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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

Profs. Lewis and Eaton Post Article on Rule 68.1

Posted on January 15, 2009
Professors Harold S. Lewis Jr. (Mercer) and Thomas A. Eaton (Georgia) have recently posted an Article entitled The Contours of a New FRCP, Rule 68.1: A Proposed Two-Way Offer of Settlement Provision for Federal Fee-Shifting Cases on SSRN. Here is the AbstractOur research began with interviews of experienced attorneys who prosecute and defend civil rights and employment discrimination cases...

Prof. Burch Posts Article on Nonclass Aggregation & Procedural Justice

Posted on January 13, 2009
Professor Elizabeth Chamblee Burch (Fla. State) recently posted an Article entitled Procedural Justice in Nonclass Aggregation on SSRN. Here is the Abstract:Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions...

Prof. Issacharoff Posts Article on Private Claims and Aggregate Rights on SSRN

Posted on January 12, 2009
Prof. Samuel Issacharoff (NYU) recently posted an Article entitled Private Claims, Aggregate Rights on SSRN. Here is the Abstract:In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts...

SCOTUS Denies Cert. in Case Holding that Subsequent Favorable Change in Law Insufficient Grounds for Reopening Case under Rule 60

Posted on January 12, 2009
U.S. Law Week's Supreme Court Today is reporting that the Supreme Court denied review today in 94 cases, 7 of which are classified under civil procedure. The denial in one case, Silvas v. Remington Oil and Gas Corp., 08-647, let stand the Fifth Circuit's holding that a subsequent favorable change in the law is insufficient to justify allowing a litigant to reopen its case under Rule 60, even if the litigant would prevail under the current state of the law...

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Eisenberg & Lanvers Post Settlement Study on SSRN

Posted on January 08, 2009
Professor Theodore Eisenberg (Cornell) and Charlotte Lanvers (Disability Rights Education & Defense Fund) have recently posted What is the Settlement Rate and Why Should We Care? on SSRN. Here is the Abstract:After establishing the importance of knowledge of settlement rates, this article first shows that different research questions can yield different settlement rates...

First Circuit Holds that the Wild and Scenic Rivers Act Does not Preempt State Law

Posted on January 07, 2009
Per Fitzgerald v. Harris, 549 F.3d 46 (1st Cir. Dec. 5, 2008):This case raises the issue of whether a Maine statute governing the management of a state-administered river, the Allagash Wilderness Waterway (?AWW?), Me.Rev.Stat. Ann. tit. 12, � 1882, is preempted by certain sections of a federal statute, the Wild and Scenic Rivers Act (?WSRA?), 16 U...

Third Circuit Affirm Dismissal of Prisoner's Denial of Court Access Claim

Posted on January 06, 2009
Per Caldwell v. Beard, Slip Copy, 2008 WL 5397645 (3d Cir.Dec. 29, 2008): Prisoners have a right of access to the courts. See Lewis v. Casey, 518 U.S. 343 (1996). Importantly, however, where an inmate does not allege an actual injury to his ability to litigate a claim, his constitutional right of access to the courts has not been violated...

Eighth Circuit Holds that Law Firm Shareholder Lacks Standing to Sue for Refund of Penalty Paid by Law Firm

Posted on January 05, 2009
Per Jewell v. U.S., 548 F.3d 1168 (8th Cir. Dec. 10, 2008):Jewell was a shareholder in the law firm of Jewell, Moser, Fletcher & Holleman, P.A. (?JMFH?). JMFH sponsored four prototype retirement plans, which its clients, mostly small businesses, relied upon to create individual retirement plans...

Second Circuit Declines to Take Up Alternate Basis for Affirming Judgment, Remanding to Hear More from the DCT on the Issue

Posted on December 30, 2008
Per Fisher v. JPMorgan Chase & Co., Slip Copy, 2008 WL 5381269 (2d Cir. Dec. 24, 2008):The defendants nonetheless ask that we affirm the judgment on alternative legal grounds that they presented to the district court in their application for summary judgment, but which the district court did not address in the order which is the basis for this appeal...

Second Circuit Reverses District Court's Conversion of 12(b)(6) Motion to Summary Judgment Motion

Posted on December 18, 2008
Per span id="headerTitleTruncate1" class="GroupHeading" style="font-weight: bold;"Sahu v. Union Carbide Corp./span, a class="InformationalSmall" href="https://web2.westlaw.com/result/result.aspx?findtype=Yamp;tf=0amp;fn=_topamp;scxt=WLamp;db=CTAamp;ss=CNTamp;migkchresultid=1amp;cxt=DCamp;vr=2...

