Civil Procedure Commons^™

Revisiting Claim And Issue Preclusion In Washington, Kathleen M. Mcginnis

Washington Law Review

When it comes to the law of claim and issue preclusion, Washington courts and practitioners encounter rules and precedent that tend to be unnecessarily complicated, overly broad, and even—in some instances—simply wrong. Three decades ago, Professor Philip Trautman urged Washington courts to clarify and modernize the doctrine. A fresh look at the topic suggests that while courts have been receptive to the professor’s advice, the goal of a clear and usable body of preclusion law will require more work. Specifically, Washington courts should address three problems. First, they should simplify the test for claim preclusion, eliminating redundant and confusing elements …

Removal Jurisdiction Over Mass Actions, Mallory A. Gitt

Washington Law Review

The mass action provision in the Class Action Fairness Act of 2005 provides a federal forum for certain state court litigation that resembles class actions but otherwise could not be removed. The provision is triggered when state court plaintiffs propose a joint trial of common legal or factual issues. But defining what constitutes that triggering event has proved difficult for federal courts. They have not used a uniform framework to determine when they have subject matter jurisdiction over the purported mass action, and have lacked a common interpretation of the statutory language to begin the inquiry. That lack of coherence …

Pragmatism Rules, Elizabeth G. Porter

Articles

The Roberts Court’s decisions interpreting the Federal Rules of Civil Procedure are reshaping the litigation landscape. Yet neither scholars, nor the Court itself, have articulated a coherent theory of interpretation for the Rules. This Article constructs a theory of Rules interpretation by discerning and critically examining the two starkly different methodologies the Roberts Court applies in its Rules cases. It traces the roots of both methodologies, explaining how they arise from — and reinforce — structural, linguistic, and epistemological tensions inherent in the Rules and the rulemaking process. Then, drawing from administrative law, it suggests a theoretical framework that accommodates …

Amended Complaints Post-Twiqbal: Why Litigants Should Still Get A Second Bite At The Pleading Apple, Dane Westermeyer

Washington Law Review

The Supreme Court’s landmark decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have had a serious effect on the way that Rule 12(b)(6) Motions to Dismiss are handled in federal courts across the country. In the five years since Iqbal was handed down, scholars and practitioners alike have discussed the merits and effects of this decision at length. However, there has been very little—if any—discussion on the relationship between amended complaints and original complaints when it comes to this newly-minted plausibility standard. This Comment aims to examine and critique a post-Twiqbal practice regarding amended complaints that …

The New Class Actions In Japan, Michael J. Madderra

Washington International Law Journal

This comment provides the first journal publication on Japan’s new class action law, promulgated on December 11, 2013. In the past, Japanese attorneys used rules of joinder and other alternatives to form de facto class action lawsuits. This comment provides insight into the development of Japan’s new class action law through a discussion of the historical context in which it was created. After discussing the law and its development, this comment argues that Japan should examine U.S. jurisprudence to prepare for challenges to the new class action system. Comparing Japanese and U.S. class action systems is appropriate because of similarities …

"Carving At The Joints": Using Issue Classes To Reframe Consumer Class Actions, Jenna C. Smith

Washington Law Review

Achieving class certification in consumer litigation is a highly controversial and greatly debated area of civil procedure. Historically, certification under Federal Rule of Civil Procedure 23(b)(3) has been difficult to achieve due to the tension between the presence of individual issues and Rule 23(b)(3)’s predominance, superiority, and management considerations. The future of certification for Rule 23(b)(3) classes was further put in question with the United States Supreme Court’s landmark decision in Wal-Mart v. Dukes in 2011, which enhanced the level of scrutiny courts apply at the Rule 23(a) level of analysis. The Court’s 2013 decisions in Comcast Corp. v. Behrend …

Conformity In Confusion: Applying A Common Analysis To Wikipedia-Based Jury Misconduct, Matthew Fredrickson

Washington Journal of Law, Technology & Arts

In 2012, the United States Court of Appeals for the Fourth Circuit decided United States v. Lawson, a case of first impression about a juror’s use of Wikipedia during deliberations. Had this case been decided in the 1950s, the juror’s contact with the extra-record material during deliberations would have given rise to a presumption of prejudice in favor of the party claiming he was denied a fair trial. However, in the 1980s and 1990s, the United States Supreme Court seemed to eliminate that presumption and place the burden of proving prejudice on the party seeking a new trial. As …

