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    Paul A. Ferrer

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    CIVIL PROCEDURE: Dismissal of Frivolous Prisoner and In Forma Pauperis Actions in Federal Court

    Posted by Paul A. Ferrer on Wed, Jul 31, 2019 @ 12:07 PM

    The Lawletter Vol 44 No 5

    Paul Ferrer—Senior Attorney, National Legal Research Group

                Federal courts may be inundated with frivolous pleadings filed by prisoners or other claimants proceeding in forma pauperis. But the courts have powerful statutory weapons for dealing with such pleadings and dismissing them at the earliest stage of a proceeding, if warranted. In fact, federal courts are specifically required to screen prisoner actions and dismiss them if they fail to pass muster. See 28 U.S.C. § 1915A.

                Section 1915A affirmatively requires the district court to review, before docketing if feasible or as soon as practicable after docketing, every civil complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. Id. § 1915A(a). After reviewing the complaint, the court must either identify any cognizable claims or dismiss all or part of the complaint if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. § 1915A(b)(1). Another federal statute similarly requires a district court to dismiss any proceeding brought in forma pauperis if the court determines, “at any time,” that the action is “frivolous or malicious” or “fails to state a claim on which relief may be granted.” Id. § 1915(e)(2)(B)(i), (ii).

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    Topics: frivolous claims, civil procedure, In Forma Pauperis Actions, federal court

    CIVIL PROCEDURE: Facebook's Alleged Intrusion on Users' Privacy Confers Standing to Maintain Class

    Posted by Paul A. Ferrer on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    Paul Ferrer—Senior Attorney, National Legal Research Group

     

             In a putative class action against Facebook, a federal district court in California has determined that "[i]ntrusion on privacy alone can be a concrete injury" for purposes of establishing standing to bring suit in federal court. Patel v. Facebook Inc., 290 F. Supp. 3d 948, 954 (N.D. Cal. 2018). In reaching that conclusion, the court applied the concreteness analysis laid out by Justice Alito in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).

     

             The judicial power of the United States resides in the federal courts and extends only to "Cases" and "Controversies." U.S. Const. art. III, § 2. Standing to sue is a doctrine "rooted in the traditional understanding of a case or controversy," and limits the category of litigants who can maintain an action in federal court. Spokeo, 136 S. Ct. at 1547. To have standing, a plaintiff must plead and prove three elements: (1) an injury in fact that is (2) fairly traceable to the defendant's conduct and (3) likely to be redressed by a judicial decision in the plaintiff's favor.

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    Topics: Paul A. Ferrer, Facebook, invasion of privacy, putative class action, concrete injury

    CIVIL PROCEDURE: Submission of Materials Outside the Pleadings in Response to a Rule 12(b)(6) or Rule 12(c) Motion

    Posted by Paul A. Ferrer on Mon, Oct 1, 2018 @ 11:10 AM

    The Lawletter Vol 43 No 5

    Paul Ferrer—Senior Attorney, National Legal Research Group

             We have written frequently in the Lawletter about the revolution in federal pleading practice occasioned by the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under the new standard, a claim is sufficient to withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (or a motion for judgment on the pleadings under Rule 12(c)) only when, accepting as true the facts alleged in the complaint but not any legal conclusions, the claim has “facial plausibility,” that is, it allows the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 570 (the plaintiff must allege enough by way of factual content to “nudge” her claim “across the line from conceivable to plausible”). This standard requires the plaintiff to include more facts in her complaint than were necessary before the dawn of the Twombly/Iqbal era.

