Tuesday, July 31, 2007

Prof. Spencer Posts Article Critiquing Bell Atlantic v. Twombly on SSRN

Professor A. Benjamin Spencer, who is currently a Visiting Professor of Law at Washington & Lee and an Associate Professor at the University of Richmond, has just posted to SSRN an article criticizing the Supreme Court's recent overhaul of civil pleading doctrine in Bell Atlantic Corp. v. Twombly. The title of the piece is Plausibility Pleading. Here is the abstract:

Notice pleading is dead. Last Term in Bell Atlantic v. Twombly the Supreme Court dramatically reinterpreted Federal Rule 8(a)(2), which requires a “short and plain” statement of a plaintiff’s claim, to require the pleading of facts that demonstrate the plausibility of the plaintiff’s claim. The Court was unabashed about this change of course: it explicitly abrogated a core element of the classic case of Conley v. Gibson, a longstanding staple of first-year civil procedure courses and until recently the bedrock case undergirding the idea that ours is a system of notice pleading in which detailed facts need not be pleaded. This Article explicates the Court’s new jurisprudence of plausibility pleading and offers a critique that finds fault with several of its components. Beyond representing an insufficiently justified break with its own precedent and with the intent of those who drafted the language of Rule 8, the Court’s new understanding of the pleading obligations of plaintiffs is motivated by policy concerns more properly vindicated through the rule amendment process, places an undue burden on plaintiffs to present information not obtainable until at least some discovery has been permitted, and will permit courts to throw out claims before they can determine whether they are indeed groundless. Ultimately, the imposition of plausibility pleading further contributes to the civil system’s long slide away from its original liberal ethos towards an ethos of restrictiveness more concerned with efficiency and judicial administration than access to justice.

Those interested in downloading the full text of the article may do so by visiting http://ssrn.com/abstract=1003874.

Monday, July 30, 2007

8th Circuit Holds Indian Tribe Cannot Use Anticipated Tribal Immunity Defense as Basis for Invoking Federal Jurisdiciton over State Law Action

Per Oglala Sioux Tribe v. C & W Enterprises, Inc., 487 F.3d 1129 (8th Cir.(S.D.) Jun 11, 2007) (NO. 06-3480):

We will normally consider a claim to have arisen under federal law if a federal cause of action appears on the face a well-pleaded complaint. Oklahoma Tax Commission v. Graham, 489 U.S. 838, 840-41, 109 S.Ct. 1519, 103 L.Ed.2d 924(1989). Under the well-pleaded complaint rule, the existence of a federal cause of action depends upon the plaintiff's claim rather than any defense that may be asserted by the defendant. Id. The existence of a tribal immunity defense, for example, will not convert a claim based on state law into a federal cause of action, even though tribal immunity is a matter of federal common law and even if it might potentially resolve the case. Id. at 841, 109 S.Ct. 1519. As the Supreme Court held in Graham, which also involved tribal immunity, "it has long been settled that the existence of a federal immunity to the claims asserted does not convert a suit otherwise arising under state law into one which, in the statutory sense, arises under federal law." Id. (citing Gully v. First Nat'l Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936)).

. . .

Examining the realistic position of the parties, we conclude that the tribe is essentially seeking to interpose a federal defense against C & W's claims.

Thursday, July 26, 2007

10th Circuit Reverses Dismissal of Case With Prejudice Because District Court Did Not Consider the Ehrenhaus Factors

