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Civil Procedure Commons™

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2015

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Institution
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Articles 31 - 60 of 259

Full-Text Articles in Civil Procedure

Perfect Plaintiffs, Cynthia Godsoe Oct 2015

Perfect Plaintiffs, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

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The Admissibility Of Hearsay Evidence In New York State Sex Offender Civil Commitment Hearings After State V. Floyd Y.: Finding A Balance Between Promoting The General Welfare Of Sexual Assault Victims And Providing Due Process Of Law, Brittany K. Dryer Oct 2015

The Admissibility Of Hearsay Evidence In New York State Sex Offender Civil Commitment Hearings After State V. Floyd Y.: Finding A Balance Between Promoting The General Welfare Of Sexual Assault Victims And Providing Due Process Of Law, Brittany K. Dryer

Fordham Law Review

    In twenty states throughout the country, the government may petition for the civil commitment of detained sex offenders after they are released from prison. Although processes differ among the states, the government must generally show at a court proceeding that a detained sex offender both suffers from a mental abnormality and is dangerous and that this combination makes a detained sex offender likely to reoffend. At such court proceedings, both the government and the respondent will present evidence to either the court or the jury on these issues. As in most court proceedings, hearsay evidence is inadmissible at sex offender …

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Preservation Rules In The Federal Courts Of Appeals, Ian S. Speir, Nima H. Mohebbi Oct 2015

Preservation Rules In The Federal Courts Of Appeals, Ian S. Speir, Nima H. Mohebbi

The Journal of Appellate Practice and Process

No abstract provided.

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Erie And Preemption: Killing One Bird With Two Stones, Jeffrey Rensberger Oct 2015

Erie And Preemption: Killing One Bird With Two Stones, Jeffrey Rensberger

Indiana Law Journal

The Supreme Court has developed a standard account of the Erie doctrine. The Court has directed different analyses of Erie cases depending upon whether the federal law in question is in the form of a federal rule (or statute) or is instead a judge-made law. But the cases applying the doctrine are difficult to explain using the standard account. Although the Court and commentators have noted that Erie is a type of preemption, they provide little, if any, rigorous analysis of Erie in light of preemption doctrines. This Article attempts to fill that void, offering an extended analysis of Erie …

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Rule 26(B)(1) Proportionality Amendment: Three Outcomes Will Be Contrary To The Advisory Committee's Stated Intent, Including Who Bears The Burden Of Proving Proportionality, Amii N. Castle Oct 2015

Rule 26(B)(1) Proportionality Amendment: Three Outcomes Will Be Contrary To The Advisory Committee's Stated Intent, Including Who Bears The Burden Of Proving Proportionality, Amii N. Castle

North Carolina Central Law Review

No abstract provided.

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Mandatory Process, Matthew J.B. Lawrence Oct 2015

Mandatory Process, Matthew J.B. Lawrence

Faculty Scholarly Works

This Article suggests that people tend to undervalue their procedural rights—their proverbial “day in court”—until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance— their perception of unfairness and accompanying negative emotional reaction—win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this happens, people will waive their procedural rights …

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Procedural Triage, Matthew J.B. Lawrence Oct 2015

Procedural Triage, Matthew J.B. Lawrence

Faculty Scholarly Works

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

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Michaels V. Pentair Water Pool & Spa, Inc., 131 Nev. Adv. Op. 81 (Oct. 1, 2015), F. Shane Jackson Oct 2015

Michaels V. Pentair Water Pool & Spa, Inc., 131 Nev. Adv. Op. 81 (Oct. 1, 2015), F. Shane Jackson

Nevada Supreme Court Summaries

The Court of Appeals considered an appeal from a district court order denying the plaintiff’s post-trial motion for a new trial, which alleged that the defendant’s attorney committed misconduct during closing arguments at trial. The Court held that the district court failed to make the detailed findings required by the Nevada Supreme Court for claims of attorney misconduct and remanded the case for the district court to reconsider the matter and make the necessary findings.

