The recent Ontario decision in Amtim Capital Inc. v. Appliance Recycling Centers of America, 2013 ONSC 4867 (Ont. S.C.J.) [“Amtim Capital”] highlights the limits of judicial comity in international litigation and to what extent a default judgment in a foreign court will operate as res judicata, issue estoppel or abuse of process. It also provides insight into how most Canadian judges take a dim view of forum shopping. (more…)
Posts Tagged ‘United States district court’
Joe S. Cecil et al., “”Motions to Dismiss for Failure to State a Claim after Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules”July 20, 2011
Joe S. Cecil (Federal Judicial Center), George W. Cort, Margaret S. Williams (Federal Judicial Center) and Jared J. Bataillon have posted “Motions to Dismiss for Failure to State a Claim after Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules”. Here is the abstract:
This report presents the findings of a Federal Judicial Center study on the filing and resolution of motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The study was requested by the Judicial Conference Advisory Committee on Civil Rules. The study compared motion activity in 23 federal district courts in 2006 and 2010 and included an assessment of the outcome of motions in orders that do not appear in the computerized legal reference systems such as Westlaw. Statistical models were used to control for such factors as differences in levels of motion activity in individual federal district courts and types of cases.
After excluding cases filed by prisoners and pro se parties, and after controlling for differences in motion activity across federal district courts and across types of cases and for the presence of an amended complaint, we found the following: There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III.A); In general, there was no increase in the rate of grants of motions to dismiss without leave to amend. There was, in particular, no increase in the rate of grants of motions to dismiss without leave to amend in civil rights cases and employment discrimination cases (see infra section III.B.1); Only in cases challenging mortgage loans on both federal and state law grounds did we find an increase in the rate of grants of motions to dismiss without leave to amend. Many of these cases were removed from state to federal court. This category of cases tripled in number during the relevant period in response to events in the housing market (see infra section III.B.1). There is no reason to believe that the rate of dismissals without leave to amend would have been lower in 2006 had such cases existed then; There was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case (see infra section III.B.1).
A .pdf copy of the article is available for download from SSRN here.
- Henry S. Noyes, “The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience” (thetrialwarrior.com)
- Noyes on Twombly/Iqbal and Judicial Experience (lawprofessors.typepad.com)
- Dustin B. Benham, “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery” (thetrialwarrior.com)
While only a stipulated (i.e. consent) judgment with no precedential value, the recent decision of the U.S. District Court (Fla. N.D. Tallahassee Div.) In InvestorsHub.com et al. v. Mina Mar Group Inc. (Case No.: 4:11cv9-RH/WS) appears to be the first declaratory judgment issued under the SPEECH Act. (my previous post at Inforrm’s Blog is available here.
Mina Mar’s Affirmative Defenses (subsequently withdrawn) were as follows:
1. Plaintiffs are estopped from recovering by virtue of a negotiated resolution of the Canadian case.
2. Plaintiff has waived any right to such a declaration by virtue of a negotiated
resolution of the Canadian case.
3. The defense of accord and satisfaction applies to the claims of the Plaintiffs, given the negotiated resolution of the Canadian case.
4. The Canadian case has been settled by a negotiated resolution.”
The stipulated judgment reads in part:
“19. The parties acknowledge, and the Court finds, that Canadian law does not provide as much protection of speech as the First Amendment, federal law, and Florida law.”
“20. Nor does Canadian law provide the protections for freedom of on-line speech provided by the Communications Decency Act, 47 U.S.C. § 230.”
“22. The Court hereby declares that the Foreign Defamation Judgment in the matter of Mina Mar Group, Inc., et al. v. Investorshub.com, et al., Court File No. CV-08-364413-0000, Ontario Superior Court of Justice, is not enforceable in the United States pursuant to the SPEECH Act, 28 U.S.C. §§ 4101-4105, and any orders entered in connection therewith are invalid and unenforceable in the United States.”
A pdf copy of the stipulated judgment is available here.
The contempt motion brought by Mina Mar against Investorshub.com for breach of Mr. Justice Perell’s order has been converted to a trial and is scheduled for November 7, 2011. A copy of the contempt motion is available here.
