Federal Civil Practice Bulletin

SCOTUS Wiki on Hertz Corp. v. Friend

2009-11-05T00:41:00.000-05:00

Next week, SCOTUS is hearing oral arguments in Hertz Corporation v. Friend, a case that asks the Court to decide the meaning of "principal place of business" in 28 U.S.C. s. 1332, the diversity statute. The SCOTUS Wiki has a good summary of the case and links to related briefs here.

SCOTUS Blog Summarizes Shady Grove Oral Argument

2009-11-04T00:05:00.000-05:00

SCOTUS Blog has this very helpful summary of the oral argument in the Erie/Hanna case, Shady Grove Orthopedic v. Allstate here.

Prof. Seinfeld Posts Article on Enumeration and Article III

2009-11-03T00:06:00.000-05:00

Professor Gil Seinfeld (Michigan) has posted an Article entitled Article I, Article III, and the Limits of Enumeration on SSRN. Here is the Abstract:

Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, § 2. If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, § 2, like its cousin in Article I, does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, § 2, and the Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional. This article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, § 2.

This Article may be downloaded at http://ssrn.com/abstract=1476840.

S.D.N.Y. Discusses Different Views Re Whether a Denial of Leave to Amend a Pleading is Dispositive or Nondispositive for Rule 72 Purposes

2009-11-02T00:09:00.000-05:00

Per Sokol Holdings, Inc. v. BMB Munai, Inc., Slip Copy, 2009 WL 3467756 (S.D.N.Y. Oct. 28, 2009):

The Court of Appeals for the Second Circuit has not clearly stated whether a denial of leave to amend a pleading is dispositive or nondispositive for Rule 72 purposes. It recently suggested-but did not explicitly hold-that the “clearly erroneous” standard is appropriate for a denial of a motion for leave to amend a complaint. See Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir.2007). Yet, “some uncertainty and arguable differences of opinion” persist in this Circuit as to the proper standard of review of a Magistrate Judge's ruling denying a motion to amend. See Bridgeport Music, Inc. v. Universal Music Group, Inc., 248 F.R.D. 408, 410 (S.D.N.Y.2008); see also Wilson v. City of New York, No. 06-229, 2008 WL 1909212, at *4 (E.D.N.Y. Apr. 30, 2008) (collecting cases and noting that “[c]ourts in this Circuit are divided on the issue of whether, and under what circumstances, motions to amend a pleading are dispositive or nondispositive,” and that “[t]he Second Circuit has not yet ruled on the issue”); Lyondell-Citgo Refining, L.P. v. Petroleos de Venezuela, No. 02-0795, 2005 WL 883485, at *2-3 (S.D.N.Y. Apr. 14, 2005) (collecting cases).

The weight of opinion appears to favor treating such rulings as nondispositive, requiring a “clearly erroneous” standard of review. See, e.g., DiPilato v. 7-Eleven, Inc., No. 07-7636, 2009 WL 2633130, at *2 (S.D.N.Y. Aug. 25, 2009) (noting that the Court of Appeals has described a motion to amend as “nondispositive” and applying a “clearly erroneous” standard of review); see also Am. Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 90-91 (S.D.N.Y.2002) (“[W]here magistrate judges prohibit a party from asserting a potential claim, courts tend to review the preclusion of such a claim under a ‘clearly erroneous' standard.”).

Some courts have nevertheless considered a denial of a motion to amend to be a dispositive decision, subject to a de novo standard of review. See, e.g., Covington v. Kid, No. 94-4234, 1999 WL 9835, at *2 (S.D.N.Y. Jan. 7, 1999) (finding that because magistrate judge's denial of leave to amend complaint foreclosed potential claims against defendants, it was dispositive); Champion Titanium Horseshoe, Inc. v. Wyman-Gordon Inv. Castings, Inc., 925 F. Supp 188, 189-90 (S.D.N.Y.1996) (finding that denial of leave to amend “actually ... is subject to reconsideration de novo, since it is dispositive of the proposed new claims”).

