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    Civil Procedure

    Issue Preclusion Between Claims Arising Under Two Different Statutes

    Posted by Lee P. Dunham on September 22, 2017 at 12:15 PM

    Lee Dunham, Senior Attorney, National Legal Research Group

                Collateral estoppel, also known as "issue preclusion," prohibits relitigation of factual or legal issues that have been "actually and necessarily decided" in earlier litigation. See, e.g., Banga v. First USA, 29 F. Supp. 3d 1270, 1280-81 (N.D. Cal. 2014) (citing San Remo Hotel L.P. v. San Francisco City & County, 364 F.3d 1088, 1094 (9th Cir. 2004)).  Unlike the related doctrine of res judicata (or "claim preclusion"), which operates as a complete bar to relitigation of an entire claim, under collateral estoppel, the (new and different) claim may proceed, but "the prior judgment conclusively resolves an issue actually litigated and determined in the first action." DKN Holdings LLC v. Faerber, 61 Cal. 4th 813, 824, 352 P.3d 378, 386-87 (2015), reh'g denied (Aug. 12, 2015).  Claim preclusion bars litigation of all issues that were or could have been litigated in the original action under the original claim, while issue preclusion resolves only those issues that were actually litigated. Banga, 29 F. Supp. 3d at 1280-81.

                There are multiple prerequisite elements for the application of the doctrine of issue preclusion, including a prior proceeding that resulted in a final judgment on the merits and identity or privity of parties between the two proceedings.  However, this article will focus on the third element, "identity of issues" in cases where the "issue" is the satisfaction of a statutory requirement and where the claims in the first and second proceedings arise under different statutes.

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    Topics: collateral estoppel, issue preclusion, claims under different statutes

    International Service of Process via Twitter

    Posted by Paul A. Ferrer on September 22, 2017 at 11:49 AM

    Paul Ferrer, Senior Attorney, National Legal Research Group

                Rule 4(f) of the Federal Rules of Civil Procedure establishes three mechanisms for serving an individual in a foreign country. First, service may be had "by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention." Fed. R. Civ. P. 4(f)(1). The Hague Convention is the standard method for serving an individual in a foreign country, but it does not preempt all other methods of service on individuals in another signatory nation. See 4B Charles A. Wright et al., Federal Practice and Procedure § 1134 (4th ed. & Westlaw updated through Apr. 2017). Rather, all three methods of service under Rule 4(f) are "on equal footing," and a plaintiff need not attempt service by any one method before resorting to another. Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1015-16 (9th Cir. 2002). Second, if there is no internationally agreed means, or if an international agreement allows but does not specify other means, then service may be had "by a method that is reasonably calculated to give notice," including service "as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction," or by delivering a copy of the summons and complaint to the individual personally, unless that method is prohibited by the foreign country's law. Fed. R. Civ. P. 4(f)(2)(A), (C). Third, an individual may be served in a foreign country "by other means not prohibited by international agreement, as the court orders." Id. R. 4(f)(3).

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    Topics: service of process, due process, international, use of Twitter, limitations

    CIVIL PROCEDURE: Effect of Dismissal Without Prejudice in Mortgage Foreclosure Suits

    Posted by Andrea Stokes on June 12, 2017 at 10:23 AM

    Andrea Stokes, Senior Attorney, Florida Legal Research Group

              Whether there exists a limitation on refiling an action after more than one involuntary dismissal without prejudice, particularly in the mortgage foreclosure context, has been a source of some confusion. Florida Rule of Civil Procedure 1.420, addressing involuntary dismissals, provides that

    [u]nless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

    Fla. R. Civ. P. 1.420(b). To ensure that an involuntary dismissal does not operate as an adjudication on the merits, Rule 1.420(b) requires that the order of dismissal expressly state that the dismissal is without prejudiceSee id. R. 1.420 cmt. ("Dismissals except a voluntary one constitute an adjudication on the merits unless the court provides otherwise." (emphasis added))  So it is the odd occasion indeed where a trial court involuntarily dismisses without prejudice a second or third time after a motion or sua sponte under Rule 1.420(b). The question may then arise whether a plaintiff can continue to take "bites at the apple" after a dismissal or whether the number of bites is limited. 

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    Topics: mortgage foreclosure, limitations period expired, involuntary dismissal of suit, limitation on refiling an action

    ATTORNEY AND CLIENT: Attorneys Must Preserve Confidential Information While Executing Judgment for Fees

    Posted by Amy Gore on June 9, 2017 at 5:26 PM

    The Lawletter Vol 42 No 4

    Amy Gore, Senior Attorney, National Legal Research Group

         Most attorneys encounter situations in which a client does not pay the legal fees due and owing. There may, or may not, be a dispute over services rendered. Every state bar association has some form of fee dispute resolution program, yet some clients do not participate, leaving the attorney few options. At some point it becomes evident that the attorney-client relationship has terminated and the relationship with the prior client becomes adversarial in nature. The question thus arises: If the attorney pursues an action against the client to recover the fee, and obtains a judgement against a former client, may the attorney disclose confidential information obtained during the course of the representation while seeking to execute on that judgment?

