Civil Procedure Prof Blog

Should Federal Court Workload Guide Development of Procedural Doctrines?

Nancy Levitt at the University of Missouri School of Law has authored a new article questioning whether we should let administrative concerns, like docket overcrowding, guide the use of doctrines like abstention, preclusion, and summary judgment, which let our federal courts avoid making decisions.

The abstract explains:

The quantity of litigation in the federal courts has reached unprecedented heights. While this 'crisis of volume' has attracted the attention of legislators and scholars, the judiciary has been left to divine self-help measures to reduce litigants' use of the federal courts. The federal bench that must manage this caseload explosion includes a cadre of recently appointed federal judges. Many of these judges embrace the New Federalism, an initiative to shift governmental power and responsibility back to the states.

This article posits that the combination of judicial overload and injudicious federalism is operating to shunt certain classes of litigants away from federal courts. New procedural and substantive theories are being created to restrict federal jurisdiction. Federal courts are increasingly using the doctrines of preclusion, preemption, abstention and remand to shuttle cases or decision-making authority back to state courts. Complementing this procedural routing of cases is an expansion of summary procedures and a dramatic reduction in the scope of substantive constitutional rights.

This article questions the propriety of the judiciary's use of administrability concerns in the formulation of jurisdictional theories. While court efficiency appears to be a deserving goal, the current method of its implementation is through a reduction of court access to particular classes of litigants. The article analyzes the concept of administrability and posits that administrative efficiency is actually a value-laden argument for selecting which litigants should be permitted access to federal courts.

. . .

You can download the whole article here.--Counseller

You're not a procedure nerd if ...

You're not a procedure nerd if you don't find this transcript to be a compelling page-turner.  It's the oral-argument transcript from the Vaden case, which involves the nature of federal-question jurisdiction and the Federal Arbitration Act, and which is up on Cert. to the Supreme Court. --RR

Twombly and Communication

Prof. William H. Page recently posted Twombly and Communication:  The Emerging Definition of Concerted Action Under the New Pleading Standards.   Click the article title to download the article; the abstract follows:

After the Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly, an antitrust plaintiff who tries to plead an agreement in restraint of trade under Section 1 of the Sherman Act must allege more than parallel conduct and an undefined "conspiracy." Now, the complaint must include "enough factual matter (taken as true) to suggest that an agreement was made." Although the Court insisted it was not imposing a heightened pleading standard, it did require antitrust plaintiffs to provide enough detail to make the claimed agreement plausible. In this article, I examine an important substantive consequence of Twombly's pleading regime. In nineteen reported cases, federal courts have applied the new pleading standard to complaints alleging concerted action under Section 1 of the Sherman Act. In doing so, the courts have had to address a crucial defect in the substantive law of agreement: the Supreme Court's traditional definitions of agreement, which Twombly itself simply repeated, are too vague to help litigants and courts distinguish between consciously parallel conduct and concerted action. In the course of applying Twombly, however, the lower courts have adopted a more meaningful definition, one that requires that the parties have communicated to each other their intentions to act in a certain way, and their reliance on each other to do the same. This clarification of the standard has important implications for the role of discovery in pleading and resolving claims of concerted action.

--RR

Podcasts of Advisory Committee Proceedings Regarding Proposed Changes to Rules 26 and 56

The Advisory Committee is recommending changes to Rule 26 (Duty to Disclose; General Provisions Governing Discovery) and 56 (Summary Judgment). They summarize their proposed changes in this brochure requesting comment. Watch out, though, because the beginning of the summary is at the end of the brochure and the end of the summary is at the beginning--I'm not sure how they must fold the thing.

The Committee held the public hearing to receive comments on the proposal on November 17-18. Click here for the audio from that hearing, and here for other information.--Counseller/jf

Personal Jurisdiction and the Internet

A panel of the Eleventh Circuit Court of Appeals recently reversed a district court's grant of a motion to dismiss for lack of personal jurisdiction in a case filed in the Middle District of Florida against a Tennessee resident that allegedly used the plaintiff's trademarked name and his picture on a website accessible in Florida.  The defendant argued that his website was not a sufficient contact upon which the FL court could exercise personal jurisdiction. 

The court first established that although the website was created in TN, the FL long-arm statute permitted the exercise of jurisdiction if the alleged trademark infringement on the site caused injury in FL.  The court next turned to whether the due process clause permitted such an exercise.  Looking to both the Seventh Circuit and the Ninth Circuit, the court reasoned that "the defendant's connection with the forum in an intentional tort case should be evaluated under the Calder 'effects' test, rather than the contracts-oriented 'minimum contacts' test."  The court then applied the three element test and concluded that the allegations "satisfy the Calder effects test for personal jurisdiction - the commission of an intentional tort, expressly aimed at a specific individual in the forum whose effects were suffered in the forum."