National Law Journal on Congressional Hearing to Discuss Iqbal

2009-10-28T00:21:00.000-04:00

David Ingram, Supreme Court's 'Iqbal' Ruling to Get Congressional Hearing, The National Law Journal, Oct. 26, 2009

http://www.law.com/jsp/article.jsp?id=1202434918720&Supreme_Courts_Iqbal_Ruling__to_Get_Congressional_Hearing&hbxlogin=1

Eleventh Circuit Denies Officers' Qualified Immunity Claims

2009-10-27T09:13:00.001-04:00

The Eleventh Circuit has upheld a district court's denial of summary judgment based on qualified immunity in a case against two police officers alleged to have Tasered a man to death. The opinion is available at http://www.ca11.uscourts.gov/opinions/ops/200815081.pdf.

Prof. Hatamyar Posts Article on Twombly and Iqbal on SSRN

2009-10-14T17:15:00.003-04:00

Professor Patricia W. Hatamyar (St. Thomas) recently posted an Article entitled The Tao of Pleading: Do Twombly and Iqbal Matter Empirically? on SSRN. Here is the Abstract:

This article is an empirical study of the effect of Bell Atlantic Corp. vs. Twombly, 550 U.S. 544 (2007), and Ashcroft vs. Iqbal, 129 S. Ct. 1937 (2009), two recent Supreme Court cases that portend the decline of “notice pleading” in federal civil practice.

The article analyzes how Twombly and Iqbal have begun to dismantle the regime of notice pleading by not only discarding the “no set of facts” standard of Conley vs. Gibson, 355 U.S. 41 (1957), but by changing or ignoring other principles that federal courts have followed for decades on 12(b)(6) motions. The statistical study then examines how Twombly and Iqbal may have affected federal district court rulings on 12(b)(6) motions in practice.

The statistical analysis of 1,039 cases shows that 49% of 12(b)(6) motions were granted (with or without leave to amend) in the cases selected (from May 2005 to August 2009). Further, the rate of granting such motions increased from 46% of motions decided under Conley, to 48% of motions decided under Twombly, to 56% of motions decided under Iqbal. A multinomial logistic regression indicates that under Twombly/Iqbal, the odds of a 12(b)(6) motion being granted rather than denied are 1.5 times greater than under Conley, holding all other variables constant.

Moreover, the largest category of cases in which 12(b)(6) motions are filed was constitutional civil rights. Motions to dismiss in constitutional civil rights cases were granted at a higher rate (53%) than in cases overall (49%), and the rate of granting 12(b)(6) motions in constitutional civil rights cases increased in the cases selected from Conley (50%) to Twombly (55%) to Iqbal (60%).

The article concludes that Twombly and Iqbal have resulted in a noticeable increase in the granting of 12(b)(6) motions by district courts, and suggests that such a result, if desirable, should be accomplished by the normal rule-amendment process.

This Article may be downloaded by visiting http://ssrn.com/abstract=1487764.

SCOTUS Grants Cert. In Complete Preemption and Federal Officer Removal Case

2009-10-13T14:04:00.000-04:00

The Supreme Court has granted cert. in Health Care Service Corporation v. Pollitt (No. 09-38). The decision below is at 558 F.3d 615 (7th Cir. 2009). The questions presented are:

(1) Does the Federal Employee Health Benefits Act, 5 U.S.C. §§ 8901-14, completely preempt--and therefore make removable to federal court--a state suit challenging enrollment and health benefits determinations that are subject to the exclusively federal remedial scheme established in FEHBA?

(2) Does the federal officer removal statute, 28 U.S.C. § 1442 (a)(1), which authorizes federal removal jurisdiction over state court suits brought against persons "acting under" a federal officer when sued for actions "under color of [federal] ... office," encompass a suit against a government contractor administering a FEHBA plan, when the contractor is sued for actions taken pursuant to the government contract?

More details at: http://lawprofessors.typepad.com/civpro/2009/10/cert-grant-in-case-involving-complete-preemption-and-federal-officer-removal.html.

