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Miscellaneous

Federal Civil Practice Bulletin

Dedicated to federal civil practice and procedure.

Post Frequency: 5.3/day

Last Entry: January 13, 2014 at 12:37:00

Eleventh Circuit Dismisses Conspiracy Allegations as Insufficient under Iqbal

Posted on August 18, 2009
Per Sinaltrainal v. Coca-Cola Co., --- F.3d ----, 2009 WL 2431463 (11th Cir. Aug. 11, 2009):We reiterate that to state a plausible claim for relief, the plaintiffs must plead ?factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged...

Is there an E-Discovery Bubble

Posted on August 14, 2009
Check out this interesting post on the 3 Geeks and a Law Blog entitled "I'm calling it!! There's an E-Discovery Bubble". Here is a snippet:There comes a point in time where you have to shake your head and say that we've created something that is unsustainable...

Prof. Nowicki Posts Article on Apologies and Conflict Resolution

Posted on August 07, 2009
Professor Elizabeth Nowicki has recently posted an Article entitled Apologies and Good Lawyering on SSRN. Here is the Abstract:In everyday life, apologies are common. For example, if one shopper bumps into another in a crowded grocery store, apologies abound...

Prof. David Marcus Posts Article on Trans-Substantivity

Posted on July 29, 2009
Professor David Marcus (Arizona) has posted an Article entitled The Past, Present, and Future of Trans-Substantivity in Federal Civil Procedure on SSRN. Here is the Abstract:The trans-substantivity principle ? the same procedural rules should apply regardless of the substance of the case ? has been a central feature of modern federal civil procedure since its beginnings in 1938...

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Prof. Casey Posts Article on Class Action Criminality

Posted on July 24, 2009
Prof. Lisa Casey (Notre Dame) has posted an Article on SSRN entitled Class Action Criminality. Here is the Abstract:This paper examines the criminal prosecution of Milberg Weiss, formerly the most successful plaintiffs? securities class action firm in the country, for allegedly making undisclosed incentive payments to class representatives...

Sen. Specter's Notice Pleading Restoration Act

Posted on July 23, 2009
Senator Arlen Specter has introduced a bill entitled the Notice Pleading Restoration Act in an effort to overrule Twombly and Iqbal. The text of the bill is available here. (Thanks to PrawfsBlawg for this link; visit them for more thoughts).

Prof. Main Post Article on Substance/Procedure Dichotomy on SSRN

Posted on July 19, 2009
Professor Thomas Main has recently posted an article entitled The Procedural Foundation of Substantive Law on SSRN. Here is the Abstract:The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive...

Judge Rosenthal Reviews Pleading Standards after Iqbal

Posted on June 30, 2009
Per Golden v. Austin County Sheriff's Dept., Slip Copy, 2009 WL 1835448 (S.D. Tex. June 26, 2009):Rule 12(b)(6) allows dismissal if a plaintiff fails ?to state a claim upon which relief may be granted.? Fed. R. Civ. P. 12(b) (6). The Supreme Court recently overruled the part of Conley v...

Hessick Posts Article on Federal Question Jurisdiciton on SSRN

Posted on June 16, 2009
F. Andrew Hessick III (Visiting Associate Professor, Arizona) has recently published an Article entitled The Common Law of Federal Question Jurisdiction on SSRN. Here is the Abstract:The Supreme Court has repeatedly stressed that the role of the judiciary interpreting statutes is to declare the law as intended by Congress...

Prof. Sherman Posts Article on MDL Process on SSRN

Posted on June 12, 2009
Prof. Edward Sherman recently posted an Article entitled The MDL Model for Resolving Complex Litigation if a Class Action is Not Possible on SSRN. Here is the Abstract:This article reviews the origins and development of multidistrict litigation before proceeding to examine its ability to take the place of class actions for the resolution of complex litigation...

