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Federal Civil Practice Bulletin

Dedicated to federal civil practice and procedure.

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

Prof. Pfander Posts Article on Forum Shopping and Federalism

Posted on October 14, 2008
Professor James Pfander (Northwestern) recently posted an Article entitled Forum Shopping and the Infrastructure of Federalism on SSRN. Here is the Abstract:The recent effort of environmentalists and others to secure progressive social change at the state level enacts a familiar ritual in the history of American federalism...

Prof. Steinman Posts Article Analyzing Proposed Amendments to FRCP 56

Posted on October 09, 2008
Professor Adam Steinman (Cincinnati) has just posted an Essay entitled An Ounce of Prevention: Solving Some Unforeseen Problems with the Proposed Amendments to Rule 56 and the Federal Summary Judgment Process, a piece which is forthcoming in the Northwestern University Law Review Colloquy...

AALS Civil Procedure Section Seeks Information about Future Conferences

Posted on October 09, 2008
The Civil Procedure section of the AALS plans to include a listing of upcoming conferences that would be of interest to civil procedure professors and scholars. Please email Thomas Main, who is a member of the section's Executive Committee, any information that you have pertaining to upcoming conferences...

Sedona Conference Releases "Cooperation Proclamation"

Posted on October 07, 2008
According to the Legal Blog Watch, The Sedona Conference will hold a virtual press conference tomorrow at noon Eastern time to release its "Cooperation Proclamation," a document that seeks to promote cooperation in civil discovery. The document is available for download at the Sedona Conference Website.

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U. Penn Law Review Publishes Articles From CAFA Symosium

Posted on October 06, 2008
The University of Pennsylvania Law Review has just published pieces from a recent Symposium entitled FAIRNESS TO WHOM? PERSPECTIVES ON THE CLASS ACTION FAIRNESS ACT OF 2005 (Volume 156, Number 6, June 2008). Here are the articles that appear as part of the Symposium:- The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View, Stephen B...

Prof. Eichhorn Publishes Article on Drafting and the FRCP Style Project

Posted on October 02, 2008
Professor Lisa Eichhorn (South Carolina) recently published an article entitled Clarity and the Federal Rules of Civil Procedure: A Lesson from the Style Project, 5 Journal of the Association of Legal Writing Instructors 1 (2008). Here is an excerpt from the Introduction:At the stroke of midnight on December 1, 2007, the Federal Rules of Civil Procedure both changed completely and did not change at all...

S.D.N.Y. Holds that CAFA Removal Provision Trumps Non-Removal Provision of Securities Act

Posted on September 30, 2008
Per New Jersey Carpenters Vacation Fund v. Harborview Mortg. Loan Trust 2006-4, Slip Copy, 2008 WL 4369840 (S.D.N.Y. Sept. 24, 2008):The Plaintiffs argue that CAFA does not override the Securities Act anti-removal provision, and that even if it did, this case falls under one of CAFA's exceptions, � 1332(d)(9)(C), which excepts from federal jurisdiction a class action that relates to the ?rights, duties and obligations arising out of a security...

Brooke Coleman Posts Article on Federal Civil Rulemaking and Access to Justice

Posted on September 25, 2008
Brooke D. Coleman (Stanford Law School Fellow) has recently posted an Article entitled Recovering Access: Rethinking the Structure of Federal Civil Rulemaking on SSRN. Here is the Abstract:Access to the justice system, which I broadly define as the opportunity to resolve the merits of a legal claim, is declining...

Drug and Device Law Blog Comments on New FRE 502

Posted on September 24, 2008
President Bush signed the new Federal Rule of Evidence 502 into law on September 19. The Drug and Device Law blog posted an analysis of the new rule yesterday. The post can be accessed by clicking here.

Fifth Circuit Joins other Circuits in Holding that Citizenship of LLC for Purposes of Diversity Jurisdiction Is Based on Citizenship of all Members

Posted on September 23, 2008
Per Harvey v. Grey Wolf Drilling Co., --- F.3d ----, 2008 WL 4194538 (5th Cir. Sept. 15, 2008):Neither the Supreme Court nor this circuit have previously addressed the question of how to determine the citizenship of a LLC for purposes of diversity jurisdiction...