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Procedural Triage, Matthew J.B. Lawrence Oct 2015

Procedural Triage, Matthew J.B. Lawrence

Fordham Law Review

    Prior scholarship has assumed that the inherent value of a "day in court" is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a "day in court" can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

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"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz Oct 2015

"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz

Fordham Law Review

    This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both plaintiff …

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Watson Rounds V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 79 (Sept. 24, 2015), Lena Rieke Sep 2015

Watson Rounds V. Eighth Jud. Dist. Ct., 131 Nev. Adv. Op. 79 (Sept. 24, 2015), Lena Rieke

Nevada Supreme Court Summaries

NRS 7.085 allows a district court to make an attorney personally liable for the attorney fees and costs an opponent incurs when the attorney files, maintains or defends a civil action that is not well-grounded in fact or is not warranted by existing law or by a good faith argument for changing the existing law. The Court considered (1) whether NRCP 11 supersedes NRS 7.085 in sanctioning a law firm and (2) whether the district court abused its discretion in sanctioning the law firm under under NRS 7.085. The Court held NRCP 11 does not supersede NRS § 7.085 because …

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William Nathan Baxter V. Dignity Health, Et Al, 131 Nev. Adv. Op. 76 (September 24, 2015), Andrea Orwoll Sep 2015

William Nathan Baxter V. Dignity Health, Et Al, 131 Nev. Adv. Op. 76 (September 24, 2015), Andrea Orwoll

Nevada Supreme Court Summaries

The Court considered an appeal from a district court order dismissing a medical malpractice complaint. The Court held that because NRS § 41A.071 creates threshold requirements for bringing medical malpractice suits, it must be construed consistently with the liberal pleading requirements. The Court reversed and remanded.

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In Re Guardianship Of N.M., 131 Nev. Adv. Op. 75 (September 24, 2015), Daniel Ormsby Sep 2015

In Re Guardianship Of N.M., 131 Nev. Adv. Op. 75 (September 24, 2015), Daniel Ormsby

Nevada Supreme Court Summaries

The Court heard an appeal from a parent-appellant challenging a district court’s exercise of temporary emergency jurisdiction to appoint a temporary, non-parent, guardian and general, non-parent, guardian. Affirmed.

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

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.

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The Discovery Sombrero And Other Metaphors For Litigation, William H. J. Hubbard Sep 2015

The Discovery Sombrero And Other Metaphors For Litigation, William H. J. Hubbard

Catholic University Law Review

Little is known about discovery costs in civil litigation, particularly in regard to preservation—the duty to preserve relevant information when litigation is reasonably anticipated. This article is one of the first to present and analyze empirical evidence on the nature and costs of preservation and discovery. Using this data, the author proposes three new metaphors for civil litigation: the discovery sombrero, the preservation iceberg, and the long tail of litigation costs. These metaphors help demonstrate the sometimes surprising ways that the Erie doctrine, the role of technology in litigation, and the Federal Rules’ commitment to transsubstantivity interact with current challenges …

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Walk A Mile In The Shoes Of A Copyright Troll: Analyzing And Overcoming The Joinder Issue In Bittorrent Lawsuits, Kristina Unanyan Sep 2015

Walk A Mile In The Shoes Of A Copyright Troll: Analyzing And Overcoming The Joinder Issue In Bittorrent Lawsuits, Kristina Unanyan

The Journal of Business, Entrepreneurship & the Law

This Comment analyzes the issues surrounding joinder of copyright infringers who use BitTorrent, explores how joinder can be used and limited to create a more viable solution for copyright holders and consumers, as well as, supplements the sparse regulations that encompass joinder to create a rule that accommodates this technological era. Part II explains Copyright Law and the procedural aspects of a copyright infringement suit and joinder of defendants. Part III delves into the history of peer-to-peer (P2P) file-sharing lawsuits and provides an illustration of where case law rests today regarding P2P networks. Part IV describes the BitTorrent network and …

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Bergenfield V. Bac Home Loans Servicing, 131 Nev. Adv. Op. 68 (Sep. 10, 2015), Chelsea Stacey Sep 2015

Bergenfield V. Bac Home Loans Servicing, 131 Nev. Adv. Op. 68 (Sep. 10, 2015), Chelsea Stacey

Nevada Supreme Court Summaries

The Court held that when a district court dismisses a complaint but gives the plaintiff leave to amend the order it is not a final appealable judgment. In order for it to be a final appealable judgment, a plaintiff must give the district court written notice within 30 days that the plaintiff will not amend the complaint so the district court may enter a final, appealable order.