Saddam Hussein's U.S. Torture Victims in Persian Gulf War Thwarted by Bush From Suing Iraq for Damages in Federal Court

Posted on June 11, 2009
Per BNA's U.S. Law Week, June 9, 2009:.S. victims of Saddam Hussein's abuse during and after the 1991 Persian Gulf War may not pursue tort claims against Iraq, the U.S. Supreme Court rules unanimously. President Bush validly exercised his statutory authority to shield Iraq from such claims, the court holds...

Supreme Court Says Due Process Required West Virginia Justice To Recuse Himself From Case Involving Big Donor to His Campaign

Posted on June 10, 2009
Per BNA's U.S. Law Week, June 9, 2009:A justice of the West Virginia Supreme Court of Appeals should have recused himself from a case because the biggest donor to his judicial election campaign was one of the parties in the case, the U.S. Supreme Court holds...

SCOTUS Grants Cert in Case that Will Determine Corporation's Principal Place of Business for Diversity Purposes

Posted on June 09, 2009
On June 8, 2009, the Supreme Court granted certiorari in Hertz Corp. v. Friend, No. 08-1120. Here is the summary of the issues presented by BNA's U.S. Law Week's Supreme Court Today:Ruling Below: (9th Cir., 297 Fed. Appx. 690)Summary of Ruling Below: Defendant corporation's relevant business activities are significantly larger in California than in its next largest state, and thus, because California is litigant's principal place of business under "place of operations" test, nerve center test will not be applied to determine corporation's state citizenship for purposes of diversity jurisdiction; district court's order remanding to state court class action filed by, and exclusively on behalf of, California residents is affirmed...

Eight Circuit Refuses to Excuse Untimely Appeal Based on Lawyer's Claim of Failing to Received Electronic Notice

Posted on June 05, 2009
The Eighth Circuit recently issued an opinion that refused to excuse an untimely appeal based on the excuse that the attorney failed to receive electronic notice of the district court's decision via the court's CM/ECF system:The appellants (?American Boat?) brought this negligence action against the United States for failing to maintain the navigable channel of the lower Mississippi River...

Supreme Court to hear Vioxx fraud case

Posted on May 27, 2009
Jurist reports:The US Supreme Court on Tuesday granted certiorari in Merck & Co. v. Reynolds [docket; cert. petition], in which the Court will decide when the statute of limitations begins to run in a securities fraud case under th "inquiry notice" standard...

SCOTUS Invalidates NY Law that Strips Trial Courts of Jurisdiction over Suits against State Correctional Officers

Posted on May 26, 2009
The Supreme Court decided the following case today (per BNA's U.S. Law Week - Supreme Court Today):Haywood v. Drown, No. 07-10374. A New York law that strips the state's trial courts of jurisdiction to hear suits for damages, including federal civil rights actions under 42 U...

Fourth Circuit: Court May Hear Appeals Filed Outside 10-Day Window

Posted on May 25, 2009
Per U.S. v. Urutyan, No. 08-4295 (May 7, 2009):Urutyan was convicted by a jury on all counts. Judgment was entered against him on January 22, 2008. Urutyan filed a notice of appeal with the district court March 4, 2008. The notice was not timely. Appellate Rule 4(b)(1)(A) imposes a ten-day deadline on the filing of a notice of appeal in criminal cases, and Urutyan never requested an extension of that deadline...

WSJ BLog: Why Defense Lawyers Are Lovin? the Iqbal Decision

Posted on May 22, 2009
Check out this blog post by Ashby Jones on the Wall Street Journal's Law Blog: Why Defense Lawyers Are Lovin? the Iqbal Decision.

Professors Posting about Iqbal

Posted on May 20, 2009
See posts by professor Dorf, Wasserman (and here), and Dodson on Ashcroft v. Iqbal.

SCOTUS Decides Ashcroft v. Iqbal

Posted on May 18, 2009
The Supreme Court has issued its opinion in Ashcroft v. Iqbal, deciding that Iqbal's complaint failed to plead sufficient facts to state a claim for purposeful and unlawful discrimination by government officials. Here is an excerpt from the Syllabus:"Iqbal?s pleadings do not comply with Rule 8 under Twombly...

