Archive | Civil Procedure

Atlantic Marine and the Sachs Brief: A Post-Mortem

The Green Bag has picked, as an example of “exemplary legal writing,” Professor Stephen Sachs’s amicus brief in Atlantic Marine v. U.S. District Court (previously discussed here).

This reminds me that I didn’t have a chance to write a post when the Supreme Court decided Atlantic Marine a few weeks ago. The decision was unanimous and it did not adopt the Sachs position. However, the Court also went out of its way to leave open the possibility that the Sachs position could be adopted in a future case where it was properly preserved and raised:

An amicus before the Court argues that a defendant in a breach-of-contract action should be able to obtain dismissal under Rule 12(b)(6) if the plaintiff files suit in a district other than the one specified [*9] in a valid forum-selection clause. See Brief for Stephen E. Sachs as Amicus Curiae. Petitioner, however, did not file a motion under Rule 12(b)(6), and the parties did not brief the Rule’s application to this case at any stage of this litigation. We therefore will not consider it. Even if a defendant could use Rule 12(b)(6) to enforce a forum-selection clause, that would not change our conclusions that §1406(a) and Rule 12(b)(3) are not proper mechanisms to enforce a forum-selection clause and that §1404(a) and the forum non conveniens doctrine provide appropriate enforcement mechanisms. [FN]

[FN:] We observe, moreover, that a motion under Rule 12(b)(6), unlike a motion under §1404(a) or the forum non conveniens doctrine, may lead to a jury trial on venue if issues of material fact relating to the validity of the forum-selection clause arise. Even if Professor Sachs is ultimately correct, therefore, defendants would have sensible reasons to invoke §1404(a) or the forum non conveniens doctrine in addition to Rule 12(b)(6).

It’s easy to [...]

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Class Action Litigation

People who follow class action litigation are doubtless familiar with the “smelly washer” cases (see also here and here). The Sixth Circuit and the Seventh Circuit (per Judge Posner) allowed consumer class actions based on alleged washing machine design defects to go forward, the Supreme Court reversed and remanded the cases for reconsideration in light of the hugely important Comcast Corp. v. Behrend decision (written by Justice Scalia), and the lower court panels reaffirmed their pre-remand decisions.

Now the cases are going back up to the Court, courtesy of two petitions (Sears, Roebuck & Co. v. Butler and Whirlpool Corp. v. Glazer) filed by my colleagues at Mayer Brown LLP. It’ll be interesting to see what the Justices will do with these; see here for an admittedly opinionated analysis of the matter, from one of the coauthors of the petitions. [...]

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Professor Stephen Sachs and Atlantic Marine v. U.S. District Court

On Wednesday, the Supreme Court heard oral argument in Atlantic Marine v. U.S. District Court, a case about the proper procedure for enforcing a forum selection clause. As I’ve mentioned on this blog before, Professor Stephen Sachs (who is also a friend) filed an amicus brief arguing that both parties were wrong and that a third side of the 3-way circuit split was correct.

The Court was apparently quite interested in the theory — Sachs was mentioned by name 17 times at argument as the Justices asked a lot of questions about his position. (Here’s the transcript.) Unfortunately, Sachs was not given time to argue the case (amici curiae almost never are), and the parties either couldn’t or didn’t want to give good answers to those questions.

So I reached out to Sachs for his reactions, which are pasted below and continue below the fold:

There are three ways to decide the case in Atlantic Marine, and at oral argument the Justices didn’t seem very happy with any of them.

The parties, Atlantic Marine and J-Crew, had agreed in a contract that their disputes “shall be litigated” in Virginia. When a dispute arose, J-Crew instead sued in the Western District of Texas, which had jurisdiction and proper venue under the statutes. The question in the case is what difference the contract makes: whether it destroys proper venue in Texas (Atlantic’s view), whether it informs the court’s discretion to transfer venue to Virginia (J-Crew’s view), or whether it provides an affirmative defense in the Texas court (my view).

