Federal Circuit Determines that Remand of Removed Case Based on a District Court's Rejection of Supplemental Jurisdiction Is not Reviewable

Per U.S. Law Week Volume 76 Number 20, Tuesday, November 27, 2007:

An order remanding a removed case in which the district court declined to exercise supplemental jurisdiction over state claims is not reviewable in federal appeals court, the U.S. Court of Appeals for the Federal Circuit held Nov. 13 (HIF Bio Inc. v. Yung Shin Pharmaceuticals Industrial Co., Fed. Cir., No. 2006-1522, 11/13/07).

Opening up a circuit split, Judge Arthur J. Gajarsa said that recent U.S. Supreme Court pronouncements on remands undercut other circuits' view that remands based on supplemental jurisdiction are distinguishable from those based on lack of subject matter jurisdiction and therefore fall outside the jurisdictional bar of 28 U.S.C. § 1447(d).

BNA Subscribers may read the full article by clicking here.

Seventh Circuit Applies Probate Matters/Domestic-Relations Exception to Federal Jurisdiction to Bar Suit Against Guardian of Incompetent Mother

Per Struck v. Cook County Public Guardian, --- F.3d ----, 2007 WL 4145845 (7th Cir. Nov. 26, 2007):

The plaintiff appeals from the dismissal of his suit, which the district court held was outside its jurisdiction. The complaint alleged that an Illinois state court had appointed a guardian for the plaintiff's mother because she was incompetent to manage her own affairs, and that the plaintiff had asked the court to revoke the guardianship because the guardian was abusing his mother, refusing to let him visit her, and denying him access to her records, mail, and assets. Turned down by the state court, he brought this suit in federal district court against the Cook County Public Guardian, the public official who had designated the guardian of the plaintiff's mother. The suit charges violations of both the plaintiff's and his mother's federal constitutional rights.

. . .

[T]he plaintiff does have a claim on his own behalf-that the guardian is preventing him from seeing his mother and by doing so is depriving him of liberty protected by the due process clause of the Fourteenth Amendment, liberty that he argues includes the right of an adult child to associate with his parent. Whether the argument has merit has split the circuits, as explained in Robertson v. Hecksel, 420 F.3d 1254, 1258-60 (11th Cir.2005), but remains an open question in this circuit. Jones v. Brennan, 465 F.3d 304, 308 (7th Cir.2006); Russ v. Watts, 414 F.3d 783, 790 (7th Cir.2005). We need not try to answer it in this case. For the preliminary question is whether the suit is barred by the doctrine that excepts from federal jurisdiction certain probate and domestic-relations cases, such as will contests, custody battles, and suits for divorce; and we think it is barred.

. . .

The res-the plaintiff's mother-is in the control of the guardian appointed by the state court, and decisions concerning the plaintiff's right of access to his mother and to her assets, her records, and her mail are at the heart of the guardian's responsibilities and are supervised by the court that appointed him. [O]ur plaintiff is seeking to remove into the federal court the res over which a state court is exercising control. That is the sort of maneuver that the probate/domestic-relations exception is intended to prevent. The dismissal of the plaintiff's federal suit is therefore AFFIRMED.

D.D.C. Certifies Direct Purchasers Suing Over Contraceptive

Per BNA's Class Action Litigation Report:

A federal court in Washington, D.C., Nov. 6 certified a class of drug wholesalers alleging two pharmaceutical companies agreed to hold a generic contraceptive drug off the market in violation of federal antitrust law (Meijer Inc. v. Warner Chilcott Holdings Co., D.D.C., No. 05-2195, 11/6/07).

Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia certified a class of "[a]ll persons or entities in the United States who purchased Ovcon 35 directly from Warner Chilcott at any time during the period April 22, 2004, through Dec. 31, 2006."

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SDNY Holds that Former Patients Lack Standing to Assert ADA Claim against Treatment Facility

Per Romano v. SLS Residential Inc., --- F.R.D. ----, 2007 WL 3145076 (S.D.N.Y. Oct. 10, 2007):

“Title III of the ADA proscribes discrimination against the disabled in public accommodations.” Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir.2004). “A private individual may only obtain injunctive relief for violations of a right granted under Title III; he cannot recover damages.” Id. at 86. Defendants move to dismiss plaintiffs' ADA claim, as well as their request for other injunctive relief, on the grounds that plaintiffs lack standing to seek injunctive relief. This Court agrees.