Patent Prudential Standing, Xuan-Thao Nguyen

Articles

This Article is the first to focus on patent prudential standing. Patent prudential standing, a creation of the Federal Circuit, wastes precious resources and serves no sound policy goal. Under patent prudential standing, after many resources have been expended on the merits of a patent infringement case, parties face a reversal of course by the Federal Circuit’s ruling that the plaintiff, typically the exclusive licensee in a patent transaction, lacked standing to bring the case in the first place. Regardless that the plaintiff satisfies constitutional standing, the Federal Circuit propounds that the plaintiff must still meet patent prudential standing. The …

Googling Jurors To Conduct Voir Dire, J. C. Lundberg

Washington Journal of Law, Technology & Arts

During voir dire in Johnson v. McCullough, a medical malpractice case in Missouri, at least one juror failed to answer honestly a question about whether he had been a defendant or plaintiff in a lawsuit. After the verdict was entered, the plaintiff conducted a search on Missouri’s online case database and discovered that one of the jurors had been a defendant in a personal injury suit. In the resulting appeal, the Supreme Court of Missouri held that litigants should conduct a search in this database during voir dire, instead of waiting until after a verdict is entered. Johnson is …

Discernable Differences: A Survey Of Civil Jury Demands, M. Michelle Dunning

Washington Law Review

Under Washington State’s historic default rules, the civil jury consisted of twelve persons unless both parties expressly consented to a “less number.” The Washington Legislature reversed this presumption in 1972. Washington’s civil jury now consists of six persons, unless one of the parties files a specific demand for twelve. It appears, however, that litigants have refused to embrace this change; a survey of 2883 civil jury demands filed in King County Superior Court in 2009 to 2010 demonstrates that litigants overwhelmingly prefer twelve-member juries. This paper presents this survey’s results and explores what they might mean, positing seven considerations that …

Concrete Private Interest In Regulatory Enforcement: Tradable Environmental Resource Rights As A Basis For Standing, Danieli Evans

Articles

This Note proposes a novel solution to standing problems faced by environmental plaintifs seeking to enforce, or to compel agencies to enforce, environmental regulation. It argues that environmental plaintifs should be able to obtain standing to bring an Administrative Procedure Act (APA) review action or a citizen suit based on ownership of private tradable environmental resource rights, created by increasingly popular environmental privatization programs. These rights should operate as a basis for standing even for plaintifs who would otherwise be unable to meet standing requirements of individual injury, causation, and redressability. Relying on tradable rights to environmental resources as a …

What's Past Is Prologue? Why The Prison Litigation Reform Act Does Not—And Should Not—Classify Punitive Damages As Prospective Relief, Lisa Benedetti

Washington Law Review

The Prison Litigation Reform Act of 1995 (PLRA) arose from Congress’s intent to curb frivolous and institutionally invasive prisoner civil rights litigation. In furtherance of its goals, the PLRA limits the prospective relief prisoners can receive to such relief that is narrowly tailored to the federal rights violation at issue and the least intrusive means necessary to correct the violation, otherwise known as the need-narrownessintrusiveness standard. Under the PLRA, prospective relief includes all relief other than compensatory monetary damages. However, while the courts have frequently applied and interpreted the PLRA over the past decade, only one circuit has addressed whether …

Direct Examination: Lawyer As Director, Maureen A. Howard

Articles

A trial lawyer presenting her case in chief through direct examination is somewhat like a film director: the lawyer thoroughly analyzes the case and develops a plan for the most effective way to present the case to the jury to best advance her theme and theory. Just as no script would play out on film the exact same way in the hands of different directors, no case would be presented in exactly the same way by different trial lawyers. Yet there are constants to be found in the steps effective trial lawyers take during their case in chief when presenting …

Evaluating Columbia Pictures Industries V. Bunnell And The Role Of Ram Under The Federal Rules Of Civil Procedure On E-Discovery, Loren M. Hall

Washington Journal of Law, Technology & Arts

In 2007, the District Court for the Central District of California required the preservation of data stored in random access memory (RAM), which sparked significant commentary about the rapidly expanding realm of electronically-stored discoverable information. This Article addresses the impact of Columbia Pictures Industries v. Bunnell in the context of the duty to preserve and produce documents, and the scope of information that can be subject to e-discovery obligations. This Article also describes how the 2006 amendments to the Federal Rules of Civil Procedure provide a necessary limitation—reasonableness—on the costly and unrealistic preservation, and subsequent production, of electronic information. Furthermore, …

10 Tips For Getting Jurors To Talk, Maureen A. Howard

Articles

“Jury selection” is a misnomer because lawyers don’t actually get to “select” ideal jurors; they get a limited opportunity to “deselect” the worst prospective jurors. The goal of voir dire is to identify these jurors by uncovering their attitudes, beliefs, opinions, preconceptions, biases, and prejudices. To accomplish this, a lawyer has a difficult task: she must foster an honest, intimate conversation among strangers in a very public, formal environment.