At least based on their questions, I don’t think any Justice wholeheartedly agreed with Atlantic’s reading of the venue statutes. Suing where you agreed not to sue might be “improper,” but it doesn’t make for “improper” venue: the private

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28 U.S.C. 2403(a) and State Court Litigation

One of my favorite statutes, 28 U.S.C. 2403(a), says that when a federal court is hearing a case in which the constitutionality of a federal statute is drawn into question, the court is supposed to notify the Attorney General if the United States is not already a party:

In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

The purpose seems pretty clear and pretty sensible. A lot of direct challenges to a statute would already name the U.S. or a federal agent as a defendant, but a statute might be held unconstitutional in other cases, where the statute creates a private cause of action or a private defense. Given the way judicial precedent operates, Congress doesn’t want a statute struck down without somebody responsible to the federal government having a chance to defend the statute and make the best arguments for it, or maybe to advocate a limiting instruction to save the statute from invalidation. Plus letting the United States intervene as a party lets the United States appeal or seek certiorari if the statute [...]

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Sachs on Personal Jurisdiction and Authority

Speaking of Steve Sachs and civil procedure, I was recently reminded of this passage, from a recent article by Steve, on the question of whether the Constitution’s limits on personal jurisdiction focus on convenience and fairness or on something more like sovereignty (an issue that may well come up again in next term’s personal jurisdiction cases):

These concepts of convenience and fairness fail to account for another worry. Whether or not one agrees with the McIntyre plurality’s take on sovereignty (or its contractarian theory in particular), the authority of a distant court ought to be supported by some theory of obligation.

Suppose that, after an ordinary fender-bender in a neighboring state, an official visits you from the Tribunal de grande instance de Paris and says:

The person whose fender you hit has asked us to decide your case. We will hear it according to our own rules of procedure and evidence—not just about the kind of paper you file on, but about how intrusive discovery will be, what kind of experts can testify, and whether you will have to pay the plaintiff’s costs and fees if you lose.

Your arguments will be considered by a French judge, who was appointed by French politicians or selected by French bureaucrats. Your substantive rights and liabilities will be determined through our choice-of-law principles, which (all else being equal) tend to favor the laws of France. You can get a jury trial only if French law permits one (which it doesn’t), so the judge will decide all the facts. And any appeals will run to the regional cour d’appel and from there to our Cour de cassation.

This isn’t optional, by the way.

But you do have some protections. We’ll apply whatever U.S. federal law is relevant to your garden-variety tort case;

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An Excellent Example of a Scholarly Amicus Brief

Eugene had some posts a while back about good amicus briefs, and now that I’m here I wanted to mention an unusually good academic amicus brief recently filed at the Supreme Court — that of Professor Stephen E. Sachs as amicus curiae in Atlantic Marine v. U.S. District Court (although the real respondent is J-Crew Management).

The case is about a technical question of civil procedure — what federal procedure to use to enforce a forum-selection agreement — and perhaps because of that, it hasn’t attracted a lot of amicus briefing or media attention. Moreover, there is at least a three-way conflict among the circuits about how to resolve the question, but as a natural artifact of the adversarial process, the parties have only focused on defending two of them. This strikes me as an important place for scholars to weigh in. [And, full disclosure, Steve is a friend, and I've talked to him about the brief before.]

In any event, here’s a summary of the argument:

The parties in this case defend two sides of a many-sided circuit split. This brief argues that a third view is correct.

If a contract requires suit in a particular forum, and the plaintiff sues somewhere else, how may the defendant raise the issue? Petitioner Atlantic Marine Construction Company suggests a motion under Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. § 1406, on the theory that the contract renders venue improper. Pet. Br. 3. Respondent J-Crew Management, Inc. contends that venue remains proper, and that the defendant’s only remedy is a transfer motion under § 1404. Br. in Opp. (BIO) 11.

