Civil Procedure Commons^™

Removal Without Approval? Corporate Litigative Authority To Consent To Federal Removal Where Adverse Parties Are Co-Equal Shareholder Co-Directors, James M. Mcclure

William & Mary Business Law Review

The Case of Swart v. Pawar involved a novel question of law: can a president of a corporation claim authority on behalf of that corporation to consent to federal removal in a suit against a co-equal shareholder co-director even though that president lacks board approval or explicit authority from the business’s bylaws or charter? To address this question, the parties in Swart analogized removal to suit initiation and defense. Since the federal courts hearing the case did not assess the validity of these analogical arguments or a president’s removal authority generally, this Note evaluates the analogies as well as several …

Social Media, Manipulation, And Violence, Allyson Haynes Stuart

South Carolina Journal of International Law and Business

No abstract provided.

Wage Theft In Lawless Courts, Llezlie Green

Articles in Law Reviews & Other Academic Journals

Low-wage workers experience wage theft — that is, employers’ failure to pay earned wages — at alarmingly high rates. Indeed, the number of wage and hour cases filed in federal and state courts and administrative agencies steadily increases every year. While much of the scholarly assessment of wage and hour litigation focuses on large collective and class actions involving hundreds or thousands of workers and millions of dollars in lost wages, the experiences of individual workers with small claims have received little attention. Furthermore, scholarly consideration of the justice gap in lower courts, more generally, has often focused on debt …

#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman

NULR Online

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers—while …

When Can The Patent Office Intervene In Its Own Cases?, Saurabh Vishnubhakat

Faculty Scholarship

The rise of administrative patent validity review since the America Invents Act has rested on an enormous expansion of Patent Office authority. A relatively little-known aspect of that authority is the agency's statutory ability to intervene in Federal Circuit appeals from adversarial proceedings in its own Patent Trial and Appeal Board. The Patent Office has exercised this intervenor authority frequently and with specific apparent policy objectives, including where one of the adverse parties did not participate in the appeal. Moreover, until recently, there has been no constitutional inquiry into the Article III standing that the Patent Office must establish in …

Pro Se Appellants: Opportunities For Law Libraries, Liz Reppe

Dickinson Law Review (2017-Present)

This article is part of the 2018 Dickinson Law Review Symposium entitled “Access to Justice: Innovations and Challenges in Providing Assistance to Pro Se Litigants.” The author is the state law librarian for Minnesota who reports to the Minnesota Supreme Court. This article surveys various resources that Minnesota provides to unrepresented clients, including the website resources found here: https://perma.cc/R2DP-K9YB. The bulk of the article, however, focuses on Minnesota’s innovative in-person “Appeals Self-Help Clinics.” See https://perma.cc/Y2VN-H2L3.

The article’s discussion of Minnesota’s Appeals Self-Help Clinics begins by highlighting some of the factors that provided the impetus for the development …

Southworth V. Eighth Judicial Dist. Court, 134 Nev. Adv. Op. 20 (Mar. 29, 2018), Lucy Crow

Nevada Supreme Court Summaries

The court determined that Justice Court Rule of Civil Procedure 98 requiring appeals in small claims court to be filed within five days was jurisdictional and mandatory. The district court cannot use its discretion to expand the time to appeal.

Castillo V. United Fed. Credit Union, 134 Nev. Adv. Op. 3 (Feb. 1, 2018), Jocelyn Murphy

Nevada Supreme Court Summaries

The Court determined that (1) in a class action suit parties may not aggregate putative class member claims to reach the statutorily required jurisdictional amount for subject matter jurisdiction; (2) NRS § 104.9625(3)(b) permits an individual to combine the amount of sought statutory damages with the proposed deficiency amount in consumer transactions to obtain the jurisdictional amount for subject matter jurisdiction; and (3) district courts possess original jurisdiction over all claims for injunctive relief, even those that fail to meet the jurisdictional amount.

Opting Out Of Discovery, Jay Tidmarsh

Journal Articles

This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …

Dueling Grants: Reimagining Cafa’S Jurisdictional Provisions, Tanya Pierce

Georgia State University Law Review

More than a decade after Congress passed the Class Action Fairness Act of 2005 (CAFA), courts continue to disagree as to its application and meaning in a variety of situations, many of which have wide-ranging effects. This article considers a fundamental issue that arises after a certification decision is reached: whether a court’s subject matter jurisdiction under CAFA depends on a class being certified. Specifically, the article considers what happens when a federal court’s subject matter jurisdiction derives solely from CAFA’s minimal diversity jurisdiction provision and a request for class certification under Federal Rule of Civil Procedure 23 (Rule 23) …

Breaking Bad Briefs, Heidi K. Brown

Articles & Chapters

This article focuses on the practical effects of bad briefing on our legal process and suggests a holistic remedy: a system-wide commitment to striving to instill in law students and lawyers a respect for legal writing as, not only a fundamental competency of our chosen profession, but a talent that requires initial training, focused study, repeated practice, and conscious evolution throughout the arc of one’s legal education and career. Effective brief-writing is not as simple as a quick cut-and-paste job, a template download, or a stream-of-consciousness exercise, even for lawyers who repeatedly practice one type of case. Part I of …

Conformity And The Rules Of Civil Procedure: Lessons From Tennessee, Matthew Lyon

Matthew Lyon

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Jay Tidmarsh

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify a class, …

Deconstructing Juryless Fact-Finding In Civil Cases, Shaakirrah R. Sanders

William & Mary Bill of Rights Journal

In many states, legislatures have mandated juryless fact-finding in common law–based civil cases by imposing compensatory damage caps that effectively lessen the jury’s traditional and historic role as injury valuator. The primary purpose of most caps was to reign in “excessive” civil jury verdicts, which allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no legislatively imposed cap is triggered by a preliminary finding of excessiveness. Trial judges have no authority to determine whether application of a cap is just or fair to the (often) severely injured plaintiff. Despite a shared interpretive methodology with regards to the nature …

Disruptions' Function: A Defense Of (Some) Form Objections Under The Federal Rules Of Civil Procedure, Amir Shachmurove

Seton Hall Circuit Review

No abstract provided.