In order to establish standing, “first, the plaintiff must establish that he suffered an injury in fact, which is defined as an invasion of a legally-protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. Finally, a plaintiff must show that it is likely that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted).

“In order to establish an injury in fact necessary to a claim for injunctive relief, the moving party must demonstrate that a defendant's conduct is causing irreparable harm. This requirement cannot be met absent a showing of a real or immediate threat that the plaintiff will be wronged again.” “While past wrongs consist of evidence bearing on whether there is a real and immediate threat of repeated injury, past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.”

. . .

Here, plaintiffs were no longer patients at the facility at the time that they filed their complaint. In addition, plaintiffs reside in New Jersey, while the facility in question is in Putnam County. Moreover, plaintiffs have not alleged that they intend to use the facility again, or that they would be likely to use the facility but for the alleged wrongful conduct. Any injury plaintiffs allege, therefore, is speculative.

Plaintiffs argue that a ruling the plaintiffs lack standing would allow defendants to expel a plaintiff from their facility thereby mooting their claim and eliminating standing. This argument fails. In such a case, the question before the Court is the mootness of plaintiffs' claims, not standing, and the question before the court would be whether the harm alleged is capable of repetition yet evading review. In this case, plaintiffs do not have standing to seek an injunction in the first instance because any potential harm to them is entirely speculative.

Accordingly, plaintiffs lack standing to seek injunctive relief, and any claims for injunctive relief are dismissed. In addition, because only injunctive relief is available for plaintiffs' Title III ADA claims, these claims are dismissed.

Ninth Circuit Invalidates Class Arbitration Waiver Clause and Holds that the Invalidation Is Not Preempted by the FAA

Per Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d 976 (9th Cir. Aug. 17, 2007):

In this case, we consider whether a class arbitration waiver in New Cingular Wireless Service Inc.'s standard contract for cellular phone services is unconscionable under California law, and whether the Federal Arbitration Act preempts a holding that the waiver is unenforceable. We hold that the waiver is unconscionable, and, thus, unenforceable, and that the invalidation of the contract provision is not preempted by the Federal Arbitration Act. Accordingly, we reverse the district court's order compelling arbitration.

Class Action Suit Filed in M.D. Tennesee against Hannah Montana Fan Club

Disgruntled members of a fan club devoted to entertainer Miley Cyrus a.k.a. Hannah Montana have initiated a class action lawsuit against the club claiming that promised preferential access to Cyrus concert tickets was not delivered.

The suit was filed in the U.S. District Court for the Middle District of Tennessee and seeks triple damages for class members as well as attorneys' fees under the Tennessee Consumer Protection Act.

SCOTUS Grants Cert in Equal Access to Justice Act Case

The Supreme Court has granted cert in Richlin Security Service Co. v. Chertoff, No. 06-1717, which presents the following question: Under the Equal Access to Justice Act, may a prevailing party be awarded reimbursement of paralegal services at the market rate, or does the act limit reimbursement for paralegal services to a reimbursement rate based on the cost to the attorney? BNA subcribers may view more information about this case by visiting http://pubs.bna.com/ip/bna/lwt.nsf/StatusCasesGrantedRev.

Merck Settles Vioxx Claims; WSJ Publishes Several Articles Discussing the Settlement

Although it is by now old news that Merck has reached a $4.85 billion settlement in the Vioxx litigation, the Wall Street Journal has several good articles on the settlement that interested readers should review:

- Merck Vioxx Settlement by the Numbers
- Vioxx Settlement Vindicates Merck's Tactics
- Vioxx Settlement's Next Big Question: Who Makes What?

Milberg Weiss Named Class Counsel in Securities Fraud Action

Per BNA's Class Action Litigation Report (Volume 08 Number 21, November 9, 2007):

The U.S. District Court for the Eastern District of Pennsylvania Oct. 26 certified a class of investors in a securities fraud suit against Select Medical Corp. and its officials over alleged misrepresentations and omissions as to the impact of Medicare regulatory changes (Marsden v. Select Medical Corp., E.D. Pa., No. 04-cv-4020, 10/26/07).