Even honest jurors may give misleading answers during voir dire due to nervousness, inattention, faulty memory, or misunderstanding. The formal courtroom atmosphere can have a chilling effect at odds with the …

Ethical Considerations For Blog-Related Discovery, Jason Boulette, Tanya Dement

Washington Journal of Law, Technology & Arts

The rise in blogs (short for "Web-logs") has spawned a new world of considerations for lawyers and clients. At their foundation, blogs are Web sites that serve as online diaries and sounding boards. Blogs typically consist of posts, pictures, images, links, and other entries that run the gambit of subjects from politics to sports to literature to personal materials. The exponential rise in blogging stems from improvements in technology, the increasing sophistication of Internet users, and the low cost of creating and maintaining blogs. In the last several years, blogs have mushroomed in number and have achieved a measure of …

Appellate Review Of Discovery Orders In Federal Court: A Suggested Approach For Handling Privilege Claims, Cassandra Burke Robertson

Washington Law Review

The federal circuit courts of appeals have generally recognized that a party suffers real hardship when the district court erroneously orders it to disclose privileged information. Review of the disclosure order after final judgment is usually an insufficient remedy; once the information has been disclosed, it can never again be fully confidential. Consequently, the courts have struggled to provide a mechanism by which such orders can be immediately appealed. However, privilege orders presenting novel questions of law or issues of first impression do not clearly fit within the doctrinal requirements of the most common methods of interlocutory review. Appellate courts …

Sausage-Making, Pigs' Ears, And Congressional Expansion Of Federal Jurisdiction: Exxon Mobil V. Allapattah And Its Lessons For The Class Action Fairness Act, Adam N. Steinman

Washington Law Review

The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapantah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this …

Jurisdiction And Merits, Howard M. Wasserman

Washington Law Review

Federal courts frequently err by treating factual elements of substantive federal causes of action as going to the jurisdiction of the federal court. This arises most frequently as to elements in three federal causes of action: the quantum-of-employees element in employment discrimination claims, the "affecting commerce" element under the Sherman Act, and the state action requirement in constitutional actions. Courts treat the failure of one of these elements as a basis for dismissing an action for lack of subject-matter jurisdiction, rather than for failure to state a claim on the merits. The error in this characterization affects the time and …

First Things First: Federal Courts Should Determine The Legal Status Of Lloyd's Of London Syndicate Before Deciding The Syndicate's Citizenship For Diversity Purposes, John M. Brust

Washington Law Review

Lloyd's of London provides a marketplace where groups of underwriters form syndicates to insure risk. The United States Circuit Courts of Appeals have split on the question of how to determine whether a federal court has diversity jurisdiction over a controversy involving Lloyd's syndicates. In a diversity action, each party must have diverse citizenship from all opposing parties. Circuit courts disagree about which diversity of citizenship test applies to suits involving Lloyd's syndicates. The Second, Third, and Sixth Circuits have applied the real party in interest test. This test looks only to the citizenship of the parties that have a …

Foster V. Carson: The Ninth Circuit Misapplies The Capable-Of-Retention-Yet-Evading-Review Exception To The Mootness Doctrine And Lends A Free Hand To Budget-Cutting State Officials, Joshua C. Gaul

Washington Law Review

In Foster v. Carson, public defender organizations and indigent defendants sued the chief justice of the Oregon Supreme Court for suspending appointments of indigent defense counsel. Before the parties could fully litigate the case, the chief justice reinstated appointments. Subsequently, the United States Court of Appeals for the Ninth Circuit dismissed the case as moot and held that the exception to the mootness doctrine for cases capable-of-repetition-yet-evading-review did not apply. A case falls under that exception when the party resisting mootness demonstrates that it was not possible to fully litigate the action before it ceased and there is a …

Who Can Defend A Federal Regulation? The Ninth Circuit Misapplied Rule 24 By Denying Intervention Of Right In Kootenai Tribe Of Idaho V. Veneman, Stephanie D. Matheny

Washington Law Review

In Kootenai Tribe of Idaho v. Veneman, the United States Court of Appeals for the Ninth Circuit misapplied Rule 24 of the Federal Rules of Civil Procedure by denying intervention of right to organizations that had protectable interests in the adoption and implementation of the Roadless Rule. The court based its decision to deny intervention of right on its federal defendant rule, which bars intervention of right by parties other than the federal government to defend a challenge brought under the National Environmental Policy Act (NEPA). The Kootenai decision extended the reach of the federal defendant rule to include …