Per Nasious v. Two Unknown B.I.C.E. Agents, --- F.3d ----, 2007 WL 1895877 (10th Cir.(Colo.) Jul 03, 2007) (NO. 07-1105):
Employing Rule 41(b) to dismiss a case without prejudice for failure to comply with Rule 8 of course allows the plaintiff another go at trimming the verbiage; accordingly, a district court may, without abusing its discretion, enter such an order without attention to any particular procedures. See Petty, 591 F.2d at 617; accord Ciralsky v. C.I.A., 355 F.3d 661, 669-71 (D.C.Cir.2004). Dismissing a case with prejudice, however, is a significantly harsher remedy-the death penalty of pleading punishments-and we have held that, for a district court to exercise soundly its discretion in imposing such a result, it must first consider certain criteria. See Olsen, 333 F.3d at 1204; Gripe v. City of Enid, Okla., 312 F.3d 1184, 1188 (10th Cir.2002); see also Ciralsky, 355 F.3d at 669-70 (discussing the "harsh sanction" of dismissal with prejudice as opposed to dismissal without prejudice). Specifically, "[t]hese criteria include '(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.' " Olsen, 333 F.3d at 1204 (quoting Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994)); see also Gripe, 312 F.3d at 1188 (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.1992) (same) (hereinafter, the " Ehrenhaus factors").

Having reviewed the record, we find no indication that the district court considered the Ehrenhaus factors before dismissing Mr. Nasious's case. Though we can of course affirm a district court's dismissal based on our own independent assessment of its legal propriety, we find ourselves unable to do so in this case.

Tuesday, July 24, 2007

SLUSA Preempts Lenders' State Law Class Action Alleging Misrepresentations About Loans That Aren't ‘Covered Securities'

BNA's U.S. Law Week ( Vol. 76, No. 4) is reporting on U.S. Mortgage Inc. v. Saxton, 04-17494 (9th Cir. Jul. 13, 2007), a SLUSA preemption case. Here is their summary of the case:

The 1998 Securities Litigation Uniform Standards Act preempts lenders' state law class action against a real estate developer whose failed projects lost millions of dollars, the Ninth Circuit rules. The lenders argued that their claims were based on the developer's misrepresentations relating to their loans, not to SLUSA "covered securities," but the court says the state suit is barred under Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit.

Under Dabit, the alleged fraud need not be in connection with the plaintiff's purchase or sale of covered securities, but only "coincide" with anyone's purchase or sale, the court says. The developer's alleged misrepresentations relating to the plaintiffs' loans would have coincided with others' transactions in its publicly traded securities, and that suffices for SLUSA preemption.

Subscribers can read the full BNA report of the case by clicking here.

Monday, July 23, 2007

10th Circuit Finds District Court Did Not Abuse Its Discretion by Denying Plaintiff's Motion for Reconsideration

Per Beugler v. Burlington Northern & Santa Fe Ry. Co., --- F.3d ----, 2007 WL 1895471 (10th Cir. Jul. 03, 2007):

Finally, we address Mr. Beugler's contention that the district court erred by denying his Rule 60(b) motion. "Our task upon review" of a district court's denial of a Rule 60(b) motion "is to determine only whether the district court abused its discretion in denying such relief." Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1145 (10th Cir.1990). When doing so, we are mindful that Rule 60(b) "relief is extraordinary and may only be granted in exceptional circumstances." Amoco Oil Co. v. EPA, 231 F.3d 694, 697 (10th Cir.2000) (internal quotation marks omitted).

After reviewing the record, we are convinced that the district court's ruling was not an abuse of discretion. We agree with the district court's conclusion that the bulk of the "newly discovered evidence"--various affidavits and depositions and Mr. Beugler's responses to interrogatories--was not in fact "new" because it was known or discoverable before the court entered summary judgment in favor of Burlington Northern. Appellant is correct that the Public Law Board ruling in favor of Mr. Beugler was entered on March 25, 2005, nearly two months after the court granted summary judgment to Burlington Northern. The district court was nonetheless within its discretion to deny the Rule 60(b) motion, however, because the Public Law Board's ruling simply finds that Union Pacific violated Mr. Beugler's employment agreement. That finding is irrelevant to the dispositive question in this case: whether, and to what extent, Burlington Northern owed Mr. Beugler a duty of care.

The circumstances of this case are far from those exceptional enough to warrant Rule 60(b) relief. We therefore affirm the district court's denial of Mr. Beugler's motion.