Prof. Robert Jones Posts Article on Historical Origins of Diversity Jurisdiction on SSRN

Posted on December 17, 2008
Professor Robert Jones (Northern Illinois) recently posted an Article entitled Finishing a Friendly Argument: The Jury and the Historical Origins of Diversity Jurisdiction on SSRN. Here is the Abstract:br /br /This Article argues that diversity jurisdiction was intended to funnel politically significant litigation into the federal courts principally because federal officials would have the power to dictate the composition of federal juries...

SCOTUS Decides Labeling Act Pre-emption Case

Posted on December 15, 2008
The Supreme Court issued a decision in ALTRIA GROUP, INC., et al. v. GOOD et al. (No. 07?562.?Argued October 6, 2008?Decided December 15, 2008). Here is the Syllabus:Respondents, smokers of petitioners? ?light? cigarettes, filed suit, alleging that petitioners violated the Maine Unfair Trade Practices Act (MUTPA) by fraudulently advertising that their ?light? cigarettes delivered less tar and nicotine than regular brands...

Prof. Bone Posts Article on the Need for Procedure Theory

Posted on December 10, 2008
Professor Robert Bone (Boston U.) has recently posted an article entitled Making Effective Rules: The Need for Procedure Theory (which will be published in the Oklahoma Law Review) on SSRN. Here is the Abstract:This essay is the published and somewhat expanded version of a presentation to the meeting of the AALS Section on Civil Procedure at the January 2008 AALS annual meeting...

Prof. Bone Post Article on Twombly and Access to Courts

Posted on December 03, 2008
Professor Robert G. Bone (Boston University) has recently posted his forthcoming Article, Twombly, Pleading Rules, and the Regulation of Court Access. Here is the Abstract:In Bell Atlantic Corp. v. Twombly, the Supreme Court reconsidered Conley v. Gibson's very liberal notice pleading standard and held that the plaintiff must allege enough to support a plausibility of wrongdoing...

S.D. Ill. Holds that Denial of Multistate Class Action Certification Ends Subject Matter Jurisdiction under CAFA

Posted on December 01, 2008
Per BNA's Class Action Litigation Report, Nov. 28, 2008:Citing the disfavor of multistate class actions, and finding the denial of class status ended federal jurisdiction, a federal judge refused Nov. 12 to certify a class of purchasers of allegedly spontaneously-shattering glass-top patio tables (Ronat v...

Bhopal Suit Reinstated Due to Procedural Error

Posted on November 26, 2008
Per U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008):A ground water pollution case premised on the same Bhopal, India, pesticide factory explosion that prompted an earlier toxic tort suit resolved by settlement was reinstated by the U.S. Court of Appeals for the Second Circuit Nov...

Japan Is Appropriate Forum for Tort Suit

Posted on November 25, 2008
Per U.S. Law Week, 77 U.S.L.W. 1320 (Nov. 25, 2008):A district court properly dismissed, on forum non conveniens grounds, a U.S. company's suit alleging conversion against Japanese entities, the U.S. Court of Appeals for the Seventh Circuit held Oct. 28...

Prof. Ides Posts Civil Procedure Professors' Amicus Brief in Ashcroft v. Iqbal

Posted on November 21, 2008
Allan Ides (Loyola Los Angeles) has posted the amicus brief filed on behalf of a group of civil procedure professors in Ashcroft v. Iqbal, a case that may address the much discussed pleading standard that came out of Bell Atlantic, Corp. v. Twombly. Here is a summary of the brief prepared by Prof...

Cornell's LII Bulletin Previews SCOTUS Argument in Philip Morris v. Williams

Posted on November 20, 2008
Philip Morris U.S.A. v. Williams (07-1216)Oral argument: Dec. 3, 2008Appealed from: Oregon Supreme Court (Mar. 24, 2008)In 1997, Mayola Williams's husband Jesse Williams died from lung cancer as a result of smoking cigarettes manufactured and marketed by Philip Morris USA Inc...

Felons Can Serve as Named Plaintiff, Judge Rules, Certifies Class of Jail Detainees

Posted on November 17, 2008
Per BNA's Class Action Litigation Report, 11/14/2008: A federal judge in Chicago granted class certification in a case focusing on the Cook County Jail's procedures for distributing prescription drugs to inmates, after rejecting the defendant's adequacy-of-representation argument that asserted felons cannot serve as class representatives (Parish v...

