Paul Ferrer—Senior Attorney, National Legal Research Group

     Based on the exceptional circumstances presented by the COVID-19 pandemic, many state and federal courts have entered general orders altering deadlines for a wide variety of matters, including deadlines for filing appeals, the most notable example being the U.S. Supreme Court's extending the period to seek review of a lower court decision by writ of certiorari from 90 to 150 days. Counsel should be aware, however, that in the absence of an order of general applicability, deadlines will not be extended without a specific order from the court in a particular case. To the contrary, judges are loath to allow "all litigation to grind to a halt in many cases," as "allowing that to happen will only exacerbate, in many cases, the detrimental effects of this crisis." Horning v. Resolve Marine Group, No. 19-60899-CIV, 2020 WL 1540326, at *1 (S.D. Fla. Mar. 30, 2020) (Scola, J.).

Paul Ferrer—Senior Attorney, National Legal Research Group

            Practitioners in federal court are by now aware of the revolution in federal pleading fashioned by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which are often referred to jointly using the portmanteau "Twiqbal." Under the Twiqbal analysis, a district court considering the legal sufficiency of a complaint on a motion to dismiss for failure to state a claim initially separates factual allegations, which are still entitled to the presumption of truth, from legal conclusions (such as "[t]hreadbare recitals of the elements of a cause of action"), which are not. Iqbal, 556 U.S. at 678. The court then examines just the factual allegations to determine whether they state a claim to relief that is plausible on its face. Id. Determining whether a claim is plausible is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

Paul Ferrer—Senior Attorney, National Legal Research Group

            In a decision with far-reaching implications in the commercial world, the Virginia Supreme Court has decided that contractual waivers of the right to plead the statute of limitations that do not meet specified statutory criteria are unenforceable under Virginia law. See Radiance Capital Receivables Fourteen, LLC v. Foster,  ___ Va. ___, 833 S.E.2d 867 (2019), available at http://www.courts.state.va.us/opinions/opnscvwp/1180678.pdf. The statute in question provides that unless the failure to enforce a promise not to plead the statute of limitations would operate as a fraud on the promisee, a written promise not to plead the statute of limitations is valid and enforceable only "when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period." Va. Code Ann. § 8.01-232(A).

Nicole Prysby—Senior Attorney, National Legal Research Group

            The appellate process is already an expensive and difficult process. Why sink your chances of a win by presenting the court with a brief that is not compelling or, even worse, is noncompliant with court rules?

            In very egregious cases, a noncompliant brief may result in the denial of the appeal. In 2019, a North Carolina court concluded that dismissal was an appropriate sanction. In Ramsey v. Ramsey, 826 S.E.2d 459 (N.C. Ct. App. 2019), the appellant failed to file the record on appeal within 15 days of the date the record was settled and included a discussion of relevant facts in the argument section, instead of in a separate fact statement. He included the standard of review in only one of his three argument sections and had a litany of minor errors, such as a failure to identify the specific names of persons served in the Certificate of Service. And although the brief met word limits, the Certificate of Compliance stated the word count, rather than the required statement that the brief contains no more than the permitted number of words. The court declined to make its own "voyage of discovery through the record" in order to glean the relevant circumstances for the appeal and dismissed the appeal. Id. at 464.

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).

Charlene Hicks—Senior Attorney, National Legal Research Group

            One potentially overused legal principle that is often recited in appellate cases is that a party waives any issues or legal theories that he or she fails to assert at the trial court level. In other words, a party generally cannot raise a new issue for the first time on appeal. Any attempt to do so will likely be rejected by the appellate court.

            Even so, an appellate attorney would do well to keep in mind that this oft-repeated principle does not apply to certain situations, including questions pertaining to the standard of review employed by the lower court. The proper standard of review that is applicable to a particular legal issue is a nonwaivable matter. See Winfield v. Dorethy, 871 F.3d 555, 560 (7th Cir. 2017), cert. denied, 138 S. Ct. 2003 (2018); Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009). Accordingly, an appellant does not forfeit a claim that the lower court failed to employ the proper standard of review “by failing to argue it” to the lower court. Sierra Club v. U.S. Dep't of Interior, 899 F.3d 260, 286 (4th Cir. 2018); see also United States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011). Similarly, the parties to a case cannot agree on or assign an incorrect legal standard of review to an issue. Sierra Club, 899 F.3d at 286.

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. Id. The first and foremost of these three elements is injury in fact, which requires the plaintiff to show that he or she suffered an invasion of a "concrete" and "particularized" legal interest. Id. at 1548.

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.

Lee Dunham, Senior Attorney, National Legal Research Group

            Bankruptcy Code § 521(1) places an affirmative duty upon a debtor to disclose all assets to the bankruptcy court. A known cause of action that has accrued is an asset that must be scheduled under Bankruptcy Code § 521(1). See Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir. 2004); Cusano v. Klein, 264 F.3d 936, 945 (9th Cir. 2001). An unliquidated cause of action need not actually be filed prior to the commencement of the bankruptcy in order to qualify as an asset that must be scheduled. See Barletta v. Tedeschi, 121 B.R. 669, 671-72 (N.D.N.Y. 1990). However, debtors frequently neglect to list unliquidated causes of action as assets, whether because they have filed a bankruptcy without the assistance of a competent bankruptcy attorney or because, through simple oversight or lack of understanding, they failed to inform their bankruptcy counsel of their existing claims.

     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