Both sides are wrong. Forum-selection clauses have no effect on venue, which is defined by statute. While parties can waive their venue objections in advance, they cannot destroy proper

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“Revisiting the ‘Preponderance’ Debate”

Joe Cohn of the Foundation for Individual Rights in Education — a group which I very much respect — passed along this response to my post on whether universities should apply the “preponderance of the evidence” standard in deciding whether to expel or otherwise discipline students accused of sexual assault:

Professor Volokh recently authored a post here on The Volokh Conspiracy parting company with my organization, the nonprofit, nonpartisan Foundation for Individual Rights in Education, with regard to our opposition to the Department of Education’s April 4, 2011, “Dear Colleague” letter (DCL), which requires colleges and universities that accept federal funds to utilize the “preponderance of the evidence” standard of proof when adjudicating sexual misconduct cases on campus. (The DCL is not to be confused with the Department of Education’s May 9, 2013, “blueprint” that requires the adoption of unconstitutional harassment codes, which Professor Volokh also recently discussed in this space. Happily, Professor Volokh and FIRE are in full agreement on this score.)

FIRE has had the distinct honor and pleasure of working with Professor Volokh on a variety of cases and issues over the years. As a result, we know very well how deeply considered his opinions are, how thoroughly he interrogates his own conclusions, and how powerful and precise his arguments are as a result. Suffice to say, having Professor Volokh on your side is a real boon. And on those relatively rare occasions where we disagree, we know that it’s useful and illuminating to identify exactly where our calculations diverge, so as to better understand our own contentions and their implications. Thankfully, Professor Volokh is always willing to hear us out, even when our results differ. To that end, we are very appreciative that he has provided us this opportunity to respond to his piece

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Quantum of Proof in University Sexual Assault Investigations

When a university is deciding whether to expel, suspend, or otherwise discipline a student for an alleged sexual assault, how much proof should the university proceeding require? Should the student’s guilt be shown by “clear and convincing evidence”? By a “preponderance of the evidence,” which is what the Department of Education’s Office for Civil Rights has demanded, under its interpretation of Title IX? Beyond a reasonable doubt? I’m inclined to say — contrary to quite a few people whose judgment I generally much respect — that preponderance of the evidence would likely be the right standard, at least for claims of sexual assault and not just offensive words. Let me briefly explain why.

First, let’s think of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt as probability thresholds. Preponderance of the evidence means that the university should expel or discipline the accused student if there’s just a bit more than a 50% chance that the student is guilty. Clear and convincing evidence might be seen as requiring a 75% or 80% probability, or thereabouts. Proof beyond a reasonable doubt might be seen as requiring a 95% probability. These are oversimplifications, to be sure, but they are probably the most helpful way of looking at these standards.

And each of these probabilities might correspond to a number n in the statement that “better that n students guilty of sexual assault remain at the university, with no discipline imposed, than one innocent student be expelled or otherwise disciplined.” Proof beyond a reasonable doubt would be something like “better that ten students who have committed sexual assault remain at the university unpunished than one innocent student be expelled.” Proof by clear and convincing evidence would be something like “better that three guilty students (but no more) remain [...]

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May Plaintiff Cut off a Poor Defendant’s Appeal, by Having the Sheriff Sell off Defendant’s Right to Appeal?

That is the question I’m facing with the latest twist in Obsidian Finance Group, LLC v. Cox, a pro bono First Amendment case that I’m litigating before the Ninth Circuit. For more on the substantive First Amendment issue, see the materials collected here. But this twist is all about procedure (as so many legal questions are).

Here’s the matter in a nutshell, and somewhat oversimplified:

  1. Obsidian Finance and Kevin Padrick sue Crystal Cox. They win at trial, and get a large judgment.
  2. Cox appeals on First Amendment grounds (I’m representing her on appeal). Cox has very little money, so she can’t put up a so-called “supersedeas bond” (a bond for the full amount of the judgment) that is required to keep plaintiffs from seizing her assets to execute the judgment. But that doesn’t block her appeal, since under federal law one generally doesn’t need to put up a bond in the amount of the judgment to appeal — one only needs the bond to stop execution on the judgment pending appeal.
  3. But plaintiffs have a different view: They go to Oregon court, register the judgment, get a writ of execution, and ask the sheriff to seize and sell to the highest bidder Cox’s “intangible personal property,” in the form of … Cox’s right to appeal.

