Civil Procedure Commons^™

Clark Cty. Office Of The Coroner/Med. Exam'r V. Las Vegas Review-Journal, 134 Nev. Adv. Op. No. 24. (April 12, 2018) (En Banc), Tamara Cannella

Nevada Supreme Court Summaries

Under NRCP 62(d) and NRCP 62(e), state and local government appellants are generally entitled to a stay of a money judgment pending appeal, without needing to post a supersedeas bond or other security as a matter of right.

Justice Godfrey And The Rules: Procedure As Substance, L. Kinvin Wroth

Maine Law Review

At the end of 1994 Dean Edward S. Godfrey III stepped down from his teaching position as Professor Emeritus of the University of Maine School of Law. In honor of his service to Maine’s only law school, to the Maine Supreme Judicial Court, to the Maine Bar, and to the people of the State of Maine, the Board and Staff dedicate Volume 47 of the Maine Law Review to Dean Edward Godfrey. Reviews by Maine Law School faculty members of Dean Godfrey’s Law Court decisions in several areas of the law follow.

Fisco V. Department Of Human Services: The Inequity Of Equitable Defenses In Child Support Arrearage Cases, Rebecca C. Raskin

Maine Law Review

On August 8, 1995, using a federal law targeting the most egregious deadbeat fathers, FBI agents arrested Jeffrey Nichols for failing to pay approximately $580,000 in child support. Although the law is fairly new, the problem of child support enforcement has troubled this country for decades. In the early 1970s, child support enforcement was so inadequate that the federal government spent $7.6 billion annually on welfare to provide for single parents. The government has tried to remedy the problem, but seventy-five percent of custodial mothers in this country continue either to lack child support orders or to receive less than …

The Sleepwalker's Tour Of Divorce Law, John C. Sheldon

Maine Law Review

It's amazing what you can learn about modern divorce law from Nicholas Copernicus and Johannes Kepler. Copernicus was the 16th century churchman who dared to suggest that the sun, not the earth, lies at the center of the solar system. Kepler was the early-17th century mathematician whose three laws of planetary motion provided the foundation for modern cosmology. Neither of these pioneers had a clue what he was doing. A study of recent procedures, decisions, and statutes in Maine divorce law suggests that nothing has changed since Copernicus. Koestler could have written the same book just by attending a divorce …

Basic Trial Advocacy, Michael W. Mullane

Maine Law Review

Mary Crates taught me to “begin as you mean to go on.” Peter Murray's book is a good place to begin for those embarking on a life of trial advocacy. For those of us whose beginnings are distant and often painful memories, it is an excellent reminder of where we meant to go. Trial advocacy is an infinitely complex task. This simple fact is both its joy and curse. Teaching trial advocacy is equally difficult. There is no “never” and no “always.” There is a host of commonly accepted maxims, many of which are contradictory on their face and all …

Procedural Design, Alexandra D. Lahav

Vanderbilt Law Review

The procedural law dictates the sequence of steps that bring a lawsuit from filing to completion. The design of civil procedure in the federal courts is generally described as having the following sequential order: complaint, motion to dismiss, discovery, summary judgment, trial, and finally, appeal. While this is a passable description of the vision of the drafters of the Federal Rules of Civil Procedure in 1938, it no longer describes the reality of federal litigation. Jurisdiction can be determined at the end of the lawsuit rather than the beginning. Judges demand determination of factual disputes before discovery commences through a …

“Encroachments And Oppressions”: The Corporatization Of Procedure And The Decline Of Rule Of Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

This Article begins by providing a brief account of the corporatization of procedure through judicial decision-making and noting some of the detrimental effects it has had on the preservation of rule of law and access to justice. Part II goes on to explore how the judiciary does not retain full control over procedure and how corporate entities have little care for whether a procedural reform simply cuts back at litigation or goes further and cuts back at judicial power and the judicial role itself. To illustrate these points, Part II examines the most recent attempt at "procedural reform" by corporate …

Property Law And Civil Procedure--Establishing Precedent For Afha Enforcement And Revising Arkansas's Law On Punitive Damages. Watkins V. Turner, 2016 Ark. App. 158, 2016 Wl 903765, Tasha L. Strickland

University of Arkansas at Little Rock Law Review

No abstract provided.

Procedural Retrenchment And The States, Zachary D. Clopton

Cornell Law Faculty Publications

Although not always headline grabbing, the Roberts Court has been highly interested in civil procedure. According to critics, the Court has undercut access to justice and private enforcement through its decisions on pleading, class actions, summary judgment, arbitration, standing, personal jurisdiction, and international law.

