Paul Ferrer—Senior Attorney, National Legal Research Group

            A question that has long vexed both litigants and courts alike is what constitutes a “final decision” triggering the right to file an appeal under 28 U.S.C. § 1291, which confers jurisdiction on the federal circuit courts of appeals over “appeals from all final decisions of the district courts of the United States.” In a civil case (except where the United States is a party), the notice of appeal from a “final decision” must be filed “within 30 days after entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). Many an appeal has been lost just by failing to timely file the notice of appeal.

            Making a determination as to when an appeal must be filed to comply with the 30-day time limit is supposed to be relatively easy in light of the procedures specified in Federal Rule of Civil Procedure 58. Rule 58 requires that every judgment generally “must be set out in a separate document.” Fed. R. Civ. P. 58(a). If a separate document is required by Rule 58(a), then judgment is “entered,” and the time to appeal starts running, when the judgment is entered in the civil docket and the earlier of one of these two events occurs: (1) the judgment is, in fact, set out in a separate document, or (2) 150 days have run from the entry of the judgment in the civil docket. Fed. R. Civ. P. 58(c)(2). The second alternative deals with those situations in which the district court, despite the requirements of Rule 58(a), does not set the judgment out in a separate document.

Paul Ferrer—Senior Attorney, National Legal Research Group

            The familiar "American rule" holds that a prevailing party generally cannot recover its attorney's fees from the losing party in the absence of a statute or contract provision specifically authorizing an award of such fees. Jurisdictions are divided on the issue of whether a party can recover its attorney's fees as damages, rather than costs, for the breach of a covenant not to sue the other party. In those jurisdictions that have not permitted attorney's fees to be awarded as damages, courts have reasoned that the contract containing the covenant not to sue can itself provide for attorney's fees in the event of its breach if that is the parties' intention. See Artvale, Inc. v. Rugby Fabrics Corp., 363 F.2d 1002, 1008 (2d Cir. 1966) ("Certainly it is not beyond the powers of a lawyer to draw a covenant not to sue in such terms as to make clear that any breach will entail liability for damages, including the most certain of all—defendant's litigation expense."). By contrast, other courts have determined that the American rule does not apply in "those cases in which the attorney fees are not awarded to the successful litigant in the case at hand, but rather are the subject of the law suit itself." Zuniga v. United Can Co., 812 F.2d 443, 455 (9th Cir. 1987). Virginia recently adopted the latter view.

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) (internal quotation marks omitted). It is frequently said, however, that laches cannot be invoked to bar legal relief in the face of an express statute of limitations enacted by Congress. Id. at 959. But that is exactly what happened in Zuckerman v. Metropolitan Museum of Art, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020).

            In Zuckerman, the plaintiff, Laurel Zuckerman, brought suit to recover a painting—"The Actor" by Pablo Picasso—that had been owned by her great-granduncle and aunt, the Leffmanns. The Leffmanns were German Jews who were forced to flee the country in 1937. They arranged for the painting to be held by a Swiss acquaintance, who sold the painting in 1938 to raise funds for the Leffmanns to relocate to Brazil. The painting was eventually donated to the Metropolitan Museum of Art (the "Met") in New York in 1952, where it still resides.

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

            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).

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).

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

     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.