Category Archives: Federal Civil Procedure

Questions About The New Federal Rules Amendments on Discovery? – 1st of 5-Part Guide.

21 Saturday Nov 2015

Posted by in Civil Procedure, Discovery, E-Discovery, Federal Civil Procedure, Preservation

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 Day 1: Your First Five Questions (times four): A Practical Guide to the Amended Federal Rules of Civil Procedure – Proportionality, by Karin Scholz Jenson, Gary Levin, Robert J. Tucker, James A. Sherer and Jonathan Forman, Discovery Advocate Blog

http://tinyurl.com/o72ub69

If you do not fully comprehend the recent amendments to the Federal Rules of Civil Procedure, you are not alone. We will learn more as district and circuit courts rule on cases affected by these amendments.

Please note the hyperlink under the “Conference Commentary” button to see the Summary of The Report of The Judicial Conference Committee on Rules of Practice and Procedure, which will also assist you. -CCE

The current amended Federal Rules of Civil Procedure—and, in particular, those that address the practice of civil discovery—are the product of five years of development, debate, and, of course, dialogue. Now that the Rules are set to be implemented on December 1, 2015 – and they apply to pending cases where ‘just and practicable’ — the focus among attorneys and their clients has changed from what the Rules should say to how they should work . . . .

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Pleading Code In Poetry.

18 Saturday Apr 2015

Posted by in Civil Procedure, Federal Civil Procedure, Legal Writing, Legalese, Plain Language, Pleadings

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The Pleading, by Mark Cooney, Plain Language, 94 Mich. B.J. 3, 42 (March 2015)

http://www.michbar.org/file/barjournal/article/documents/pdf4article2583.pdf

Another article from the Plain English Subcommittee of the Michigan Bar Journal. As always, each article makes a case for using plain English in legal writing. This group has been, and remains, a strong proponent for elegant legal writing without legalese.

This selection is a clever take off Edgar Allen Poe’s poem, The Raven, that cautions the reader against writing pleadings with stuffy, archaic language. Its author, editor in chief of The Scribes Journal of Legal Writing and author of Sketches on Legal Style, Mark Cooney, is a legal writing professor at Western Michigan University Cooley Law School. -CCE

Once upon a docket dreary, as I pondered
after hearings,
Over many a curious case then pending
with the busy court,
While I read, attention sapping, suddenly
there came a tapping,
As of someone gently rapping, rapping at
my chambers door.
‘Tis my clerk again,’ I grumbled, ‘tapping
on my chambers door—
Oh, yet another matter more.’

Pausing just a moment further, bracing
for the fresh-faced fervor,
Up I turned my heavy head to bid my
clerk in through the door.
In he stepped with youthful stride,
brand-new filing at his side,
Still another motion coming briskly
through my chambers door—
A docket full and motions more, another
through my chambers door—
Coming through my chambers door. . . .

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A Special Treat For Civil Procedure Geeks.

14 Tuesday Apr 2015

Posted by in Civil Procedure, Federal Civil Procedure

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A Reader’s Guide to Pre-Modern Procedure, by Louis J. Sirico, Jr., Legal Skills Prof Blog

http://tinyurl.com/lqodu5n

In this short article, David Noll explains procedural terms with which students often are unfamiliar. These terms predate the Federal Rules of Civil Procedure, which most Civil Procedure classes seem to pass over.

These terms, like ‘demurrer’ and ‘nonsuit,’ may pop up not only in old court cases that students may study, but also in state court procedural rules. . . .

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Why Circuit Courts Reassign Cases To Different District Judges On Remand.

24 Tuesday Feb 2015

Posted by in Appellate Judges, Civil Procedure, Court Orders, Federal Civil Procedure, Federal Judges, Judges

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Standards For Reassignment To A Different Judge On Remand, by Raymond P. Ward, Louisiana Civil Appeals

http://raymondpward.typepad.com/la-appellate/2015/02/standards-for-reassignment.html

In U.S. ex rel. Little v. Shell Exploration & Production Co., 14-20156 (5th Cir. Feb. 23, 2015) (unpublished), the Fifth Circuit not only reversed a summary judgment, but also ordered that, on remand, the case be reassigned to a different district judge. Why? Here is the sequence of events in a nutshell:

  1.  The district court rendered summary judgment in defendants’ favor.
  2.  On appeal, the Fifth Circuit reversed, holding that the district court applied the wrong legal standard. The Fifth Circuit remanded with instructions for the district court to apply the correct legal standard.
  3.  A year later, the district court again rendered summary judgment in defendants’ favor, apparently applying the same legal standard that the Fifth Circuit had rejected. The Fifth Circuit concluded that, in rendering this judgment, the district court disregarded the Fifth Circuit’s instructions on remand.

