Category: Civil Procedure


Sanctioned Lawyer Throws Himself on the Mercy of the Court

[Updated and bumped, for update see below]

Readers may recall the case of GMAC Bank v. HTFC Corp. GMAC is infamous because of an opinion by E.D.Pa. Judge Robreno discussing the deposition of HTFC CEO Aaron Wider, in which Wider profanely abused plaintiff’s counsel Robert Bodzin. If you need to see it, and are in environment where lots of cursing isn’t going to get you in trouble, hit play and shudder at the decline of civility in American life:

In his opinion, Robreno also sanctioned Wider’s attorney Joseph Ziccardi for failing to restrain his client and even (allegedly) snickering at the bad conduct. Ziccardi was stripped of his pro hoc admission, fined $29,000 (equally with his client) and referred to the Bar.

Ziccardi has filed a motion for reconsideration. I found it quite persuasive. In the memorandum in support of the motion, and the reply, Ziccardi provides evidence that he didn’t snicker at Wider’s profane conduct but instead tried to stop it off the record. The evidence was purportedly not submitted earlier because Ziccardi was still representing Wider and lacked notice that the Court was considering sanctioning him under the discovery rules as a co-offender. Ziccardi has provided affidavits from (among others) himself and Wider. The latter in particular is a must read. Wider falls on his sword for his former lawyer, stating that Ziccardi had repeatedly cautioned him not to act out and worked to prevent his outbursts behind the scenes. (Oddly, based on this document, I’m not sure that anyone is currently representing Wider. The affidavit is very much not in his interest, but sounds like it was a lawyer-generated document. Ziccardi’s conflict is quite acute at this point, as he realizes, and I wonder how he handled that communication.)

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Docketology in Print

I’m happy to point out that my article, Docketology, District Courts and Doctrine, is now in print in Volume 85 of the Washington University Law Review. You can find previous discussion of the piece on this blog, starting here. The final version is significantly improved over the drafts, so I hope you’ll check it out. If anyone is motivated by the article to try some dockets research, let me know know, and I will tell you all the ways I’ve messed it up in the past!

Coming next: Docketology, Part II.


Calder and World-Wide and Shoe, Oh My!


If, like me, you are teaching the jurisdictional portion of Civil Procedure this semester, and if, like me, your students are eager for cases that relate to the age of the internet (for me, the second most popular request after “more hypotheticals”), here’s some candy for you: Dudnikov v. Chalk & Vermilion Fine Arts. In a clearly-written opinion, the 10th Circuit applies all of our old friends, from International Shoe to World-Wide Volkswagen, from Burger King to Calder (even a mention of Keeton!) to an eBay dispute.

So here’s what happens: Ms. Dudnikov and her husband run a “small and unincorporated” business selling fabric on eBay from their home in Colorado; their Colorado location is clear from their eBay auction page. One type of fabric uses a design by Erte, a 20th century artist, but replaces the elegant character in the design with Betty Boop and her dog, Pudgy. Chalk & Vermilion (a Delaware corporation with its principal place of business in Connecticut) is the American agent of a British corporation that owns the copyright to Erte’s works. Chalk decides that this fabric infringes their copyright, and instead of playing nice and sending Dudnikov a cease and desist letter, it files a “notice of claimed infringement” or NOCI with eBay (in California), which terminates the fabric auction and puts a “black mark” on Dudnikov’s eBay record (which until now has enjoyed a 99.9% satisfaction rating). Dudnikov offers to remove the offending fabric if Chalk pulls the NOCI; Chalk refuses and notifies Dudnikov that it plans to file suit in federal court with in 10 days to prevent the fabric auction from being reinstated. Not so fast — in the meantime, Dudnikov and her husband file suit against Chalk and its British counterpart in Colorado federal court, seeking a declaratory judgment and an injunction against interference with future fabric sales. You can see where this is all going — defendants enter a special appearance and move to dismiss for lack of personal jurisdiction. And that’s where the fun begins! Plenty of good times to go around.


On Remand from the U.S. Supreme Court, the Oregon Supreme Court Reinstates $75.9 Million Punitive Damages Award

philip morris.jpgHoward Bashman has a nice summary of why the Oregon Supreme Court was able to reinstate $75.9 million in punitive damages against Philip Morris. In short, Philip Morris had two claims on appeal. One rested on a procedural due process claim “asserting that a defendant’s due process rights are violated if a jury assesses punitive damages to punish a defendant for having caused harm to persons other than the plaintiff.” The other substantive due process claim argued “that the punitive damages award was unconstitutionally excessive because, among other reasons, it was nearly 100 times larger than the award of compensatory damages.” The Supreme Court ruled only on the procedural due process claim and that is why Oregon could reinstate the damages.

