Civil Procedure Commons^™

Man Versus Machine Review: The Showdown Between Hordes Of Discovery Lawyers And A Computer-Utilizing Predictive-Coding Technology, Nicholas Barry

Vanderbilt Journal of Entertainment & Technology Law

The discovery process is regularly capturing millions of pages of documents. Electronic storage is making storing documents cheaper and easier. When litigation begins, however, sorting through this massive amount of electronically stored information is costly and time intensive. Keyword searches are a start to managing the growing amount of electronic documents, but the discovery process is still falling behind in efficiency. Predictive coding could change all that.

Predictive coding is capable of solving the time-intensive nature (and resultant growing cost) of processing discovery documents. Predictive coding is faster, cheaper, and more accurate than traditional linear document review, the current "gold …

Determining The Proper Pleading Standard Under The Private Securities Litigation Reform Act Of 1995 After In Re Silicon Graphics , Erin Brady

Pepperdine Law Review

No abstract provided.

De-Frauding The System: Sham Plaintiffs And The Fraudulent Joinder Doctrine, Matthew C. Monahan

Michigan Law Review

Playing off the strict requirements of federal diversity jurisdiction, plaintiffs can structure their suits to prevent removal to federal court. A common way to preclude removability is to join a nondiverse party. Although plaintiffs have a great deal of flexibility, they may include only those parties that have a stake in the lawsuit. Put another way, a court will not permit a plaintiff to join a party to a lawsuit when that party is being joined solely to prevent removal. The most useful tool federal courts employ to prevent this form of jurisdictional manipulation is Federal Rule of Civil Procedure …

Federal Discovery Stays, Gideon Mark

University of Michigan Journal of Law Reform

In federal civil litigation, unless a discretionary stay is granted, discovery often proceeds while motions to dismiss are pending. Plaintiffs with non-meritorious cases can compel defendants to spend massively on electronic discovery before courts ever rule on such motions. Defendants who are unable or unwilling to incur the huge up-front expense of electronic discovery may be forced to settle non-meritorious claims. To address multiple electronic discovery issues, Congress amended the Federal Rules of Civil Procedure in 2006 and the Federal Rules of Evidence in 2008. However, the amendments failed to significantly reduce costs and failed to address the critical issue …

Plausibility Beyond The Complaint, Joseph A. Seiner

William & Mary Law Review

In Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Supreme Court announced a new plausibility standard for a plaintiff’s allegations. The decisions may have even broader implications, however, as many federal district courts have already applied this pleading standard to a defendant’s affirmative defenses. This Article makes sense of Twombly and Iqbal in the context of the affirmative defense.

This Article addresses the two possible readings of Twombly and Iqbal: first, that the decisions are limited to a plaintiff’s civil complaint, and second, that a defendant must also comply with the Supreme Court’s plausibility standard by pleading enough …

Judges! Stop Deferring To Class-Action Lawyers, Brian Wolfman

University of Michigan Journal of Law Reform Caveat

I represent a national non-profit consumer rights organization, as an amicus, in a federal appeal challenging a district court’s approval of a class-action settlement of claims under the federal Credit Repair Organization Act (CROA). My client maintains that the district court erred in finding that the settlement was “fair, reasonable, and adequate,” which is the standard for class-action settlement approval under the Federal Rules of Civil Procedure. In particular, we argue that the district court committed a reversible legal error when it deferred to the class-action lawyers’ recommendation to approve the settlement because, in those lawyers’ view, it was fair, …

Ripple Effects: The Unintended Change To Jurisdictional Pleading Standards After Iqbal, James E. Von Der Heydt

Cleveland State Law Review

This Note describes a little-observed ripple effect of the new pleading standard announced in Iqbal, the antiterrorism case whose holding swept broadly and changed the ground rules for considering allegations in so-called 12(b)(6) motions for all civil cases. This Note examines the interplay between the Twombly/Iqbal doctrine and federal courts’ practical approach to subject-matter jurisdiction. Part II describes the background jurisprudence on subject-matter jurisdiction, including the sharp line the Supreme Court has consistently re-drawn between claims lacking merit and those lacking jurisdictional basis, from Bell v. Hood through Arbaugh v. Y & H Corp. The consistent theme of this jurisprudence …

King Arthur Confronts Twiqy Pleading, Edward H. Cooper

Articles

Rule 25 of the 1912 Equity Rules stated that "it shall be sufficient that a bill in equity shall contain ... a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence." Not mere conclusions, not evidence, but "ultimate facts." And, at that, not facts "constituting the cause of action." The bare words of Rule 25 could mean something quite different to a twenty-first-century audience than they meant to a twentieth-century audience. But they may serve as a foil to the challenge framed by the Supreme Court in Bell Atlantic …

Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson

Faculty Publications

Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy.

