Thursday, March 27, 2008

Boston College Law Review Publishes Article on Bell Atlantic v. Twombly

The Boston College Law Review has just published a piece by Professor A. Benjamin Spencer (Richmond/W&L) entitled Plausibility Pleading, 49 B.C. L. Rev. 431 (2008). Here is the Abstract:

Last Term, in Bell Atlantic Corp. v. Twombly, the U.S. Supreme Court dramatically reinterpreted Federal Rule of Civil Procedure 8(a)(2), which requires a “short and plain” statement of a plaintiff’s claim. The Court was unabashed about this change of course: it explicitly abrogated a core element of its 1957 decision in Conley v. Gibson, which until recently was the bedrock case undergirding the idea that ours is a system of notice pleading in which detailed facts need not be pleaded. Departing from this principle, the Court in Twombly required the pleading of facts that demonstrate the plausibility of the plaintiff’s claim. This Article explicates and offers a critique of the Court’s new jurisprudence of plausibility pleading. The Court’s new understanding of civil pleading obligations does not merely represent an insufficiently justified break with precedent and with the intent of the drafters of Rule 8. It is motivated by policy concerns more properly vindicated through the rule amendment process, it places an undue burden on plaintiffs, and it will permit courts to throw out claims before they can determine their merit. 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 with access to justice.

The article can be downloaded by visiting the Boston College Law Review website here.

Wednesday, March 26, 2008

The Supreme Court has decided the case of Hall Street Associates, L.L.C. v. Mattel, Inc., No. 06-989, a case pertaining to the role of the judiciary in reviewing arbitration awards under the Federal Arbitration Act. Here is an excerpt from the Syllabus of the case:

The Federal Arbitration Act (FAA), 9 U. S. C. §§9–11, provides expedited judicial review to confirm, vacate, or modify arbitration awards. Under §9, a court “must” confirm an award “unless” it is vacated, modified, or corrected “as prescribed” in §§10 and 11. Section 10 lists grounds for vacating an award, including where the award was procured by “corruption,” “fraud,” or “undue means,” and where the arbitrators were “guilty of misconduct,” or “exceeded their powers.” Under §11, the grounds for modifying or correcting an award include “evident material miscalculation,” “evident material mistake,” and “imperfect[ions] in [a] matter of form not affecting the merits.”

After a bench trial sustained respondent tenant’s (Mattel) right to terminate its lease with petitioner landlord (Hall Street), the parties proposed to arbitrate Hall Street’s claim for indemnification of the costs of cleaning up the lease site. The District Court approved, and entered as an order, the parties’ arbitration agreement, which, inter alia, required the court to vacate, modify, or correct any award if the arbitrator’s conclusions of law were erroneous. The arbitrator decided for Mattel, but the District Court vacated the award for legal error, expressly invoking the agreement’s legal-error review standard and citing the Ninth Circuit’s LaPine decision for the proposition that the FAA allows parties to draft a contract dictating an alternative review standard. On remand, the arbitrator ruled for Hall Street, and the District Court largely upheld the award, again applying the parties’ stipulated review standard. The Ninth Circuit reversed, holding the case controlled by its Kyocera decision, which had overruled LaPine on the ground that arbitration-agreement terms fixing the mode of judicial review are unenforceable, given the exclusive grounds for vacatur and modification provided by FAA §§10 and 11.


1. The FAA’s grounds for prompt vacatur and modification of awards are exclusive for parties seeking expedited review under the FAA. The Court rejects Hall Street’s two arguments to the contrary. . . .

2. In holding the §10 and §11 grounds exclusive with regard to enforcement under the FAA’s expedited judicial review mechanisms, this Court decides nothing about other possible avenues for judicial enforcement of awards. Accordingly, this case must be remanded for consideration of independent issues.

196 Fed. Appx. 476, vacated and remanded.

Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, and Alito, JJ., joined, and in which Scalia, J., joined as to all but footnote 7. Stevens, J., filed a dissenting opinion, in which Kennedy, J., joined. Breyer, J., filed a dissenting opinion.

Tuesday, March 25, 2008

Prof. Martin Posts Article Analyzing the Impact of PACER

Professor Peter Martin of Cornell Law School has recently posted an article entitled Online Access to Court Records - from Documents to Data, Particulars to Patterns on SSRN. Here is the abstract:

For over a decade the public has had remote access to federal court records held in electronic format, including documents filed by litigants and judicial rulings. First available via dial-up connections, access migrated to the Web in 1998. That and a succession of other improvements to the federal "Public Access to Court Electronic Records" system or PACER prompted the Administrative Office of the United States Courts to proclaim in 2001 that "the advancement of technology has brought the citizen ever closer to the courthouse." Unquestionably, what the Administrative Office of the U.S. Courts and Judicial Conference of the United States have built offers citizens, businesses, journalists, and scholars unprecedented access to the details of individual court proceedings. But to hold PACER in that frame is to miss much of its impact. Moreover, some of the gains one might hope or expect to flow from enhanced judicial transparency remain largely untouched by this system. The article explores PACER's evolution, larger impact, and unrealized possibilities. It then proceeds to examine why state courts are, in general, approaching online access to court records so differently.

