SCOTUS Wiki on Hertz Corp. v. Friend

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

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

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

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

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

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

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.