Call to Submit Conference Information to the AALS Civil Procedure Section

2009-10-09T09:20:00.000-04:00

Each year the Civil Procedure Section of the AALS prepares a newsletter that aggregates various bits of information for the benefit of Civil Procedure teachers and scholars. One regular feature of that newsletter is “Upcoming Conferences.” If you have planned (or are otherwise aware of) a conference for calendar year 2010 and would like this newsletter to list the event, please send us the details—web links, calls for papers, etc. Even conferences with tentative plans and dates can be listed. Please send the details by November 1 to Thom Main at tmain@pacific.edu.

Prof. Strong Posts Article on Jurisdictional Discovery

2009-10-06T11:56:00.003-04:00

Professor S.I. Strong (Missouri) has recently posted an Article entitled Jurisdictional Discovery in United States Federal Courts on SSRN. Here is the Abstract:

Jurisdictional discovery ties together three principles central to federal civil procedure: the right to broad discovery, the need for liberal notice pleading and the court’s inherent power to determine its own jurisdiction. The device is also inextricably linked to complex constitutional and legislative policies regarding the jurisdictional reach of U.S. federal courts. The complicated and often hidden aspects of jurisdictional discovery make analysis difficult, and measures that may seem acceptable in theory turn out to be highly problematic in practice. Indeed, the concept of “limited jurisdictional discovery” has disappeared as plaintiffs request - and judges routinely permit - extensive and expensive discovery before defendants are even determined to be properly in front of the court.

The Article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the Article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes by outlining several judicial and legislative reforms that would improve the means by which U.S. federal courts establish jurisdiction.

Although jurisdictional discovery is occasionally discussed in limited, subject-specific contexts, the device has not been subject to a comprehensive, in-depth analysis since the 1970s, which means that this Article fills a major gap in the literature. Furthermore, the piece is particularly timely given several recent petitions for certiorari to resolve ambiguities and circuit splits in this area of law as well as recent Supreme Court precedents regarding pleadings standards and the absence of jurisdictional hierarchies.

This Article may be downloaded by visiting http://ssrn.com/abstract=1474026.

Prof. Bone Posts Essay on Iqbal on SSRN

2009-09-28T09:05:00.002-04:00

Professor Bone recently posted an Essay entitled Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal on SSRN. Here is the Abstract:

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, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 874 (2009), which examined the Supreme Court’s seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this essay, I argue that Iqbal does much more than clarify and reinforce key points in Twombly; it takes Twombly’s plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a 'two-pronged approach' that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well-equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress.

This Article can be downloaded by visiting http://ssrn.com/abstract=1467799.

Prof. Hartnett Posts Article on Twombly

2009-09-25T07:04:00.001-04:00

Professor Edward Hartnett has recently posted an Article entitled Taming Twombly on SSRN. Here is the Abstract:

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 complaint expressly alleged a conspiracy. The Court insisted that a complaint contain 'enough facts to state a claim to relief that is plausible on its face,' and concluded that a conspiracy, while 'conceivable' was not 'plausible.' In addition, the Court retired the famous language from Conley v. Gibson that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Scholarly reaction to Twombly has been largely critical, complaining that the Court imposed a heightened specificity standard of pleading and that plaintiffs will lack the evidence to plead these specifics prior to discovery. Some suggested that Twombly’s requirement of plausibility should be understood as an aspect of substantive antitrust law, thereby limiting the impact of the decision largely to antitrust cases. Others suggested that Twombly should be limited to large, complex, sprawling cases, given the Court’s evident concern with the cost of discovery in such cases. These hopes of limiting Twombly were dashed by the Supreme Court’s decision in Ashcroft v. Iqbal, which held that the Twombly framework applies to all civil actions. Faced with the failure of the attempt to limit Twombly, some have called for a legislative restoration of Conley v. Gibson. This article takes a different tack. Rather than decrying Twombly as a radical departure and seeking to overturn it, this article instead emphasizes Twombly’s connection to prior law and suggests ways in which it can be tamed. First, the plausibility standard of Twombly can be understood as equivalent to the traditional insistence that a factual inference be reasonable. Second, the Twombly framework can be treated as an invitation to present information and argument designed to dislodge a judge’s baseline assumptions about what is natural. Third, and despite widespread assumption to the contrary, discovery can proceed during the pendency of a Twombly motion. This paper also suggests that the traditional practice of pleading 'on information and belief' be retired, and connects a tamed Twombly to broader trends toward managerial and discretionary judging.

