Civil Procedure Commons^™

Sanctioning Defendants' Non-Willful Delay:The Failure Of Rule 55 And A Proposal For Its Reform, Carl B. Schultz

University of Richmond Law Review

For as long as parties have pursued claims through litigation, those against whom claims are asserted have delayed the litigation process. Defendants, and other parties against whom claims are asserted, (hereinafter collectively referred to as defendants), fail to answer complaints against them in time; they delay in responding to discovery requests, motions and court orders, and they fail to appear for trials and other proceedings.

Public Law Litigation And The Federal Rules Of Civil Procedure, Carl W. Tobias

Law Faculty Publications

The public interest litigant is no longer a nascent phenomenon in American jurisprudence. Born of the need of large numbers of people who individually lack the economic wherewithal or the logistical capacity to vindicate important social values or their own specific interests through the courts, these litigants now participate actively in much federal civil litigation: public law litigation. Despite the pervasive presence of public interest litigants, the federal judiciary has accorded them a mixed reception, particularly when applying the Federal Rules of Civil Procedure. Many federal courts have applied numerous Rules in ways that disadvantage public interest litigants, especially in …

Intervention In The Public Interest Under Rule 24(A)(2) Of The Federal Rules Of Civil Procedure

Washington and Lee Law Review

No abstract provided.

Preclusion And Procedural Due Process In Rule 23(B)(2) Class Actions, Mark C. Weber

University of Michigan Journal of Law Reform

This Article examines whether Rule 23(b)(2) violates the procedural due process rights of absent class members by binding them to the judgment in a class case without notice of the suit. It concludes that the Rule almost certainly violates due process and proposes a reform that would permit nonbinding class actions similar to the old "spurious" class suits.

Monetary Sanctions Against Attorneys For Discovery Abuse In Federal Court: When Can They Be Appealed, Nancy E. Berman

Cardozo Law Review

No abstract provided.

Addressing The Adversarial Dilemma Of Civil Discovery, Michael E. Wolfson

Cleveland State Law Review

There can be no question that the emergence of modern pretrial discovery has contributed enormously to making the conduct of a lawsuit a more fair, just, and efficient process. But discovery also offers a substantial potential for mischief. Since few civil cases today are actually resolved at trial, trouble in the pretrial phase of litigation signals potentially major problems in the legal system's role as the nation's primary dispute resolution mechanism. It is the purpose of this Article to examine the issue of discovery abuse in light of the fundamental adversarial dilemma of the discovery process and propose a new …

Applying Rule 11 To Rid Courts Of Frivolous Litigation Without Chilling The Bar's Creativity, Robin Johnson Collins

Kentucky Law Journal

No abstract provided.

Section 1404(A), "Where It Might Have Been Brought": Brought By Whom?, Michael J. Waggoner

Publications

No abstract provided.

Civil Rule 52(A): Rationing And Rationalizing The Resources Of Appellate Review, Edward H. Cooper

Articles

My text is a single and rather simple sentence from Rule 52(a) of the Federal Rules of Civil Procedure: Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. My theme is equally simple.. Rule 52(a) serves a vital institutional role in allocating the responsibility and the power of decision between district courts and the courts of appeals. The "dearly erroneous" standard of appellate review established by the Rule is a …

Procedural And Substantive Problems In Complex Litigation Arising From Disasters, Jack B. Weinstein

Touro Law Review

No abstract provided.

Class Actions And Duplicative Litigation, Edward F. Sherman

Indiana Law Journal

No abstract provided.

Rethinking The Class Action: A Policy Primer On Reform, John C. Coffee Jr.

Indiana Law Journal

No abstract provided.

Alleging Demand Futility In Federal Court

Washington and Lee Law Review

No abstract provided.

