Friday, September 30, 2005

Rule 60(b) Motion Based on Lack of Notice May Be Denied Where Dismissal Proper Based on Younger Abstention

The First Circuit has held that a Fed.R.Civ.P. 60(b)(6) motion for relief from judgment made by plaintiffs alleging they had not received notice that the court was considering dismissal of their suit was properly denied by the district court becuase the case was properly dismissed on Younger abstention principles. Because of that fact, dismissal of the suit without notice did not affect the plaintiffs' substantial rights, and so the denial of Rule 60(b) relief was appropriate (although the court had to direct the district court to modify its dismissal to be without prejudice).

Chalupowski v. Berry, No. 05-1193 (1st Cir. Sept. 27, 2005) (unpublished).

Losing Plaintiff in a Civil Rights Case May Be Required to Post a Rule 7 Bond Including Defendant's Anticipated Attorney Fees

Last month, in Young v. New Process Steel, LP, 419 F.3d 1201 (11th Cir. Aug. 9, 2005), the Eleventh Circuit held, in a matter of first impression, that a district court may require, as condition for appealing judgment, that a losing plaintiff in civil rights case post a Fed. R.App. P. 7 bond that includes defendant's anticipated appellate attorney fees, if it finds that the would-be appeal is frivolous, unreasonable, or groundless:

"[A] plaintiff who is unsuccessful in a civil rights suit at trial should not be freed from the burden of an appellate bond that includes anticipated attorney's fees where the appeal is likely to be frivolous, unreasonable, or without foundation. On appeal, as at trial, applying full cost disincentives in those circumstances is consistent with the intent of Congress to protect defendants from burdensome litigation having no legal or factual basis." (citation and internal quotation marks omitted)

No Private Right to Sue Under SOX; Only SEC May Enforce, Judge Says is reporting that a federal court has held that there is no private right of action under Section 304 of the Sarbanes-Oxley Act (SOX). Here's some of the story:

"A federal judge has ruled that §304 of the Sarbanes-Oxley Act -- a key provision of the 2002 law that calls for disgorgement of profits and bonuses from top corporate executives in the wake of an alleged accounting scandal -- does not provide a private right of action for shareholders to file a derivative suit."

"The decision by U.S. District Judge Stewart Dalzell in Neer v. Pelino is the first in the nation to squarely address the question of whether §304 creates an implied private right of action."

For the full story, visit at

Bureau of Justice Statistics Reports Long-Term Decline in Federal Tort Trials

The Department of Justice's Bureau of Justice Statistics (BJS) recently issued a report on jury and bench tort trials in federal district courts showing that the number of tort trials concluded in U.S. district courts declined by nearly 80 percent - from 3,600 trials in 1985 to fewer than 800 trials in 2003. The report also shows that approximately nine out of 10 tort trials involved personal injury issues - most frequently, product liability, motor vehicle (accident), marine and medical malpractice cases. Also revealed is the fact that the percentage of tort cases concluded by trial in U.S. district courts has declined from 10 percent in the early 1970s to 2 percent in 2003.

Here's the abstract for the report:

"Presents findings on jury and bench tort trials concluded in Federal district courts during fiscal years 2002-03. Analyzing public use data assembled by the Administrative Office of the U.S. Courts and BJS, the report is the latest edition in a series on the topic of tort trials. Information includes the types of tort cases that proceed to trial, plaintiff win rates, case processing times, and estimated median damage awards. The report also describes the types of Federal jurisdiction in tort trial cases, the differences between tort bench and jury trials, and details about asbestos and non-asbestos product liability trials (1990 - 2003). The overall trends in tort trial litigation from 1970 to 2003 are also examined."

To view the report, click To see the August 17, 2005 press release announcing the report, click

Judicial Conference Endorses Citing of Unpublished Opinions

The ABA Journal eReport is reporting that the Judicial Conference has endorsed a new Rule 32.1 of the Federal Rules of Appellate Procedure. This rule would allow lawyers and litigants nationwide to cite unpublished federal circuit court opinions. Assuming U.S. Supreme Court approval and barring any opposition from Congress, the rule would take effect on January 1, 2007.