This article can be downloaded by visiting

Monday, March 24, 2008

Profs. Rosen-Zvi and Fisher Publish Article on Overcoming Divide between Civil and Criminal Procedure

Professors Issacar Rosen-Zvi and Talia Fisher have recently published an article entitled Overcoming Procedural Boundaries in the Virginia Law Review, 94 Va. L. Rev. 79 (2008). Here is an excerpt from the Introduction:

The Article will not challenge (at least not directly) the distinction between substantive criminal law and civil law but rather will focus solely on procedure. It will argue that to the extent that detaching the two spheres is justified in substance, a parallel split in procedure is not necessarily entailed. We will argue that dissociating substantive civil and criminal law from procedure would better serve the goals of both. From a procedural standpoint, casting off the fetters of the legislature's obsolete categorizations would better realize the underlying objectives of the procedural system. From a substantive perspective, our proposed procedural model would decrease the ability of federal and state legislators to “civilize” some sanctions that belong in the criminal sphere while “criminalizing” other sanctions that belong in the civil sphere in order to reap procedural advantages.

Thursday, March 20, 2008

D. Arizona Holds That Copyright Nonregistration Argument Cannot Aid a Facial Attack on Subject Matter Jurisdiction

Per Bean v. McDougal Littell, --- F.Supp.2d ----, 2008 WL 660070 (D. Ariz. Mar. 06, 2008):

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction can take one of two forms. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979). It can be a “facial attack,” in which case “the challenger asserts that the allegations contained in [the] complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Or it can be a “factual attack,” in which case the challenger asserts that federal jurisdiction does not exist in fact. Id. Defendants have limited their motion to a facial attack.

In resolving a facial attack under Rule 12(b)(1), the district court must accept the allegations of the Complaint as true and draw all reasonable inferences in favor of the plaintiff. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). Such a jurisdictional attack will succeed “only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Denney v. DEA, 508 F.Supp.2d 815, 824 (E.D.Cal.2007).

Here, Bean alleges federal question jurisdiction under 28 U.S.C. §§ 1331 and 1338. Bean's Complaint states that McDougal infringed upon his copyrights in the photograph in violation of 17 U.S.C. § 501. Bean also claims that R.R. Donnelley violated his copyright under 17 U.S.C. § 106(1) by making unauthorized reproductions of the copyrighted photograph. Defendants, however, contend that the copyrights in the photograph were not properly registered and that, as a result, this Court does not have jurisdiction over Bean's copyright infringement claims.

It is true that in order for the Court to have subject matter jurisdiction over these claims, the photograph must have been properly registered with the Copyright Office. 17 U.S.C. § § 411(a), 412. However, whether the photograph was properly registered in fact is beyond the limited inquiry that a facial attack permits. Bean alleges that “[t]he copyrights in [the photograph] were registered before McDougal's improper and unauthorized use.” Accepting the allegations of the Complaint as true, and drawing all reasonable inferences in favor of the plaintiff, this allegation sufficiently alleges the jurisdictional prerequisite of registration. Thus, Bean's Complaint is sufficient on its face to invoke subject matter jurisdiction.

Monday, March 17, 2008

Prof. Dodson Posts Article on Bowles v. Russell

Professor Scott Dodson has just posted an article entitled The Failure of Bowles v. Russell on SSRN. Here is the Abstract:

This article, written for the Supreme Court Review issue of Tulsa Law Review, critiques Bowles v. Russell - perhaps last term's most underrated case - which characterized the time to file a civil notice of appeal as jurisdictional and therefore not subject to equitable excuses for noncompliance. In so holding, the Court overstated the supporting precedent, inflated the jurisdictional importance of statutes, and undermined an important recent movement to clarify when a rule is jurisdictional and when it is not. This did not have to be. The Court missed a golden opportunity to chart a middle course holding the rule mandatory but nonjurisdictional, which would have been more consistent with precedent while resolving the case on its narrowest grounds. This Article explains where Bowles went wrong, what it should have done, and how it may affect future questions on the jurisdictionality of rules and limits.

The full text version of this article may be downloaded by visiting

Wednesday, March 12, 2008

Ninth Circuit Affirms Denial of Attorney's Fees Following Successful Motion to Remand after CAFA Removal

Per Lussier v. Dollar Tree Stores, Inc., --- F.3d ----, 2008 WL 614407 (9th Cir. Mar. 7, 2008):

John Lussier and Mary Hawks, putative class representatives in litigation against Dollar Tree Stores, Inc., appeal the district court's denial of their request for attorney's fees following their successful motion to remand the underlying action after it had been removed by Dollar Tree pursuant to the recently enacted Class Action Fairness Act of 2005 (CAFA). 28 U.S.C. § 1332(d)(2) (2005).

. . .

