Civil Procedure Commons^™

Supplemental Jurisdiction Over Permissive Counterclaims And Set Offs: A Misconception, Douglas D. Mcfarland

Mercer Law Review

In the years prior to 1990, courts extended federal jurisdiction over joined claims and parties in an orderly system. Pendent jurisdiction allowed a plaintiff to join a state law theory of recovery to a federal question theory in the complaint when both arose from a "common nucleus of operative fact."Ancillary jurisdiction allowed a defendant to join a state law claim to a federal claim in a civil action when both arose from the same "transaction or occurrence." Since a compulsory counterclaim arose from the same "transaction or occurrence" and a permissive counterclaim did not, courts had no difficulty in holding …

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

The United States Supreme Court's landmark recalibration of class certification requirements in Wal-Mart Stores, Inc. v. Dukes, together with its broad approbation of class action waivers in arbitration agreements in AT&T Mobility LLC v. Concepcion, establishes 2011 as a watershed year in class action practice. During the year, the United States Court of Appeals for the Eleventh Circuit only began to deal with the ramifications of Dukes but addressed Concepcion's impact directly.

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2009 survey period yielded several noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of civil procedure, subject matter jurisdiction, arbitration, and statutory interpretation.

Ashcroft In A Defendant's Wonderland: Redefined Pleading Standards In Ashcroft V. Iqbal, Cassidy M. Flake

Mercer Law Review

The United States Supreme Court's decision in Ashcroft v. Iqbal is the Court's awaited clarification of its earlier decision in Bell Atlantic Corp. v. Twombly. In the wake of Twombly, courts and commentators debated its application to cases other than antitrust disputes. The Court announced in Iqbal that the Twombly complaint requirement of facial plausibility applies to all civil actions filed in federal court, not just antitrust cases. Accordingly, Iqbal currently governs the standards by which all plaintiffs in federal court must draft complaints to state a legally sufficient claim for relief and survive a defendant's motion to …

Substantive Due Process Rediscovered: The Rise And Fall Of Liberty Of Contract, David N. Mayer

Mercer Law Review

Perhaps no aspect of modem American constitutional law is as misunderstood as so-called substantive due process, and no period in American constitutional history is as misunderstood as the early twentieth century, when the United States Supreme Court applied the Due Process Clauses of the Constitution substantively to protect a right known as "liberty of contract." For a forty-year period known as the "Lochner Era" for its best-known Supreme Court decision, the Court declared unconstitutional a variety of state and federal laws that abridged a fundamental right of "liberty of contract" protected under the Due Process Clauses of the Fifth …

Standing Room Only: Federal Taxpayers Denied Standing To Challenge President's Faith-Based Programs In Hein V. Freedom From Religion Foundation, Inc., Patricia Mary Quinlan

Mercer Law Review

During the 2006-2007 Term, the United States Supreme Court addressed the issue of whether federal taxpayers have standing to challenge the constitutionality of executive expenditures that allegedly violate the First Amendment to the United States Constitution. In Hein v. Freedom from Religion Foundation, Inc., the plaintiffs, asserting standing based on their status as federal taxpayers, objected to the use of congressional appropriations to fund a faith-based program created by President George W. Bush as a violation of the Establishment Clause. Although no single analysis commanded five votes, a majority of the Court agreed to dismiss the case for lack …

Preventing And Reducing Costs And Burdens Associated With E-Discovery: The 2006 Amendments To The Federal Rules Of Civil Procedure, Jessica Debono

Mercer Law Review

On December 1, 2006, amendments to the Federal Rules of Civil Procedure (the "Rules") regarding the discovery of electronically stored information went into effect. This form of discovery is referred to as ediscovery. The 2006 amendments have significant effect on the obligations and responsibilities of parties, their lawyers, and the courts when dealing with discovery of electronically stored information. Specifically, the 2006 amendments affect how companies maintain, preserve, and produce electronically stored information. First, electronically stored information is now included in permissible discovery. Second, parties are required to "meet and confer" about the discovery of electronically stored information at the …

Copyright Infringement Litigation And The Exercise Of Personal Jurisdiction Within Due Process Limits: Judicial Application Of Purposeful Availment, Purposeful Direction, Or Purposeful Effects Requirements To Finding That A Plaintiff Has Established A Defendant's Minimum Contacts Within The Forum State, Daniel E. Wanat

Mercer Law Review

An action for an infringement of a copyright secured under the United States Copyright Act may raise issues of copyright ownership, a defendant's access to a plaintiff's work, and substantial similarities between a plaintiff's work and a defendant's work. When raised, the issues bear on the merits of a plaintiff's copyright claim against a defendant.