Friday, July 20, 2007

S.D.N.Y. Finds Plaintiff's Claim Plausible; Denies Defendant's Motion to Stay Under Colorado River Doctrine

Per Vladimir v. Cowperthwait, Slip Copy, 2007 WL 1964157 (S.D.N.Y. Jul 03, 2007) (NO. 06 CIV 5863 JGK):

Based on the present allegations, the plaintiff has, at the very least, pleaded a plausible claim that the plaintiff was an intended third-party beneficiary of the Management Agreement between the defendants and Campbell and thus entitled to assert a claim for breach of the Management Agreement. See, e.g., Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595, 600 (2d Cir.1991) ("Where performance is to be rendered directly to a third party under the terms of an agreement, that party must be considered an intended beneficiary." (quoting Cauble v. Mabon Nugent & Co., 594 F.Supp. 985, 991 (S.D.N.Y.1984))); see also Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007) (stating that the plaintiff must plead "enough facts to state a claim to relief that is plausible on its face"); Cress v. Wilson, No. 06 Civ. 2717, 2007 WL 1686687, at *3-*4 (S.D.N.Y. June 6, 2007) (discussing the applicable standards on a motion to dismiss pursuant to Rule 12(b) (6)).

. . .

In the alternative, relying on the doctrine established in Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) and its progeny, the defendants seek to stay this action pending the resolution of a related proceeding in New York state court. See, e.g., Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15-16 (1983). However, "[f]ederal district courts have an unflagging duty to adjudicate matters properly within their jurisdiction, and are not to decline jurisdiction simply because the issues presented may be decided in another forum." Greater New York Metro. Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir.1993) (citing Colorado River, 424 U.S. at 813-14). "The obligation to shoulder the jurisdictional burden is not one lightly to be renounced. A district court may abdicate its duty only in exceptional circumstances." Id. (emphasis added); see also De Cisneros v. Younger, 871 F.2d 305, 307 (2d Cir.1989) (explaining the six factors that courts must consider in analyzing whether to grant a Colorado River stay).

In this case, carefully balancing all of the relevant factors and weighing the balance heavily in favor of exercising jurisdiction, the defendants have not established exceptional circumstances to warrant a Colorado River stay. In particular, although the state action is based on many of the same underlying facts as the federal action, the two cases present non-identical causes of action, thus undercutting any argument that the litigations are simply duplicative. Moreover, the state court action is presently stayed. Staying the federal action would, at least temporarily, preclude the plaintiff from proceeding in either forum on any claim for relief. In light of these circumstances and considering all of the other relevant factors, the defendants' request for a stay is denied.

Thursday, July 19, 2007

D.C. Circuit Reverses Itself on Taxing Nonphysical Personal Injury Damages

Per Murphy v. IRS , --- F.3d ----, 2007 WL 1892238 (D.C. Cir. July 03, 2007) (NO. 05-5139):

. . . [I]n 1996 the Congress amended § 104(a) to narrow the exclusion to amounts received on account of "personal physical injuries or physical sickness" from "personal injuries or sickness," and explicitly to provide that "emotional distress shall not be treated as a physical injury or physical sickness," thus making clear that an award received on account of emotional distress is not excluded from gross income under § 104(a)(2). Small Business Job Protection Act of 1996, Pub.L. 104-188, § 1605, 110 Stat. 1755, 1838. As this amendment, which narrows the exclusion, would have no effect whatsoever if such damages were not included within the ambit of § 61, and as we must presume that "[w]hen Congress acts to amend a statute, ... it intends its amendment to have real and substantial effect," Stone v. INS, 514 U.S. 386, 397 (1995), the 1996 amendment of § 104(a) strongly suggests § 61 should be read to include an award for damages from nonphysical harms. FN* Although it is unclear whether § 61 covered such an award before 1996, we need not address that question here; even if the provision did not do so prior to 1996, the presumption indicates the Congress implicitly amended § 61 to cover such an award when it amended § 104(a).

FN* As evidence the presumption is well-founded in this case, we note the House Report accompanying the 1996 amendment to § 104 explicitly presumes recoveries for nonphysical injuries would be included in gross income: Part of the section explaining the effect of the amendment is entitled "Include in income damage recoveries for nonphysical injuries." H.R.Rep. No. 104-586, at 143-44 (1996), reprinted in 1996-3 C.B. 331, 481-82.