Specifically, Philip Morris used jury instructions that were objectionable. As Bashman explains, “Under Oregon law, a party has no right to have a trial court deliver its proposed jury instruction unless the instruction is entirely unobjectionable.” Here, the Oregon court found other errors and so reinstated the claim. Bashman goes into whether Philip Morris will have a good chance of another Supreme Court case on the substantive claim. His analysis makes sense but I leave it to others to go into that aspect of Supreme Court litigation tactics.

His last point is the one that may be of most use to attorneys “the reason Philip Morris failed to benefit from the U.S. Supreme Court’s punitive damages ruling in its favor in this very case is that the trial lawyers for Philip Morris tried to slant their proposed punitive damages instruction too far in the defendant’s favor.”


Twombly: Trimming Some of the Possible Worlds

newplanet.jpgOver at Prawfsblawg, Scott Dodson has a post up commenting on the latest judicial decision to attempt to make sense of the Supreme Court’s civil procedure blockbuster last term, Bell Atlantic v. Twombly. Twombly held, seemingly contrary to what courts had been saying for decades, that a complaint must not only provide a short and plain statement of the claim, but must also plead “enough facts to … nudge[ ] their claims across the line from conceivable to plausible.” Although this set off alarm bells among many commenters suggesting that the Supreme Court had just struck notice pleading dead, the Third Circuit, in Phillips v. County of Allegheny, held that Twombly says only that Rule 8(a)(2) means what it says: a plaintiff must provide not only a short and plain statement of the claim, but one “showing that the pleader is entitled to relief.” No plausible facts, no showing. In that case, Twombly would be a non-event.

Scott proposes a different interpretation:

A better reconciliation of “plausibility” and Rule 8 would have returned to the Third Circuit’s initial insight: context matters. In the unique circumstances of antitrust, inferential allegations of conspiracy must contain facts showing the conspiracy was plausible in order to show entitlement to relief. By contrast, in a garden-variety negligence case, for example, plausibility is not required; rather, even a bare averment of “negligently drove” may need no factual elaboration on the question of negligence in order to show entitlement to relief.

These interpretations are both reasonable. But here’s mine, which I suggested to my Civ Pro class when we covered this case a few weeks ago: Twombly rules out low-probability inferences in complaints.

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How Should Courts Handle Cultural Dissensus on Summary Judgment?

That’s the deep question unanswered by last year’s Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority’s view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court’s position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can’t be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

ronOur results showed exactly that. Dissenters to the Court’s view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield’s work on “status collectivities,” we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects’ reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger.” The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

New Picture.jpg

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron’s characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I’ll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?


Should Courts Issue Unpublished Opinions?

lawbooks1b.jpgNOTICE: This is an unpublished blog post. It may not be cited by any court or any party to any litigation.

A common practice for many courts is to issue unpublished opinions that may not be cited as precedent. These opinions are often short and consist of a few paragraphs. They are generally supposed to be limited to cases that can be resolved by clearly-established legal rules. According to one news article: “California courts of appeal issued 11,852 opinions during the 2004-2005 fiscal year. Of these, only 1,047 were published. About one-third of federal appellate-court decisions reviewed in 2002 came in unpublished opinions.” These statistics are staggering. Are there really so many cases that do not warrant having precedential value?

Unpublished opinions that may not be used for precedent raise some serious questions. Our legal system relies upon precedent, and we bristle when judges depart from precedent. Yet should we allow judges to say that some opinions are not precedent-worthy? Now that these cases are all readily available electronically, the argument that it is impossible to publish all opinions does not seem persuasive. Another argument is that it would overburden the courts if they couldn’t write unpublished opinions, which are typically very short and hastily-written. If these opinions counted, the argument goes, then judges might feel compelled to spend more time researching and writing them. But wouldn’t this be a good thing? Maybe it would yield better opinions. So by issuing an unpublished opinion, the court is basically saying: “Here’s our decision. We don’t think it’s good enough to be considered as precedent, yet your case isn’t worthy of our spending a lot of time to write such an opinion.”

But what about judicial workload? That surely is a problem, but it still strikes me as fundamentally wrong for a court to issue a decision that it believes is not adequately researched or articulated. Perhaps courts don’t believe this, but if an opinion is adequately researched and articulated, why not publish it and give it precedential value? And if the problem is excessive workload, then shouldn’t there be another way to address it?

Fortunately, in federal courts the rules are changing. In 2006, the U.S. Supreme Court voted to allow the citation of unpublished opinions.

But the practice still remains alive and well in state courts.

When I was clerking in federal circuit court before the rule change, I was surprised at the number of unpublished opinions (called “memorandum dispositions” or “mem dispos” for short). In one case, I found a memorandum disposition that addressed and resolved an open question in the circuit — yet because it was just a memorandum disposition, I couldn’t cite to it or rely upon it. So the issue had been confronted in the circuit and resolved by a panel, but that panel struck me as being lazy and didn’t want to bother to write a real opinion and resolve the issue in the circuit.