When Dollar Tree removed, the Tenth Circuit's opinion in Pritchett v. Office Depot, Inc., 404 F .3d 1232, 1238 (10th Cir.2005) was the only circuit authority on the meaning of “commenced” in CAFA. Dollar Tree's removal arguments proceeded on the understanding that the action was commenced when it was brought in state court instead of upon removal, in accord with Pritchett's holding. Beyond this, as the district court stated, the issue of when an action is “commenced” under CAFA was one of first impression. While the court rejected Dollar Tree's novel arguments about the relationship among Or.Rev.Stat. § 12.020, Or. R. Civ. P. 3, and CAFA in light of CAFA's broadening of federal jurisdiction over class actions, it also found that Dollar Tree's position was reasonable. We cannot say that the district court abused its discretion in this. Lussier and Hawks point out that Dollar Tree offered no authority for its “bar to actions in the inverse” theory, and submit that it was wrong in distinguishing Pritchett because this case (like Pritchett's) commenced with the filing in state court. However, Pritchett said nothing about what any particular state's law provides in relation to CAFA. Dollar Tree's arguments were not otherwise clearly foreclosed. Consequently, we affirm the district court's denial of attorney's fees and costs.

Monday, March 10, 2008

E.D. Va. Cites Twombly in Rejecting Motion to Dismiss in Employment Discrimination Case

Per Chappell v. Virginia State University, Slip Copy, 2008 WL 611298 (E.D. Va. Mar. 5, 2008):

Rule 8(a) of the Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” “[A] complaint meets Rule 8's requirements if, in light of the nature of the action, the complaint sufficiently alleges each element of the cause of action so as to inform the opposing party of the claim and its general basis.” Chao v. Rivendell Woods, Inc., 415 F.3d 342, 348 (4th Cir.2005); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (finding that Petitioner's employment discrimination complaint was sufficient because it “alleged that he had been terminated on account of his national origin” and “detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination”).

Here, Chappell's First Amended Complaint alleges that she was not re-hired based on her race. Chappell outlines the basic facts surrounding her final contract, VSU's failure to re-hire her as a professor, and purported statements that, if true, could establish a racially discriminatory basis for her non-hiring. Despite VSU's protestations, “an employment discrimination plaintiff need not plead a prima facie case of discrimination” to survive a Rule 12 motion. Swierkiewicz, 534 U.S. at 515. Chappell has provided notice of her “claim and its general basis” sufficient to defeat the instant motion.

Wednesday, March 05, 2008

Prof. Counseller Posts New Article on Restyled Federal Rules

Prof. Jeremy Counseller has posted a new article entitled Rooting for the Restyled Rules (Even Though I Opposed Them) at the Civil Procedure Prof Blog. Here is the abstract:

The Restyling Amendments of December 1, 2007 made top-to-bottom changes to the text of the most important and successful set of rules in the American civil justice system. These amendments are the culmination of more than fifteen years of work by members of the Rules Committees and their style consultants. The goal of these Restylists was to redraft the Rules to improve style and clarity without changing meaning. In short, they sought to achieve “clarity without change.” The Restylists are confident they achieved this goal, but not everyone shares their confidence. Critics worry that the Restylists made unwanted changes to the law of procedure, despite their best efforts to avoid them. Critics also believe that improving merely the style and clarity of Rules did not justify the costs of transitioning from one set of rules to another and that the Restylists may have sacrificed other more important reforms on the altar of the Style Project. I have never been certain that the criticisms are accurate, but I decided that an improvement in the mere style of the Rules did not justify much uncertainty. For this reason, I joined other critics in opposing the enactment of the Restyling Amendments in an essay titled The Restyling of the Federal Rules of Civil Procedure: A Solution in Search of a Problem. Now that the Restyling Amendments are effective, however, I am rooting for their success and urging other critics to do the same. Whether the Restyling Amendments should have been adopted in the first place is now moot. The issue now is what we can do to maximize the chance that the Restyled Rules will succeed, despite their faults. This year alone, the Restyled Rules will affect the rights and obligations of hundreds of thousands of litigants. We must hope and work to ensure that the Rules function as their supporters believed they would rather than as critics like me feared they would. This article is a call to optimism and action. It calls for critics to be optimistic that the Rules will not be as problematic as we feared and provides the rationale for that optimism. This article also calls for action on the part of the Advisory Committee to eliminate the known and undesirable substantive changes resulting from the Restyling. This critical support and Advisory Committee action will help to ensure that the Federal Rules of Civil Procedure are a model of both clarity and procedure.

Monday, March 03, 2008

Senate Passes Evidence Rule 502

From the Federal Rulemaking web page:

On February 27, 2008, the Senate approved by unanimous consent without amendment S. 2450, a bill adding new Evidence Rule 502 to the Federal Rules of Evidence. See Sen. Rept. No. 110-264.

The legislation addresses waiver of the attorney-client privilege and work product protection and is identical to proposed Evidence Rule 502, which was approved by the Judicial Conference of the United States and transmitted to Congress for its consideration in September 2007.

Unlike other amendments to the federal rules of practice and procedure that take effect unless Congress acts affirmatively to modify, defer, or reject it, "[a]ny such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress." See 28 U.S.C. § 2074(b).