Wednesday, July 18, 2007

8th Circuit Holds Defendant Has No Standing To Seek Injunction Based on Change of Custodial Placement

Per Meuir v. Greene County Jail Employees, 487 F.3d 1115 (8th Cir.(Mo.) Jun 06, 2007) (NO. 05-3394):

Next, Meuir also petitioned for injunctive relief against Greene County, seeking to end the Jail's unwritten pull-teeth-only policy. Article III of the United States Constitution confines the jurisdiction of federal courts to justiciable cases and controversies. U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "[S]tanding is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan, 504 U.S. at 560, 112 S.Ct. 2130. Courts are "obliged to examine standing sua sponte where standing has erroneously been assumed below." Adarand Const., Inc. v. Mineta, 534 U.S. 103, 109, 122 S.Ct. 511, 151 L.Ed.2d 489 (2001). Standing to seek injunctive relief requires a plaintiff, inter alia, to show a likelihood of a future injury. City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

The district court assumed Meuir had standing for injunctive relief. We find, however, that standing is lacking given Meuir's changed custodial placement. Meuir filed suit against Greene County *1120 four months after his transfer to Farmington, Missouri, some 200 miles away, where his dental ailments have been treated apparently without complaint. Meuir's deposition suggests that he expects to serve the remainder of his 15-year term of imprisonment in Farmington. No reason exists to suspect that Meuir will ever return to the Jail. Therefore, we conclude that Meuir lacks standing to challenge the alleged policy.

Tuesday, July 17, 2007

Northern District of New York Explains Rule 4(m) Standards For Timely Service Re Plaintiff Proceeding In Forma Pauperis

Per Gonzalez v. L'Oreal USA, Inc., --- F.Supp.2d ----, 2007 WL 1572087 (N.D.N.Y. May 24, 2007) (NO. 1:05-CV-01618LEKDRH):

Defendant alleges that service of the Summons and Complaint was not effected with 120 days after the Complaint was filed, as required by Rule 4(m) of the Federal Rules of Civil Procedure . Deft's Mem. of Law (Dkt. No. 15, Attach.5) at 4. Failure to serve a defendant within 120 days is grounds for dismissal, absent a showing of good cause. Fed.R.Civ.P. 4(M); Romandette v. Wheetabix Co., Inc. 807 F.2d 309, 311 (2d Cir.1986). Defendant did not receive the Complaint and Summons until August 17, 2006, 231 days after the Complaint was filed on December 29, 2005. Deft's Mem. of Law (Dkt. No. 15, Attach 5) at 4. Because Plaintiff successfully applied to proceed in forma pauperis, the 120 day period is tolled while the in forma pauperis application is pending. Sidney v. Wilson, 228 F.R.D. 517, 523 (S.D.N.Y.2005). Plaintiff's in forma pauperis application, filed on December 29, 2005, was granted on January 31, 2006; accordingly, to be timely, service had to be effected by May 31, 2006, 78 days before service was finally made.

Plaintiffs employed the United States Marshal's Service to serve process on Defendant. If a pro se plaintiff has made sufficiently diligent efforts to have the United States Marshal's Service serve a defendant within the relevant time period, then there is good cause for the plaintiff's failure to timely serve process. See Romandette, 807 F.2d at 311. In this case, Plaintiffs have not shown sufficiently diligent efforts to ensure that the service was effected. Plaintiffs originally provided the United States Marshal's Service with an incorrect address to serve Defendants. Process Receipt and Return (Dkt. No. 20, Ex. A). The United States Marshal's Service notified Plaintiffs on March 3, 2006 that service could not be effected at that address. Id. However, Plaintiffs did not provide the United States Marshal's Service with an alternate address under May 26, 2006, almost three (3) full months later. Letter (Dkt. No. 23, Ex. C). Although plaintiffs proceeding in forma pauperis are entitled to rely upon the United States Marshal to effect service, that reliance is not absolute; plaintiffs always retain the obligation to provide the process servers with the necessary information and to generally make diligent efforts. Because Plaintiffs did not meet this standard, the Complaint is subject to dismissal without prejudice.