This Article may be downloaded at http://ssrn.com/abstract=1452875.

Law.com Iqbal Update

2009-09-22T00:49:00.000-04:00

An article entitled Plaintiffs Groups Mount Effort to Undo Supreme Court's 'Iqbal' Ruling by Tony Mauro is available on Law.com. It provides an update on the fallout of the Ashcroft v. Iqbal pleading decision from earlier this year. Click here for the story.

Judicial Conference Approves Proposed Amendments

2009-09-20T21:00:00.000-04:00

On September 15, 2009, the Judicial Conference met and approved the recommendations of the Committee on Rules of Practice and Procedure and approved the following proposed rules and forms amendments and new rules:

•Appellate Rules 1, 4, and 29, and Form 4;
• Bankruptcy Rules 1007, 1014, 1015, 1018, 1019, 4001, 4004, 5009, 7001, 9001 and new Rule 5012, and Exhibit D of Official Form 1 and Official Form 23;
• Civil Rules 8, 26, and 56, and Illustrative Form 52;
• Criminal Rules 12.3, 15, 21, and 32.1; and
• Evidence Rule 804.

The Judicial Conference also approved the proposed Guidelines for Distinguishing Between Matters Appropriate for Standing Orders and Matters Appropriate for Local Rules and for Posting Standing Orders on a Court’s Web Site and their transmission to the courts.

The proposed amendments — with the exception of the Bankruptcy Official Forms — will be transmitted to the Supreme Court with a recommendation that they be approved and transmitted to Congress in accordance with the Rules Enabling Act. The revisions to Exhibit D of Official Form 1 and to Official Form 23 will take effect on December 1, 2009, in accordance with Bankruptcy Rule 9009.

The Committee’s report and appendices containing the proposed amendments may be accessed by clicking on this link, http://www.uscourts.gov/rules/Reports/Combined_ST_Report_Sept_2009.pdf. The report and appendices may also be found on this page, http://www.uscourts.gov/rules/reports.htm.

W.D. Va. Applies Twombly to Dismiss Complaint in Slip-and-Fall Case

2009-09-16T10:59:00.003-04:00

Per Branham v. Dolgencorp., Inc., CIVIL NO. 6:09-CV-00037 (August 2009):

The Defendant argues that the Plaintiff has failed to allege sufficient facts to allow the Court to draw the reasonable inference that the Defendant is liable in this case. For example, the Defendant argues that the Complaint lacks any allegation of how the Plaintiff slipped and fell, any allegation of the nature of the liquid on the floor of the store, any allegation that the liquid caused the Plaintiff’s fall, and any specific allegations regarding the injuries she suffered as a result of the fall. Therefore, the Defendant argues, the Complaint fails to include factual allegations relating to various elements of the Plaintiff’s claim of negligence.

. . .

In this case, the Plaintiff has failed to allege any facts that show how the liquid came to be on the floor, whether the Defendant knew or should have known of the presence of the liquid, or how the Plaintiff’s accident occurred. Without such allegations, the Plaintiff cannot show that she has a “right to relief above the speculative level.” Twombly, 550 U.S. at 555. While consistent with the possibility of the Defendant’s liability, the Plaintiff’s conclusory allegations
that the Defendant was negligent because there was liquid on the flood, but that the Defendant failed to remove the liquid or warn her of its presence are insufficient to state a plausible claim for relief. See id. at 570.