H/T Hector MacMahan
The American Rule is considered by Maureen Cosgrove at Jurist-Paper Chase who reports on “Supreme Court rules party must pay fees for frivolous claims alone“ discussing today’s decision in Fox v. Vice , 563 U. S. ____ (2011) (U.S.S.C.).
Fox claimed that he was the victim of dirty tricks during his successful campaign to become the police chief of Vinton, La., and filed a state-court suit against Vice, the incumbent chief, and the town. Fox’s suit asserted both state-law claims, including defamation, and federal civil rights claims under 42 U. S. C.§1983, including interference with Fox’s right to seek public office. Vice removed the case to federal court based on the §1983 claims. Following discovery, Vice moved for summary judgment on the federal claims, which Fox conceded were invalid.
The District Court dismissed the frivolous claims with prejudice and remanded the remaining claims to state court, noting that Vice’s attorneys’ work could be useful in the state-court proceedings. Vice then asked the federal court for attorney’s fees under §1988, submitting attorney billing records (dockets) estimating time spent on the entire suit, without distinguishing time spent between the dismissed federal claims and the remnant state claims. The court granted the motion on the ground that Fox’s federal claims were frivolous, awarding Fox all of his attorneys’ fees in the suit. Although the state-law allegations had not been found frivolous, the court did not require Vice to parse out the work the attorneys had done on both sets of claims and declined to reduce the fee award to account for the remaining state-law claims, noting that both sides had focused on the deemed frivolous §1983 claims.
The Fifth Circuit affirmed, rejecting Fox’s argument that each individual claim in a suit must be held to be frivolous for the defendant to recover any fees, and agreeing with the District Court that the litigation had focused on the frivolous federal claims.
Writing for the unanimous Court, Kagan, J. notes,
Our legal system generally requires each party to bearhis own litigation expenses, including attorney’s fees, re-gardless whether he wins or loses. Indeed, this principle is so firmly entrenched that it is known as the “American Rule.” See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240, 247 (1975). But Congress hasauthorized courts to deviate from this background rule incertain types of cases by shifting fees from one party toanother. See Burlington v. Dague, 505 U. S. 557, 562 (1992) (listing federal fee-shifting provisions). (at 5)
Justice Kagan adds,
” But the presence of these unsuccessful claims does not immunize a defendant against paying for the attorney’s fees that the plaintiff reasonably incurred in remedying a breach of his civil rights.
Analogous principles indicate that a defendant may deserve fees even if not all the plaintiff’s claims were frivolous. In this context, §1988 serves to relieve a defendant of expenses attributable to frivolous charges. The plaintiff acted wrongly in leveling such allegations, and the court may shift to him the reasonable costs that thoseclaims imposed on his adversary. See Christiansburg, 434 U. S., at 420–421. That remains true when the plaintiff’s suit also includes non-frivolous claims. The defendant, of course, is not entitled to any fees arising from these non-frivolous charges. See ibid. But the presence of reasonable allegations in a suit does not immunize the plaintiff against paying for the fees that his frivolous claims imposed. (at 7)
The District Court and Fifth Circuit decisions were reversed and remanded to the District court to apply the “but for” rule for fee-shifting.
Speaking of frivolous lawsuits, (albeit only involving state-law defamation, intentional infliction of emotional harm and intentional interference with contractual relations claims), Eric Turkewitz in his Affidavit in the Rakofsky v. The Internet litigation has deposed that:
- The Texas Cheerleader Case, and the $45,000 Attorney Fees Award (volokh.com)
- Court says victim doesn’t have to pay lawyer fees (seattletimes.nwsource.com)
- Texas Bill Targets Frivolous Lawsuits (online.wsj.com)
- Defense Fees Awarded In Another Failed EEOC Case : Workplace Class … (workplaceclassaction.com)
- A roundhouse kick to frivolous lawsuit (hotair.com)
- Procedure Reforms in Texas — Losing Plaintiffs Now Pay Costs/fees (lawprofessors.typepad.com)