If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson

Seattle University Law Review

The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like to …

Spencer: Chief Justice John Roberts And The Loss Of Access To Justice, A. Benjamin Spencer

Popular Media

No abstract provided.

De Facto Class Actions: Plaintiff-And Defendant-Oriented Injunctions In Voting Rights, Election Law, And Other Constitutional Cases, Michael T. Morley

Faculty Scholarship

No abstract provided.

Cross-Cutting Conflicts: Developments In The Use Of Norwich Orders In Internet Defamation Cases, Robert Currie

Articles, Book Chapters, & Popular Press

The anonymity afforded to those wishing to post commentary on the internet has given rise to a number of procedural issues in Canadian case law. This paper focuses on one such issue: the need for prospective plaintiffs in defamation actions to "unmask" anonymous commentators in order to be able to bring proceedings against them. It tracks the increasing use of the "Norwich order," A.K.A an order for pre-action discovery, as a means of accomplishing this objective, by examining the leading case of Warman v. Fournier and analyzing how this issue has played out in litigation to date. It also considers …

Comin' Through The Rye: A Requiem For The Tennessee Summary Judgment Standard, Matthew Lyon, Judy Cornett, T. Panter

College of Law Faculty Scholarship

What must a defendant do to be granted summary judgment inTennessee? This question has given rise to a long, hotly contestedbattle over the proper role of summary judgment and, ultimately,who should bear the burden of producing evidence and when. Theevolution of Tennessee’s summary judgment standard—from theadoption of the Tennessee Rules of Civil Procedure in 1971 to theTennessee Supreme Court’s most recent interpretation of Rule 56 in2015—is a story of competing visions of the benefits and burdensassociated with civil litigation. How much time should an aggrievedparty have to marshal evidence in support of its claim? How muchtime and money should an …

The Necessary Narrowing Of General Personal Jurisdiction, William Grayson Lambert

Marquette Law Review

General personal jurisdiction allows a court to issue a binding judgment against a defendant in any case, even if the facts giving rise to the case are unrelated to that forum. In the six decades after International Shoe v. Washington, courts held that general jurisdiction existed whenever a defendant had substantial continuous and systemic contacts with the forum. This rule was narrowed significantly in 2011, however, when the Supreme Court in Goodyear Dunlop Tires Operations, S.A. v. Brown held that general jurisdiction was properly exercised only when a defendant had sufficient contacts to be “at home” in the forum.

Comin' Through The Rye: A Requiem For The Tennessee Summary Judgment Standard, Matthew Lyon, Judy M. Cornett, T. Mitchell Panter

Matthew Lyon

Joint And Several Jurisdiction, Scott Dodson, Philip Pucillo

Scott Dodson

Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Helfstein V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 91 (Dec. 3, 2015), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court determined that the six-month deadline to set aside a voluntary dismissal or settlement agreement found within NRCP 60(b) could not be extended, despite an allegation of fraud.

7 Things You Need To Know About: The American Court System, Corey A. Ciocchetti

Corey A Ciocchetti

These presentation slides cover the 7 most important things you need to know about the American Court System. They cover: personal jurisdiction, subject matter jurisdiction, removal, change of venue, and the steps in bringing a lawsuit.

D.R. Horton, Inc. V. Eighth Jud. Dist. Ct, 131 Nev., Adv. Op. 86 (October 29, 2015), Brandonn Grossman

Nevada Supreme Court Summaries

The Nevada Supreme Court considered a Petitioner home builder’s petition for writ relief and appeal of a district court order granting Respondent HOA’s ex parte motion for a stay and enlargement of time for service pursuant to NRS 40.647(2)(b). Ruling on Petitioner’s two writ petitions, the Court held the district court’s grant of a stay was not in error and the NRCP 41(e) five-year limitation period was tolled under the Boren exception to NRCP 41(e). Accordingly, the Court denied both writ petitions.

Joanna T. V. Nevada, 131 Nev. Adv. Op. 77 (Sep 24, 2015), Audra Powell

Nevada Supreme Court Summaries

The court considered whether NRCP 4(i)’s 120 day requirement for service of a summons applied to cases filed under NRS § 432B, for protection of children from neglect and abuse. The court held that the 120 day requirement does not apply to cases filed under 432B and denied the petition for a writ of mandamus to order the juvenile court to dismiss an abuse-and-neglect petition on that premise.

Sanders V. Sears-Page, 131 Nev. Adv. Op. 50, Scott Lundy

Nevada Supreme Court Summaries

The Court held that the district court erred in deciding not to strike an empaneled juror whose background implied bias, but who promised he could remain impartial. Moreover, the Court held the district court erred in allowing challenges for cause while the juror was present, and by allowing newly discovered evidence to be entered into evidence on the final day of trial.

Conflict Of Laws, James P. George, Susan T. Phillips

Susan T. Phillips

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflict cases from Texas state and federal courts during the Survey-period from November 1, 2011 through October 31, 2013. The Article excludes cases involving federal-state conflicts; intrastate issues, such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together …