While I have much sympathy for the Court's critics, the current discourse too often ignores the states. Rather than bemoaning the Roberts Court's decisions to limit court access-and despairing further developments in the age of Trump-we instead might productively focus on the options open to state courts and public enforcement. Many of the aforementioned decisions are …

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 …

The Limits Of Pro Se Assistance In Immigration Proceedings: Discussion Of Nwirp V. Sessions, Ryan D. Brunsink, Christina L. Powers

Dickinson Law Review (2017-Present)

This Article discusses issues regarding assistance of pro se litigants in the context of immigration law. In particular, Part II of this Article highlights programs such as the Legal Orientation Program (LOP) and Immigration Court Helpdesk (ICH) that attempt to alleviate some of the inherent difficulties non-citizen detainees face in immigration proceedings. Part III of this Article focuses on a 2008 Regulation by the Executive Office of Immigration Review (EOIR), which calls for discipline against attorneys that engage in a pattern or practice of failing to enter a Notice of Appearance when engaged in practice or preparation. Lastly, Part IV …

“Pfa” Record Expungement As A Tool For Settlement: Due Process And The Pennsylvania Protection From Abuse Act, Kyle Semroc

Dickinson Law Review (2017-Present)

The Pennsylvania Protection from Abuse Act (PFAA) empowers victims of domestic violence to obtain protection orders through a hearing process. Once the Protection from Abuse (PFA) process is initiated, a statewide registry system automatically generates a civil record. Currently, no statutory language governing the expungement of a PFA record exists in Pennsylvania, and courts have decided that a right to expungement exists only in limited circumstances. The courts are silent, however, on whether a protection order by consent of the parties with no admission of abuse is available for expungement.

This Comment begins by describing the procedure by which a …

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.

The Proper Appellate Standard Of Review For Ptab Factual Findings Made Incidental To Claim Construction, A. David Brzozowski Ii

Catholic University Law Review

The America Invents Act (AIA) represents the most significant change to U.S. patent law since the 1952 Patent Act. Since its passage, the AIA has drawn wide support from the intellectual property community, primarily due to the new post-grant opposition proceedings the Act created.

However, certain aspects of the new system created by the AIA are controversial. Specifically, judges and practitioners alike debate which standard of review courts should apply to the factual findings made by the Patent Trial and Appeals Board (PTAB) during these opposition proceedings. While the Federal Circuit has reviewed all factual findings made at the Patent …

Sometimes, Old Rules Know Best: Returning To Common Law Conceptions Of The Duty To Preserve In The Digital Information Age, Robert Keeling

Catholic University Law Review

Courts and drafters of the Federal Rules of Civil Procedure have struggled to define a defendant’s duty to preserve electronically stored information for upcoming litigation. The current standard creates an unworkable standard. Defendants, especially corporations, are tasked with preserving immense amount of data before a suit is even filed. The costs, both financial and personnel, of complying with the current system are substantial. What’s more, defendants face serve sanctions, including hefty fines and adverse inference instructions, if they fail to preserve all the necessary data.

The lack of consistency across the Circuits as well as the substantial costs that under …

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

Class Dismissed: Compelling A Look At Jurisprudence Surrounding Class Arbitration And Proposing Solutions To Asymmetric Bargaining Power Between Parties, Matthew R. Hamielec

Chicago-Kent Law Review

Class actions and arbitrations have existed since the United States’ inception. Since the mid-twentieth century, both Congress and the U.S. Supreme Court have helped arbitration blossom from litigation’s overshadowed alternative to a prominent means of resolving disputes. Soon, the commercial industry proceeded to incorporate arbitration provisions in their consumer and employment contracts. That way, when a dispute arose between the business and a person, the business would arbitrate with claimants individually. Plaintiffs’ attorneys who favored collective action proceedings like class actions, however, pushed for courts’ allowance of class arbitration—a class proceeding conducted within an arbitration’s confines.

Corporations litigated such class …

Long V. Long: Law Court Ruling Changes The Disposition Of Joint Real Property On Divorce, Marc J. Veilleux

Maine Law Review

In Long v. Long the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a district court divorce decree dividing the parties' residence of thirteen years as marital property, even though the majority of the funds used for its purchase were traceable to non-marital property the husband had acquired prior to the marriage. The governing statute instructed the district court to make an “equitable” disposition of all property acquired by the spouses during marriage, but required that it first “set apart to each spouse the spouse's [separate] property,” including property acquired during marriage by a spouse “in exchange for …

Nonmajority Opinions And Biconditional Rules, Adam N. Steinman

Faculty Scholarship

In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court's holding is "the position taken by those Members who concurred in the judgments on the narrowest grounds." The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an …

Georgia's Unconstitutional Business Venue Provision: A Kingdom With Impermissible Borders, Lucas Bradley

Mercer Law Review

A sub-clause of Georgia's business venue statute, as construed in October 2016, violates the Commerce Clause of the United States Constitution. That statute, section 14-2-510(b) of the Official Code of Georgia Annotated (O.C.G.A.), provides four venues (counties) in which a company can be sued for an act or omission, depending on the kind of act or omission at issue. The first three venue options apply equally to in-state and out-of-state companies. The fourth venue option does not. This fourth option grants in-state companies an unwarranted advantage compared to out-of-state companies and as a result, runs afoul of the Constitution's Dormant …

States Suing The Federal Government: Protecting Liberty Or Playing Politics?, Elbert Lin

University of Richmond Law Review

No abstract provided.

