Law Commons^™

Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

The forum defendant rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Pointing to the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) does not bar removal of a diversity action if a citizen of the forum state has been joined as a defendant but has not yet been served. The stratagem of removing before service to avoid the prohibition of § 1441(b)(2) …

Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

“Snap removal” is a stratagem used by defendants in civil litigation as an end run around the forum defendant rule. That rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Focusing on the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) allows removal of a diversity action when a citizen of the forum state has been joined as a defendant but has not …

Righting The Ship: What Courts Are Still Getting Wrong About Electronic Discovery, Tanya Pierce

Faculty Scholarship

What happens when law changes but courts and lawyers ignore the changes? On December 1, 2015, amendments to the Federal Rules of Civil Procedure went into effect. One of those amendments includes a sweeping change to Rule 37(e), dealing with the availability of sanctions in federal courts for lost or destroyed electronically stored information (ESI). In the last few years, however, a number of courts have interpreted the amended rule in ways at odds with its plain language and underlying policies, and a surprising number of courts continue to ignore the amended rule altogether. This article examines those trends and …

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

State, Bd. Of Architecture V. Dist. Ct., 135 Nev. Adv. Op. 49, Melissa Yeghiazarian

Nevada Supreme Court Summaries

The Court had two holdings in this case. First, a final decision for purposes of judicial review must contain a detailed finding of facts and conclusions of law by an administrative agency. Second, when a petition for judicial review is filed prematurely, it does not vest jurisdiction in the district court.

Marcus A. Reif V. Aries Consultants, Inc., 135 Nev. Adv. Op. 51 (Oct. 10, 2019), Joseph Adamiak

Nevada Supreme Court Summaries

The Court determined that, under NRS 11.258(1), a complaint is only void if it is served without a concurrent filing of attorney affidavit and export report.

Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino

Faculty Articles and Other Publications

This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read …

Kim V. Dickinson Wright, Pllc, 135 Nev. Adv. Op. 20, 442 P.3d 1070 (Jun. 13, 2019), Elizabeth Davenport

Nevada Supreme Court Summaries

The Court reversed the district court’s order granting the motion to dismiss and determined 28 U.S.C. § 1367(d), the statute of limitations for a state-law claim filed in federal court, stops running only while the claim is pending in federal court and for 30 days after the state-law claim’s dismissal. Further, Nevada’s litigation malpractice rule, which does not apply to non-adversarial or transactional representation, or before the attorney files a complaint, tolls a litigation malpractice claim’s statute of limitations until the underlying litigation is resolved and damages are certain, preserving the statute of limitations under NRS 11.207(1) which requires a …

Tricarichi V. Coöperatieve Rabobank, 135 Nev. Adv. Op. 73175 (May 2, 2019), John Bays

Nevada Supreme Court Summaries

The Court determined that (1) Walden v. Fiore did not overrule Davis v. Eighth Judicial Dist. Court, meaning that Nevada, under its long-arm statute, recognizes conspiracy-based theory personal jurisdiction and utilizes the conspiracy jurisdiction test as laid out in Gibbs v. Prime Lending and (2) Tricarichi failed to establish personal jurisdiction under either specific or conspiracy theory personal jurisdiction due to an inability to provide sufficient evidence connecting the respondents actions to Nevada.

State Dep’T Of Corr. V. Ludwick, 135 Nev. Adv. Op. 12 (May 2, 2019), Tayler Bingham

Nevada Supreme Court Summaries

The Court determined that (1) a hearing officer must also give deference to the agency’s determination that a crime is so serious that termination serves the public good, even when the agency has no published regulation dictating that outcome, and (2) an administrative hearing officer committed a clear error of law in relying, in any way, upon an invalid regulation to review an agency’s determination to terminate for a first-time disciplinary action.

Rose, Llc., V. Treasure Island, Llc., 135 Nev. Adv. Op. 19 (Jun. 6, 2019), Ben Coonan

Nevada Supreme Court Summaries

The Court found that (1) strict compliance with contract notice requirements is unnecessary if the defaulting party receives actual notice and no prejudice resulted from failure to comply strictly with the contract terms; and (2) a party is not necessary under NRCP 19 unless the other parties to the litigation cannot obtain complete relief in that party’s absence.