Monday, July 16, 2007

7th Circuit Holds Defendant's Reasonable Basis for Removal Means Plaintiffs Lose Attorneys' Fees Award

Per Lott v. Pfizer Inc ., --- F.3d ----, 2007 WL 1804261 (7th Cir. June 25, 2007) (NO. 06-3372):
As a general rule, if, at the time the defendant filed his notice in federal court, clearly established law demonstrated that he had no basis for removal, then a district court should award a plaintiff his attorneys' fees. By contrast, if clearly established law did not foreclose a defendant's basis for removal, then a district court should not award attorneys' fees.

Here, the district court erred by awarding the plaintiffs' attorneys' fees because Pfizer's attempt to remove the case under CAFA was objectively reasonable. When Pfizer filed its notice of removal, no circuit court had rejected Pfizer's argument that the word "commenced" means the date on which a case is removed to federal court. A few district courts had rejected the argument, see Hankins v. Pfizer, Inc., No. CV-1797-ABC-RZ, 2005 U.S. Dist. LEXIS 17191, *3 (C.D.Cal. Mar. 25, 2005); Smith v. Pfizer, Inc., No. 05-CV-0112, 2005 WL 3618319, *5 (S.D.Ill. Mar. 24, 2005); Pritchett v. Office Depot, Inc., 360 F.Supp.2d 1176, 1180 (D.Colo.2005), but a number of other district courts had held, in cases decided shortly after Congress raised the amount in controversy requirement for diversity cases, that "commenced" means the date on which a case is removed to federal court. See Cedillo v. Valcar Enters. & Darling Del. Co., 773 F.Supp. 932, 939 (N.D.Tex.1991); Hunt v. Transport Indem. Ins. Co., No. Civ. 90-00041 ACK, 1990 WL 192483, *5 (D.Haw. July 30, 1990); Lorraine Motors, Inc. v. Aetna Cas. & Sur. Co., 166 F.Supp. 319, 323 (E.D.N.Y.1958). District court decisions, let alone conflicting district court decisions, do not render the law clearly established. See Anderson v. Romero, 72 F.3d 518, 525 (7th Cir.1995). Accordingly, Pfizer acted reasonably when it attempted to remove this case under CAFA.

Friday, July 13, 2007

D.C. Circuit Holds Virtual Representation Substitutes for Privity; Res Judicata Bars Suit to Obtain FAA Papers

Per Taylor v. Blakey, --- F.3d ----, 2007 WL 1791094 (D.C. Cir. June 22, 2007) (NO. 05-5279):

Courts now generally hold a nonparty's claim precluded by a prior suit based upon a particular form of privity known as "virtual representation." The idea is that some cases of successive litigation involve as a litigant "a nonparty [to the original action] whose interests were adequately represented by a party to the original action." Tyus, 93 F.3d at 454; cf. Martin v. Wilks, 490 U.S. 755, 762 n. 2, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989) ("[I]n certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party"). In those cases the party to the prior litigation is treated as the proxy of the nonparty, with the result that the nonparty is barred from raising the same claim. At this level of generality, the doctrine is not controversial. See Tice v. Am. Airlines, Inc. 162 F.3d 966, 971 (7th Cir.1998); see also Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 758 & n. 5 (1st Cir.1994).

. . .

An appropriate test for virtual representation must consider and balance competing interests in due process and efficiency. Too readily to find virtual representation risks infringing upon the nonparty's right to due process of law and departs from our "deep-rooted historic tradition that everyone should have his own day in court." Richards, 517 U.S. at 798. To find virtual representation under only very narrow circumstances, on the other hand, would expose defendants to the burden of relitigation, raise the possibility of inconsistent results, and compromise the public interest in judicial economy. See Parklane, 439 U.S. at 326; Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981). We believe these competing concerns can best be addressed by considering five factors in a test similar to that used by the Ninth Circuit in Irwin v. Mascott, 370 F.3d 924, 930 (2004). Like the Ninth Circuit, we believe identity of interests and adequate representation are necessary conditions. We do not, however, believe they are sufficient-a point to which our sister circuit did not speak. We therefore require in addition a showing of at least one of the other factors the Ninth Circuit identified as supporting virtual representation: a close relationship between the present party and his putative representative, or substantial participation by the present party in the first case, or tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment. As this approach clarifies, there can be no virtual representation absent an affirmative link between the later litigant and either the prior party or the prior case. Decisions finding virtual representation have often applied the factors we adopt today, see 18A WRIGHT ET AL., supra, § 4457 at 521-28 (collecting cases), and the parties generally agree they are appropriate factors to consider.

