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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

6th Cir. Cites Twombly as Requiring "Facts Sufficient to Support More than a Speculative Injury to Competition" in Antitrust Case

Posted on April 07, 2009
Per CBC Companies, Inc. v. Equifax, Inc., --- F.3d ----, 2009 WL 860225 (6th Cir. Apr. 2, 2009):CBC's complaint contains only conclusory allegations, and not facts sufficient to support more than a speculative injury to competition. See Twombly, 550 U...

Several Non-Time Computation Amendments to FRCP Included among Changes Approved by the Supreme Court

Posted on April 06, 2009
The Supreme Court approved amendments to the Federal Rules of Civil Procedure on March 26, 2009. Although it is well known that those amendments included the so-called time computation amendments, there were also several non-time computation amendments that were approved, including the following:- Rule 13(f) was abrogated...

District Court Certifies Settlement Class Without State-by-State Analysis of Laws

Posted on March 27, 2009
Per BNA's Class Action Litigation Report, 3/27/2009:No detailed state-by-state analysis of the various state consumer protection laws was needed before certifying a settlement of class claims arising from bulb failures in high-end televisions, the U.S...

First Circuit Discusses Split on Issue of Apportionment of Multi-Defendant Settlement Offers to Trigger Rule 68

Posted on March 26, 2009
Per King v. Rivas, 555 F.3d 14 (1st Cir. Feb 02, 2009): The circuit courts have been divided about variations on the central problem. The Seventh Circuit has insisted that to trigger Rule 68 in multi-defendant cases an offer must contain amounts allocated to each defendant, Harbor Motor Co...

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Prof. Burbank Posts Article on Pleading and the Dilemmas of General Rules

Posted on March 25, 2009
Professor Burbank has recently posted an Article entitled Pleading and the Dilemmas of 'General Rules' on SSRN. Here is the Abstract:This article comments on Professor Geoffrey Miller's article about pleading under Tellabs and goes on (1) to use Tellabs, Bell Atlantic Corp...

Dean Klonoff and Co-Authors Herrman & Harrison Post Article on Class Actions and the Internet

Posted on March 24, 2009
Dean Robert Klonoff (Lewis & Clark) and co-authors Mark Herrman and Brad Harrison have posted an Article entitled Making Class Actions Work: The Untapped Potential of the Internet(University of Pittsburgh Law Review, Vol. 69, p. 727, 2008) on SSRN...

CIT Holds That Attorneys' Fees Not Awardable for Phases of LItigation in Which Claimant Was Opposed Solely by Third Parties

Posted on March 23, 2009
Per Jazz Photo Corp. v. U.S., --- F.Supp.2d ----, 2008 WL 5492105 (CIT Dec. 2, 2008It is inappropriate to award attorneys' fees against the government for those phases of litigation in which the claimant was opposed solely by third parties. See Judicial Watch, Inc...

Institute for the Advancement of the American Legal System and the ACTL Release Reform Principles to Improve the U.S. Civil Justice

Posted on March 19, 2009
Here is a press release from the University of Denver's Institute for the Advancement of the American Legal System:The Final Report on the Joint Project of the American College of Trial Lawyers (ACTL) Task Force on Discovery and the Institute for the Advancement of the American Legal System (IAALS) is the culmination of an 18-month collaboration between the two organizations...

Prof. Tsai Posts Article on Certifying Civil Rights Discrimination Class Action Suits

Posted on March 18, 2009
Professor James T. Tsai (Case Western) has posted an Article entitled 23(b)(2) Class Certification: Choosing an Approach for Certifying Civil Rights Discrimination Class Action Suits on SSRN. Here is the Abstract:The passage of the 1991 amendments to the Civil Rights Act granted injunctive as well as monetary damages for impermissible discrimination in the workplace...