Boesiger V. Desert Appraisals, Llc, 135 Nev. Adv. Op. 25 (July 3, 2019), Jeff Garrett

Nevada Supreme Court Summaries

The Court held that Appellants provided insufficient evidence to show that Respondents had a duty to Appellant or breached their duty to Appellant. The Appellants failed to provide the required expert testimony necessary for a case concerning the professional conduct of a profession whose standards and procedures are not known to the public. Additionally, because the contract between the Appellants and the Respondents did not expressly name the Appellants as third-party beneficiaries, the Appellants do not have standing to request the contract be enforced.

Saticoy Bay Llc V. Nev. Ass’N Servs., 135 Nev. Adv. Op. 23 (Jul. 3, 2019), Katrina Fadda

Nevada Supreme Court Summaries

The Court held that (1) under Nevada's HOA foreclosure redemption statute NRS 116.31166(3) a homeowner may use proceeds from the foreclosure sale to go towards redemption of the property; and (2) that sufficient compliance with the statute is enough to satisfy the statute's requirements.

The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten

Journal Articles

Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases. It mines ERISA’s statutory text, rich legislative history, and historical context to supply an in-depth exploration of ERISA’s unique policy goal of providing employees “ready access to the Federal courts.” The Article then explains how forum selection clauses undermine this goal and thus should be invalid under controlling Supreme Court jurisprudence.

Demaranville V. Cannon Cochran Mgmt. Serv.’S, Inc., 135 Nev. Adv. Op. 35 (Sept. 5, 2019), Anya Lester

Nevada Supreme Court Summaries

The Court determined that the last injurious exposure rule determines the liability for occupational disease which is conclusively presumed to have resulted from past employment. Additionally, the Court held that death benefits are based on the employee’s wages earned while working for the employer to which the occupational disease is causally connected.

Due Process In International Antitrust Enforcement: An Idea Whose Time Has Come, Christopher S. Yoo

All Faculty Scholarship

The past year has witnessed an upsurge of international interest in due process in antitrust enforcement, reflected in two new comparative studies and International Competition Network’s (ICN’s) May 2019 adoption of its Recommended Practices for Investigative Process and Framework for Competition Agency Procedures and the Organization for Economic Cooperation and Development (OECD) Competition Committee’s discussion of the Draft Recommendation on Transparency and Procedural Fairness in Competition Law Enforcement in June 2019. This article reviews those developments, traces key differences among them, and looks ahead to what comes next.

Spar Bus. Serv.'S, Inc. Vs. Olson, 135 Nev. Adv. Opn. No. 40 (2019), Misha Ray

Nevada Supreme Court Summaries

As a matter of first impression, the Court found that the 45-day service requirement for review of administrative decisions is not a jurisdictional requirement because the statute allows for extension based on good cause. However, in the present case, appellant did not show good cause for late service. Thus, the Court affirmed the lower court’s dismissal of the petition.

The Claims And Limits Of Justice Scalia's Textualism: Lessons From His Statutory Standing Decisions, Michael P. Healy

Law Faculty Scholarly Articles

Two decisions written by Justice Scalia near the end of his life, Lexmark International Inc. v. Static Control Components, Inc., 572 U.S. 479 (2014), and Thompson v. North American Stainless, LP, 562 U.S. 170 (2011), reshaped the law of statutory standing and provide important insights into the claims and limits of textualism. These decisions have reshaped the law of statutory standing in three ways. They have changed the legal terminology; expanded the range of cases to which the zone-of-interests test applies; and changed the application of the zone-of-interests test when it applies to determine statutory standing. This Article …

21st Annual Open Government Summit: Office Of The Attorney General, Access To Public Records Act & Open Meetings Act, Attorney General State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

