrated by James Beck and Mark Herrmann at Drug and Device Law, we should review 28 U.S.C. 1441(b) more carefully.

What if a defendant removes before the forum-state defendant has been served?  What if a defendant monitors the docket and removes before any defendant (including the removing defendant and the forum-state defendant) has been served?  1441(b) only bars removal when a forum-state defendant has been "properly joined and served."  Most folks reading that provision naturally think of fraudulent joinder -- of course we can disregard the citizenship of a jurisdiction killer who has been fraudulently joined to the lawsuit.  But relying upon the plain language of the statute, several defendants have succeeded in using 1441(b) to defeat removal despite the presence of a not-fraudulently-joined forum-state defendant, by simply removing before that defendant has been served. Discussing the recent case, Thomson v. Novartis, Beck and Herrmann note:

We're not mentioning this case only because it's curious. It also has practical implications for drug companies. If your company is facing mass tort litigation -- and non-resident plaintiffs are running to sue you in your home state court, to prevent removal -- monitor your state court dockets. Remove diverse (but otherwise non-removable) cases before the plaintiffs serve the company. Presto! Federal jurisdiction in seemingly nonremovable cases.

*Update here.

--RR

Crash on Outlining

As some of you might have noticed, it has been a while since I have written a Civil Procedure post.  I don’t have a particularly compelling excuse to offer, except to say that I am a one L—a first semester law student whose finals are drawing quite near.

I am currently sitting in my room surrounded by my casebook, the Federal Rules of Civil Procedure and, of course, Example and Explanations. I need a break. I suppose I will take this opportunity to write about the thing that is constantly on my mind: the elusive outline.  I’m not sure exactly when it started, but a couple of weeks ago a few of my classmates began casually asking each other, “How is the outline coming?”  Since then, it has been a constant topic of conversation and a constant source of stress for me.

The first time I sat down to make my Civil Procedure outline I was armed only with the voluminous (and sometimes incoherent) notes I have taken this semester and my casebook.  I worked for an hour or so before I realized I was really doing nothing more than copying my notes and adding in facts from the cases.  Though I am still not entirely sure I understand how to outline well, I realized pretty quickly that what I was doing was not right.

On my second attempt, I tried to start very broadly. I thought about the class a whole and created headings that represented what I thought of as the major topics. Then I thought about each topic and tried to create subheadings from there.  I attempted to do this primarily from memory, using the book and my notes as references rather than templates from which to copy. At first, I found this to be a useful exercise; it helped me begin to think about how the ideas we had discussed relate to each other.  However, as I tried to move down another level of specificity, I found myself copying straight from the book and constantly rearranging my original categories. I realized I was not yet ready to synthesize the ideas on my own; I still had some learning left to do.  This method may prove to be a useful way to test my understanding after I have completed an in-depth outline. However, it did not turn out to be a very useful way to produce an outline that will aid me during the exam.

Finally, I asked an upperclassman for advice.  I was promptly presented with 4 outlines from “A” students who had taken Civil Procedure with my professor in the past.  My first reaction upon opening these outlines was despair: most were over 100 pages and all seemed meticulously organized and utterly complete.  I felt fortunate to have them, but terrified that somewhere my classmates were creating similar masterpieces from scratch.  It produced one of those temporary but increasingly frequent moments of doubt when I am sure that I am missing some secret of law school that all my classmates know.  Fortunately, I have, for the most part, been able to put this doubt aside as use these outlines as tools as I develop my own.

I have heard mixed opinions on whether it is a good idea to use other peoples’ outlines as templates, or whether it is always better to start from scratch.  The jury is still out for me, but my opinion from halfway through the process is that, while having four outlines seems useful, I would rather use zero outlines than just one.  I think that using just one outline would make it too easy to copy and paste without thinking about the material.  On the other hand, working from 4 outlines, my notes, my casebook and E and E is truly forcing me to think about what is important and how things fit together. 

Because I am mid-process I have no grand conclusions about outlining. Instead, I have a few questions about the process.  First, I am not sure how much information about particular cases to put in my outline.  I know I will not be asked to describe the facts of any particular case, but never having taken a law exam, I am not sure how helpful it will be to have key facts at hand so I can distinguish hypotheticals from cases we have discussed. Second, I do not know how I can make my outline more helpful in answering the theory and policy questions that, based on the way class has been structured, I assume will comprise a large part of my exam.  I have been tempted to spend some time thinking and writing my thoughts about each issue as I outline it. My hope is that, if I have at least a few ideas jotted down, I will be less likely to freeze on the exam.  However, I wonder if doing that wastes space and time.

Ultimately, I realize these questions may not matter. I’ve been told the exam period goes by so quickly that I will likely not have much time to look at my outline, but I try to block that thought out of my mind.  I do this not so much because I am afraid to take an exam without an outline, but rather because I see how much trying to produce the perfect outline is benefiting me.  I believe that whether or not I give it a single glance, the process of trying to produce an exam worthy outline is the best preparation for exams. So, I suppose I should get back to it.  --Crash

Click here to find Crash's last post and links to all his previous posts.