For the full story, visit or get more information by visiting the Federal Rulemaking Homepage at

E.D.N.Y. Rejects Heightened Pleading Standard in the Face of a Qualified Immunity Defense

In Elmaghraby v. Ashcroft, Slip Copy, 2005 WL 2375202 (E.D.N.Y. Sep 27, 2005) (NO. 04 CV 1409 JG SMG), the Judge Gleeson rejected the contention that a plaintiff pleading a constitutional tort must include specific and "nonconclusory" allegations of personal involvement in order to survive a motion to dismiss where the defense of qualified immunity has been asserted.

The court held that in light of Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), which reiterated the notice pleading standard of FRCP Rule 8, the window had been closed on the judicial creation of exceptions to the doctrine. Thus, the court stated:

"To survive a motion to dismiss, a plaintiff need only provide a statement that gives the defendant 'fair notice of what the plaintiff's claim is and the grounds upon which it rests.' See Swierkiewicz, 534 U.S. at 512 (quoting Conley v. Gibson, 355 U .S. 41, 47 (1957)). Rule 8(a)'s simplified pleading standard applies to 'all civil actions, with limited exceptions,' such as Rule 9(b)'s requirement that allegations of fraud and mistake be pleaded with particularity. See id. at 513. Thus, whether the allegations in a complaint are too conclusory to survive a motion to dismiss depends upon whether they meet the permissive standard set forth in Rule 8(a). The expectation that a defendant will assert qualified immunity as a defense does not elevate a plaintiff's pleading requirements."

MDL Panel Sends Bextra & Celebrex Litigation to N.D. Cal.

The Judicial Panel on Multidistrict Litigation has consolidated the Bextra and Celebrex products liability cases filed in various federal districts (Texas, Michigan, Florida, Delaware, Connecticut, Alabama, Arizona, California, Louisiana, Massachusetts, and New York) and transferred them to the Northern District of California. Reasoning that the geographic dispersal of the constituent actions suggested no district as a geographic focal point for the cases, the court selected Judge Charles R. Breyer of N.D. Cal. to handle the litigation because he is a "judge with the time and experience to steer this complex litigation on a prudent course."

The Transfer Order, filed on September 6, 2005, can be found by visiting

Thursday, September 29, 2005

Tenth Circuit Joins Plurality of Circuits in Holding that Rule 24(a)(2) Intervenors Need Not Satisfy Article III Standing Requirements

The Tenth Circuit, in San Juan County, UT v. U.S., 420 F.3d 1197 (10th Cir. Aug. 30 2005), has taken a position with respect to the issue of whether parties seeking to intervene as a matter of right in an action under FRCP Rule 24(a)(2) must satisfy the requirements of Article III standing in addition to the requirements of Rule 24. The court joined the Second, Fifth, Sixth, Ninth and Eleventh Circuits in holding that an intervenor need only meet Rule 24(a)(2)'s requirements that the intervenor have an interest in the litigation and need not first establish its standing. The court also held that the same applies to parties seeking permissive intervention under Fed.R.Civ.P. 24(b). Here's the court's conclusion in the case:

"[W]e hold that a party seeking to intervene under Fed.R.Civ.P. 24, either as a matter of right or permissively, need not establish its own standing, in addition to meeting Rule 24's requirements, before the party can intervene so long as another party with constitutional standing on the same side as the intervenor remains in the case."

The Seventh, Eighth and D.C. Circuits have gone the other way, holding that an intervenor must establish its own standing, in addition to meeting Rule 24(a)(2)'s interest requirement, before intervening. Although the U.S. Supreme Court expressly mentioned this issue in Diamond v. Charles, 476 U.S. 54, 61, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), the Court left the matter unresolved, leaving the door open for the current circuit split.

Upcoming Class Action Conference

The ABA Tort Trial & Insurance Practice Section (TIPS), Toxic Torts and Environmental Law, Business Litigation, Medicine and Law, and Products, General Liability and Consumer Law Committees are sponsoring an upcoming conference entitled The Future of Class Action Litigaiton in America. On the heels of the passage of the Class Action Fairness Act, the program promises to cover all of the pressing issues surrounding this new statute as well as the other important issues within the class action area.

Many notable academic presenters will be participating, including Dean Edward Sherman of Tulane, and Professors Martin Redish, Richard Nagareda, Samuel Issacharoff, Howard Erichson, David Schwartz, Laura Hines, Tobias Wolff, and Garry D. Watson. Practitioners and members of the judiciary are slated to appear as panelists during the program as well.