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Jurisdiction and Textualism

I just posted a draft of a paper on SSRN. It is called “Jurisidiction and Textualism,” and it is about the treatment by textualists of jurisdictional statutes, and what that treatment suggests both about textualism and about the broader debate over the relationship between Congress and the courts in crafting a jurisdictional regime. Here is the abstract:

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress’s authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress’s role in crafting a jurisdictional regime last flared in full force, textualism has been ascendant as a methodology for interpreting statutes, and has had a profound impact on the way that judges—textualists and non-textualists alike—read statutes. The rise of textualism provides an important opportunity to update the long-standing debate over the proper roles of Congress and the courts in matters of federal-court jurisdiction.

Like the debate over congressional control of the federal jurisdictional regime, textualism is largely about the judicial role in a democracy. Textualists argue that only their methodology recognizes the properly limited judicial role, and they insist that judges must be faithful agents of the legislature, guided by the plain meaning of statutory text. To the extent that textualism has had a significant impact on judicial decision-making, particularly by the Supreme Court, we might expect to see a move towards strict interpretation of jurisdictional statutes, and a vindication, at least as a descriptive matter, for the strong congressional-control models. After all, if the textualist judge is supposed to act as a faithful agent of Congress, following the plain meaning of statutory text, then when Congress plainly withdraws jurisdiction, faithfully textualist judges can be expected to decline to exercise authority; and if Congress confers jurisdiction without qualification, then we might expect textualist judges to eschew arguments for implicit exceptions to the exercise of jurisdiction. In practice, however, textualism has been applied somewhat unevenly to jurisdictional statutes. Although the Court’s textualists have strictly read statutes that purport to divest the federal courts of jurisdiction, they have not been as consistent in applying textualism to statutes that appear, based on their plain language, to confer expansive grants of jurisdiction.

Textualism’s goal to limit the judicial role in a democratic society is advanced by strict interpretations of statutes purporting to divest the courts of jurisdiction. But when Congress appears to confer broad grants of authority—such as in the general federal-question statute—being a truly faithful agent based on statutory language will result in a more robust judicial role than some textualists might otherwise prefer. The treatment by the Court’s textualists of jurisdictional statutes suggests that the textualists’ urge to constrain judicial power has sometimes trumped the textualists’ demand that courts act as faithful agents of Congress by considering only the plain meaning of statutory language in deciphering Congress’s instructions.

This has implications both for textualism and for the larger question of the proper relationship between Congress and the courts in crafting a jurisdictional regime. It should force textualists to defend their approach more explicitly as a device for constraining judicial authority, and perhaps less as the optimal means for implementing a theory of faithful agency in statutory interpretation. And it suggests that, at least as a positive matter, the strong congressional-control models of federal jurisdiction have not yet fully prevailed, at least with respect to the question of the courts’ authority to decline to exercise jurisdiction that Congress ostensibly has granted.

You can download the paper here. I welcome any comments.


Harry Potter and the Due Process Clause

Harry potter cover.jpgDon’t worry, no spoilers here.

I stayed up way past my bedtime last night finishing the final Harry Potter book. I found it very satisfying. But this is a law blog, and I am a geeky law professor, so the phenomenon I will note is how extensively these books develop the theme of procedural fairness — a marvelous lesson for the children who are its target audience.

Time and again throughout the series, the Ministry of Magic that rules wizards in England falls far short of what we would consider the minimum of due process. There are repeated sham hearings that have the trappings of even-handed court proceedings, but they are rigged and hollow. In an earlier book (Harry Potter and the Order of the Phoenix, also the movie currently playing in theaters), Harry himself is accused of an infraction against wizarding rules; the Minister abruptly changes the time for his hearing before the Wizengamot — a sort of legislature with judicial functions, it seems — hoping that Harry’s principal advocate, the wise Albus Dumbledore, will miss it. The same phenomenon happens constantly at Hogwarts, the wizarding school. Various teachers and headmasters make arbitrary and capricious decisions and issue unjust punishments.

Sometimes this sort of unfairness is perpetrated by the clear bad guys, the evil followers of the story’s villain, Voldemort. More often, however, leaders of the Ministry of Magic or of Hogwarts are simply acting bureaucratically. They may not support Voldemort at all, but they treasure form over substance and obedience to the letter of the rules rather than any adherence to its spirit. Most of all they seek to preserve their own power against perceived threats — often petty threats far less serious than the real dangers posed by Voldemort’s followers. The fact that there is an official hearing, an examination of witnesses, and a vote provides no guarantee of substantial fairness.

Early in the first semester of my civil procedure course I plan to have the students read the classic procedural due process cases (Goldberg and Mathews) and think about the attributes that do — and should — constitute fair procedure. I think I will use the Harry Potter books as an example.


Sex, Laws, and Videotape (Genarlow WIlson Edition)

Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year’s Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence “a grave miscarriage of justice,” but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.

Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge’s proper role in such circumstances. But I am going to focus on an information law angle — specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?

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