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Notice Pleading Restoration Act
To provide that Federal courts shall not dismiss complaints under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).
Wash. court reinstates $8M award against Hyundai
OLYMPIA, Wash. -- The state Supreme Court on Wednesday reinstated an $8 million default judgment against Hyundai Motor Co. in a lawsuit over the backward collapse of a front seat in a 1997 crash that left a man paralyzed.
In a 7-2 ruling, the high court reversed the Court of Appeals, which had overturned a trial court's finding for Jesse Magana of Vancouver.
The justices said the South Korean automaker deliberately withheld documentation from Magana's lawyers for too long concerning other crashes in which front seats collapsed backward.
"Trial courts need not tolerate deliberate and willful discovery abuse," wrote the majority, led by Justice Richard Sanders. "This result appropriately compensates the other party, punishes Hyundai, and hopefully educates and deters others so inclined."
SSRN-An Analysis of the Judicial Panel on Multidistrict Litigation's Selection of Transferee District and Judge by Daniel Richards
"When civil cases involving one or more common questions of fact are pending in multiple district courts, 28 U.S.C. § 1407 empowers the Judicial Panel on Multidistrict Litigation (JPML) to centralize the cases in a single district court for pretrial proceedings. If the JPML chooses to centralize a multidistrict action, it possesses broad discretion to select a transferee district and judge. While many litigants believe that the selection of one transferee district or judge over another can significantly impact the outcome of the litigation, they often describe the JPML’s rationale supporting selection as opaque and the resulting selection decision as difficult to predict. In order to clarify the criteria on which the JPML relies when choosing a transferee district and judge, this Note presents an empirical study of several years of JPML transfer orders. This Note argues that, while predicting where the JPML will centralize a multidistrict action is difficult, an understanding of statistical trends in JPML selection of transferee district and judge leads to a better understanding of the factors that are most likely to influence the JPML in any given multidistrict action. "
Court rejects appeal over Redskins trademark - CNN.com
At issue was whether plaintiffs were decades too late in filing a lawsuit, or whether that registered trademark should have been denied years ago since as plaintiffs claim " 'redskins' is today and has been historically a disparaging racial epithet that brings them into contempt, ridicule, and disrepute."
The legal dispute is over what's called the doctrine of laches -- negligence or delay in asserting a claim.
Law.com - Home Court Showdown at the Supreme Court
During the past 51 years, federal courts have used a hodgepodge of tests to determine a corporation's principal place of business. The U.S. Supreme Court today, for the first time, will consider what is the correct test in Hertz Corp. v. Friend, a case involving Hertz employees who claim the company violated California's wage-and-hour laws.
Law.com - In Latest Venue Dispute Ruling, Delaware Court Transfers Part of Patent Case to Texas
A Delaware federal judge's transfer of part of a patent infringement case involving software giant Microsoft Corp. to the Eastern District of Texas is the latest example of the federal courts' shifting approach to patent litigation venue battles. The decision is also notable in that the Eastern District of Texas, known as a plaintiff-friendly venue, has itself recently started to transfer cases to other venues in compliance with recent federal appellate decisions.
SSRN-Why General Personal Jurisdiction Over 'Virtual Stores' is a Bad Idea by James Pielemeier
Courts in the United States today address the constitutional permissibility of personal jurisdiction by discussing two sub-types, “specific jurisdiction” and “general jurisdiction.” “Specific jurisdiction” may exist “in a suit arising out of or related to the defendant’s contacts with the forum.” “General jurisdiction” may exist “in a suit not arising out of or related to the defendant’s contacts with the forum.”Over the past few years, courts have begun to address whether maintenance of a business oriented web site that is accessible to and used by residents of a state can be a sufficient anchor for the constitutional assertion of general jurisdiction in that state. At the level of the United States Courts of Appeal, a split of authority is developing. The D.C. Circuit in Gorman v. Ameritrade Holding Corp and the Ninth Circuit in Gator.com Corp. v. L.L. Bean, Inc., have held that the answer is yes, with Gator.com labeling L.L. Bean’s web site a “virtual store.” The Fourth, Fifth, Sixth, Tenth, and Federal Circuits, all after relatively short discussions, have held that the answer is no, at least on the facts before them.
This article argues that the Gorman and Gator.com were improvident and wrongly decided, that general jurisdiction over virtual stores is inconsistent with any principled development of the law of general jurisdiction.
The article will conclude with a call for the courts of appeals to abandon the concept of general jurisdiction over virtual stores or for the Supreme Court to take up the issue and provide some much-needed guidance on the constitutional limitations of general jurisdiction.