Suppose, however, that a copyright owner brought suit in the forum state against a nonresident defendant. The defendant's first defense may be based on the state's lack of personal jurisdiction. This defense implicates issues under the forum state's law and the Due Process Clause of …

Federal Rule 50: Medium Rare Application? Unitherm Food Systems, Inc. V. Swift-Eckrich, Inc., Leslie Eanes

Mercer Law Review

The year 2006 marked a historical year for the now seventy-year-old Federal Rule of Civil Procedure 50. In addition to an overhaul of the statutory language, which, absent contrary congressional action, became codified December 1, 2006, the Supreme Court issued its landmark opinion in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. In what seems to be a straightforward procedural dictate from the High Court, Unitherm has actually resulted in confusion among federal circuits anxious to follow its precedent.

Involuntary Commitment Of People With Mental Retardation: Ensuring All Of Georgia's Citizens Receive Adequate Procedural Due Process, Laura W. Harper

Mercer Law Review

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities. Many of these individuals are placed in institutions involuntarily through legal proceedings. Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning. Many disability advocates argue that segregation and institutionalization of people with mental retardation is not needed, although all do not agree. Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other …

Commission Control: The Court's Narrow Holding In Hamdan V. Rumsfeld Spurred Congressional Action But Left Many Questions Unanswered. So What Happens Now?, Thomas M. Gore

Mercer Law Review

By a 5-3 vote in Hamdan v. Rumsfeld, the United States Supreme Court held that the military commissions established by President George W. Bush to try al Qaeda members and other terrorists lacked the "power to proceed because [their] structure and procedures" violate the Uniform Code of Military Justice ("UCMJ") and the Geneva Conventions. In so holding, the Court exercised its power as a significant check on presidential power, but left many questions unanswered. In the wake of Hamdan, Congress enacted the Military Commissions Act of 2006 ("MCA"'). The answers to the questions not addressed by the Court …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2005 survey period yielded several noteworthy decisions relating to federal trial practice and procedure, many of which concerned issues of first impression in the Eleventh Circuit Court of Appeals. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, civil procedure, statutory interpretation, personal jurisdiction, subject matter jurisdiction, and other issues of interest to the trial practitioner.

Foreward: Of Offers Not (Frequently) Made And (Rarely) Accepted: The Mystery Of Federal Rule 68, Harold S. Lewis Jr., Thomas A. Eaton

Mercer Law Review

This Symposium brings together, from around the nation, eight civil rights and employment discrimination lawyers, four legal academics, and an eminent federal judge, all with deep experience and interest in the promise and pitfalls of Federal Rule of Civil Procedure 68. We gather to unravel a mystery. In an oversimplified nutshell, Rule 68, as construed, enables the defendants to say to the plaintiffs in employment discrimination and civil rights cases: "If you don't beat my offer at trial, you forfeit your right to any future statutory attorney fees." Rule 68 would, therefore, appear to give the defendants a significant incentive …

Jackson V. Birmingham Board Of Education And The Expansion Of Title Ix's Judicially Implied Private Right Of Action, Darl H. Champion Jr

Mercer Law Review

In Jackson v. Birmingham Board of Education, the United States Supreme Court departed from its current trend of hostility toward implying rights of action in federal statutes. In Jackson the Court held that there is an implied private right of action for retaliation under Title IX when a whistleblower is retaliated against for complaining about sex discrimination. As a result, the Court increased the protections to employees and students of funding recipients who report instances of sex discrimination.