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    Topics: civil procedure, facial plausibility, Rule 12 motion, evidentiary support documents

    Civil Procedure:  Laches in Cases Where Suit Is Commenced

    Posted by Paul A. Ferrer on Thu, Feb 22, 2018 @ 12:02 PM

    The Lawletter Vol 43 No 1

    Paul Ferrer, Senior Attorney, National Legal Research Group

         Laches is "'a defense developed by courts of equity' to protect defendants against 'unreasonable, prejudicial delay in commencing suit.'" SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (2017) (quoting Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1967, 1973 (2014)). It is a familiar statement of the law that laches generally does not apply when the statute of limitations applicable to a legal claim has not run. But many state courts continue to indicate that, in some circumstances, "laches may bar a legal claim even if the statutory period of limitations has not yet expired." Tenneco Inc. v. Amerisure Mut. Ins. Co., 281 Mich. App. 429, 456-57, 761 N.W.2d 846, 863-64 (2008); see also Veysey v. Nelson, 2017 UT App 77, ¶ 7, 397 P.3d 846, 848 ("[B]ecause laches may apply in situations where the statute of limitations has not yet run, the existence of a statute of limitations does not … automatically preclude application of the laches doctrine."), cert. denied, 400 P.3d 1046 (Utah 2017); Bldg. & Constr. Trades Council of N. Nev. v. State ex rel. Pub. Works Bd., 108 Nev. 605, 611, 836 P.2d 633, 637 (1992) ("Especially strong circumstances must exist . . . to sustain a defense of laches when the statute of limitations has not run.").  However, that no longer appears to be the case in federal court, at least with respect to a federal claim as to which Congress has expressly supplied a statute of limitations.

           In Petrella, the U.S. Supreme Court held that laches cannot defeat a damages claim brought within the three-year period prescribed by the Copyright Act's statute of limitations. 134 S. Ct. at 1972-75 (applying 17 U.S.C. § 507(b) (requiring a copyright holder claiming infringement to file suit "within three years after the claim accrued")); see also SCA Hygiene, 137 S. Ct. at 961 ("We saw in this language a congressional judgment that a claim filed within three years of accrual cannot be dismissed on timeliness grounds."). In so holding, the Court spoke in very broad terms: "[I]n the face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief." Petrella, 134 S. Ct. at 1974. Petrella's holding rested on both separation-of-powers principles and the traditional role of laches in equity. Since

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    Topics: civil procedure, laches defense, limitations period

    CIVIL PROCEDURE: International Service of Process via Twitter

    Posted by Paul A. Ferrer on Mon, Sep 18, 2017 @ 11:09 AM

    The Lawletter Vol 42 No 7

    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, civil procedure, foreign country

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

    Posted by Paul A. Ferrer on Thu, May 4, 2017 @ 09:05 AM

    The Lawletter Vol 42 No 3

    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).

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

    CONTRACTS: Statute of Frauds No Bar to Parent’s Claim for Student Loan Repayment

    Posted by Paul A. Ferrer on Tue, Jan 3, 2017 @ 13:01 PM

    The Lawletter Vol 41 No 11

    Paul Ferrer, Senior Attorney, National Legal Research Group

          All states have a statute of frauds, based on the original Statute of Frauds enacted in England in 1677, barring actions upon some types of promises unless evidenced by a writing signed by the party to be charged with the promise. The promises typically covered by a state’s statute of frauds include "any promise to answer for the debt, default, or misdoing of another," and "any agreement that is not to be performed within one year from the making thereof." Ky. Rev. Stat. Ann. § 371.010(4), (7). In Chin v. Chin, 494 S.W.3d 517 (Ky. Ct. App. 2016), the Kentucky Court of Appeals held that neither of these provisions barred a claim by parents ("the Chins") against their son ("Raymond") for breach of an oral contract to repay a college loan that the parents had taken out for his benefit.

         In that case, Raymond attended college at the Rose-Hulman Institute of Technology, a top-ranked engineering college that carried a price tag of about $54,000 per year in 1999. At the time, Raymond’s father was making $55,000 per year as a teacher, while his mother was making $18,000 per year as an aide. The Chins obtained a Parent PLUS loan to pay for Raymond’s college expenses, which ultimately totaled more than $58,000 (Raymond received a partial scholarship). Although the Chins signed for the loan, Raymond orally agreed that he would be responsible for paying the loan, and would repay any amounts the Chins had already paid, as soon as he had a job.