No Heightened Pleading Required for CFAA Claims

Posted on November 13, 2008
Per BNA:Allegations that former contractors have wrongfully accessed corporate bank accounts, changed protected computer passwords, and caused the wrongful transfer of electronic funds are sufficient to set out a colorable claim under the federal Computer Fraud and Abuse Act, even though they do not meet the heightened pleading requirements of Rule 9(b), the U...

SCOTUS Notes Requirement of Likelihood of Injury, Not Just Possibility, to Obtain a Preliminary Injunction

Posted on November 12, 2008
Per WINTER, SECRETARY OF THE NAVY, et al. v NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., No. 07?1239 (Nov. 12, 2008):The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a ?possibility? of irreparable harm...

Prof. Sloan Posts Article on Non-Precedential Opinions on SSRN

Posted on November 10, 2008
Professor Amy E. Sloan (Baltimore) recently posted an Article entitled If You Can't Beat 'Em, Join 'Em: A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts on SSRN. Here is the Abstract:For many years, judges and academics have debated the pros and cons of non-precedential judicial opinions in the federal appellate courts...

M.D. Tenn. Declines to Dismiss Title VII after 12(b)(6) Challenge

Posted on October 30, 2008
Per Smith v. Davidson Transit Organization, Slip Copy, 2008 WL 4722652, at * 10 (M.D. Tenn. Oct. 23, 2008):In count three, plaintiff alleges that DTO perpetuated a racially hostile work environment and engaged in racial/gender discrimination in violation of Title VII...

Advisory Committee on Civil Rules to Meet on November 17 & 18

Posted on October 28, 2008
Per Tom Rowe (Duke):The Advisory Committee on Civil Rules meets on November 17-18 in Washington. The agenda books are now posted on the U.S. Courts Web site, and the one for next month's meeting is athttp://www.uscourts.gov/rules/Agenda Books/CV2008-11...

D. Mass Certifies Nationwide Class in Case Against Pharmaceutical Manufacturers

Posted on October 27, 2008
The court in In re Pharmaceutical Industry Average Wholesale Price Litigation,252 F.R.D. 83 (D. Mass. Sept. 26, 2008), certified the requested nationwide class against pharmaceutical manufacturers. Here is Westlaw's synopsis of the case: Consumers and third-party payors (TPPs) brought suit against pharmaceutical manufacturers alleging that manufacturers fraudulently inflated drug prices by misstating average wholesale prices (AWPs) of their drugs in industry publications in violation of state unfair and deceptive trade practice acts (UDTPAs)...

District Court Rejects Fifth Circuit Rule, Says No Loss Causation Showing Needed Yet

Posted on October 24, 2008
BNA's Class Action Litigation Report (10/24/08) is reporting that the U.S. District Court for the District of Utah Sept. 25 declined to follow U.S. Court of Appeals for the Fifth Circuit precedent, concluded that loss causation need not be established at the class certification stage, and certified a class of investors in Nature's Sunshine Products Inc...

SCOTUS Denies Cert. in Case Addressing Split Re Standard of Review for Bremen Dismissals

Posted on October 21, 2008
Yesterday the Supreme Court denied certiorari in Arrow Electronics Inc. v. E.ON AG (9th Cir., 268 Fed. Appx. 551), a case that sought to resolve a circuit split regarding appellate review of dismissals under M/S Bremen v. Zapata Off-Shore Co., 407 U.S...

Profs. Bassett and Perschbacher Post Article on Contemporary Divergence from FRCP as Originally Envisioned

Posted on October 20, 2008
Debra Lyn Bassett (Alabama) and Rex Perschbacher (U.C. Davis) recently posted an Article entitled The Revolution of 1938 and its Discontents on SSRN. Here is the Abstract:This paper explores the divergence between the purposes and goals of the 1938 Federal Rules of Civil Procedure and the purposes and goals of litigation today...

SCOTUS Grants Cert. in Case Involving Interpretation of Statute Barring Appellate Review of Remand Decisions

Posted on October 15, 2008
U.S. Law Week's Supreme Court Today is reporting that the Supreme Court has granted certiorari in HIF Bio Inc. v. Yung Shin Pharmaceuticals Industrial Co., Fed. Cir., 508 F.3d 659, 76 U.S.L.W. 1308, a civil procedure case: Summary of Ruling Below: District court's discretionary decision, under 28 U...

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