Macey & Miller Post Article on Judicial Review of Class Action Settlements on SSRN

Posted on March 16, 2009
Professor Jonathan R. Macey (Yale) and Geoffrey P. Miller (NYU) recently posted an Article entitled Judicial Review of Class Action Settlements on SSRN. Here is the Abstract:This article proposes a simple and coherent approach to judicial review of class action settlements...

SCOTUS Affirms the Well-Pleaded Complaint Rule

Posted on March 12, 2009
On Monday the Supreme Court issued its decision in Vaden v. Discover Bank, No. 07?773, which held that federal question jurisdiction could not be predicated on the defendant's assertion of federal counterclaims, a holding that affirms the well-pleaded complaint rule...

Prof. Bassett Posts Article on E-Discovery and Ethics

Posted on March 11, 2009
Debra Lyn Bassett (Alabama) recently posted an Article entitled E-Pitfalls: Ethics and E-Discovery on SSRN. Here is the Abstract:Written for a symposium on e-discovery, this Article addresses the convergence of ethics and e-discovery, and contends that the surprise and concern often expressed regarding ethical issues in e-discovery, which seem to view the use of such ethical considerations as novel, unusual, and contrary to traditional discovery practices, are overstated...

Prof. Spencer Posts Essay on the Restrictive Ethos in Civil Procedure

Posted on March 09, 2009
Professor A. Benjamin Spencer (Washington & Lee) has recently posted an Essay entitled The Restrictive Ethos in Civil Procedure on SSRN. This Essay was written for the 15th Annual Clifford Symposium on Tort Law and Social Policy at DePaul University College of Law and will appear in their law review...

SCOTUS Holds that State Law Tort Actions are Not Preempted by FDCA

Posted on March 06, 2009
On March 4 the Supreme Court issued its decision in Wyeth v. Levine, a case concerning whether a state law plaintiff's failure to warn claim was preempted by federal law. Here is the Syllabus:Petitioner Wyeth manufactures the antinausea drug Phenergan...

Eleventh Circuit Finds Personal Jurisdiction Lacking under FRCP 4(k)(2) for Lack of Relatedness

Posted on March 05, 2009

SCOTUS Decides Standing Case

Posted on March 04, 2009

SCOTUS to Rule on Subject Matter Jurisdiction over Copyright Infringement Claims

Posted on March 03, 2009

Prof. Spencer Posts Forthcoming Article on Pleading Doctrine

Posted on March 02, 2009

D.C. Circuit Affirms Sanctions against Non-Party for Failure to Comply with Deadline in Stipulated Discovery Order

Posted on February 26, 2009
In a January D.C. Circuit appellate opinion, In re Fannie Mae Securities Litigation, _ F.3d _, 2009 WL 21528 (C.A.D.C., Jan. 6, 2009), the court addressed the consequences of entering into a stipulated order designed to resolve some of the problems encountered over the course of complying with a subpoena issued under Federal Rule of Civil Procedure 45...

The Fordham Law Review presents Against Settlement: Twenty-Five Years Later

Posted on February 25, 2009
The Fordham Law Review is hosting a symposium on Owen Fiss's Against Settlement. Here are the details:Friday | April 3, 20099:00 a.m. ? 5:30 p.m.Fordham Law School | McNally Amphitheatre140 West 62nd Street | New York, NY 10023In 1984, Owen Fiss provocatively argued that the ADR movement overvalued settlement, that adjudication serves a purpose greater than dispute resolution, and that "[c]ivil litigation is an instrument for using state power to bring a recalcitrant reality closer to our chosen ideals...

Minn. Law Review Publishes Prof. Erbsen Piece on Horizontal Federalism

Posted on February 23, 2009
The Minnesota Law Review recently published an article by Professor Allan Erbsen (Minnesota) entitled Horizontal Federalism. Here is the Abstract:This Article constructs frameworks for analyzing federalism's undertheorized horizontal dimension. Discussions of federalism generally focus on the hierarchical (or vertical) allocation of power between the national and state governments while overlooking the horizontal allocation of power among coequal states...