Judge J. Curtis Joyner also appointed the law firm of Milberg Weiss Bershad & Schulman LLP as co-lead counsel, rejecting the defendants' argument that the recent criminal indictment of the firm makes it inadequate.

"[W]e agree with the number of other district courts that have declined to use the class certification stage to punish the firm for unproven allegations and have found the firm to meet the [Federal Rule of Civil Procedure] 23(a)(4) adequacy requirement," the court said (see In re Flag Telecom Holdings Ltd. Securities Litigation, S.D.N.Y., 9/4/07; In re Novastar Financial Securities Litigation, W.D. Mo., 2/8/07).

BNA subscribers may view the entire story by clicking here.

Fulbright & Jaworski Releases Findings of its Fourth Annual Litigation Trends Survey

This fourth installment of the F&J litigation survey has much to say about respondents' views of the impact of the 2006 e-discovery amendments to the FRCP. Readers interested in a summary of the findings may visit Robert Owen's post about the survey by visiting http://www.slaw.ca/2007/11/04/litigation-trends-survey-results/. The survey itself is available by visiting http://www.fulbright.com/index.cfm?fuseaction=correspondence.littrends07.

New York State Court Holds That Attorney-Client Communications Stored on Employer's E-mail Server Not Protected by A/C Privilege

Per Scott v. Beth Israel Medical Center Inc. --- N.Y.S.2d ----, 2007 WL 3053351 (N.Y.Sup.
Oct. 17, 2007):

Plaintiff Dr. Scott moves . . . for a protective order requiring defendants Beth Israel Medical Center and Continuum Health Partners Inc. (collectively “BI”) to return to plaintiff all e-mail correspondence between plaintiff and his attorney. . . .

On August 10, 2005, BI's counsel, Marvin Wexler of Kornstein Veisz Wexler & Pollard, LLP (“KVW”), sent a letter to plaintiff's counsel, Stuart Kagen of Paul, Weiss Rifkind Wharton & Garrison LLP (“PW”), asserting that BI was in possession of e-mail correspondence between Dr. Scott and PW pertaining to Dr. Scott's dispute with BI, as well as e-mails written between Dr. Scott and Cohen Lans LLP regarding a separate dispute. . . .

. . .

Dr. Scott argues that the e-mails are privileged under both the attorney client privilege and work product doctrine. BI counters that the e-mails were never protected by the attorney client privilege because Dr. Scott could not have made the communication in confidence when using BI's e-mail system in violation of BI's e-mail policy. BI also argues that both privileges were waived by Dr. Scott's use of BI's e-mail system.

. . .

The Court rejects Dr. Scott's argument . . . and holds that BI's e-mail policy is critical to the outcome here. . . . A “no personal use” policy combined with a policy allowing for employer monitoring and the employee's knowledge of these two policies diminishes any expectation of confidentiality. . . .

As there is no New York case on point to determine whether the communication here was made in confidence or not, we look for guidance to In Re Asia Global Crossing, which is a federal bankruptcy case virtually identical to this case and a case upon which both parties rely. In re Asia Global Crossing, Ltd., 322 B.R. 247 (S.D.N.Y.2005). In Asia Global, executives used their employer's e-mail system to communicate with their personal attorney concerning actual or potential litigation with the employer, the owner of the e-mail system. 322 B.R. at 256. The issue in the case was identical to the issue here. Id. at 251. The Court looked at a variety of federal cases which addressed whether an employee had a reasonable expectation of privacy in his or her office e-mail, but where attorney client privilege was not an issue. 322 B.R. at 257-258. The Asia Global Court concluded that, the attorney-client privilege would be inapplicable if “(a) ... the corporation maintain[s] a policy banning personal or other objectionable use, (b) ... the company monitor[s] the use of the employee's computer or email, (c) ... third parties have a right of access to the computer or emails, and (d) ... the corporation notif[ies] the employee, or was the employee aware, of the use and monitoring policies?” 322 B.R. at 257.

[The court found three of the four requirements satisfied, with the third requirement being irrelevant].