That’s right: Plaintiff’s plan is to have the sheriff sell off Cox’s right to appeal, so that “Cox will be incapable of continuing the suit and the highest bidder at the foreclosure sale (whether that be plaintiffs or someone else) will take an assignment of Cox’s interest in the appeal, becoming the real party in interest.” Presumably the plan is that the highest bidder would be the plaintiffs, who will buy Cox’s rights for a modest amount, and then use those rights [...]

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Court Denies Motion to Provide Access to Social Networking Sites in Civil Discovery

The decision by the Pennsylvania Court of Common Pleas is Arcq v. Fields (Dec. 8), and it distinguishes Largent v. Reed (blogged about recently here) on the ground that the party seeking discovery lacked a sufficient good-faith basis for requesting access to the private portion of the other side’s social networking accounts. In Largent, and in other cases, the party seeking discovery saw the public portion of her adversary’s Facebook account, and therefore had a basis to conclude that there may be relevant information in the private portions of the account. In Arcq, by contrast, the party seeking discovery made a blanket request for access to all of the other side’s social networking accounts, and yet didn’t know if his adversary even had any such accounts. The court in Arcq concludes that because the moving party did not first see the public portion of his adversary’s site, he lacks a good-faith basis to believe that there is relevant evidence in the private portions and therefore the motion to access the social networking sites is denied.

Thanks to Dissent for sending on a copy of the opinion. [...]

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39-Year-Old Man with Alleged PTSD Seeks Court Order Against Harassment by 86-Year-Old Woman Neighbor, but Asks that He Not Have to Appear in Court

That’s the scenario in a 6-1 decision of the Maine Supreme Judicial Court (which comes out in plaintiff’s favor, on the question of whether his case can proceed) in Blackhouse v. Doe (decided last Thursday), which deals with two legal issues: (1) When may a complaint be dismissed at the outset on the grounds that it appears “bizarre, vexatious and frivolous”? (For more details on the circumstances of the complaint, see the dissent, which certainly doesn’t rely just on the ages of the plaintiff and the defendant.) (2) May a defendant be entitled to an accommodation of his alleged disability — here, post-tramautic stress disorder — when the accommodation he seeks is to have the case decided without his having to even appear in court? The opinions are hard to summarize, but here are some excerpts from the majority, followed by some excerpts from the dissent:

[UPDATE: Commenter Hans Bader notes that plaintiff was represented on appeal by a University of Maine School of Law legal aid clinic, but the defendant did not file a brief on appeal, likely because she didn't have the money to hire a lawyer, and couldn't find one who would take the case for free. My guess, incidentally, is that if a state supreme court wanted to appoint a lawyer to brief and argue this sort of case pro bono (see, e.g., this example from New Jersey) -- especially when the case is on an interesting issue and has a relatively compact record -- it should have no difficulty finding someone willing to take on such a task, given that a state supreme court argument is usually seen as interesting and prestigious. And such an appointment would likely help the court and not just the otherwise-unrepresented party.]

Blackhouse and Jane Doe are both

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Second Circuit reverses Judge Weinstein’s order against firearms stores. Concurrence harshly rebukes him.

City of New York v. Mickalis Pawn Shop was recently decided by a unanimous 3-judge panel of 2d Circuit Judges Sack and Wesley, plus Judge Eaton (Court of International Trade) sitting by designation. The case began several years ago when New York City Michael Bloomberg brought a public nuisance lawsuit against several firearms stores located in the southeastern United States. Bloomberg alleged that the stores had violated federal gun laws by selling firearms to straw purchasers (lawful buyers who are acting as a front for a person who is prohibited from possessing firearms), and that as a result, some of the defendants’ guns had been used in crimes in New York City. The defendants argued that  Judge Weinstein, of the federal Eastern District of New York, had no jurisdiction. At various stages of the litigation, defendants dropped out, and a default judgment was entered against them. They appealed to the Second Circuit. The key issues decided by the panel were as follows: [...]

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