A Proposal To View Patent Claim Nonobviousness From The Policy Perspective Of Federal Rule Of Civil Procedure 52(A), Bradley G. Lane

University of Michigan Journal of Law Reform

This Note analyzes the scope of appellate review that should be accorded to a trial judge's determination of nonobviousness. Part I details the condition of nonobviousness and how it has evolved into the principal obstacle to patentability. Part II analyzes the Supreme Court and appellate precedents on the scope of review on this issue. Part III evaluates the policy underpinnings of Rule 52(a) and applies a two-pronged analysis to the nonobviousness requirement to determine whether the clearly erroneous standard of review is appropriate. This Note concludes that the treatment of the nonobviousness determination as a question of law cannot be …

The Excessive History Of Federal Rule 15(C) And Its Lessons For Civil Rules Revision, Harold S. Lewis Jr.

Michigan Law Review

This case study of one Federal Rule of Civil Procedure is designed to suggest affirmative answers to these questions. My focus is on the surprisingly extensive body of case law, culminating in the Supreme Court's 1986 decision in Schiavone v. Fortune, that parses the second sentence of Federal Rule 15(c). Added in 1966, that sentence attempts to set standards for the relation back of party-changing amendments to pleadings. A more prototypically pedestrian, less prepossessing topic of the traditionalist type could scarcely be imagined. Yet a review of its history brings larger points into sharp relief: something is seriously amiss in …

Whether Disclosure Of Work Product To A Witness In Preparation For Testifying Waives The Protection Of Federal Rule Of Civil Procedure 26(B)(3), Gene Lynn Humphreys

Kentucky Law Journal

No abstract provided.

Annual Survey Of Virginia Law: Civil Procedure And Practice, W. Hamilton Bryson

University of Richmond Law Review

This article considers recent developments in the field of Virginia civil procedure and practice, including statutes, rules of court, and opinions of the Supreme Court of Virginia and the Court of Appeals of Virginia that have appeared between May 1986 and May 1987. This article also comments on cases in volumes five through eight of Virginia Circuit Court Opinions, many of which were decided before 1986. It is appropriate to mention them here since they were only recently made generally available through publication. In order to facilitate the discussion of numerous Virginia Code sections, they will be referred to in …

Proof Of Claim Forms And Discovery Of Absent Class Members: Violations Of Rule 23 Policy Or Essential Devices?

Washington and Lee Law Review

No abstract provided.

Rule 4: Service By Mail May Cost You More Than A Stamp, Ann Varnon Crowley

Indiana Law Journal

No abstract provided.

Practice And Procedure Under Amended Rule 11 Of The Federal Rules Of Civil Procedure, Kevin P. Roddy, William Woodward Webb

Campbell Law Review

The purpose of this article is to explore the substantive provisions of amended Rule 11 and its historic antecedents, the procedure by which sanctions may be sought and/or imposed, the sanctions which the court may impose and the persons upon whom the sanctions can be imposed.

Proposals To Amend Rule 68- Time To Abandon Ship, Stephen B. Burbank

University of Michigan Journal of Law Reform

It is no surprise that, having included "facilitating the settlement of the case" as one of the objectives of pretrial conferences in the 1983 amendments to Rule 16 of the Federal Rules of Civil Procedure, the Advisory Committee has turned its attention to Rule 68. The Rule was intended to provide an incentive to settle by requiring that a prevailing claimant who has declined a more favorable offer of judgment pay post-offer "costs." But, in the Advisory Committee's view, Rule 68 has proved ineffective. The concern, apparently, is not that too few civil cases filed in federal court are settled-less …

For Every Weapon, A Counterweapon: The Revival Of Rule 68, John P. Woods

Fordham Urban Law Journal

Rule 68 of the Federal Rules of Civil Procedure applies generally where a non-moving party's settlement offer is rejected, and the court judgment awarded to the moving party, or claimant, is for less than the prior offer. The non-moving party may then be entitled to "costs incurred after the making of the offer." In Marek v. Chesny, the Court made it clear that "costs" includes attorney's fees. Congress should consider revising Rule 68 to clarify its application. However, Rule 68 appropriately induces plaintiffs to thoroughly consider a defendant's offer, under threat that rejection of the offer may include reducing attorney's …