Starting at page 25, the decision includes a survey of case law enunciating various standards applied by circuit courts in deciding whether to reassign a case to a different judge on remand. So this decision is worth tucking away for future reference in case you ever find yourself in need of similar relief.

Federal Judge Uses Benchslap Cartoon To Make Civil Procedure Point.

09 Tuesday Dec 2014

Posted by in Civil Procedure, Federal Civil Procedure, Jurisdiction

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Judge Uses Cartoons To Benchslap Jones Day, by Joe Patrice, Above The Law Blog

http://abovethelaw.com/2014/12/judge-uses-cartoons-to-benchslap-jones-day/

Judge Robert J. Jonker is a saucy one.

He once shot down Thomas M. Cooley Law’s trumped up defamation claims by declaring that the statement that Cooley “‘grossly inflates its graduates’ reported mean salaries’ may not merely be protected hyperbole, but actually substantially true.” Snap.

So it wasn’t a tremendous shock to see Judge Jonker involved when a recent benchslap kicked off with a cartoon.

Is it the funniest cartoon in the world? No. Indeed, it falls into the Ziggy realm of groan-inducing comics. But is it a special kind of embarrassing when a federal judge feels words are not enough to call out your inappropriate behavior and breaks the judiciary’s largely staid approach to put a comic into an opinion? Absolutely.

So what got him so irked? . . . .

Changes to Federal Rules Effective December 1, 2014.

02 Tuesday Dec 2014

Posted by in Appellate Law, Bankruptcy Law, Civil Procedure, Court Rules, Courts, Criminal Law, Evidence, Federal Civil Procedure

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Federal Rules of Practice and Procedure, United States Courts (with hat tip to Andrea Duncan, RP!)

http://www.uscourts.gov/RulesAndPolicies/rules/current-rules.aspx

The following rules became effective December 1, 2014:

Appellate Rule 6 (doc) (pdf)

  • Doc. 113-161 – Amendments to the Federal Rules of Appellate Procedure (pdf)

Bankruptcy Rules 1014, 7004, 7008, 7054, 9023, and 9024 (doc) (pdf), and 8001-8028 (“Part VIII Rules”) (doc) (pdf)

  • Doc. 113-165 – Amendments to the Federal Rules of Bankruptcy Procedure (pdf)

Civil Rule 77 (doc) (pdf)

  • Doc. 113-163 – Amendments to the Federal Rules of Civil Procedure (pdf)

Criminal Rules 5, 6, 12, 34, and 58 (doc) (pdf)

  • Doc. 113-162 – Amendments to the Federal Rules of Criminal Procedure (pdf)

Evidence Rules 801(d)(1)(B) and 803(6)–(8) (doc) (pdf)

  • Doc. 113-164 – Amendments to the Federal Rules of Evidence (pdf)

 

Two 2014 Pivotal Supreme Court Cases on Personal Jurisdiction And Their Lasting Impact on Civil Litigation.

08 Sunday Jun 2014

Posted by in Civil Procedure, Class Actions, Federal Civil Procedure, Jurisdiction, Litigation

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Rhodes and Robertson on the New PJ Decisions, by Robin Effron, Civil Procedure & Federal Courts Blog

http://tinyurl.com/kbepuyd

Interesting implications for both state and federal civil litigation. This article deserves thoughtful study. -CCE

Charles “Rocky” Rhodes (South Texas College of Law) and Cassandra Burke Robertson (Case Western) have posted Toward a New Equilibrium in Personal Jurisdiction to SSRN.

In early 2014, the Supreme Court decided two new personal jurisdiction cases that will have a deep and wide-ranging impact on civil litigation in the coming decades: Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and Walden v. Fiore, 134 S. Ct. 1115 (2014). Bauman eliminates the traditional “continuous and systematic” contacts test for general jurisdiction, and Walden significantly retracts the ability of courts to exercise personal jurisdiction over out-of-state defendants whose actions have in-state effects. Taken together, both cases will make it significantly more difficult for plaintiffs to exercise control over where lawsuits are filed. In some cases — such as large-scale class actions — the new decisions may make it impossible to identify a single forum where multiple defendants can be sued together, and will therefore shift the balance of litigation power from plaintiffs to defendants.

This Article examines the effect that these decisions will have on future litigation and suggests solutions to the problems that will arise in the wake of these decisions. It analyzes how the Court’s new jurisprudence has shifted the balance of power in the jurisdictional framework, and it explores areas of future litigation. . . .