Iqbal Court: Twombly Applies Beyond Antitrust Context

Posted on May 18, 2009
One debate that has persisted among some scholars regarding the import of Twombly has been settled by the Supreme Court in Monday's decision in Ashcroft v. Iqbal: whether the Twombly standard can be limited to antitrust cases:"Respondent first says that our decision in Twombly should be limited to pleadings made in the context of an antitrust dispute...

Supreme Court Limits Federal Jurisdiction to Compel Arbitration

Posted on May 13, 2009
ABA's Litigation News has a story on the Supreme Court's recent decision in Vaden v. Discover Bank. Here is an excerpt:Federal court jurisdiction to enforce arbitration agreements is not as broad as one may have thought, according to a recent U.S. Supreme Court decision...

Eisenberg, Heise, and Wells Post Punitive Damages Article on SSRN

Posted on May 11, 2009
Professors Theodore Eisenberg, Michael Heise, and Martin T. Wells (all of Cornell) have recently posted an Article entitled Variability in Punitive Damages: An Empirical Assessment of the U.S. Supreme Court?s Decision in Exxon Shipping Co. v. Baker. Here is the Abstract:Exxon Shipping Co...

SCOTS Decides Case Addressing Reviewability of Post-Removal Remand Order

Posted on May 05, 2009
Yesterday the Supreme Court issued its decision in Carlsbad Technology, Inc. v. HIF Bio, Inc., a case that addressed the reviewability of a post-removal remand order. Here is the Syllabus:Respondents filed a state-court suit alleging that petitioner had violated state and federal law in connection with a patent dispute...

Souter retiring from Supreme Court

Posted on May 01, 2009
Per CNN.com: Supreme Court Justice David Souter is retiring after more than 18 years on the nation's highest court, a source close to Souter told CNN. Souter will leave after the current court term recesses in June, the source said. Filling Souter's seat would be President Obama's first Supreme Court appointment -- and the first since George W...

Advisory Committee Takes Final Action on Rule 26 and 56 Proposed Amendments

Posted on April 23, 2009
Professor Steven Gensler has shared the following report on the Civil Rules Advisory Committee Meeting that recently took place:I thought I?d give a quick update on the Advisory Committee?s meeting from earlier this week. The Committee took final action on two proposals ? Rule 26 expert discovery and Rule 56 ? that I know quite a few of you have been following...

SCOTUS Rules on Appropriate Analysis Federal Circuit Must Apply to Review Veterans' Appeals Court Errors

Posted on April 22, 2009
Yesterday the U.S. Supreme Court decided Shinseki v. Sanders, No. 07-1209. Here is the BNA U.S. Law Week summary of the holding: In reviewing veterans' claims on appeal from the Court of Appeals for Veterans' Claims where the Department of Veterans Affairs has failed to provide a veteran with a certain kind of statutorily required notice, the Federal Circuit is required by 38 U...

Prof. Dodson Posts Article on Comparative Pleading Standards

Posted on April 15, 2009
Professor Scott Dodson (Arkansas) recently posted an Article entitled Comparative Convergences in Pleading Standards on SSRN. Here is the Abstract:Comparative civil procedure has had little influence in American jurisprudence and commentary, in part because of American procedure's deep and widespread exceptionalism...

Attorney Disbarred for Yelling at Federal Magistrate's Law Clerk

Posted on April 10, 2009
Per Legal Blog Watch, April 10, 2009:Be kind to a judge's law clerk. That is the moral of a 5th U.S. Circuit Court of Appeals decision this week upholding the one-year disbarment from federal court of a lawyer who did not take kindly to the law clerk's phone call...

Seventh Circuit Rules on Conflict between CAFA and the Securities Act

Posted on April 08, 2009
The ABA's Litigation News is reporting on a Seventh Circuit decision that speaks to the seemingly conflicting removal provisions of the Class Action Fairness Act and the Securities Act:The Seventh Circuit?s recent decision in Katz v. Gerardi [PDF], regarding the removal of class action Securities Act claims brought in state court, has raised questions about the intersection between Section 22(a) of the Securities Act of 1933 and the Class Action Fairness Act of 2005 (CAFA) (28 U...

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