. . .

An appropriate test for virtual representation must consider and balance competing interests in due process and efficiency. Too readily to find virtual representation risks infringing upon the nonparty's right to due process of law and departs from our "deep-rooted historic tradition that everyone should have his own day in court." Richards, 517 U.S. at 798. To find virtual representation under only very narrow circumstances, on the other hand, would expose defendants to the burden of relitigation, raise the possibility of inconsistent results, and compromise the public interest in judicial economy. See Parklane, 439 U.S. at 326; Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981). We believe these competing concerns can best be addressed by considering five factors in a test similar to that used by the Ninth Circuit in Irwin v. Mascott, 370 F.3d 924, 930 (2004). Like the Ninth Circuit, we believe identity of interests and adequate representation are necessary conditions. We do not, however, believe they are sufficient-a point to which our sister circuit did not speak. We therefore require in addition a showing of at least one of the other factors the Ninth Circuit identified as supporting virtual representation: a close relationship between the present party and his putative representative, or substantial participation by the present party in the first case, or tactical maneuvering on the part of the present party to avoid preclusion by the prior judgment. As this approach clarifies, there can be no virtual representation absent an affirmative link between the later litigant and either the prior party or the prior case. Decisions finding virtual representation have often applied the factors we adopt today, see 18A WRIGHT ET AL., supra, § 4457 at 521-28 (collecting cases), and the parties generally agree they are appropriate factors to consider.

. . .

In this case the record before the district court at summary judgment indicated Herrick and Taylor had identical interests in obtaining the F-45 documents, which interests were adequately represented in Herrick's litigation; and they were close associates. The district court therefore did not err in holding the two were in privity.

Taylor has raised the same claim as had Herrick, and the Tenth Circuit's decision in Herrick's case was clearly a final judgment on the merits. The requirements for res judicata are therefore satisfied, and the decision of the district court is accordingly affirmed.

Thursday, July 12, 2007

Prof. Dodson on Bell Atlantic v. Twombly

Professor Scott Dodson has just posted an Essay to the Virginia Law Review's "In Brief" page that offers some thoughts on the recent case of Bell Atlantic, Corp. v. Twombly. Interested readers may access the essay by visiting http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf.

Tuesday, July 10, 2007

11th Circuit Remands Case Based On Erroneous Denial Of Petitioner's Rule 60(b) Motion

Per Zakrzewski v. McDonough, --- F.3d ----, 2007 WL 1892147 (11th Cir.(Fla.) Jul 03, 2007) (NO. 06-12804):

If Petitioner's 60(b) motion is not really a second or successive habeas petition, the district court has jurisdiction to consider the merits of the motion. In Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Supreme Court discussed criteria for determining when a Rule 60(b) motion in a habeas case should be treated as an attempt to circumvent the AEDPA limitations on second or successive petitions. The Court held that "a Rule 60(b)(6) motion in a § 2254 case is not to be treated as a successive habeas petition if it does not assert, or reassert, claims of error in the movant's state conviction." Id. at 538, 125 S.Ct. at 2651.

In this case, the district court erred in concluding that Petitioner's 60(b) motion was a successive habeas petition that the district court was without jurisdiction to hear. Petitioner's motion does not assert or reassert allegations of error in his state convictions. Thus, Petitioner's 60(b) motion is not a second or successive habeas petition, and the district court has jurisdiction to consider the motion and to decide its merits.

