Civil Procedure Commons^™

Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan

Nevada Supreme Court Summaries

For the State Engineer to grant water rights applications, there must be evidence to support the decision and the new rights must not substantially conflict with existing rights. On appeal from the District Court, the Court found no evidence to support the granted application, and held the use of Respondent’s rights would severely impact the water table. The Court reversed and remanded the case for proceedings consistent with the opinion.

D.R. Horton, Inc. V. Eighth Jud. Dist. Ct, 131 Nev., Adv. Op. 86 (October 29, 2015), Brandonn Grossman

Nevada Supreme Court Summaries

The Nevada Supreme Court considered a Petitioner home builder’s petition for writ relief and appeal of a district court order granting Respondent HOA’s ex parte motion for a stay and enlargement of time for service pursuant to NRS 40.647(2)(b). Ruling on Petitioner’s two writ petitions, the Court held the district court’s grant of a stay was not in error and the NRCP 41(e) five-year limitation period was tolled under the Boren exception to NRCP 41(e). Accordingly, the Court denied both writ petitions.

Rule 55: Why Broadly Interpreting "Otherwise Defend" Protects A Diligent Party's Rights And Encourages An Orderly And Efficient Judicial System, Jessica Ruoff

St. John's Law Review

(Excerpt)

This Note argues that a uniform interpretation of "otherwise defend" is needed. Part I of this Note discusses the history and purpose of Rule 55, the procedure for entries of default and default judgment, and other alternatives to Rule 55 default judgments. Part II of this Note examines how the language "otherwise defend" has been interpreted differently by the federal circuit courts. Part III of this Note argues that the majority's broad interpretation of "otherwise defend" should be adopted as the uniform interpretation because it is supported by statutory interpretation and the underlying purpose of Rule 55.

Broader Is Better: How Courts Should Determine Whether Or Not An Allegation Of Fraud Falls Under The Preemption Provision Of The Securities Litigation Uniform Standards Act, Jennifer Rose Roeske

St. John's Law Review

(Excerpt)

This Note argues that the correct approach for interpreting the scope of SLUSA's preemption language is the "literalist" approach taken by the Sixth Circuit. Part I of this Note lays out the legal framework of the Reform Act of 1995, Congress's intent in enacting the legislation, and the unintended consequences that flowed from the PSLRA's heightened pleading requirements. Part I also discusses SLUSA, what led to its passage, and its preemption language. Additionally, it looks at the Supreme Court's interpretation of preemption statutes generally, as well as the Supreme Court's broad interpretation of SLUSA in Merrill Lynch, Pierce, Fenner …

The Shortcomings Of New York's Long-Arm Statute: Defamation In The Age Of Technology, Robert D. Nussbaum

St. John's Law Review

(Excerpt)

This Note suggests that the New York legislature amend New York's long-arm statute so that it no longer excludes the tort of defamation as a basis for long-arm jurisdiction. Part I provides a brief background and history of jurisdiction and longarm statutes in general. It also focuses on New York's statute more specifically. Part II focuses on the arguments for excluding acts of defamation from long-arm jurisdiction and compares New York's statute to those of other states. Finally, Part III examines the different policy reasons for changing the statute and argues that such a change will not offend Due …

Employment Discrimination Class Actions After Wal-Mart V. Dukes, Michael Selmi, Sylvia Tsakos

Akron Law Review

This Article explores the ramifications of Wal-Mart approximately five years after the case was decided. While five years hardly provides definitive data on how the case will be interpreted, it is possible to identify trends in the cases that have been decided to date—trends that are likely to provide insight into the future of class action claims. That future suggests that there will be fewer, and perhaps no, nationwide class actions in cases that do not involve a clear challenged practice (any such cases are likely to be disparate impact cases) and that the prospect for class certification will turn …

The Class Abides: Class Actions And The "Roberts Court", Elizabeth J. Cabraser

Akron Law Review

This Article does not delve deeply into the substantive issues of Wal-Mart, Concepcion, or Italian Colors...My focus is on how Rule 23 has fared, structurally and practically, in the aftermath of the “common answer” formulation of Wal-Mart; three other decisions of the Roberts Court, Dukes, Amgen, and Comcast; and three cases that the Roberts Court did not ultimately take in the wake of Amgen and Comcast: its denials of review in Whirlpool, Butler, and Deepwater. Also discussed is the newly intense debate on the use of cy pres, catalyzed by Chief Justice Roberts’ extraordinary “Statement” accompanying the denial of certiorari …

Okada V. Eighth Judicial Dist. Ct., 131 Nev. Adv. Op. 83 (Oct. 15, 2015), Baylie Hellman

Nevada Supreme Court Summaries

The Court determined that (1) NRCP 30 generally governs the taking of depositions but does not set restrictions as to where the deposition must take place; and (2) while NRCP 30 generally limits depositions to “1 day of 7 hours,”NRCP 26(b)(2) sets for general considerations that district courts should take into account when determining whether the length of a depositions should deviate from the presumption one-day time frame.

The Electronic Document Retention System Ate My Homework: Gross Negligence And The Rebuttable Presumption Of Prejudice Within The Doctrine Of Spoliation In Federal Courts, Tristan Evans-Wilent

St. John's Law Review

(Excerpt)

This Note argues against imposing such a rebuttable presumption where the spoliating party acted with gross negligence. Part I provides a general background of the doctrine of spoliation and its application to electronic information. Part II examines the three different approaches taken by the federal circuits to whether gross negligence should trigger a rebuttable presumption that the spoliated evidence was prejudicial to the spoliating party. Finally, Part III argues that courts should not allow gross negligence to trigger a rebuttable presumption that the spoliated evidence was prejudicial to the spoliating party.

Petition For A Writ Of Certiorari. Frew V. Traylor, 136 S.Ct. 1159 (2016) (No. 15-483), 2015 U.S. S. Ct. Briefs Lexis 3632, 2015 Wl 6083505, Eric Schnapper, Timothy B. Garrigan, Timothy David Craig, Jane Swanson

Court Briefs

QUESTIONS PRESENTED Litigation regarding the legal responsibilities of large institutions, such as schools or prisons, is frequently resolved by consent decree. The widespread use of such consent decrees regularly gives rise to inter-related disputes about how to interpret provisions of those decrees, and about when the decrees themselves have been satisfied and may thus be dissolved. In the instant case the Fifth Circuit, expressly disagreeing with the standards applied in the Sixth and Ninth Circuits, interpreted in a narrow manner, and then ordered dissolution of, key provisions earlier agreed to by Texas that protect the rights of millions of indigent …

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

Presentations and Speeches

Professor Elizabeth Chamblee Burch presented "Judging Multidistrict Litigation" at Duke University School of Law's Mass-Tort MDL Program for Judicial Conference Committees on October 8, 2015.

Ordering Proof: Beyond Adversarial And Inquisitorial Trial Structures, Emily Spottswood

Scholarly Publications

In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process over than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle, but significant, advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to …

The Indefinite Deflection Of Congressional Standing, Nat Stern

Scholarly Publications

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. Leading scholars in the field of congressional standing immediately expressed doubt that courts would entertain a suit seeking to compel enforcement of these provisions. This Article argues that the premise that suits of this sort can be maintained rests on a tenuous understanding of the Supreme Court's fitful treatment of standing by Congress or its members to sue the Executive.

The Court has never issued …

Perfect Plaintiffs, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

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 …

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

The Journal of Appellate Practice and Process

No abstract provided.

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 …

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.

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 …

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, …