Category: Civil Procedure


Re-reading Iqbal (a new take on the 12(b)(6) wars)

My friend and law school classmate Adam Steinman tempted the civ pro geek in me with his thoughtful and thorough discussion of the recent Iqbal decision, which has caused more excitement in proceduralist circles than I’ve seen in quite some time!  His thoughts should prove most helpful to those of you figuring out how to teach the case in your Civil Procedure class this fall . . .

Thanks to the folks at Concurring Opinions for giving me the opportunity to share some thoughts on last Term’s decision in Ashcroft v. Iqbal, which dismissed a civil-rights complaint filed against John Ashcroft and Robert Mueller by Arab Muslim men detained in the weeks following 9/11. I realize my comments are glacially slow-in-coming by blogosphere standards (Iqbal came down over two whole months ago). But it’s been back in the news lately, including Adam Liptak’s NYT article and Senator Specter’s introduction of the Notice Pleading Restoration Act (which would legislatively overrule Iqbal, although even Iqbal’s critics concede that the bill may have little chance of becoming law).
Iqbal has been of immense interest to litigators and civil-procedure scholars, because it embraces the 2007 decision in Bell Atlantic v. Twombly as reflecting the generally applicable pleading standard in federal court. Twombly had dismissed an antitrust conspiracy claim for lacking sufficient “factual enhancement” to make it “plausible.”  Twombly was quite controversial in its own right, but some had speculated it might be narrowly confined to complex antitrust cases.

The response to Iqbal reveals a sharp divide between those who “are lovin’ Iqbal” (in the words of a recent WSJ headline) and those who are, well, not lovin’ Iqbal. But there has been very little disagreement about how to read Iqbal—everyone seems to agree that Iqbal imposes significant new obstacles on plaintiffs at the pleadings phase and, thereby, discards the liberal, notice-pleading paradigm that most lawyers, judges, and law professors alive today learned in law school. The focus of the debate has been whether this result is proper or desirable. I want to challenge the premise that this is the correct reading of Iqbal. In fact, if read carefully, Iqbal can be fully reconciled with the pre-Twombly view of pleading. (If readers are interested, this argument is explored in more detail in my article “The Pleading Problem“, which is available on SSRN.)
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A Right to Be Punished?

From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs Nuggets would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

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Open Source Initiative on Google Book Search Settlement

As Frank and others have highlighted at CoOp, Google has been digitizing millions of books, including many covered by copyright, from the collections of major research libraries.  Robert Darnton describes Google’s book scanning project as nothing short of  an attempt to control access to the “single most comprehensive collection of books since the Library of Alexandria.”  Authors and publishers brought a class action suit against Google, alleging breach of copyright.  Judge Denny Chin is currently considering the class certification motion and the parties’ settlement proposal.  In response to wide-spread criticism of the proposed settlement, Judge Chin recently granted a four-month delay to allow more time for discussion and analysis of the proposal.

Superb guest blogger James Grimmelmann has offered thoughtful commentary on the proposed settlement and now is spearheading an open source initiative to garner public input on the controversial proposed settlement.  Later this month, Grimmlemann will introduce “The Public Index,” a website that will feature discussion forums, a comprehensive archive of settlement documents and related commentary, and a tool for users to insert their analysis and commentary on individual paragraphs of the proposed settlement.  Although the website responds to a lawsuit, it ultimately can provide Congress and agencies insight into the issue should the court reject the settlement.

The proposed settlement raises issues of great importance, from the contours of the fair use principle and Google’s potential monopoly over the largest digital library (remniscent of Frank’s testimony concerning the failed Google-Yahoo deal) to the  absence of due process protections of orphan works (i.e., works for which it is impossible to locate the appropriate rights holders to seek permission to digitize) whose rights would be adjudicated if the class is certified and settled.  This description merely touches the surface of the issues at stake.  Pamela Samuelson has important commentary on the issue as do many others.  Suffice it to say that the Public Index Initiative will no doubt be an important resource for the court (and possibly the legislature) in addressing this perplexing issue.


Should We Have Professional Juries?

jury2.jpgAccording to Legal Profession Blog:

The New Jersey Appellate Division reversed an $876,000 plaintiff’s verdict in a slip-and-fall case where the plaintiff had fallen while looking for pantyhose in aisle five of a supermarket owned by the defendant. . . . [T]he jury foreperson was a New Jersey State Senator, full-time law professor and lawyer who had published an article in the New Jersey Law Journal about his experiences serving as a juror. The defendant contended that the article “disclosed that he improperly influenced the jurors and that there was apparent misunderstanding of the jury charges.”

The court’s opinion is here. The article by the law professor — Robert Martin of Seton Hall Law School (who is also a New Jersey state senator) is in the New Jersey Law Journal and requires a subscription to access it.

What should one conclude from this case?

The reaction many would have is that it was unwise to put a law professor on the jury. Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in a airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot! As my colleague Jonathan Turley writes in his blog: “Martin’s article is a perfect example why some of us oppose lawyers sitting as jurors. It is a terrible practice that encourages undue influence by a single juror in deliberations.”

But there’s another lesson to be learned from this case. We should have professional juries. I’m increasingly of the opinion that our jury system is a joke. Consider some of the very thoughtful points Professor Martin wrote in his article about his experiences:

I became acutely aware that jurors are not generally permitted to ask questions during trial (except through written request). . . .

Additionally, jurors are usually prohibited from taking notes. . . .