The Territorial Reach Of Federal Courts, A. Benjamin Spencer

Faculty Publications

Federal courts exercise the sovereign authority of the United States when they assert personal jurisdiction over a defendant. As components of the national sovereign, federal courts' maximum territorial reach is determined by the Fifth Amendment's Due Process Clause, which permits jurisdiction over persons with sufficient minimum contacts with the United States and over property located therein. Why, then, are federal courts limited to the territorial reach of the states in which they sit when they exercise personal jurisdiction in most cases? There is no constitutional or statutory mandate that so constrains the federal judicial reach. Rather, it is by operation …

Singapore, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

The Singapore Government recognises and is committed to legal aid as an integral part of access to justice. Sixty years ago in 1958, Singapore was the first country in Southeast Asia to enact a legal aid scheme, which provided for the establishment of the Legal Aid Bureau (LAB) to provide civil legal aid to persons of limited means. Over the course of independent Singapore’s history, legal aid as part of the overall access to justice has broadened significantly. Members of Parliament make regular calls for more people to qualify and receive government-funded legal aid. The government regards access to justice …

Adrift On Erie: Characterizing Forum-Selection Clauses, Kermit Roosevelt Iii, Bethan R. Jones

All Faculty Scholarship

Erie is one of our most famous cases, but also one of the most mysterious. It has become something of a Rorschach test, a pattern onto which scholars project their own concerns. This article presents a simple view of Erie as a case about power: first, who has the power to make certain laws and second, who has the power to interpret them. From this perspective, Erie has nothing to do with substance-procedure characterization—the topic now understood to be governed by Erie analysis. Indeed, early post-Erie cases describe Erie as concerned with power. The substance-procedure distinction enters the picture …

Procedure In Context, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

The Silliness Of Magical Realism, Kevin M. Clermont

Cornell Law Faculty Publications

Relative plausibility, even after countless explanatory articles, remains an underdeveloped model bereft of underlying theory. Multivalent logic, a fully developed and accepted system of logic, comes to the same endpoint as relative plausibility. Multivalent logic would thus provide the missing theory, while it would resolve all the old problems of using traditional probability theory to explain the standards of proof as well as the new problems raised by the relative plausibility model. For example, multivalent logic resolves the infamous ‘conjunction paradox’ that traditional probability creates for itself, and which relative plausibility tries to sweep under the rug.

Yet Professors Allen …

Pleading Poverty In Federal Court, Andrew Hammond

UF Law Faculty Publications

What must a poor person plead to gain access to the federal courts? How do courts decide when a poor litigant is poor enough? This Article answers those questions with the first comprehensive study of how district courts determine when a litigant may proceed in forma pauperis in a civil lawsuit. It shows that district courts lack standards to determine a litigant’s poverty and often require litigants to answer an array of questions to little effect. As a result, discrepancies in federal practice abound—across and within district courts—and produce a pleading system that is arbitrary, inefficient, and invasive.

The Article …

Substance, Procedure, And The Rules Enabling Act, A. Benjamin Spencer

Faculty Publications

The Supreme Court promulgates rules of procedure (based on the proposals of subordinate rulemaking committees) pursuant to the Rules Enabling Act. This statute empowers the Court to prescribe "general rules of practice and procedure," with the caveat that "[s]uch rules shall not abridge, enlarge or modify any substantive right." The Act is supposed to stand as a real constraint on what rules or alterations thereof the subordinate rulemaking bodies will consider or propose, as well as on how the Court will choose to interpret any given codified Federal Rule. However, the Act has not-to date-been employed to invalidate a promulgated …

Drummond Financial Serivces, Llc Et Al., Order On Summary Judgment Motions, John J. Goger

Georgia Business Court Opinions

No abstract provided.

Equitrade International, Inc. Et Al., Final Order Granting Defendant's Motion For Summary Judgment And Closing Case, John J. Goger

Georgia Business Court Opinions

No abstract provided.

John Souza Et Al., Order On Defendants' Motions For Summary Judgment, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

Samaca, Llc, Amended Order On Defendants' Motion For Attorneys' Fees And Expenses And Plaintiff Samaca, Llc's Cross Motion To Compel Arbitration Of Defendants' Motion For Legal Expenses, Alice D. Bonner

Georgia Business Court Opinions

No abstract provided.