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    Topics: attorney-client, executing judgment for fees, preserving confidential information

    CIVIL PROCEDURE: Objecting to Requests for Production under the Federal Rules

    Posted by Paul A. Ferrer on May 8, 2017 at 9:54 AM

    Paul Ferrer, Senior Attorney, National Legal Research Group

                Rule 34 of the Federal Rules of Civil Procedure permits a party to request the responding party, within the scope of Rule 26(b), to produce for inspection designated documents and electronically stored information. See Fed. R. Civ. P. 34(a)(1). The request for production must, among other things, "describe with reasonable particularity each item or category of items to be inspected." Id. R. 34(b)(1)(A).

                The responding party generally must respond within 30 days after being served with the request for production. Id. R. 34(b)(2)(A). Effective December 1, 2015, Rule 34(b)(2)(B) was amended to require that for each item or category of items requested, "the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons." Id. R. 34(b)(2)(B) (emphasis added). The amendment to Rule 34(b)(2)(B) clarifies that general or boilerplate objections, such as that a request is harassing, are improper and result in a waiver of the unsupported objections. See, e.g., Leibovitz v. City of New York, No. 15-CV-546 (LGS) (HBP), 2017 WL 462515, at *2 (S.D.N.Y. Feb. 3, 2017) (collecting cases); see also Fed. R. Civ. P. 34 advisory comm. note to 2015 amend. ("This provision . . . eliminat[es] any doubt that less specific objections might be suitable under Rule 34.").

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    Topics: Fed. R. Civ. P. 34, request for production, reasonable particularity, discovery disputes, response to request

    CIVIL PROCEDURE: Strictly Construing Service of Process Rules to Devastating Effect

    Posted by Steven G. Friedman on January 12, 2017 at 4:56 PM

    Steve Friedman, Senior Attorney, National Legal Research Group

         "Without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant." 36 C.J.S. Federal Courts § 31 (Westlaw database updated Sept. 2016). "Personal jurisdiction usually is obtained over a defendant by service of process." Id. Thus, untimely or ineffective service of process can stop a case dead in its tracks. The means of serving process is typically set forth by statute or court rule, the terms of which are often strictly construed. Below are two cautionary tales to illustrate the point.

         In New York, service of process is governed by Rule 2013 of the Civil Practice Law and Rules ("C.P.L.R."). Typically, service can be accomplished "by mailing the  paper to . . . the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address." The statute further notes that "service by mail shall be complete upon mailing." C.P.L.R. 2013(b)(2) (service upon attorneys); accord C.P.L.R. 2013(c) (incorporating C.P.L.R. 2013(b)(2) for service upon a party).

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    Topics: service of process, civil procedure, ineffective service

    CIVIL PROCEDURE: The Attorney Testimony Rule—Attorney Affidavits and Summary Judgment

    Posted by Lee P. Dunham on December 1, 2016 at 9:18 AM

    Lee Dunham, Senior Attorney, National Legal Research Group

          Model Rules of Professional Conduct Rule 3.7 contains the well-known prohibition on lawyer testimony known as the "Lawyer as Witness Rule" or the "Attorney Testimony Rule." It provides:

    (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:

    (1) the testimony relates to an uncontested issue;

    (2) the testimony relates to the nature and value of legal services rendered in the case; or

    (3) disqualification of the lawyer would work substantial hardship on the client.

    (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.

    Ann. Model Rules of Prof'l Conduct R. 3.7 ("Lawyer as Witness").

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    Topics: civil procedure, Lee Dunham, attorney testimony rule, Rule 3.7, professional conduct

    CIVIL PROCEDURE: Achieving "Proportionality" in Discovery

    Posted by Paul A. Ferrer on August 18, 2016 at 10:50 AM

    Paul Ferrer, Senior Attorney, National Legal Research Group

         For many years, trial attorneys were familiar with the broad scope of discovery under Rule 26(b)(1) of the Federal Rules of Civil Procedure, which provided that unless otherwise limited by court order, parties could "obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense." As indicated in Rule 26(b)(1), the scope of discovery could be limited by the entry of a protective order if the court determined, among other things, that "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(iii) (amended), quoted in EEOC v. Thompson Contracting, Grading, Paving & Utils., Inc., 499 F. App'x 275, 281 n.5 (4th Cir. 2012). As part of the "Duke Rules" package of amendments to the Federal Rules of Civil Procedure, which took effect on December 1, 2015, that language was moved out of Rule 26(b)(2)(C)(iii) and into Rule 26(b)(1), which now provides that

    [u]nless otherwise limited by court order, [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

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    Topics: Paul A. Ferrer, civil procedure, discovery, proportionality to case

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