Prof. Seinfeld Publishes Article on Federal Question Jurisdiction

Posted on February 17, 2009
The California Law Review has just published an Article by Professor Gil Seinfeld (Michigan) entitled The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 Cal. L. Rev. 95 (Feb. 2009). Here is an excerpt from the Introduction:Since 1875, the federal district courts have been vested with what is known as ?general federal question jurisdiction?--original jurisdiction predicated on the presence in a suit of a question of federal law...

Second Circuit Affirms Dismissal under Federal Civil Rule 37

Posted on February 16, 2009
Per Agiwal v. Mid Island Mortg. Corp., --- F.3d ----, 2009 WL 350717 (2d Cir. Feb. 13, 2009):Several factors may be useful in evaluating a district court's exercise of discretion to dismiss an action under Rule 37. These include: ?(1) the willfulness of the non-compliant party or the reason for noncompliance; (2) the efficacy of lesser sanctions; (3) the duration of the period of noncompliance, and (4) whether the non-compliant party had been warned of the consequences of ...

Court Certifies Class, Gives Preliminary OK to Settlement of Asbestos Litigation

Posted on February 13, 2009
Per BNA's Class Action Litigation Report, 10 CLASS 112, Feb. 13, 2009:The U.S. Bankruptcy Court for the District of Delaware Jan. 16 certified a settlement class of more than 16,000 homeowners who sued specialty chemical manufacturer W.R. Grace & Co...

SEC Must Give More Tailored Response To David Stockman's Discovery Requests

Posted on February 10, 2009
BNA's U.S. Law Week (77 U.S.L.W. 1468) is reporting on a recent discovery decision by Judge Shira Scheindlin:The Securities and Exchange Commission's response to former Reagan administration budget director David Stockman's discovery requests in a securities fraud enforcement action was sorely deficient, the U...

Prof. Erickson Post Article on Shareholder Litigation

Posted on February 05, 2009
Professor Jessica Erickson (University of Richmond) recently posted an Article entitled Corporate Misconduct and the Perfect Storm of Shareholder Litigation on SSRN. Here is the Abstract:When it comes to combating corporate misconduct, is more litigation necessarily better? The conventional wisdom is that we should deploy every weapon in the law's arsenal to combat corporate misconduct...

The Howard Law Journal has just

Posted on February 02, 2009
The Howard Law Journal has just published papers from the 2008 Second Annual Vinson & Elkins LLP/Howard Law Journal Symposium. This year's focus was the legacy of the Supreme Court's 1957 decision in Conley v. Gibson. Here is a listing of the Articles and their citations:Andrew I...

Standing Rules Committee Approved Proposed Rules Amendments

Posted on January 28, 2009
At its January 12-13, 2009, meeting, the Committee on Rules of Practice and Procedure adopted the recommendation of the Advisory Committee on Appellate Rules and approved the following proposed amendment: ? Appellate Rule 40(a)(1) (clarifies the time to seek rehearing in cases where a United States officer or employee is a party)...

Prof. Suja Thomas Posts Article on Dispositive Procedure

Posted on January 27, 2009
Prof. Suja Thomas (Illinois) recently posted an Article entitled The Fallacy of Dispositive Procedure on SSRN. Here is the Abstract:I have another seemingly heretical proposition - that dispositive procedure is fatally flawed. The Supreme Court has held that a judge can dismiss a case before, during, or after trial if he decides a reasonable jury could not find for the plaintiff...

Oklahoma Law Review Publishes 2008 AALS Civil Procedure Papers

Posted on January 26, 2009
The papers presented at the 2008 AALS Civil Procedure Section's annual meeting program were just published in the Summer 2008 edition of the Oklahoma Law Review and are now available online at http://adams.law.ou.edu/olr. The topic of the program was "The Revolution of 1938 Revisited: The Role and Future of the Federal Rules...

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