This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate review …

The Federal Rules Of Civil Settlement, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The Federal Rules of Civil Procedure were originally based upon a straightforward model of adjudication: Resolve the merits of cases at trial and use pretrial procedures to facilitate accurate trial outcomes. Though appealing in principle, this model has little relevance today. As is now well known, the endpoint around which the Federal Rules were structured — trial — virtually never occurs. Today, the vast majority of civil cases terminate in settlement. This Article is the first to argue that the current litigation process needs a new regime of civil procedure for the world of settlement

This Article begins by providing …

Twombly’S Seismic Disturbances, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), has had a seismic impact on federal civil litigation. We all thought the notice pleading concept introduced un­der the Federal Rules of Civil Procedure had substantially eased the plaintiff's burden at the pleading stage. The Supreme Court in Twombly said "yes, but," and emphasized that notice pleading was never intended to dispense entirely with the need to plead facts demonstrating a right to relief. In short, facts matter: Rule 8 of the Federal Rules of Civil Procedure requires a statement of circumstances, events, and …

An Updated Quantitative Study Of Iqbal's Impact On 12(B)(6) Motions, Patricia Hatamayar Moore

University of Richmond Law Review

The effect of Ashcroft v. Iqbal on pleadingstandardsandbehavior is a source of significant legal debate. This article serves as a follow-up to Professor Moore's 2010 empirical study on Iqbal's effect on courts' rulings on motions to dismiss complaints for failure to state a claim under Rule12(b)(6) of the Federal Rules of Civil Procedure. Professor Moore's previous study found a statistically significant increase in the likelihood that a court grants a 12(b)(6) motion with leave to amend following Iqbal. In this article, Professor Moore updates and increases the pool of cases in her database. The updated data reveals several empirical trends. …

On Removal Jurisdiction's Unanimous Consent Requirements, Adam R. Prescott

William & Mary Law Review

No abstract provided.

The Amended Attorney-Client Privilege In Oklahoma: A Misstep In The Right Direction, Robert A. Brown

Oklahoma Law Review

No abstract provided.

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Publications

John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for …

Rulemaking, Litigation Culture And Reform In Federal Courts, Edward D. Cavanagh

Faculty Publications

Culturally based litigation practices are central to the policies of federal courts. Unlike the Federal Rules of Civil Procedure, cultural based practices are neither uniform nor explicitly defined among the federal courts. These practices are specifically tailored to ensure judicial efficiency, and in turn, they heavily influence practice and procedure in federal courts. This Article examines the significance of cultural litigation practices and their influence on amending or establishing new Federal Rules of Civil Procedure. The author proposes that rulemaking must compliment cultural practices in order to be successful and concludes that when conflict exists between these practices and rulemaking, …

Making Sense Of Twombly, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In May 2007, the United States Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Reversing the Second Circuit, the Court held that an antitrust complaint that alleged mere parallel behavior among rival telecommunications companies, coupled with stray averments of agreement that amounted merely to legal conclusions, failed as a matter of law to state a claim for conspiracy in violation of § 1 of the Sherman Act and had been properly dismissed by the trial court. The Court then proceeded to (1) redefine the concept of notice pleading by "retiring" …

Rethinking Jurisdictional Discovery Under The Hague Evidence Convention, Kathleen B. Gilchrist

Vanderbilt Journal of Transnational Law

When a federal court in the United States compels the discovery of information located abroad to determine whether it has jurisdiction over the defendant, the court can apply the Federal Rules of Civil Procedure or the Hague Evidence Convention. This Note argues that the approach taken by most courts--applying the balancing test formulated by the Supreme Court in Societe Nationale Industrielle Aerospatiale v. U.S. District Court and favoring application of the Federal Rules--is misguided. Courts should apply the Evidence Convention more often in jurisdictional discovery disputes. They can do so under the existing legal framework with one of three holdings: …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

Publications

No abstract provided.

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Subverting Rule 56? Mcdonnell Douglas, White V. Baxter Healthcare Corp., And The Mess Of Summary Judgement In Mixed-Motive Cases, Christopher J. Emden

William & Mary Business Law Review

No abstract provided.

