Monday, November 30, 2009

Federal Rule Amendments Take Effect

Amendments to the time computation provisions of the Federal Rules of Criminal, Civil, Appellate, and Bankruptcy Procedure have been approved by the Supreme Court and become effective on December 1, 2009.

Most significantly, most time periods that are currently listed at 10 days, or in some cases 7 days, have been replaced with a time period of 14 calendar days, which includes weekends and holidays. This is designed to promote consistency throughout the rules and to eliminate any confusion regarding the exclusion of weekends and holidays for the time periods of “10 days or less.”

You can view the amended rules by clicking here.

Thursday, November 05, 2009

SCOTUS Wiki on Hertz Corp. v. Friend

Next week, SCOTUS is hearing oral arguments in Hertz Corporation v. Friend, a case that asks the Court to decide the meaning of "principal place of business" in 28 U.S.C. s. 1332, the diversity statute. The SCOTUS Wiki has a good summary of the case and links to related briefs here.

Wednesday, November 04, 2009

SCOTUS Blog Summarizes Shady Grove Oral Argument

SCOTUS Blog has this very helpful summary of the oral argument in the Erie/Hanna case, Shady Grove Orthopedic v. Allstate here.

Tuesday, November 03, 2009

Prof. Seinfeld Posts Article on Enumeration and Article III

Professor Gil Seinfeld (Michigan) has posted an Article entitled Article I, Article III, and the Limits of Enumeration on SSRN. Here is the Abstract:

Article I, § 8 and Article III, § 2 of the U.S. Constitution deploy parallel strategies for constraining the power of the federal government. They enumerate powers that the national legislature and judiciary, respectively, are permitted to exercise and thereby implicitly prohibit these two branches of government from exercising powers not enumerated. According to conventional thinking, this strategy has failed in connection with Article I and succeeded in connection with Article III. That is, it is widely acknowledged that Congress routinely exercises powers that are difficult to square with the Article I enumeration; but it is commonly thought that the subject matter jurisdiction of the federal courts is, in fact, limited to the nine categories of cases specified in Article III, § 2. If one examines the crucial cases governing the constitutional limits on federal court jurisdiction, however, it becomes apparent that the enumeration in Article III, § 2, like its cousin in Article I, does little work when it comes to reining in federal power. This is reflected most dramatically in the fact that the Supreme Court has never struck down a federal statute on the ground that it confers jurisdiction on the federal courts in cases lying outside the enumeration in Article III. Instead, over the years, Congress has enacted numerous jurisdictional statutes that push hard on the limits specified in Article III, § 2, and the Justices have consistently found ways — through a series of highly tendentious interpretive moves — to avoid deeming these provisions unconstitutional. This article explores the similarity of our practice under Articles I and III. It seeks to demonstrate, in particular, that despite the strict enumeration rhetoric that pervades the case law and scholarly commentary relating to federal court jurisdiction, the Supreme Court has shown little interest in keeping the federal courts within the subject matter limits of Article III, § 2.

This Article may be downloaded at

Monday, November 02, 2009

S.D.N.Y. Discusses Different Views Re Whether a Denial of Leave to Amend a Pleading is Dispositive or Nondispositive for Rule 72 Purposes

Per Sokol Holdings, Inc. v. BMB Munai, Inc., Slip Copy, 2009 WL 3467756 (S.D.N.Y. Oct. 28, 2009):

The Court of Appeals for the Second Circuit has not clearly stated whether a denial of leave to amend a pleading is dispositive or nondispositive for Rule 72 purposes. It recently suggested-but did not explicitly hold-that the “clearly erroneous” standard is appropriate for a denial of a motion for leave to amend a complaint. See Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir.2007). Yet, “some uncertainty and arguable differences of opinion” persist in this Circuit as to the proper standard of review of a Magistrate Judge's ruling denying a motion to amend. See Bridgeport Music, Inc. v. Universal Music Group, Inc., 248 F.R.D. 408, 410 (S.D.N.Y.2008); see also Wilson v. City of New York, No. 06-229, 2008 WL 1909212, at *4 (E.D.N.Y. Apr. 30, 2008) (collecting cases and noting that “[c]ourts in this Circuit are divided on the issue of whether, and under what circumstances, motions to amend a pleading are dispositive or nondispositive,” and that “[t]he Second Circuit has not yet ruled on the issue”); Lyondell-Citgo Refining, L.P. v. Petroleos de Venezuela, No. 02-0795, 2005 WL 883485, at *2-3 (S.D.N.Y. Apr. 14, 2005) (collecting cases).

The weight of opinion appears to favor treating such rulings as nondispositive, requiring a “clearly erroneous” standard of review. See, e.g., DiPilato v. 7-Eleven, Inc., No. 07-7636, 2009 WL 2633130, at *2 (S.D.N.Y. Aug. 25, 2009) (noting that the Court of Appeals has described a motion to amend as “nondispositive” and applying a “clearly erroneous” standard of review); see also Am. Stock Exch., LLC v. Mopex, Inc., 215 F.R.D. 87, 90-91 (S.D.N.Y.2002) (“[W]here magistrate judges prohibit a party from asserting a potential claim, courts tend to review the preclusion of such a claim under a ‘clearly erroneous' standard.”).

Some courts have nevertheless considered a denial of a motion to amend to be a dispositive decision, subject to a de novo standard of review. See, e.g., Covington v. Kid, No. 94-4234, 1999 WL 9835, at *2 (S.D.N.Y. Jan. 7, 1999) (finding that because magistrate judge's denial of leave to amend complaint foreclosed potential claims against defendants, it was dispositive); Champion Titanium Horseshoe, Inc. v. Wyman-Gordon Inv. Castings, Inc., 925 F. Supp 188, 189-90 (S.D.N.Y.1996) (finding that denial of leave to amend “actually ... is subject to reconsideration de novo, since it is dispositive of the proposed new claims”).