Iqbal Symposium at Penn State

2009-09-15T11:07:00.000-04:00

Nancy Welsh (nxw10@DSL.PSU.EDU) of Penn State, Dickinson School of Law has announced the following conference:

On Friday, March 26, 2010, Penn State will hold a symposium addressingthe Supreme Court's recent decision in Ashcroft v. Iqbal. There will bethree panels:

One panel will address Iqbal's implications for the role of thecourts and judges in providing American society with both theopportunity for redress of harms and a common law-based approach to thedevelopment of law.

A second panel will explore the majority's reference to purposeful discrimination and what it signals about contemporary understandings of race in America.

The third panel will examine Iqbal's implications for Section 1983, including the decision's potential impact on supervisory liability, qualified immunity and the behavior of agency officials operating under adverse conditions.

At this point, presenters include Jeff Rachlinski (Cornell), Natsu Saito (Georgia State), Mark Brown (Capital), and several members of PennState's faculty: Victor Romero, Kit Kinports, Gary Gildin, Shoba Wadhia, Ray Campbell, and myself. The slate of presenters is likely to expand.Papers will be published in a symposium issue of the Penn State Law Review. The symposium will be held at Penn State's Carlisle,Pennsylvania, facility. Students, faculty and guests in the University Park facility also will be able to participate (and engage in one-on-onesidebar discussions) through the pervasive and advanced system ofvideoconferencing that links both locations in our unitary law schooloperation.

We would welcome your attendance.

Visit the Rennovated Civil Procedure & Federal Courts Blog

2009-09-12T11:09:00.000-04:00

Persons interested in civil procedure should definitely check out the rennovated Civil Procedure & Federal Courts Blog over at the Law Professor Blogs Network for continuing coverage of civil procedure and federal courts issues.

Ninth Circuit Finds Complaint against Ashcroft to Be Sufficiently Pleaded under Iqbal

2009-09-09T09:30:00.002-04:00

Per Al-Kidd v. Ashcroft, --- F.3d ----, 2009 WL 2836448 (9th Cir. Sept. 4, 2009):

Here, unlike Iqbal's allegations, al-Kidd's complaint “plausibly suggest[s]” unlawful conduct, and does more than contain bare allegations of an impermissible policy. Id. at 1950. While the complaint similarly alleges that Ashcroft is the “principal architect” of the policy, the complaint in this case contains specific statements that Ashcroft himself made regarding the post-September 11th use of the material witness statute. Ashcroft stated that enhanced tactics, such as the use of the material witness statute, “form one part of the department's concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street,” and that “[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” Other top DOJ officials candidly admitted that the material witness statute was viewed as an important “investigative tool” where they could obtain “evidence” about the witness. The complaint also contains reference to congressional testimony from FBI Director Mueller, stating that al-Kidd's arrest was one of the government's anti-terrorism successes-without any caveat that al-Kidd was arrested only as a witness. Comparatively, Iqbal's complaint contained no factual allegations detailing statements made by Muller and Ashcroft regarding discrimination. The specific allegations in al-Kidd's complaint plausibly suggest something more than just bare allegations of improper purpose; they demonstrate that the Attorney General purposefully used the material witness statute to detain suspects whom he wished to investigate and detain preventatively, and that al-Kidd was subjected to this policy.

Prof. Steinman Posts Article Entitled "The Pleading Problem"

2009-08-31T06:37:00.002-04:00

Professor Adam Steinman recently posted an Article entitled The Pleading Problem on SSRN. Here is the Abstract:

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 can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm - plain pleading - as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbal with pre-Twombly authority.

This Article may be downloaded by visiting http://ssrn.com/abstract=1442786.