The Restrictive Ethos In Civil Procedure, A. Benjamin Spencer

Faculty Publications

Those of us who study civil procedure are familiar with the notion that federal civil procedure under the 1938 Rules was generally characterized by a "liberal ethos," meaning that it was originally designed to promote open access to the courts and to facilitate a resolution of disputes on the merits. Most of us are also aware of the fact that the reality of procedure is not always access-promoting or fixated on merits- based resolutions as a priority. Indeed, I would say that a "restrictive ethos" prevails in procedure today, with many rules being developed, interpreted, and applied in a manner …

What Federal Rulemakers Can Learn From State Procedural Innovations, Seymour Moskowitz

Law Faculty Publications

No abstract provided.

The Tao Of Pleading: Do Twombly And Iqbal Matter Empirically?, Patricia W. Hatamyar

American University Law Review

This article is an empirical study of the effect of Bell Atlantic Corp. vs. Twombly, 550 U.S. 544 (2007), and Ashcroft vs. Iqbal, 129 S. Ct. 1937 (2009), two recent Supreme Court cases that portend the decline of “notice pleading” in federal civil practice. The article analyzes how Twombly and Iqbal have begun to dismantle the regime of notice pleading by not only discarding the “no set of facts” standard of Conley vs. Gibson, 355 U.S. 41 (1957), but by changing or ignoring other principles that federal courts have followed for decades on 12(b)(6) motions. The statistical study then examines …

Proportionality In Discovery: A Cautionary Tale, John L. Carroll

Campbell Law Review

"There has been widespread criticism of the abuse of discovery."' That statement comes not from a recent edition of the Defense Research Institute newsletter but from the Advisory Committee notes to the 1980 amendment that gave us the Rule 26(f) conference. Discovery abuse and the increase in the cost of litigation that flows from such abuse has been a constant theme emerging from analysis of the civil justice system.

Hydrogen Peroxide: The Third Circuit Comes Clean About The Rule 23 Class Action Certification Standard, Amy Dudash

Villanova Law Review (1956 - )

No abstract provided.

The Federal Rules Of Civil Procedure And Legal Realism As A Jurisprudence Of Law Reform, David Marcus

Georgia Law Review

Since the 1930s, legal realism has weathered claims that its adherents had no use for legal rules and lacked a positive program of law reform. This Article uses the Federal Rules of Civil Procedure, the major procedural reform of the twentieth century, to illuminate more accurately the treatment of rules in realism as well as its constructive potential. It draws upon the published and unpublished writings of Charles Clark, the primary author of the Federal Rules and a leading realist, to describe a realist procedural jurisprudence and to explain why the Federal Rules neatly illustrate this jurisprudence in practice. Part …

The Irrepressible Influence Of Byrd, Richard D. Freer, Thomas Arthur

Faculty Articles

We set forth four interrelated theses in this article. First, Byrd is the only Supreme Court case since Erie itself to discuss all three of the core interests balanced, expressly or not, in every vertical choice of law case. Second, because Hanna's "twin aims" test ignores two of these three core interests, it cannot adequately serve as the standard for cases under the Rules of Decision Act ("RDA"). This fact is evidenced by the Court's eschewing the twin aims test in cases, like Gasperini, where state and federal interests must be accommodated. Third, as all three opinions in …

I Could Have Been A Contender: Summary Jury Trial As A Means To Overcome Iqbal's Negative Effects Upon Pre-Litigation Communication, Negotiation And Early, Consensual Dispute Resolution, Nancy A. Welsh

Faculty Scholarship

With its recent decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly, the Supreme Court may be intentionally or unintentionally “throwing the fight,” at least in the legal contests between many civil rights claimants and institutional defendants. The most obvious feared effect is reduction of civil rights claimants’ access to the expressive and coercive power of the courts. Less obviously, the Supreme Court may be effectively undermining institutions’ motivation to negotiate, mediate - or even communicate with and listen to - such claimants before they initiate legal action. Thus, the Supreme Court’s recent decisions have the potential to deprive …

Nationwide Personal Jurisdiction For Our Federal Courts, A. Benjamin Spencer

Faculty Publications

Rule 4 of the Federal Rules of Civil Procedure limits the territorial jurisdiction of federal district courts to that of the courts of their host states.T his limitation is a voluntary rather than obligatory restriction, given district courts' status as courts of the national sovereign. Although there are sound policy reasons for limiting the jurisdictional reach of our federal courts in this manner, the limitation delivers little benefit from a judicial administration or even a fairness perspective, and ultimately costs more to implement than is gained in return. The rule should be amended to provide that district courts have personal …