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    Topics: contracts, statute of frauds, breach of oral contract

    CIVIL PROCEDURE: Achieving "Proportionality" in Discovery

    Posted by Paul A. Ferrer on Tue, Jul 26, 2016 @ 11:07 AM

    The Lawletter Vol 41 No 7

    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

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    Topics: Paul A. Ferrer, civil procedure, discovery, The Lawletter Vol 41 No 7, proportionality to case

    CIVIL PROCEDURE: Relief in Federal District Court from a Fraudulently Obtained Remand Order

    Posted by Paul A. Ferrer on Fri, Mar 11, 2016 @ 09:03 AM

    The Lawletter Vol 41, No 3

    Paul Ferrer, Senior Attorney, National Legal Research Group

          In order to keep cases from ping-ponging between state and federal court, the federal removal statutes prohibit appellate review of remand orders. See In re La Providencia Dev. Corp., 406 F.2d 251, 252 (1st Cir. 1969) ("The action must not ricochet back and forth depending upon the most recent determination of a federal court."). In particular, 28 U.S.C. § 1447(d) provides that, with the exception of certain cases involving federal officers or civil rights, "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d) (emphasis added). Does the "or otherwise" language prevent review by a district court of its own remand order under Rule 60(b)(3)? That was the question addressed by the U.S. Court of Appeals for the Fourth Circuit, sitting en banc, in Barlow v. Colgate Palmolive Co., 772 F.3d 1001 (4th Cir. 2014) (en banc).

         In Barlow, two individuals separately sued Colgate-Palmolive Company and other companies in Maryland state court, alleging that each of the defendants' products had exposed them to asbestos. Even though the plaintiffs joined in-state defendants, Colgate removed the two cases to federal court on the basis of diversity of citizenship. Colgate asserted that the in-state defendants had been fraudulently joined, pointing to discovery responses indicating that the plaintiffs did not intend to pursue a claim against any defendant other than Colgate. The plaintiffs then moved to remand the cases to state court. In their motions, the plaintiffs' counsel represented that there was some circumstantial evidence to suggest exposure to asbestos at the hands of the nondiverse defendants. Based on counsel's representations, the district court judges (Judges Nickerson and Quarles) remanded the cases to state court.

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    Topics: 4th Circuit, Paul A. Ferrer, civil procedure, Barlow v. Colgate Palmolive Co., remand order, federal removal statutes

    CONTRACTS: Agreements to Negotiate Distinguished from Agreements to Agree

    Posted by Paul A. Ferrer on Thu, Dec 3, 2015 @ 12:12 PM

    The Lawletter Vol 40 No 11

    Paul Ferrer—Senior Attorney, National Legal Research Group

         Courts often give voice to the black-letter principle that a so-called "agreement to agree, where [material] terms are left to future negotiations, is unenforceable." In re Estate of Wyman, 8 N.Y.S.3d 493, 494 (App. Div. 2015). Some courts have concluded that an agreement to negotiate at a later date is an unenforceable agreement to agree. See, e.g., 77 Constr. Co. v. UXB Int'l, Inc., No. 7:13-CV-340, 2015 WL 926036, at *4 (W.D. Va. Mar. 4, 2015). But other courts have distinguished unenforceable agreements to agree from valid agreements to negotiate in good faith. See, e.g., Copeland v. Baskin Robbins, U.S.A., 117 Cal. Rptr. 2d 875 (Ct. App. 2002).

         In that case, Copeland negotiated with Baskin Robbins to buy an ice cream manufacturing plant. The purchase transaction was contingent on Baskin Robbins's agreeing to a "copacking" arrangement, by which Baskin Robbins would agree to buy the ice cream that Copeland manufactured at the plant. After several months of negotiations, Baskin Robbins sent Copeland a letter indicating that it would (1) sell Copeland the plant for $1.3 million, and (2) buy the ice cream manufactured at the plant for three years, "subject to a separate co-packing agreement and negotiated pricing." Id. at 878. Copeland indicated his agreement, after which the parties continued negotiating over the terms of the copacking agreement. Two months later, Baskin Robbins broke off the negotiations because due to recent business decisions, the copacking arrangement was no longer in alignment with its strategy. Copeland sued for breach of contract, but the trial court granted summary judgment in favor of Baskin Robbins because the essential terms of the copacking deal were never agreed to.

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    Topics: contracts, Paul A. Ferrer, validity, agreement to agree, agreement to negotiate

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