Developing Standards Under Amended Rule 11 Of The Federal Rules Of Civil Procedure, Edward D. Cavanagh

Faculty Publications

(Excerpt)

Rule 11 of the Federal Rules of Civil Procedure is designed to ensure the integrity of pleadings and other papers filed in federal district court. The rule was amended in 1983 in response to the widely held perception that its provisions, as originally promulgated, had proven ineffective in deterring strike suits, litigation abuses, and lawsuits used as instruments of delay and oppression. Amended Rule 11 introduces more stringent standards designed to make attorneys stop and think about their legal obligations before signing pleadings and motions. These obligations are reinforced by imposing mandatory sanctions upon violation of the standards. The …

Schiavone V. Fortune, Lewis F. Powell Jr

Supreme Court Case Files

No abstract provided.

Relief From Final Judgment Under Rule 60(B)(1) Due To Judicial Errors Of Law, Michigan Law Review

Michigan Law Review

This Note seeks to resolve these conflicts by proposing a sensible reading of rule 60(b )(1) that reconciles the basic philosophies underlying differing interpretations of the rule. Part I examines the history of rule 60(b)(l) and the policies espoused by the courts and commentators in considering whether the rule should be applied to judicial errors of law and concludes that courts should employ the rule to correct obvious judicial errors of law. Part II recommends a broad scope for rule 60(b )(1) motions, proposing that the only type of alleged judicial error outside the reach of such a motion should …

The August 1, 1983 Amendments To The Federal Rules Of Civil Procedure: A Critical Evaluation And A Proposal For More Effective Discovery Through Local Rules, Edward D. Cavanagh

Villanova Law Review (1956 - )

No abstract provided.

The August 1, 1983 Amendments To The Federal Rules Of Civil Procedure: A Critical Evaluation And A Proposal For More Effective Discovery Through Local Rules, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The 1983 amendments to the Federal Rules of Civil Procedure (1983 amendments) represent by far the most ambitious effort to date to remedy the widely perceived problem of discovery abuse in federal practice. These amendments are designed to improve the conduct of discovery by eliminating improper practices and making discovery more cost-effective for the parties, and thereby helping the pretrial phase of an action to run more smoothly. The 1983 discovery amendments have three basic thrusts: (1) active involvement by the court in the pretrial phases of a case pursuant to rule 16; (2) recognition of specific limitations on …

Statutes Of Limitations And Defendant Class Actions, Michigan Law Review

Michigan Law Review

This Note argues that in defendant class actions the statute of limitations should be tolled as to all named and absent class members upon informal notice given by the plaintiff at the beginning of the suit. Part I examines the purposes of statutes of limitations and class actions, and the manner in which these purposes were reconciled in American Pipe. It concludes that American Pipe requires the creation of a tolling doctrine that promotes both the fair notice policy that underlies statutes of limitations and the concern for litigative economy that underlies rule 23 class actions. Part II then …

Discovery Of Nonparties' Tangible Things Under The Federal Rules Of Civil Procedure, Sarah N. Welling

Law Faculty Scholarly Articles

Federal Rules of Civil Procedure 26 through 37 describe procedures for pretrial discovery. While one may employ all the methods of discovery against parties, discovery methods for nonparties are much more limited. For example, with the exception of the independent action under subdivision (c), the procedures detailed in Federal Rule 34 regarding production of tangible things do not apply to nonparties. Frequently, though, a litigant must discover tangible things in the possession, custody, or control of a nonparty. Although the federal rules do provide alternative methods for the discovery of nonparties' things, the whole discovery scheme for nonparties is rather …

Class Actions: Judicial Control Of Defense Communication With Absent Class Members, Donald D. Levenhagen

Indiana Law Journal

No abstract provided.