In Footnote 8 the court explained that this decision was not intended to establish any general rule for personal jurisdiction in the internet context:

We do not, by our decision today, intend to establish any general rule for personal jurisdiction in the internet context. Our holding, as always, is limited to the facts before us. We hold only that where the internet is used as a vehicle for the deliberate, intentional misappropriation of a specific individual’s trademarked name or likeness and that use is aimed at the victim’s state of residence, the victim may hale the infringer into that state to obtain redress for the injury. The victim need not travel to the state where the website was created or the infringer resides to obtain relief.

Read the full opinion here.

-Counseller/ps

Federal Jurisdiction in light of Sosa v. Alvarez-Machain

Professor Gwynne Skinner recently published Federal Jurisdiction Over U.S. Citizens' Claims for Violations of the Law of Nations in Light of Sosa.  Click the article title to download it.  This abstract follows:

This article finds that general federal question jurisdiction provides federal courts with jurisdiction over U.S. citizens' claims for violations of the law of nations in light of the Court's analysis in Sosa v. Alvarez-Machain, because Congress implicitly authorized federal courts to recongize such claims using their common law power when it enacted general federal question jurisdiction in 1875.

-Counseller/ps

Federal Judicial Center Publishes More Findings on CAFA's Impact

The Federal Judicial Center released the findings from Phase Two of a study on the impact of CAFA on the federal courts:

This report presents preliminary findings from Phase Two of the ongoing study of
the impact of the Class Action Fairness Act of 2005 (CAFA) on the federal
courts. Phase One found that the number of class actions based on diversity of
citizenship jurisdiction filed in or removed to the federal courts increased after
CAFA s effective date. Phase Two will, when complete, measure CAFA s impact
on litigation activity and judicial rulings in class actions in the federal courts. This
report presents an initial description and overview of the litigation activity, outcomes,
and case characteristics of class actions based on diversity of citizenship
jurisdiction filed in or removed to the federal courts in the two years preceding
CAFA s effective date. Future reports will compare these findings to the extent
that meaningful comparisons are possible with prior empirical research and discuss
any apparent differences.

For the whole report, click here.

Declaratory Judgments and Claim Preclusion

A panel of the First Circuit Court of Appeals recently reversed a district court finding that a deceptive trade practices claim against an insurance company was barred by res judicata because the claim could have been brought in the plaintiff's previously obtained declaratory judgment action.  The plaintiff argued that the district court erred by not recognizing that the normal rules of claim preclusion do not apply when the original action involves declaratory relief.  The First Circuit panel explained that section 33 of the 2d Restatement of Judgments provides such an exception to the general rule: 

The linchpin of this asseveration is section 33 of the Restatement (Second) of Judgments, which states that "[a] valid and final judgment in an action brought to declare rights or other legal relations of the parties is conclusive in a subsequent action between them as to the matters declared." Under this prescription, "[a] plaintiff who wins a declaratory judgment may go on to seek further relief, even in an action on the same claim which prompted the action for a declaratory judgment.

The panel then went on to find that although the Massachusetts high court had not adopted Section 33, "when faced with the question that is now before us, the SJC will adopt the articulation of claim preclusion principles limned in section 33 of the Second Restatement."

The court concluded that the ability of a party to seek declaratory relief would be frustrated if the plaintiff were required to bring all conceivable claims and counterclaims.  Read the full opinion here.

E-Discovery Symposium

Click the link to download the details of  Northern Kentucky's Symposium on E-Discovery. 
Download northern_kentucky_law_review_spring_symposium.doc

--RR

Discovery and Social Networking Sites

Over at Law.com, Ronald J. Levine and Susan L. Swatski-Lebson discuss the current trend of court decisions regarding the discoverability and admissibility of information available on social networking sites.  Read the story here.--Counseller

Supplemental-Jurisdiction Article

Prof. Michelle S. Simon recently published Defining the Limits of Supplemental Jurisdiction under 28 U.S.C. s1367:  A Hearty Welcome to Permissive Counterclaims.   Click the article title to download the article.  The abstract follows:

In 1990, Congress passed 28 U.S.C. j 1367, which combined the judge-made doctrines of ancillary and pendent jurisdiction into a new category, "supplemental jurisdiction. " supplemental jurisdiction allows federal district courts with original jurisdiction to also have jurisdiction over all other claims that form part of the "same case or controversy under Article 1II of the United States Constitution."This Article analyzes supplemental jurisdiction over both permissive and compulsory counterclaims, before and ajier the codz~cationo f$ 1367, by looking at the meaning of "same case or controversy." It then examines two Circuit Court opinions that have held permissive counterclaims may be subject to supplemental jurisdiction as part of the "same case or controversy" as the claim over which the court has original jurisdiction. The author concludes that recent opinions from the Second and Seventh Circuit Courts of Appeal have correctly recognized federal courts' ability to hear permissive counterclaims without independent jurisdiction.