The program runs from November 9 - 11, 2005 in Washington, D.C. To register, go to

Judge Constance Baker Motley Dies

Federal District Court Judge and civil rights giant Judge Constance Baker Motley (S.D.N.Y.) has died at the age of 84. I had the good fortune to meet Judge Motley during a hearing involving a discovery dispute when I was in practice. Needless to say I was shocked and saddened to hear this news.

See the story at

First Circuit holds that "Commenced" under CAFA Does Not Mean "Removed"

The First Circuit, in Natale v. Pfizer, Inc., 2005 WL 2253622 (1st Cir. Sep 16, 2005) (No. 05-2203) (per curiam), rejected the argument that an action is "commenced" under Section 9 of the Class Action Fairness Act (CAFA) on the date that a notice of removal is filed in the action. Instead, the term "commenced" means when the orginal action began, which under Massachusetts law is the date the civil action was "filed." Mass. R. Civ. P. 3 (stating that a civil action is commenced by filing of a complaint).

This decision brings the First Circuit in line with the two other circuits that have addressed the issue. See Knudsen v. Liberty Mut. Ins. Co., 411 F.3d 805, 806 (7th Cir.2005); Pritchett v. Office Depot, Inc., No. 05-0501, 2005 WL 1994020 (10th Cir. Aug.18, 2005), amending and superceding 404 F.3d 1232 (10th Cir.2005).

E.D. Ark. on "Commencement" under the Class Action Fairness Act (CAFA)

In Weekley v. Guidant Corp., --- F.Supp.2d ----, 2005 WL 2348476 (E.D. Ark. Sept. 23, 2005), a judge in the Eastern District of Arkansas, ruling on a motion for remand, had occassion to interpret the term "commencement" under Section 9 of the Class Action Fairness Act (CAFA). The plaintiff in the case had filed a unitary complaint against the defendants prior to the February 18, 2005 effective date of CAFA, but subsequently, on July 8, 2005, amended the complaint to allege a nationwide class action under Arkansas law. Defendants filed a notice of removal pursuant to 28 U.S.C. §§ 1332(d), 1446, and 1453, arguing that because the amended complaint represented the first time class action status was being sought, the filing of the amended complaint consituted "commencement" of a class action under CAFA.

The court rejected the defendants' argument, stating:

"Section 9 of the Class Action Fairness Act is about as clear and simple as a statute can be; it says that the Act 'shall apply to any civil action commenced on or after the date of enactment of this act.' Rule 3 of the Arkansas Rules of Civil Procedure, like Rule 3 of the Federal Rules of Civil Procedure, provides that an action is commenced by filing a complaint. Because Weekley filed her complaint before February 18, 2005, the Class Action Fairness Act does not apply to this civil action."

This simple and cogent analysis belies the fact that the issue of what "commencement" means under CAFA has been and continues to be the subject of much dispute. An Analysis & Perspective piece in the September 23 issue of U.S. Law Week provides a good review of the various arguments that have been raised and the judicial responses thereto. USLW subscribers can read the piece at The citation is USLW, Volume 06 Number 18 September 23, 2005, Page 677 ISSN 1529-8000.

Wednesday, September 28, 2005

Tobacco Company "Person Acting Under" FTC That Can Invoke Federal Officer Removal Statute

U.S. Law Week is reporting that Phillip Morris, "which was alleged to have committed state law deceptive trade practice by using 'lights' and 'lowered tar and nicotine' descriptors in conjunction with advertised tar and nicotine ratings developed by and published by agreement with Federal Trade Commission is 'person acting under' federal officer who may remove suit to federal court under 28 U.S.C. § 1442(a)(1)" according to the Eighth Circuit (Watson v. Philip Morris Cos., 8th Cir., No. 04-1225, 8/25/05).