Court Orders Daubert Hearing as Part of Class Certification Analysis

Posted on September 22, 2008
Here's an excerpt from an ABA Litigation Section news report on the trend to conduct full Daubert hearings as part of the class certification process:In what appears to be part of a trend across the country, a federal trial court in West Virginia has ordered a full, evidentiary Daubert hearing as part of deciding a motion on whether to certify a class in a pending action...

Congress Passes Legislation Creating New Evidence Rule

Posted on September 19, 2008
Here is an excerpt from an ABA Litigation Section news report on new Evidence Rule 502:Last week, Congress approved legislation creating a new evidentiary rule to address disclosure of information protected by the attorney-client privilege and work-product doctrine...

N.D. Ill. Applies Twombly to Uphold an Employment Discrimination Claim

Posted on September 18, 2008
Mull v. Abbott Laboratories, 563 F.Supp.2d 925 (N.D. Ill. June 30, 2008):As the Seventh Circuit recently reiterated, ?a plaintiff alleging employment discrimination under Title VII may allege these claims quite generally.? Tamayo, 526 F.3d at 1081...

Massachusetts SJC Adopts Twombly Interpretation of Its Own State Pleading Rules

Posted on September 15, 2008
Per Iannacchino v. Ford Motor Co., 451 Mass. 623, 888 N.E.2d 879 (Mass. June 13, 2008): The standard for reviewing adequacy of complaints. While we have concluded that the plaintiffs' complaint is insufficient on the basis of the standard described in Nader v...

Congress Passes New Evidence Rule 502: September 8, 2008

Posted on September 11, 2008
On September 8, 2008, the House unanimously passed without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. The Senate had earlier approved by unanimous consent without amendment S...

Prof. Field Posts Article on Federal Circuit's Approach to Choice of Law for Procedural Matters on SSRN

Posted on September 08, 2008
Ted Field, a Visiting Assistant Professor of Law at Chicago-Kent has recently posted an Article entitled Improving the Federal Circuit's Approach to Choice of Law for Procedural Matters in Patent Cases on SSRN. Here is the Abstract:Because of its virtually exclusive jurisdiction over patent cases from the entire country, the United States Court of Appeals for the Federal Circuit faces a unique situation with respect to choice of law for procedural matters in patent cases...

California SCT Holds that an Agreement to Have Judicial Review of the Merits of an Arbitration Award Is Enforceable under Cal. Arbitration Act

Posted on September 03, 2008
Professors Arnold Rosenburg and William Slomanson brought the following case to my attention (this is a quotation from Prof. Rosenburg's email):Last week, the California Supreme Court held in Cable Connection, Inc. v. DIRECTTV, Inc., No. S147767 (August 26, 2008) that an agreement to subject the merits of an arbitration award to judicial review for errors of law is enforceable under the California Arbitration Act...

Prof. Nagareda Posts Article on Class Certification

Posted on September 02, 2008
Professor Richard A. Nagareda (Vanderbilt) has recently posted an Article entitled Class Certification in the Age of Aggregate Proof on SSRN. The Article is slated to appear in the New York University Law Review in 2009. Here is the Abstract:Few pre-trial motions in our civil justice system elicit as much controversy as those for the certification of class actions...

Seventh Circuit Rejects Government Argument that It May Decide Qualified Immunity Issue before the District Court Can Address the Issue

Posted on August 28, 2008
Per Khorrami v. Rolince, --- F.3d ----, 2008 WL 3917557 (7th Cir. Aug. 27, 2008):In the event of a brief pretrial postponement of a qualified immunity argument at the same time as the court is considering a motion under Rule 12(b)(6), the district court is the only judicial tribunal that may revisit the issue...

Federal Circuit Finds Jurisdiction Lacking in Declaratory Judgment Action Seeking to Avoid Patent Infringement Suit

Posted on August 26, 2008
Per U.S. Law Week, Volume 77, Number 8, Tuesday, August 26, 2008:A company's desire to determine whether its product infringed patents held by a competitor did not create a case or controversy sufficient to support the district court's exercising jurisdiction over the company's declaratory judgment action, the U...