In preparation of our deliberation, the judge gave us detailed instructions, which in this case lasted about an hour. These instructions amounted to a mini-course in tort law, similar in content to what some law students have trouble absorbing over the course of a full semester. Although the judge read from carefully prepared notes, we again were prevented from taking our own notes (but reminded that we must closely follow all of the instructions).

The process which Martin describes (and which indeed is quite common) is ridiculous is so many ways. First, it is ridiculous that juries are basically taught the law after hearing the facts of the case. If one is applying a rule, shouldn’t one know about the rule first in order to determine which facts are relevant and which are not?

Second, it takes law students three years to learn the law — or at least a semester to learn a specific subject like torts — and yet juries are expected to understand the law after just one brief lecture from the judge. Who are we kidding when we think that the jury is really applying the law? Juries probably have little to no idea about what the law is.

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Sometimes You Just Cannot Sue

According to BBC News, the suit entitled Ernie Chambers v. God has met its maker. Nebraska state senator Ernie Chambers sued God in federal district court, seeking a permanent injunction to prevent “death, destruction and terrorisation.” The complaint alleged that God had threatened the plaintiff and the people of Nebraska and had inflicted widespread death and destruction “upon millions of the Earth’s inhabitants.” The court dismissed the case on the grounds of insufficient process: because the defendant has no address, legal papers cannot be served. The court apparently rejected the plaintiff’s argument that “since God knows everything, God has notice of the lawsuit.”


News for Civil Procedure Fans

During the fall semester, my civil procedure class covers personal jurisdiction. While most personal jurisdiction cases tend towards the staid, Calder v. Jones provides some possibility for fun. As my comrades in civil-procedure arms will know, the case involves a defamation suit brought by Shirley Jones, the mother from the Partridge Family. Every semester, this connection has great promise to generate some good cheer about the case, but of late I have been disappointed. This year, I desperately asked: “Don’t you remember the Music Man? or the Partridge Family?” (I thought about singing “I think I love you” but thankfully I ignored that foolish impulse). All I got was blank stares, a clear sign that I am helplessly unhip. My disappointment, however, may come to an end: NBC has just announced plans to reinvent the Partridge Family for prime-time television. Now, I just have to hope that my future students tune in. Amidst all of terrible news about the economy, this may lift spirits, even momentarily for civil procedure fans.


GMAC v. HTFC: Update on the World’s Worst Deposition

I’ve blogged before about GMAC v. HTFC, criticizing Judge Robreno’s contempt ruling against attorney Joseph Ziccardi:

The big picture question here is the degree to which attorneys should be punished for failing to affirmatively prevent their clients’ incivility. Some punishment of this client is certainly warranted. But punishing the “mild-mannered” solo practitioner attorney as if he were equally culpable goes too far. I hope that the Court walks it back a bit.

Guess Judge Robreno isn’t a reader of the blog. On August 13, he issued a memorandum and opinion denying the motion to reconsider his judgment. (Read Part I and Part II). The gist, putting aside the high bar for reconsideration & the procedural objections, is that the Court found it appropriate to fine Ziccardi $30K for failing to stop his client from being obstructive at the deposition, even while accepting that he had vigorously counseled his client “offline” to behave. Ziccardi’s silence during the deposition was, per se, sanctionable.

Appellate standards for review of discovery orders being what they are, I guess that Ziccardi won’t prosecute an appeal, but this decision strikes me as overreaching.


Monster Cases

ApocalypseStSeverFol148vHorsesWithHeadsOfLions2.jpgHere’s a challenge: what’s the oldest active litigation pending in the federal district courts? I’m coding dockets (as always) and I came across a monster in the Southern District of Ohio that has been pending since 1991 (it’s a CERCLA case relating to the United Scrap Lead site located in Troy Ohio). The government continues, it seems, to seek pockets to pay cleanup costs, seventeen years into the case.

Can you beat that?

(Image Source, Wikicommons, Folio 148v of the Apocalypse of St. Sever (St. Sever Beatus), The horses with heads of lions.)


Oddities from Docketland

I’m hip deep in my latest docketology project, which, on my end, involves organizing lots of RAs who read many dockets and code them. Apart from the $10/hr wage, and the occasional lunch, the only thing my RA team gets in return for spending too much time on this tedious task is the chance to see a few small nuggets of random nuttiness emerging from the glorious mess that is our litigation system. Take, for example, this claim:

“TRAVEL BARGAINS USA is reasonably assumed to have a Corporate Charter or otherwise a Mission Statement which does not include as part of its ordinary Charter the act of threatening such other business entities as Plaintiff A VACATION 4 YOU, by, for example, stating that You’re up shits creek because if you do not honor the certificates, or refund our money in full on the distributorship, we WILL put you out of business. It will only take a few complaints from people. You started this war, and now you have to deal with ME! “

Of course, such nutbar pleading rarely survives judicial scrutiny. It’s thus a surprise to see one particular set of phrases repeated in over a dozen totally distinct, veil piercing cases:

“Any character assassination will activate Instrumentality Rule and pierce the corporate veil of the United States and all agencies,”


“All testimony will be without immunity – piercing the corporate veil and Instrumentality Rule.”

images.jpgMy RAs and I have tracked this language, which sometimes appears in a counterclaim and sometimes in the complaint, to The Court Watcher’s document page, which lists a “counter-claim“. That document, in turn, appears to suggest that filers ought to check to see if the other side has violated any particular provisions of the declaration of independance as a way to frame their pleading. I particularly like the following form paragraph:

“Was there a treaty or alliance or letter of Marque and reprisal imposed against you by the public servant? __ Yes __ No Explain”

A letter of marque? Avast mateys!