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Keep On Truckin', Uber: Using The Dormant Commerce Clause To Challenge Regulatory Roadblocks To Tncs, Boris Bindman Aug 2015

Keep On Truckin', Uber: Using The Dormant Commerce Clause To Challenge Regulatory Roadblocks To Tncs, Boris Bindman

Washington and Lee Law Review Online

No abstract provided.

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Suspicious Person Ordinances - Due Process Standards; Columbus V. Thompson, Joel R. Campbell Aug 2015

Suspicious Person Ordinances - Due Process Standards; Columbus V. Thompson, Joel R. Campbell

Akron Law Review

In the absence of circumstances involving First Amendment rights, we are left without guidelines as to the conduct which may be made criminal by local suspicious person ordinances. Because of this lack of adequate standards, a case by case determination of criminal conduct under the various ordinances is necessary. In Thompson the defendant's conduct was questionable and the court found the ordinance unconstitutionally vague. We can only hope that this decision has a sufficient impact upon law enforcement officials and local courts to minimize the injury resulting from vagueness.

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The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher Aug 2015

The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher

Akron Law Review

T HE REVOLUTION IS HERE! It has come quietly, almost without a murmur of opposition or civil discord. Indeed, many who will be most profoundly affected by it were not-are not even now, perhaps-aware of its coming. But it is here, nevertheless. The revolution in question, of course, relates not to some massive proletarian uprising which many today profess to see upon the horizon, but to the revolution in Ohio procedural law which became effective on July 1, 1970. For a revolution indeed it is, bringing changes so sweeping in their nature that the procedural law, both statutory and judge-made, …

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The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher Aug 2015

The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher

Akron Law Review

The revolution is here! It has come quietly, almost without a murmur of opposition or civil discord. Indeed, many who will be most profoundly affected by it were not-are not even now, perhaps-aware of its coming. But it is here, nevertheless. The revolution in question, of course, relates not to some massive proletarian uprising which many today profess to see upon the horizon, but to the revolution in Ohio procedural law which became effective on July 1, 1970. For a revolution indeed it is, bringing changes so sweeping in their nature that the procedural law, both statutory and judge-made, which …

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Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes Aug 2015

Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes

Akron Law Review

With the courts increasingly being the forum for legal disputes between those who demand change in the superstructure and those who represent (or are) the structure, a rather unfortunate by-product has evolved: a feeling that the courts can no longer adequately dispense justice.8 This manifests itself in beliefs that if one is prosecuted for activities that were designed to advance social change, either in violation of the law or not, that the individual will not be afforded a fair trial; 9 a reflection that the social or political activist will not be judged by an impartial jury….For the purposes of …

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Pleading Patents: Predicting The Outcome Of Statutorily Heightening Pleading Standards, Arjun Rangarajan Aug 2015

Pleading Patents: Predicting The Outcome Of Statutorily Heightening Pleading Standards, Arjun Rangarajan

Duke Law & Technology Review

The tension between an extremely barebones Federal Rules of Civil Procedure Form 18 for patent infringement lawsuits and Supreme Court case law through Twombly and Iqbal has made it difficult for courts to dismiss frivolous patent litigation at the complaint stage. In this article, I look at the Federal Circuit’s treatment of Twombly and Iqbal, empirically evaluate 12(b)(6) motions from various district courts, and summarize local patent rules from the Eastern District of Texas. I conclude that the biggest likely impact of statutorily heightening and defining patent pleading standards through the proposed Innovation Act would be to provide much-needed uniformity …

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The Prevailing Party Should Recover Counsel Fees, Michael F. Mayer, Wayne Stix Aug 2015

The Prevailing Party Should Recover Counsel Fees, Michael F. Mayer, Wayne Stix

Akron Law Review

THE TIME HAS COME when our judicial system should make compensation to the prevailing party for expenses incurred in litigation a meaningful right, as opposed to a valueless gesture. In brief, this means that in the bulk of civil cases a successful party should no longer have to bear the full burden of his own counsel fees, and conversely those who take to our courts in vain should no longer be permitted to avoid the justice of substantial participation in the costs they have occasioned. To do this requires considerable alteration of the present cost structure applied by our rules …