Symposium On Frcp 68: Lessons From New Jersey, Albert Yoon

Mercer Law Review

I would like to begin by thanking the Mercer Law Review for the opportunity to participate in its Federal Rules of Civil Procedure 68 Symposium. Federal Rule of Civil Procedure 681 ("Rule 68") is an important topic, and it is an honor to discuss the rule with such distinguished attorneys, jurists, and fellow academics. The reach of Rule 68 is certainly wide, applying to all federal civil litigation. The effect of Rule 68, however, is small: most scholars and practitioners agree it has little bearing on how cases are litigated. If Rule 68, and offer-ofjudgment rules generally, are to have …

Appellate Practice And Procedure, K. Todd Butler

Mercer Law Review

This Article reviews federal appellate procedure developments in the Eleventh Circuit during the 2004 calendar yea. As is the case each year, perhaps the most important procedural matter the Eleventh Circuit Court of Appeals considered was its own federal subject matter jurisdiction and that of the district courts in the Eleventh Circuit. If a matter is within the subject matter jurisdiction of the federal courts, or the federal appellate jurisdiction of the Eleventh Circuit, then the final order rule, along with the exceptions to the final order rule, dominate the consideration of whether a decision is subject to review. The …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby L. Kent

Mercer Law Review

The 2004 survey period yielded several noteworthy decisions relating to federal trial practice and procedure, many of which concerned issues of first impression in the Eleventh Circuit Court of Appeals. This Article analyzes several recent developments in the Eleventh Circuit, including significant rulings in the areas of evidence, civil procedure, statutory interpretation, jurisdiction, as well as other issues of interest to the trial practitioner.

Appellate Practice And Procedure, Roland F. L. Hall

Mercer Law Review

This Article surveys noteworthy decisions addressing appellate practice and procedure handed down by the Georgia appellate courts. The reviewed decisions fall into the following categories: (1) appellate jurisdiction; (2) preserving the record; (3) notice of appeal; (4) timeliness of appeal; and (5) miscellaneous cases of interest. Although there were no dramatic developments during the survey period, the courts addressed several topics of interest to the practitioner, particularly in the areas of preserving issues for appeal and correctly drafting the notice of appeal.

Trial Practice And Procedure, Jason L. Crawford, J. Clay Fuller, Dustin T. Brown, Kate S. Cook

Mercer Law Review

During this survey period, the Georgia Supreme Court and Georgia Court of Appeals issued several noteworthy opinions on topics of interest to practitioners. This Article will address these judicial opinions that cover, among other topics, the issues of damages, immunity, the attorney-client relationship, indemnification, jurisdiction and venue, statutes of limitation, standing, and trial procedure. This Article will also address several developments in Georgia's statutory law impacting trial practice and procedure.

Appellate Practice And Procedure, William M. Droze, Suzanne F. Sturdivant

Mercer Law Review

In 2000 the United States Court of Appeals for the Eleventh Circuit was called upon to decide high profile and difficult issues. It helped determine the fate of young Elian Gonzalez and the course of President Bush and former Vice President Al Gore's legal battles for the presidency. Yet some of these decisions-and many others-turned on less sensational procedural questions. This Article examines the role that procedural issues have played in the court's recent opinions. It is intended to help practitioners gauge trends in the court's approach to interlocutory matters; timeliness of notice of appeal and presentation of argument; the …

Reeves V. Sanderson Plumbing Products: Stemming The Tide Of Motions For Summary Judgment And Motions For Judgment As A Matter Of Law, Trevor K. Ross

Mercer Law Review

In Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court addressed the evidentiary burdens required of a plaintiff in an ADEA case, holding that evidence leading the fact finder to reject the defendant's proffered legitimate nondiscriminatory reasons together with the elements of a prima facie case may meet a plaintiff's burden to show intentional discrimination. Additionally, the Court at last set forth the way in which judges may consider a motion for judgment as a matter of law without weighing the evidence, holding that a court should consider all the nonmovant's evidence drawing all reasonable inferences in favor of …

Trial Practice And Procedure, Philip W. Savrin

Mercer Law Review

This Article surveys the year 2000 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

• Constitutional Torts
• Removal Jurisdiction
• Intervention
• Jurisdiction
• Prison Litigation Reform Act
• Abstention and Removal of Bankruptcy Proceedings

Appellate Practice And Procedure, William M. Droze, Jeri N. Sute

Mercer Law Review

Rules of practice and procedure in appellate courts, such as the United States Court of Appeals for the Eleventh Circuit, significantly impact cases brought before those courts comprising the circuit. From enforcement of procedural rules requiring the timely filing of a notice of appeal to application of justiciability doctrines to determine a party's standing to bring a claim, issues of practice and procedure commonly arise at the court of appeals.