U.S. Law Week
Volume 74 Number 9 Tuesday, September 13, 2005
Page 1140
ISSN 1522-4317

Tuesday, September 27, 2005

Allapattah & the Class Action Fairness Act

Professor Adam Steinman has recently posted his article, entitled Sausage-Making, Pigs' Ears, and Congressional Expansions of Federal Jurisdiction: Exxon Mobil v. Allapattah and its Lessons for the Class Action Fairness Act, which discusses two recent developments on the federal jurisdictional front: The Court's Section 1367 decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the new Class Action Fairness Act enacted earlier this year. Here is the abstract:

The first half of 2005 witnessed two watershed developments in federal jurisdiction: the Class Action Fairness Act (CAFA), which created a new source of federal jurisdiction for certain class actions, and Exxon Mobil Corp. v. Allapattah Services, Inc., which resolved an aspect of 28 U.S.C. 1367 (supplemental jurisdiction) that had deeply divided both the judiciary and academia. CAFA and 1367 pose the same fundamental question: how should courts interpret a statute whose literal text would expand federal jurisdiction far beyond what Congress apparently intended? While 1367's legislative history suggested an intent to legislatively overturn a single Supreme Court decision issued one year earlier, the text of the statute appeared to cast aside a number of well-established precedents that had limited the extent of federal jurisdiction over claims by new plaintiffs in diversity cases. Similarly, CAFA's legislative history indicated that Congress meant to expand federal jurisdiction only to certain large class actions with interstate dimensions, but the unambiguous text of CAFA authorizes removal of virtually every state court class action to federal court.

Since CAFA and 1367 raise similar interpretive problems, this article examines Allapattah to divine its lessons for interpreting CAFA. I conclude, however, that the Court sent mixed messages. The Court's language imparted an unmistakable endorsement of textualism - jurisdictional statutes should be read no more narrowly or broadly than the text provides. But the Court's ultimate conclusion confirmed that it is willing to compromise strict fidelity to the text in order to avoid expanding jurisdiction far beyond what Congress apparently intended. If courts heed Allapattah's words, they will apply CAFA's literal text and conclude that nearly all class actions filed in state court are subject to removal. But if courts heed Allapattah's actions, they will adopt a middle ground interpretation: CAFA would eliminate certain requirements that had impeded the removal of class actions in the past, but it would not create an independent basis for removing all state court class actions; rather, a basis for removal must exist elsewhere in federal law.

SCOTUS to Clarify the Limits of the Probate Exception to Federal Court Jurisdiction

BNA's Supreme Court Today reports that the U.S. Supreme Court has just granted review in Marshall v. Marshall, No. 04-1544, a case that will give the Court the opportunity to comment on the contours of the probate exception to federal court jurisdiction. Here are the questions presented as reported by BNA:

"Question(s) Presented: (1) What is scope of probate exception to federal jurisdiction? (2) Did Congress intend probate exception to apply when federal court is not asked to probate will, administer estate, or otherwise assume control of property in custody of state probate court? (3) Did Congress intend probate exception to apply to cases arising under Constitution, laws, or treaties of United States, including Bankruptcy Code, or is it limited to cases in which jurisdiction is based on diversity of citizenship? (4) Did Congress intend probate exception to apply to cases arising out of trusts, or is it limited to cases involving wills?"

Note that the widow in this case is the on-air personality known as Anna Nicole Smith.

73 U.S.L.W. 3694

Letter Transmitting Amendments to the Federal Rules of Civil Procedure

Here you will find the April 25, 2005 letter of the late Chief Justice Wm. Rehnquist transmitting several amendments to the FRCP for consideration by Congress. The letter includes approved amendments to Rules 6, 27, and 45 and to Rules B & C of the Supplemental Rules for Certain Admiralty and Maritime Claims.

Nonparty Compelled by Subpoena to Produce Confidential Data Gets Only Production Costs

U.S. Law Week is reporting that the Eleventh Circuit has held that a nonparty compelled by subpoena to produce confidential data in civil litigation is "reasonably compensated" under Rule 45(c)(3)(B) by recovery of its cost of production, not its usual licensing fee, at least when the commercial value of the data is preserved by a protective order. Klay v. All Defendants, 11th Cir., No. 04-13062, 9/16/05.

Monday, September 26, 2005

Judicial Conference Approves Federal Rules Amendments

Professor Lonny Hoffman reports:

"The Judicial Conference met on Tuesday and approved the Standing Committee's recommendations on various appellate, bankruptcy, civil, criminal and evidence rule amendments. For those of us with civ pro interests, in particular, the main changes concern electronic discovery. There's also a change to Rule 50 that now expressly permits a motion to be made under the rule before the close of all the evidence without having to renew it at the close of the evidence. The text of all of the rule amendments can be found by going to"