Seventh Circuit Notes Split Re Whether a District Court Has the Power to Award Attorneys' Fees as Costs Pursuant to FRAP 7 & 39(e)

Per Vaughn v. American Honda Motor Company Inc., --- F.3d ----, 2007 WL 3172068 (5th Cir. Oct. 31, 2007):

The district court did not affirmatively assess attorney's fees against the objectors, conditionally or otherwise, pursuant to a fee-shifting statute. We note in this regard that there is a split among the federal circuit courts as to whether a district court has the power to award attorneys' fees as costs pursuant to Rules 7 and 39(e) of the rules of appellate procedure when an underlying statute provides that attorneys' fees may be included as costs.^FN12 That issue is not before us today.

FN12. Compare In re Cardizem CD Antitrust Litig., 391 F.3d 812, 817 (6th Cir.2004) (determining whether attorneys' fees are included in “costs” by reference to the state statute that formed the basis of the suit), Pedraza v. United Guar. Corp., 313 F.3d 1323, 1333 (11th Cir.2002) (“[T]he meaning of ‘costs,’ as used in Rule 7, should be derived from the definition of costs contained in the statutory fee shifting provision that attends the plaintiff's underlying cause of action.”), and Adsani v. Miller, 139 F.3d 67, 75 (2d Cir.1998) ( “Adsani's argument that Rule 7 costs cannot include attorney's fees is also unavailing because the Copyright Act in section 505 of Title 17 allows attorney's fees to be levied ‘as part of the costs.’ ”), with Hirschensohn v. Lawyers Title Ins. Corp., No. 96-7312, 1997 WL 307777 *3 (3d Cir. June 10, 1997) (“[W]e conclude that Rule 7 does not authorize a bond to cover estimated costs of attorneys' fees.”), and In re Am. President Lines, Inc., 779 F.2d 714, 716 (D.C.Cir.1985) (“The costs referred to [in Rule 7] are simply those that may be taxed against an unsuccessful litigant under Federal Appellate Rule 39, and do not include attorneys' fees that may be assessed on appeal.”).

SCOTUS Denies Cert in Three Civil Procedure Cases

Today the U.S. Supreme Court denied review in three cases raising civil procedure issues:

Kirkland v. Tamplin:

Summary of Ruling Below--Plaintiff may not prosecute identical actions against same defendants in different courts at same time, and thus trial court properly granted defendants' motion to dismiss because plaintiff had filed complaint in different county, making same allegations against same defendants, 74 minutes before he filed present action; trial court did not abuse its discretion when it denied plaintiff's motions to recuse trial judges, because, upon reviewing record, there is no evidence of prejudice, bias, or improper conduct on part of judges.

Questions Presented--(1) Did courts below violate petitioner's due process and equal protection rights in their rulings on what constitutes simultaneous filing of two civil complaints? (2) Did courts below violate petitioner's due process and equal protection rights in their rulings on recusals of trial level judges?

Cavins v. Nat'l Union Fire Ins. Co.

Summary of Ruling Below--Notice of appeal whose caption states "Bill G. Cavins, et al.," and that states twice in body of filing that appellants are Bill Cavins and Colorado Casualty, does not make it objectively clear that two other, unnamed parties were also intended to be named as appellants, and thus, absent other documents, filed before deadline for noting appeal, indicating that such additional parties sought to appeal, court has no jurisdiction over appeal purportedly filed by such parties.

Question Presented--Did court of appeals err in holding that petitioners were not properly parties to appeal underlying this petition for writ of certiorari even though Federal Rules of Appellate Procedure allow counsel representing more than one party to use generic designations, such as "et al.," in caption or body of timely filed notice of appeal?

Pittman v. Dolton Police Dep't:

Summary of Ruling Below--Order granting civil rights defendants' motion to enforce oral settlement agreement, under which plaintiff agreed to accept $10,000 to dismiss lawsuit alleging unlawful search and seizure by police, is affirmed.

Questions Presented--(1) Does federal district court have inherent subject matter jurisdiction to hear defendant's motion to enforce settlement agreements? (2) Did federal district court abuse its discretion when it enforced settlement agreement without subject matter jurisdiction and dismissed case with prejudice? (3) Does federal district court have ancillary jurisdiction to enforce settlement agreement without other independent grounds for federal court jurisdiction to enforce settlement agreement?