Though we express no opinion on the merits of Petitioner's motion, we note that our precedents set a high standard for granting postjudgment relief under Rule 60(b). " 'Fraud upon the court' ... embrace[s] only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir.1985). We encourage the district court to consider the following several questions of fact as it determines whether Petitioner has established "sufficiently extraordinary" circumstances, Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir.2000), that would entitle him to relief under Rule 60(b): (1) whether Nall made a material misrepresentation to Petitioner, upon which he relied to his detriment, regarding the filing of Petitioner's petition for habeas relief; (2) whether Nall made a material misrepresentation to the district court upon which it relied in its decision to appoint Nall as counsel; (3) whether Petitioner ratified any alleged wrongful acts by Nall; (4) whether and to what extent the district court considered the alleged misrepresentations of Nall when the district court denied Petitioner's motion for new counsel; (5) whether and to what extent the district court considered the alleged misrepresentations of Nall when the district court denied Nall's motion to withdraw; and (6) whether and to what extent the district court considered the alleged misrepresentations of Nall when the district court denied Petitioner's motion to proceed pro se.

Monday, July 09, 2007

M.D. Alabama Remands Case Based on Lack of Evidence that Amount in Controversy Exceeds $75,000

Per Jackson v. Peoples South Bank, Slip Copy, 2007 WL 1857169 (M.D.Ala . Jun 27, 2007) (NO. 2:06-CV-21-WKW):

Removal is proper pursuant to Title 28, section 1441 of the United States Code if a federal court would have had original diversity or federal question jurisdiction over the initial action. See 28 U.S.C. § 1441(a). The removing defendant has the burden of establishing the existence of federal jurisdiction. Leonard v. Enterprise Rent A Car, 279 F.3d 967 (11th Cir.2002). For purposes of diversity jurisdiction, a federal court has original jurisdiction over an action where there is complete diversity between the parties and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332. The court will analyze whether it has jurisdiction under 28 U.S.C. § 1332.

. . .

Defendant first posits that because plaintiffs borrowed $148,000, that such number alone satisfies the amount in controversy and is facially apparent from the complaint. Defendant misconstrues the relief requested by the plaintiffs. The plaintiffs admit that they have refinanced the $148,000 loan with a different lender, therefore there is no allegation that the plaintiffs were somehow cheated out of the sum. The gist of the complaint is not the plaintiffs' request for the totality of the loan, but compensation for excess monies paid for allegedly unauthorized "higher interest rates"; "additional monies [paid because of plaintiffs'] re-financ[ing] with a different lender"; costs incurred for the allegedly unauthorized overdraft; expenses incurred in this lawsuit; excess monies paid which plaintiffs "never received the full use and benefit from"; and mental distress and other damages. (Compl.¶ 8.) Nowhere in the complaint, most noticeably in the allegations of breach of contract, do plaintiffs request a refund of the totality of the loan. Morever, the only real dollar evidence of damages clearly appearing in the removal documents is the $1,600 overdraft.

Defendant also cites a litany of cases involving compensatory and punitive damages in the context of fraud and negligence as evidence that the amount in controversy exceeds $75,000. The Eleventh Circuit recently ruled such evidence speculative, doubting whether "[evidence regarding the value of other tort claims] is ever of much use in establishing the value of claims in any one particular suit." Lowery, 483 F.3d at 1221. The evidence submitted by defendant is just the sort the Eleventh Circuit directed the district courts to ignore. See id. (holding that evidence of other tort verdicts from outside sources is not within the contemplation of 1446(b)).

In order to overcome their heavy burden, the defendants must establish by a preponderance of the evidence that the amount in controversy exceeds $75,000. Nothing in the removal documents establishes a dollar amount for the plaintiffs' requested relief by that evidentiary standard. The court concludes that the defendants have not established by a preponderance of the evidence that the amount in controversy of this action exceeds $75,000. Therefore, the court lacks diversity jurisdiction even if a resident defendant is fraudulently joined.