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Barbara Ann Hollier Trust V. Shack, 131 Nev. Adv. Op. 59 (August 6, 2015), Patrick Phippen Aug 2015

Barbara Ann Hollier Trust V. Shack, 131 Nev. Adv. Op. 59 (August 6, 2015), Patrick Phippen

Nevada Supreme Court Summaries

On an issue of first impression, the Nevada Supreme Court held that the filing of a post-judgement motion which tolls the time to appeal also tolls NRCP 54(d)(2)(B)’s 20-day deadline to move for attorney fees. The Court further concluded that (a) the $100,000 offset in Hollier’s favor was not extinguished by the Court’s previous order and (b) only Acadian Realty is liable for attorney fees.

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Standing; Assertion Of Jus Tertii; Sex Discrimination; Equal Protection; Twenty-First Amendment; Craig V. Boren, Anthony Sadowski Aug 2015

Standing; Assertion Of Jus Tertii; Sex Discrimination; Equal Protection; Twenty-First Amendment; Craig V. Boren, Anthony Sadowski

Akron Law Review

"A PPELLANTS brought an action in the United States District Court for the Western District of Oklahoma seeking declaratory and injunctive relief. The complaint charged that the operation of two Oklahoma statutes, which prohibited the sale of 3.2% beer to males under the age of 21 while allowing females over the age of 18 to purchase the commodity, violated the fourteenth amendment to the Federal Constitution. The three-judge court held that the gender-based classification did not violate the equal protection clause. In Craig v. Boren, on direct appeal, the United States Supreme Court reversed, finding that the gender-based classification could …

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Federal Rules Of Civil Procedure; Statute Of Limitations; State Policy; Relation Back; Marshall V. Mulrenin, Gary I. Kruger Aug 2015

Federal Rules Of Civil Procedure; Statute Of Limitations; State Policy; Relation Back; Marshall V. Mulrenin, Gary I. Kruger

Akron Law Review

Some federal courts have followed the rule that amendments to correct misnomer or misdescription of a defendant will relate back where the proper defendant is in court. An amendment which substitutes or adds a new party, however, creates a new cause of action, and under such circumstances, there is normally no relation back to original filing for purposes of limitations.' Since the 1966 amendment of rule 15(c), however, a number of courts have permitted amendments substituting defendants after the statute of limitations has run.

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Town Of Barnstable V. O’Connor, Taylor R. Thompson Aug 2015

Town Of Barnstable V. O’Connor, Taylor R. Thompson

Public Land & Resources Law Review

The United States Circuit Court of the First Circuit’s decision in Town of Barnstable v. O’Connor reignites a hotly debated offshore wind plant proposal. The First Circuit held that the Ex parte Young exception to the Eleventh Amendment applied because the complaint alleged an ongoing violation of federal law and the relief sought was prospective. The court did not discuss the merits of the claim, so the fight against the proposed wind plant powers on.

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In Rem Jurisdiction; Due Process; Minimum Contacts; State Statutes; Shaffer V. Heitner, Richard S. Milligan Aug 2015

In Rem Jurisdiction; Due Process; Minimum Contacts; State Statutes; Shaffer V. Heitner, Richard S. Milligan

Akron Law Review

The decision of Shaffer v. Heitner marks a significant departure from established principles concerning in rem jurisdiction. No longer may a court take jurisdiction of a lawsuit merely by sequestering any property of the defendant that happens to be located in that state.

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In Rem Jurisdiction; Attachment Of Insurance Debts; State Statutes; O'Connorv. Lee-Hy Paving Corp., Eloise Lubbinge Mackus Jul 2015

In Rem Jurisdiction; Attachment Of Insurance Debts; State Statutes; O'Connorv. Lee-Hy Paving Corp., Eloise Lubbinge Mackus

Akron Law Review

The United States Court of Appeals, Second Circuit, in O'Connor v. Lee-Hy Paving Corp., upheld New York's insurance attachment procedure which serves as a vehicle for gaining personal jurisdiction over out-of-state defendants in causes of action that arise outside of New York. The court thereby determined that New York federal courts, in applying the procedures, had not violated defendant's due process because the minimum contacts requirement of the recent United Stated Supreme Court case, Shaffer v. Heitner, had been met.

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