SSRN-U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business by Theodore Eisenberg
The U.S. Chamber of Commerce uses its Survey of State Liability to criticize judiciaries and seek legal change but no detailed evaluation of the survey’s quality exists. This article presents evidence that the survey is substantively inaccurate and methodologically flawed. It incorrectly characterizes state law; respondents provide less than 10% correct answers for objectively verifiable responses. It is internally inconsistent; a state threatened with judicial hellhole status ranked first in the survey while venues not on the list ranked lower. The absence of correlation between survey rankings and observable activity suggests that other factors drive the rankings. Two factors may help explain them. First, persistent low ranking of Gulf Coast states indicates that corporate counsel cannot shed hostility to states that were prominent in asbestos and tobacco litigation, notwithstanding changes in state laws. Second, low rankings of populous states suggest respondents fail to distinguish between rates of events and the absolute number of events. Adverse events in large states may occur more often but not necessarily at higher rates than in small states. The Chamber’s uses of the survey fail to account for the sample design, fail to account for the same respondent rating multiple states, fail to account for industry effects, and fail to distinguish among respondents based on their knowledge of a state. The survey may discourage investment in the U.S. and corporate risk managers’ views suggest that the survey promotes corporate behavior that needlessly endangers the public.
SSRN-Beyond Borders: Disassembling the State-Based Model of Federal Forum Fairness by Jamelle Sharpe
Protecting defendants from being forced to litigate in unfair (i.e., unduly burdensome or inconvenient) forums has long been a limiting principle in the exercise of federal judicial power. Rules governing federal service of process and venue play a critical role in providing this protection, as they are the initial means by which plaintiffs select the place of trial. Surprisingly, the courts and the academy have expended comparatively little analytical energy to analyze how well these rules protect defendants from litigating in unfair locations. Utilizing first principles of rule precision and information analysis not previously applied in this context, this Article asserts that the rules governing federal service of process and venue largely fail in this task. By focusing on the connections between the defendant and the state in which the federal district court sits, venue and service of process rules call for limited information that ultimately provides a poor proxy for federal forum fairness. The crudeness of this proxy could more easily be excused if it provided a substantial benefit in the form of administrative simplicity. Unfortunately, the current regime is nothing if not baroque, consisting of a maze of rules, tests, and standards that elicit information which is, ultimately, a highly imprecise approximation of a defendant’s ability to litigate in a particular location. Though perfection is impossible, we can certainly do better. Accordingly, courts and scholars should end their attempts to refine the current tests in the hopes of better scrutinizing suboptimal information. Instead, this Article proposes both a reevaluation of the information used to determine forum fairness, and a reassessment of whether courts or litigants are in the best position to optimally use this information.
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Protecting defendants from being forced to litigate in unfair (i.e., unduly burdensome or inconvenient) forums has long been a limiting principle in the exercise of federal judicial power. Rules governing federal service of process and venue play a critical role in providing this protection, as they are the initial means by which plaintiffs select the place of trial. Surprisingly, the courts and the academy have expended comparatively little analytical energy to analyze how well these rules protect defendants from litigating in unfair locations. Utilizing first principles of rule precision and information analysis not previously applied in this context, this Article asserts that the rules governing federal service of process and venue largely fail in this task. By focusing on the connections between the defendant and the state in which the federal district court sits, venue and service of process rules call for limited information that ultimately provides a poor proxy for federal forum fairness. The crudeness of this proxy could more easily be excused if it provided a substantial benefit in the form of administrative simplicity. Unfortunately, the current regime is nothing if not baroque, consisting of a maze of rules, tests, and standards that elicit information which is, ultimately, a highly imprecise approximation of a defendant’s ability to litigate in a particular location. Though perfection is impossible, we can certainly do better. Accordingly, courts and scholars should end their attempts to refine the current tests in the hopes of better scrutinizing suboptimal information. Instead, this Article proposes both a reevaluation of the information used to determine forum fairness, and a reassessment of whether courts or litigants are in the best position to optimally use this information.
Dowell v. Applegate 152 US 327 (1894)
Subject-Matter Jurisdiction (diversity and federal question)
Collateral Estoppel
SSRN-Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal by Robert Bone
This Essay critically examines the Supreme Court's most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), decided in May 2009. The essay supplements and extends the analysis in my recent article, Twombly, Pleadi
SSRN-Taming Twombly by Edward Hartnett
In Bell Atlantic v. Twombly, the Supreme Court held that an antitrust complaint alleging that major telecommunication providers engaged in parallel conduct unfavorable to competition could not survive a 12(b)(6) motion to dismiss, even though the complain
SSRN-The Irrepressible Myth of Klein by Howard Wasserman
This paper examines the Reconstruction-era case of United States v. Klein, which imposed some uncertain limitations on congressional control over judicial jurisdiction and judicial decisionmaking. Klein remains one of the mysteries of the constitutional-l
Law.com - FRCP Changes on the Horizon
The majority of the amendments affect various timing requirements and change how some deadlines are calculated.
Law.com - Plaintiffs Groups Mount Effort to Undo Supreme Court's 'Iqbal' Ruling
On May 18, the U.S. Supreme Court gave corporate defendants a gift that keeps on giving: the Iqbal decision, which has made it easier than ever for defendants to shut down lawsuits before they get to the costly discovery stage. Now, four months later, civ
SSRN-The Pleading Problem by Adam Steinman
Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that
SSRN-There's a Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss by Elizabeth Burch
This is what it purports to be: a Seussian take on civil procedure. It’s a short, fun essay that covers (1) the iron triangle of civil procedure - the role of lawyers, judges, and juries, and (2) prominent civil procedure doctrines, such as personal juris
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