A “Procedural Nightmare”: Dueling Courts And The Application Of The First-Filed Rule, Andrew Fuller

Florida Law Review

Pretend that Party A sues Party B in Court 1. Instead of countersuing, however, B then sues A in Court 2. The problem this Note examines is whether Court 1 may enjoin B from continuing to litigate in Court 2 if Court 2 has already declined to stay the case or transfer it to Court 1. This question has sharply divided the U.S. Circuit Courts of Appeal. How the issue is resolved will have serious consequences for high-stakes litigation in the United States. If one district court may overrule a court of coordinate rank, strategically sophisticated parties might file suits …

Fraudulent Aggregation: The Effect Of Daimler And Walden On Mass Litigation, Jeff Lingwall, Chris Wray

Florida Law Review

This Article examines the effect of the U.S. Supreme Court’s jurisdictional tightening in Daimler and Walden on mass litigation. This Article shows how the Supreme Court’s changes to general and specific jurisdiction, considered together, end the practice of tactically allocating non-diverse plaintiffs across state lines to defeat diversity jurisdiction in nationwide litigation, a doctrine this Article terms fraudulent aggregation. This Article places the doctrine of fraudulent aggregation in the context of fraudulent joinder, the emerging doctrine of fraudulent misjoinder, and other attempts to avoid federal court jurisdiction through artful pleading. Examples from recent products liability litigation show both the application …

Byte Marks: Making Sense Of New F.R.C.P. 37(E), Charles Yablon

Florida Law Review

New FRCP 37(e) limits severe, case ending sanctions for lost electronically stored information (ESI) to situations where a party acted with “intent to deprive” other parties of the use of that information. But it makes no change in existing preservation duties and never explains how “intent” is to be determined for the corporation and other entities likely to be parties in such litigation. The question is—does this Rule make any sense? This Essay seeks to make sense of Rule 37(e) in terms of its language, the stated goals of its drafters, and its role in the regulation of current litigation …

To Understand Us V. Microsoft, Consider 'Acme V. Shamrock', Peter B. Rutledge, Amanda W. Newton

Popular Media

The February 27, 2018, Supreme Court argument in United States v. Microsoft Corp. raises profound questions about issues of executive power, corporate governance, technology, judicial power and international affairs. At stake for the government is the scope of its investigative authority to obtain information located in a foreign country, irrespective of that country’s laws. At stake for Microsoft is its ability to organize its international corporate affairs and the predictability of the laws that will govern those affairs. This article analyzes the potential effects of this critical Supreme Court case.

Who Determines What Is Egregious? Judge Or Jury: Enhanced Damages After Halo V. Pulse, Brandon M. Reed

Georgia State University Law Review

Enhanced damages in patent law are a type of punitive damage that can be awarded in the case of “egregious misconduct” during the course of patent infringement. Authorization for enhanced damages comes from 35 U.S.C. § 284, which allows the district court to increase total damages up to three times the amount of actual damages found by the jury. It is well understood that, since enhanced damages are punitive in nature, enhancement should only be considered for cases of “wanton” or “deliberate” infringement. However, determining what constitutes this “egregious” misconduct has vastly transformed over time to include a negligence standard, …

Motion To Dismiss For Failure To Succeed On The Merits: The Eeoc And Rule 12(B)(6), Perry F. Austin

William & Mary Law Review

No abstract provided.

Quinn V. Eighth Judicial Dist. Ct., 135 Nev. Adv. Op. 5 (Feb. 8, 2018) (En Banc), Shaneka J. Malloyd

Nevada Supreme Court Summaries

The Court determined that (1) a writ of mandamus/prohibition is appropriate when a party does not have an adequate relief in the ordinary course of the law and it is necessary to prevent improper disclosure of privileged and confidential information; (2) a Nevada district court has no authority to compel an out-of-state non-party to appear in Nevada for a deposition; and (3) specifically, a Nevada district court does not have subpoena power over a non-resident attorney that has practiced law in Nevada.

Expert Testimony And Professional Licensing Boards: What Is Good, What Is Necessary, And The Myth Of The Majority-Minority Split, Timothy P. Mccormack

Maine Law Review

Defendants regularly argue that a Review Board's decision must be overturned because it is not supported by expert testimony. Boards counter that they are qualified, by virtue of their role as the guardians of the standards for their profession, to determine the appropriateness of a defendant's conduct without the assistance of expert testimony. When courts address these arguments, they routinely ask if expert testimony is necessary to establish the standard of care in disciplinary hearings before a professional licensing board. Courts answer this question differently. In fact there is a seeming schism among the states about the importance of expert …

Personal Jurisdiction And The Web, Joseph S. Burns, Richard A. Bales

Maine Law Review

Courts have struggled in determining precisely when a defendant should be subject to suit in a particular forum based on his or her Web activity. Although most jurisdictions have applied some form of the “minimum contacts” test, the test has been applied inconsistently. A new standard is needed to resolve personal jurisdiction disputes arising out of Web activity. This Article examines the ways in which modern courts have attempted to resolve personal jurisdiction issues based on Web activity, as well as the inconsistencies that have resulted from the inherent difficulty in conceptualizing the Web.