This Article explores the application of practice and procedure by the Eleventh Circuit during 1999. The topics discussed include appellate culling of appealable issues; appellate treatment of interlocutory matters; timeliness …

Personal Jurisdiction And The Internet: Waiting For The Other Shoe To Drop On First Amendment Concerns, Brian E. Daughdrill

Mercer Law Review

Believing that First Amendment concerns already receive sufficient protection from any "chilling effect," the Supreme Court has held that personal jurisdiction analysis should not contain additional levels of scrutiny in speech-oriented cases. Reasoning that the "actual malice" requirement for public figures enunciated in New York Times, Inc. v. Sullivan was sufficient protection, the Court has been content to analyze personal jurisdiction over nonresident defendants within the established but "imprecise inquiry," even when the defendant's speech or expression may be penalized by a claim for damages.

Enter Internet-based contacts. Courts attempting to impose traditional personal jurisdiction analysis on Internet-related contacts have …

Resolving The Conflict Between Receipt And Proper Service: Murphy Bros. V. Michetti Pipe Stringing, Inc., Jennifer N. Moore

Mercer Law Review

In Murphy Bros. v. Michetti Pipe Stringing, Inc., the United States Supreme Court resolved the conflict over what event triggers the removal period under 28 U.S.C. § 1446(b), proper service or receipt of a copy of the complaint. The Court held proper service begins the removal period.

Trial Practice And Procedure, C. Frederick Overby, Jason Crawford, Teresa T. Abell, Matthew E. Cook

Mercer Law Review

This survey period yielded several notable decisions covering the professional malpractice affidavit/pleading requirement, renewal actions, attorney-client relations, and the summary judgment standard. Refinements in the areas of insurance practice, jury qualifications, releases, default judgment, and privileges lend important guidance to practitioners, judges, and scholars in the area of trial practice and procedure. The most significant legislative development of trial practice and procedure addressed the longstanding "vanishing venue" doctrine.

City Of Chicago V. International College Of Surgeons: The Interplay Between Supplemental Jurisdiction And Cross-System Appeals, And The Impact On Federalism, Jacob Edward Daly

Mercer Law Review

In City of Chicago v. International College of Surgeons, the United States Supreme Court reversed a well-established rule in holding that federal district courts may exercise supplemental jurisdiction over state law claims for deferential review of local administrative agency decisions.

United States V. Ursery: The Long Arm Of The Law Gets Reattached, Brian C. Max

Mercer Law Review

In United States v. Ursery, the United States Supreme Court evaluated the constitutionality of in rem civil forfeitures when they are used with criminal proceedings in relation to a single act. Ursery was a consolidation of two cases, United States v. Ursery and United States v. $405,089.23 United States Currency, from the Sixth and Ninth Circuit Courts of Appeals, respectively.

Bennett V. Plenert: The Ninth Circuit's Application Of The Zone Of Interests Test To Citizen Suits Under The Endangered Species Act, Alyssa Wardrup

Mercer Law Review

The Ninth Circuit, in Bennett v. Plenert, ruled that plaintiffs' economic injury did not satisfy the requirements for standing under the citizen-suit provision of the Endangered Species Act ("ESA"). The Ninth Circuit imposed the zone of interests test in addition to Article III standing requirements. Under the ESA's citizen-suit provision, the zone of interests test means that plaintiffs must assert "an interest in the preservation of endangered species" to have standing. Plaintiffs appealed the Ninth Circuit's decision, and the Supreme Court has granted certiorari. The Court will likely resolve a division among the circuits in applying or not applying …

Miller V. Arkansas: Criminals Beware! Arkansas Uses An Objective Approach In Evaluating Pretextual Traffic Stops, Jason Watson

Mercer Law Review

In Miller v. Arkansas, the Arkansas Court of Appeals had to decide whether an officer's subjective intent would make an otherwise legitimate traffic stop and ensuing search pretextual. In December 1991, a confidential informant told Arkansas state police officer Roger Ahlf that Roger Miller was a cocaine dealer and was driving a black van on a suspended driver's license. After verifying this information, Officer Ahlf stopped Miller for driving on a suspended license. Ahlf then frisked Miller for weapons. During the frisk, the officer found an address book that contained less than 1.5 grams of marijuana residue. The officer …