AALS Workshop on Civil Procedure

2009-08-25T22:27:00.001-04:00

Memorandum

TO: Civil Procedure Law Professors

FROM: Planning Committee on 2010 Workshop on Civil Procedure:
Charting Your Course in a Shifting Field

Frederic M. Bloom, Brooklyn Law School
Laura Hines, University of Kansas
Richard A. Nagareda, Vanderbilt University
Patrick Woolley, University of Texas at Austin, Chair
Stephen C. Yeazell, University Of California at Los Angeles

Request for Proposals

We are seeking proposals for presentations on the three following topics:
1. The Hardest Case-and How to Teach It
2. Emerging Teaching Methods: A Different Way to Teach This Subject
3. Big Topics in Shrinking Units: How to Trim Your Syllabus

We are planning the AALS 2010 Mid-Year Meeting Workshop on Civil Procedure: Charting Your Course in a Shifting Field, June 10-11, 2010 at the Sheraton New York in New York City. The workshop will address many of the substantive developments transforming our field. We know, though, that many are already overcoming the special challenges of our course, as the number of hours dedicated to it at many schools declines and its complexity increases. We are therefore asking for those who have met these challenges to tell others how they have done it. Share your ideas with us!

For any of the three topics, please send us a two-page précis of your presentation. For the emerging pedagogies panel we're interested both in new modes of presentation and testing (including digital ones), as well as in special thematic foci-including courses with special emphasis on professional values. For the third topic please also attach a syllabus indicating classroom hours by topic. Interested faculty should submit proposals by September 1, 2009 to pwoolley@law.utexas.edu. Selected speakers will hear from us by September 30, 2009.

The selected speakers pay the registration fee for the Workshop and are responsible for their own travel and other expenses. Please direct questions to Professor Patrick Woolley, University of Texas at Austin, pwoolley@law.utexas.edu or Professor Stephen C. Yeazell, University of California at Los Angeles, yeazell@law.ucla.edu.

Eleventh Circuit Dismisses Conspiracy Allegations as Insufficient under Iqbal

2009-08-18T15:25:00.003-04:00

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.” Iqbal, 129 S.Ct. at 1949. Rule 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1964. At the same time, however, the complaint must plead “more than an unadorned, the-defendant-unlawfully-harmed-me.” Iqbal, 129 S.Ct. at 1949. Furthermore, unwarranted deductions of fact in a complaint are not admitted as true for the purpose of testing the sufficiency of the allegations. Aldana, 416 F.3d at 1248, and the facts as pled must state a claim for relief that is plausible on its face, see Iqbal, 129 S.Ct. at 1950.
Here, the Garcia plaintiffs' attenuated chain of conspiracy fails to nudge their claims across the line from conceivable to plausible. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. First, while the plaintiffs allege “Aponte's plan necessarily required the cooperation and complicity of the arresting police officers,” we are not required to admit as true this unwarranted deduction of fact. Second, the plaintiffs' allegations of conspiracy are “based on information and belief,” and fail to provide any factual content that allows us “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949. Specifically, these plaintiffs allege “[t]he basis for the conspiracy was either that Aponte arranged to provide payment to the officers for their participation, or that the officers had a shared purpose with Aponte to unlawfully arrest and detain Plaintiffs because they were union officials and had been branded by Panamco officials as leftist guerillas.” The premise for the conspiracy is alleged to be either payment of money or a shared ideology. The vague and conclusory nature of these allegations is insufficient to state a claim for relief, and “will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.
Furthermore, the complaint fails to allege when or with whom Aponte entered into a conspiracy to arrest, detain, and harm the plaintiffs. The scope of the conspiracy and its participants are undefined. There are no allegations the treatment the plaintiffs received at the hands of the local police and in prison was within the scope of the conspiracy. Additionally, assuming Aponte even conspired with the local police to arrest the plaintiffs, this action alone is insufficient to form the basis of an ATS claim, see Sosa, 542 U.S. at 738, 124 S.Ct. at 2769 (holding “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy”), and there is no allegation the subsequent six-month imprisonment and mistreatment was part of the conspiracy. The Garcia plaintiffs, thus, fail to state a plausible claim for relief against the Panamco Defendants for a violation of the law of nations. See 28 U.S.C. § 1350. We conclude the district court did not err in dismissing the ATS claims in the Garcia complaint for lack of subject matter jurisdiction.

Is there an E-Discovery Bubble

2009-08-14T11:25:00.002-04:00

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. Whether it was the Dot Com bubble in the 90's or the Housing bubble this decade, there is a point in which you have to stand back and say that reality is going to cause a backlash at some point and cause the bubble to burst. It is August 2009, and I'm calling it: "Electronic Discovery Is A Bubble" and in the next couple of years, if not sooner, it is going to burst.