Traditional Equity And Contemporary Procedure, Thomas O. Main

Washington Law Review

This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …

A Review Of China's New Civil Evidence Law, Paul J. Schmidt

Washington International Law Journal

On December 21, 2001, China's Supreme People's Court promulgated landmark rules concerning the production and use of evidence in civil cases. These rules became effective on April 1, 2002 and apply to legal actions initiated after that date. The rules apply in all Chinese courts, from the high and intermediate level courts found at the provincial and prefecture level, down to the basic level courts found in rural counties and in urban districts. Of the eighty-three newly promulgated rules, more than half concern procedures for exchanging, confronting, investigating, or discovering evidence. Eleven are strict rules of evidence. The remainder is …

A Review Of China's New Civil Evidence Law, Paul J. Schmidt

Washington International Law Journal

On December 21, 2001, China's Supreme People's Court promulgated landmark rules concerning the production and use of evidence in civil cases. These rules became effective on April 1, 2002 and apply to legal actions initiated after that date. The rules apply in all Chinese courts, from the high and intermediate level courts found at the provincial and prefecture level, down to the basic level courts found in rural counties and in urban districts. Of the eighty-three newly promulgated rules, more than half concern procedures for exchanging, confronting, investigating, or discovering evidence. Eleven are strict rules of evidence. The remainder is …

Action Is An Action Is An Action Is An Action, Bradley Scott Shannon

Washington Law Review

The misuse of legal language is both rampant and problematic. This is particularly true with respect to the terminology employed by the Federal Rules of Civil Procedure. This Article begins with a general discussion of the importance of using proper legal terminology (with an emphasis on Rules terminology), followed by a discussion as to why, in spite of the problems caused by the misuse of legal terminology, such misuse persists. The Article then considers six Rules terms that should be familiar to every attorney—action, claim, averment, paper, dismissal, and judgment—and discusses the various ways in which these terms are being …

International Jurisdiction And Enforcement Of Judgments In The Era Of Global Networks: Irrelevance Of, Goals For, And Comments On The Current Proposals, Jonathan A. Franklin, Roberta J. Morris

Librarians' Articles

Last fall a Symposium at Chicago-Kent College of Law entitled "Constructing International Intellectual Property Law: The Role of National Courts," held on October 18-19, 2001, brought together scholars interested in a group of problems related to the relationship between harmonized rules of international civil procedure and diverse nationally-based rules of intellectual property. Subsequently, extensive discussions between the authors developed this Article into its present form.

Punitive Damages, Explanatory Verdicts, And The Hard Look, Richard W. Murphy

Washington Law Review

Juries in most American jurisdictions can inflict punitive damages awards against tortfeasors who have committed especially blameworthy torts. Sometimes their awards are startlingly large-multi-billion dollar awards have become increasingly frequent. Nonetheless, juries are generally under no obligation to explain their use of this vast power—a punitive damages verdict typically takes the form of an unexplained number. Courts can and should change this practice. Under Federal Rule of Civil Procedure 49(b) and analogous state rules, courts could require juries to return "explanatory verdicts" that set forth the bases for their punitive damages awards. Several advantages would flow from adopting this simple …

Service Of United States Process In Russia Under Rule 4(F) Of The Federal Rules Of Civil Procedure, Tatyana Gidirimski

Washington International Law Journal

When a potential Russian defendant is not present and cannot be served within the United States, U.S. litigants may be faced with the necessity of carrying out service of process in Russia. If the suit is brought in a U.S. district court, Rule 4(f) of the Federal Rules of Civil Procedure will govern service of process. Although Rule 4(f) provides a number of options for service of process abroad, only two of these options can be used to serve process in Russia. First, service may be done through a letter of request. In fact, Russian law requires foreign service of …

Bifurcation Unbound, Steven S. Gensler

Washington Law Review

The bifurcation of issues in a federal trial under Federal Rule of Civil Procedure 42(b) offers many benefits for both litigants and the judiciary. One of the greatest potential benefits of issue bifurcation is increased judicial efficiency. Frequently the jury's disposition of the first issue will obviate the need to try the remaining issues. Despite this efficiency potential, bifurcation is controversial. Historically, the opponents of bifurcation have leveled three primary criticisms against bifurcation: (1) that it skews verdict outcomes in favor of defendants, (2) that it infringes on the role of the civil jury, and (3) that it creates a …