--RR

A Call for Papers

We received this call for papers from the Journal of Court Innovation:

Dear Colleagues,

The Journal of Court Innovation is soliciting articles concerning the future of commercial litigation and e-discovery.  Articles can concern the federal or any state justice system and there is no page length requirement.

Articles will be published in conjunction with the New York State Judicial Institute Colloquium on the Future of Commercial Litigation: Developing a Cost-Efficient Judicial Process for the Electronic Age.  Chief Justice Judith Kaye will open the event and will be followed by distinguished members of the judiciary, the bar and the educational academy.

The Journal of Court Innovation is a peer reviewed journal that is a combined effort between the New York State Judicial Institute (White Plains, NY), the Center for Court Innovation (New York) and Pace Law School (White Plains, NY).   The journal's mission is to promote innovation among the 50 state court systems and seeks to "bridge the worlds of theory and practice."  It is targeted to court administrators, judges, lawyers, scholars, non-profit executives, legislative and executive branch officials and other professionals interested on improving court systems and the administration of justice. Additional information about the journal can be found at http://www.courtinnovation.org/journal.html.

If you are interested in submitting a paper for consideration please contact Prof. Leslie Yalof Garfield at lgarfield@law.pace.edu. Final drafts should be submitted by December 30, 2008 for consideration in this edition

We also welcome articles on any topics that consider court innovation for publication in future editions.

Levine

The Supreme Court heard oral argument in the Levine case today.  Listen to NPR's story on the case here.--Counseller

Daubert and Halloween

It's the day after Halloween, but Mark Herrmann's punny little Halloween-Daubert post is still midly amusing.  (Mildly, Mark).  Here's an excerpt:

"Multidistrict litigation courts are often confronted with evaluating limited or evolving scientific and medical theories and evidence. . . . . The Rules of Evidence, however, cannot be disregarded even if at a future date, medical and scientific literature proves the contrary. As Judge Richard Posner put it, 'the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.'" Id. at 103 (citation omitted). 100 Grand bar!

--RR

Judicial Compensation and the Definition of Judicial Power in the Early Republic

Northwestern Prof. Jim Pfander recently posted Judicial Compensation and the Definition of Judicial Power in the Early Republic on SSRN. Click the article name to download it.  The abstract follows:

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article III's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other problems, fee-paid judges were understood to have a financial interest in expanding their jurisdiction. By placing federal judges on salary, Article III may have provided subtle institutional support for the notion that federal courts were to be courts of limited jurisdiction.

This Article explores the role of judicial compensation in shaping the familiar jurisdictional landmarks of the early Republic. It shows that Congress chose a salary-based compensation scheme, and took early steps to rule out fee payments to federal judges. The Article also demonstrates that the judicial salary was understood to include compensation for official travel, a fact that sheds important new light on the Supreme Court Justices' hostility to the burdens, and expense, of riding the circuit. The Article suggests that financial self-interest may have played a role in shaping the early definition of judicial power and the willingness of the Justices to take on extrajudicial assignments. Such familiar episodes in the historiography of the early Republic as the refusal of the circuit courts to hear pension claims, the Court's refusal to issue advisory opinions, the paradoxical willingness of Chief Justice Jay to accept a position as ambassador to Great Britain, and the Court's complex response in Marbury v. Madison to the repeal and reestablishment of circuit duties all take on new meaning when viewed against the backdrop of financial self-interest. Concluding remarks focus on judicial independence and the way Article III frames debate over judicial compensation and workload.

--RR

How to Read the Constitution

The Wall Street Journal has published an excerpt of Justice Clarence Thomas's remarks to the Manhattan Institute last Thursday.  The WSJ piece is titled "How to Read the Constitution."  Read the piece here.--Counseller   

Forum Shopping and the Infrastructure of Federalism

James E. Pfander discusses the advantages of plaintiff win rates through the process of forum shopping in Forum Shopping and the Infrastructure of Federalism posted on SSRN.com.--Counseller

Cert. Granted

Last November, I reported on the HIF Bio case from the Federal Circuit, concluding that "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."  Today the Court granted the Cert. Petition.  Click here for the relevant links at SCOTUSBLOG.

--RR

En Banc 5th Circuit decides In Re: Volkswagen

Back in May, we reported on a In Re: Volkswagen of America.  The case involved a transfer-of-venue issue that was substantial enough to draw an amicus signed by 14 law professors  (neither of us signed).  The 5th Circuit released its en banc opinion on Friday.  Judge Jolly wrote for the 10-member majority, granting the petition for mandamus and ordering the district court to transfer the case.  Judge King wrote for the 7-member dissent.  --RR

Problems with Proposed Rule 56?

Prof. Adam Steinman recently posted An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process. The abstract follows:

The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the summary-judgment phase. This Essay suggests specific solutions that would eliminate the potentially troubling consequences of the new rule while preserving its important improvements to the summary-judgment process.

--RR