Visit here for the full post.

Prof. Nowicki Posts Article on Apologies and Conflict Resolution

2009-08-07T10:06:00.002-04:00

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. Or if a child on the playground accidentally crashes into another child, the crashing child will apologize. If the crashing child does not apologize, a teacher, playground monitor, or parent will instruct the child to apologize, because apologizing for hurting someone is the 'right' thing to do. This apology norm largely disappears if the crashing child grows up and becomes a lawyer, however. Despite empirical research showing that apologies have value in settlement, facilitate cost-effective dispute resolution, and are important to injured parties, it appears that lawyers do not regularly either suggest that a client ask for or suggest that a client offer an apology as part of a conflict resolution. Why does the instinct to facilitate dispute resolution with a sincere apology disappear when students enter law school or when law students become lawyers? Some suggest that lawyers – and consequently the clients they advise – disavow apologies as a matter of defense because apologies are viewed as costly admissions of liability. Others suggest that attorneys for injured parties have no obvious incentives to suggest apologies since quick dispute resolution results in smaller legal fees. Still others suggest that those who become lawyers tend to be logical and analytical, and tend to eschew conduct viewed as purely emotive, such as apologizing. This paper shows that a good lawyer must recognize the value of apologies in conflict resolution, litigation, and settlement, and this paper provides guidance for offering apologies.

This Article may be downloaded by visiting http://ssrn.com/abstract=1430212.

Prof. David Marcus Posts Article on Trans-Substantivity

2009-07-29T07:26:00.003-04:00

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. In recent years, however, a number of scholars have questioned whether the principle should continue to govern procedural rulemaking. Mirroring this scholarly disquiet, legislatures have crafted substance-specific rules to apply in heavily-litigated areas of substantive doctrine. The future of trans-substantivity is uncertain. In this symposium contribution, I use the history of the rise of trans-substantivity in American civil procedure as a basis to predict its role going forward. This history, beginning in the early nineteenth century and culminating in 1938, illuminates the jurisprudential foundation for trans-substantivity, its normative implications, and the political role it played in assisting the development of court-supervised rulemaking. I then assess the current status of trans-substantivity. Recent legislative developments call the jurisprudential and normative bases for trans-substantivity into question, but court-supervised rulemakers continue to limit themselves to trans-substantive rules. Guided by this pattern of institutional behavior, I argue that the principle, however theoretically suspect, has a role going forward as a mechanism for the allocation of rulemaking power. Court-supervised rulemakers can strengthen their legitimacy if they limit themselves to trans-substantive rules, while substance-specific departures from the principle should come from legislatures.

The full-text version of the Article may be downloaded at http://ssrn.com/abstract=1428992.

Prof. Casey Posts Article on Class Action Criminality

2009-07-24T07:10:00.003-04:00

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. In particular, the article examines the government’s primary charge - that the firm’s practice violated the “honest services” theory of mail and wire fraud. The government’s application of this theory presumes a fiduciary relationship between the class representatives and the class which has never been clearly delineated and, indeed, is against the weight of case law and the realities of class action litigation.

The Article proceeds on two different levels. First, it delineates the theoretical underpinnings of the indictment, including the substance of the fiduciary duties the government alleged that class counsel and class representatives owed to absent class members. The Article demonstrates that the tri-partite relationship between class counsel, named plaintiffs, and class members is sui generis and cannot be equated with the traditional attorney-client relationship. It also reveals the inchoate nature of the “honest services” fraud charge which relied on these presumed duties. On a second level, the Article reviews the historical context necessary to understand the charges raised by the prosecution. Finally, the Article raises questions about how the criminal prosecution of Milberg Weiss impacts the on-going public policy debate over the extent to which private securities litigation acts an important tool to supplement the government’s enforcement of the federal securities laws.

The full version of the Article may be downloaded by visiting http://ssrn.com/abstract=1420089.