Workshop Announcement

American University Profs Stephen Vladeck and Amanda Frost are organizing a workshop for all junior Federal Courts professors (and aspiring Fed Courts teachers) to be hosted at American University Washington College of Law, on Friday, April 4, 2008.  Please see the attached flyer for details and contact information. Download junior_faculty_workshop_flyer.pdf  --RR

Decision of note: HIF BIO v. Yung Shin Pharmaceuticals

Parting ways with several other Courts of Appeals, the Federal Circuit recently decided that 28 U.S.C. § 1447(d)  bars an appeal from a remand order based on declining supplemental jurisdiction under 28 U.S.C. § 1367(c).   The Federal Circuit read the recent Powerex decision as undercutting the persuasive force of the contrary Court of Appeals decisions.  After contrasting a § 1367(c) decline with abstention, the court summarized its reasoning:

In short, because every § 1367(c) remand necessarily involves a predicate finding that the claims at issue lack an independent basis of subject matter jurisdiction, a remand based on declining supplemental jurisdiction can be colorably characterized as a remand based on lack of subject matter jurisdiction. Accordingly, a remand based on declining supplemental jurisdiction must be considered within the class of remands described in § 1447(c) and thus barred from appellate review by § 1447(d).

It wouldn't be too surprising for the Supreme Court to take this case, given that it has twice noted the issue's unresolved status and that now a circuit split exists. --RR

Can the state judge do that?

What kinds of conditions can a trial judge place on a forum non conveniens (FNC) dismissal?  Essentially, the FNC inquiry asks whether the forum proposed by the defendant is more convenient than the one the plaintiff chose. Judges often condition dismissals on defendants agreeing to waive certain rights and defenses in the allegedly more convenient forum, such as personal jurisdiction or statute of limitations. Such conditions ensure that the plaintiff can sue in the alternate forum after dismissal.

      In Texas and Washington, pending asbestos cases raise an interesting proper-condition issue as the lawyers strategize to avoid (and reach) the federal asbestos MDL.  Both cases were filed in states with little connection to the lawsuit (but with enough connection to establish personal jurisdiction).  The forums were chosen, not for convenience, but because of an important jurisdictional consideration:  proper defendants were citizens of the plaintiffs’ chosen forums, thus preventing removal and transfer to the federal MDL.  In both cases, the defendants moved to dismiss for FNC, arguing, quite sensibly, that where the plaintiff lived and was exposed to asbestos was a more convenient forum.  No defendant was a citizen of the forums proposed to be more convenient.  Thus, if the case were dismissed without condition, upon plaintiffs’ refiling in the more convenient forum, the defendants could remove and the case could end up in the federal MDL.
      
      The same type of condition was considered in both cases.  The Washington Court of Appeals remanded its case because the trial judge did not condition his FNC dismissal.  There, the defendant pointed to Arkansas state court as a better forum. No one disagreed that Arkansas was better; but, if the plaintiff sued in Arkansas , the defendant could remove and ultimately reach the federal MDL court. The likelihood of removal troubled the trial judge due to the plaintiff’s terminal illness and the federal MDL’s reputation for delay. Nevertheless, he dismissed the case because he felt he could not speculate about the potential removal. The Court of Appeals reversed because the judge should have conditioned dismissal on the defendant’s consent to trial in  Arkansas state court.

      In a similar case pending before the Texas Supreme Court, the defendants proposed Maine as a better forum.  Again, there was little dispute that Maine was better because the Plaintiff lived there and all exposure occurred there.  But once again, if the case reached Maine, it would be removable and ultimately might reach the federal MDL court. When the trial judge asked the defendants to waive their removal rights, the defendants objected, arguing that the Supremacy Clause prohibited the judge from putting that choice to defendants.  The judge then denied the motion to dismiss.  Earlier in the case, the judge had described the federal MDL as a “black hole” where nothing ever happened.   

      Were these proper conditions to place on a FNC dismissal? The answer may depend on framing the question.  It wouldn’t raise many eyebrows for a court to hold:  When defendants propose an alternative forum as more convenient, a trial judge may condition an FNC dismissal upon the defendants’ agreement to try the case in the forum they propose as more convenient.  Consider an alternative framing:  A state judge may not require a defendant to waive his removal rights due to the state judge’s view that the federal court is an inadequate forum.  The former seems sensible; the latter reflects Supremacy Clause concerns.  Yet they are the same. --RR

Additional Resources

• Watch yesterday’s argument before the Texas Supreme Court in In Re General Electric Co.
• The Washington Supreme Court has agreed to hear argument in the case mentioned above, Sales v. Weyerhaeuser, on November 29.