Thursday, July 05, 2007

Northern District of New York Holds There Is No Private Right of Action Under the Adoption Assistance and Child Welfare Act

Per Alger v. County of Albany, New York, --- F.Supp.2d ----, 2006 WL 3402923 (N.D.N.Y. Nov 21, 2006):

Defendants County of Albany, Mary Anne Morrelle, Barbara Lynch, Deborah Kelsey and Andrea Burger (collectively the "Albany County Defendants") and Defendants Roman Catholic Diocese, St. Catherine's, and St. Anne's Institute argue that there is no private cause of action under the AACWA. Plaintiff disagrees, but, other than citing to some cases, fails to explain why. Plaintiff does not specify those portions of the AACWA she believes creates a private cause of action.

In Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118 L.Ed.2d 1 (1992), the Supreme Court held that one provision of the AAWCA, 42 U.S.C. § 671(a)(15), did not create a private cause of action. In 31 Foster Children v. Bush, 329 F.3d 1255 (11th Cir.2003), the Eleventh Circuit similarly concluded that 42 U.S.C. §§ 675(5)(D) and (E) do not provide rights enforceable under 42 U.S.C. § 1983. In LaShawn A. by Moore v. Barry, 144 F.3d 847, 850 n. 2 (D.C.Cir.1998), the United States Court of Appeals for the District of Columbia Circuit noted that the reasoning in Suter would extend to other provisions of the AACWA. The Fourth Circuit reached a similar conclusion in White by White v. Chambliss, 112 F.3d 731 (4th Cir .1997). Courts in this District similarly have held that the AACWA does not create a private cause of action. See Ingrao v. County of Albany, N.Y., No. 1:01-CV-730, 2006 WL 2827856 (N.D.N.Y. Oct.2, 2006) (McAvoy, Senior D.J.); Polite v. Casella, 901 F.Supp. 90, 93 (N.D.N.Y.1995) (McAvoy, C.J.); McMahon v. Tompkins County Dep't of Soc. Servs., No. 95-CV-1134 (RSP/GJD), 1998 WL 187421, at *5-*7 (N.D.N.Y. Apr.14, 1998) (Pooler, D.J.). See also Daniel H. v. City of New York, 115 F.Supp.2d 423, 428 (S.D.N.Y.2000); Olivia Y. ex rel. Johnson v. Barbour, 351 F.Supp.2d 543 (S.D.Miss.2004).

In 1994, Congress enacted legislation expressly upholding the ruling in Suter insofar as the Supreme Court held that § 671(a)(15) did not create a private cause of action. See 42 U.S .C. § 1320a-2a. Significantly, as courts in the Southern District of New York and the District of New Jersey have aptly noted,

"in 1996, Congress amended 42 U.S.C. § 674 by adding subsection (d) which explicitly provides that "[a]ny individual who is aggrieved by a violation of Section 671(a)(18) of this title by a State or other entity may bring an action seeking relief from the State or other entity in any United States district court." 42 U.S .C. § 674(d)(3)(A).... That Congress ... chose to amend 42 U.S.C. § 674 to include a private right of action under [ 42 U.S.C.] § 1983 for a state or other entity's failure to comply with 42 U.S.C. § 671(a)(18), but did not include the other various elements enumerated in 42 U.S.C. § 671(a) and relied upon by Plaintiffs, is strong evidence that Congress did not intend these other various State plan elements in 42 U.S.C. § 671(a) to confer rights enforceable pursuant to § 1983."

Charlie H. v. Whitman, 83 F.Supp.2d 476, 489 (D.N.J.2000) (emphasis in original; citations omitted). See also Daniel H., 115 F.Supp.2d at 428.

This Court agrees with and adopts the reasoning in the cases set forth above. Plaintiff fails to point out what specific provisions of the AAWCA create a private cause of action and explain why they would support a private claim. Accordingly, the Court finds that, with the exception of § 671(a)(18), the AAWCA does not create a private cause of action.

Section 671(a)(18) pertains to denying persons the ability to become adoptive or foster parents, or delaying or denying a foster care placement or adoption, on the basis of race, color, or national origin. Because no such discrimination is alleged here, § 671(a)(18) is inapplicable and the claims under the AAWCA must be dismissed.