Seventh Circuit Discusses Split Re Whether a District Court's Order to Remand to Bankruptcy Court is Appealable

Posted on August 22, 2008
Per In re Holland, --- F.3d ----, 2008 WL 3844140 (7th Cir. Aug 19, 2008): Circuit courts remain split on which test to apply in determining whether a district court order that remands a case to a bankruptcy court is appealable. See, e.g., In re Lopez, 116 F...

N.D. Fla. Notes Split Re Removal from State Administrative Agencies Under � 1441

Posted on August 20, 2008
Per Johnson v. Albertson's LLC, 2008 WL 3286988 (N.D. Fla. Aug 06, 2008): The Eleventh Circuit has yet to decide whether cases may be removed from state administrative agencies pursuant to � 1441, and if so, under what circumstances. See Bellsouth Telecomm...

Third Circuit Holds that Other Courts' Judgments May Be Vacated under Rule 60(b)'s Catch-All Provision

Posted on August 19, 2008
Per Budget Blinds, Inc. v. White, --- F.3d ----, 2008 WL 2875349 (3d Cir. July 28, 2008):The power of a court to invoke Rule 60(b) to vacate its own earlier judgment is unquestioned. As we discuss below, however, it is unclear whether a court has the power to invoke Rule 60(b) to vacate a judgment when the court in which the judgment is registered (the ?registering court?) is different from the court that entered the judgment (the ?rendering court?)...

Second Circuit Determines that FSIA Protects an Individual Official of a Foreign Government Acting in His Official Capacity

Posted on August 18, 2008
Per In re Terrorist Attacks on September 11, 2001, --- F.3d ----, 2008 WL 3474167 (2d Cir. Aug. 14, 2008):This Circuit has not yet decided whether the FSIA protects an individual official of a foreign government acting in his official capacity. . . .We join our sister circuits in holding that an individual official of a foreign state acting in his official capacity is the ?agency or instrumentality? of the state, and is thereby protected by the FSIA...

Most Plaintiffs Who Reject Settlement Offers Do Worse at Trial

Posted on August 15, 2008
Here's a story from the ABA Journal Online (8/11/08):By Debra Cassens WeissThe gamble of going to trial doesn?t pay off for most plaintiffs, according to a study of more than 2,000 civil suits from 2002 to 2005. Sixty-one percent of plaintiffs who turned down settlement offers ended up faring worse at trial, according to a New York Times story on the study...

Standing Committee Requests Comments on Proposed Amendments to the Federal Civil Rules

Posted on August 14, 2008
The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States (the Standing Committee) has published proposed amendments to the Federal Rules of Civil Procedure for comment. The proposed amendments are to Rule 26 (discovery) and Rule 56 (summary judgment)...

Northwestern University Law Review Publishes Special Edition on Preemption

Posted on August 13, 2008
The Northwestern University Law Review recently published a special edition for a symposium entitled Ordering State-Federal Relations Through Federal Preemption Doctrine. Here are the articles included in the symposium:Nury Raquel Agudo & Alison E...

Ninth Circuit Reverses Dismissal of Securities Fraud Claim

Posted on August 12, 2008
Per In re Gilead Sciences Securities Litigation, --- F.3d ----, 2008 WL 3271039 (9th Cir. Aug. 11, 2008):Based on our own review, we find the complaint sufficiently alleges a causal relationship between (1) the increase in sales resulting from the off-label marketing, (2) the Warning Letter's effect on Viread orders, and (3) the Warning Letter's effect on Gilead's stock price...

D. Colorado Notes Improper Prolixity of Pro Se Complaint but Addresses Substance Issues of Motion to Dismiss Instead

Posted on August 11, 2008
Per Tassio v. Mullarkey, Slip Copy, 2008 WL 3166149 (D. Colo. Aug. 05, 2008):Mr. Tassio's complaint takes the term prolix to new heights. In spite of his efforts to provide an outline of his claims, it is redundant and tedious to the extreme and pleonastic to the point of being indecipherable...

ABA Litigation Research Fund Seeking Grant Applicants

Posted on August 08, 2008
The ABA Section of Litigation invites applications to The LitigationResearch Fund which makes individual awards of between $5,000 and$20,000 to support original and practical scholarly work thatsignificantly advances the understanding of civil litigation in theUnited States...

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