- A win for class action objector Ted Frank as Seventh Circuit allows him to challenge what he described as “objector blackmail” payments to other intervenors [Amanda Bronstad, National Law Journal, Pearson v. NBTY]
- City of Seattle pays $13 million to settle suit alleging negligent probation supervision of drunk driver [Jessica Lee, Seattle Times, Brian Flores, KCPQ, my 2005 take on Washington’s unique rules on sovereign immunity and more]
- “Family sues Dum Dum lollipop maker over son’s alleged choking incident” [Alexandria Hein, Fox News]
- Thanks to New York’s Scaffold Law, co-op and condo boards “can be held liable for millions of dollars in damages – even if the injured worker was drunk or failed to use safety equipment.” [Habitat mag] “Coverage for East Side Access [infrastructure project] has surpassed half a billion dollars” [Will Bredderman, Crain’s New York]
- As Brett Kavanaugh’s SeaWorld dissent shows, he’s a judge who takes assumption of risk seriously [ABA Journal, SeaWorld v. Perez]
- Twiqbal pleading standards continue to do good, this time in New York state courts [Drug & Device Law]
- Multi-district litigation still a Wild West realm: “Lawyers for Civil Justice Urges Reform of MDL Procedures” [request for rulemaking via TortsProf] “Multidistrict Litigation Reform: The Case for Earlier Application of Federal Pleading Standards” [James Beck, WLF]
- Lawyer vs. lawyer: “Philadelphia Injury Firm Sues Morgan & Morgan for False Advertising” [P. J. D’Annunzio, The Legal Intelligencer]
- Trespasser injured climbing electrical tower loses suit against Metro-North railroad and utility [Robert Storace, Connecticut Law Tribune; Daniel Fisher, Legal NewsLine, earlier] “Ohl was walking along the train tracks with earbuds in on March 2”; family now suing CSX [Amanda C. Coyne, Atlanta Journal-Constitution]
- “The U.S. Supreme Court Reins in Discovery Sanctions” [Phil Goldberg and Kathryn Constance, IADC]
- Annual state lawsuit climate survey from U.S. Chamber is out; could be a “wake-up call” for Delaware, assumed to have pro-business courts [Zoe Read, Newsworks]
- Boom in third-party litigation finance continues apace [Longford Capital]
Updating our July roundup item: a Baton Rouge, La. police officer injured at a demonstration sued activist DeRay Mckesson and, purportedly, the Black Lives Matter movement after being injured during a protest. After Mckesson’s lawyers challenged the inclusion of the latter-named movement on the grounds that it is not a juridical person capable of being sued, plaintiff moved “to amend his complaint to add “#BlackLivesMatter” and Black Lives Matter Network, Inc., as Defendant.”
A federal court was not impressed. It ruled that the officer had not pleaded adequate facts to sustain a claim that either Mckesson or the incorporated entity had gone beyond their own rights to speech, as protected by the First Amendment, to become legally responsible for the violent actions of others, that the initial complaint “names as a Defendant a social movement that lacks the capacity to be sued,” and that the attempted amendment to the complaint likewise overlooks that “#BlackLivesMatter” – a hashtag – lacks the capacity to be sued.” (Italics are the court’s.)
The Court judicially notices that the combination of a “pound” or “number” sign (#) and a word or phrase is referred to as a “hashtag” and that hashtags are utilized on the social media website Twitter in order to classify or categorize a user’s particular “tweet,” although the use of hashtags has spread to other social media websites and throughout popular culture. The Court also judicially notices that “#BlackLivesMatter” is a popular hashtag that is frequently used on social media websites.
Plaintiff therefore is attempting to sue a hashtag for damages in tort. For reasons that should be obvious, a hashtag – which is an expression that categorizes or classifies a person’s thought – is not a “juridical person” and therefore lacks the capacity to be sued. Amending the Complaint to add “#BlackLivesMatter” as a Defendant in this matter would be futile because such claims “would be subject to dismissal”; a hashtag is patently incapable of being sued. [citations and footnote omitted]
Rejecting the option of granting plaintiff further leave to amend his complaint,
The Court also notes that Plaintiff’s attempt to bring suit against a social movement and a hashtag evinces either a gross lack of understanding of the concept of capacity or bad faith, which would be an independent ground to deny Plaintiff leave to file a Second Proposed Amended Complaint. The Court therefore shall dismiss this matter with prejudice.
On March 2 I hosted a Cato book forum for Jonathan Adler to discuss his recent edited volume Business and the Roberts Court. Andrew Pincus commented. For more about this book — featuring contributors such as Joel Gora on Citizens United, Brian Fitzpatrick on the Twombly/Iqbal pleading cases, and Richard Lazarus on the emergence of a specialized Supreme Court bar — see Jonathan Adler’s interview with Ronald Collins at SCOTUSBlog, his posts at Volokh Conspiracy here and here, and this Stephen Bainbridge post.
- Truckers scramble as liability insurers exit from fleet coverage after giant verdicts [Brian Baskin, WSJ]
- Court rejects demand for netting at Major League Baseball venues: fans “lacked standing to sue because they could not show a sufficient likelihood they would be injured at future games” [Jonathan Stempel, Reuters]
- Talcum powder: “St. Louis Jury Returns Another Jaw-Dropping Verdict Against Johnson & Johnson” [Evan Tager and Miriam Nemetz, Mayer Brown Punitive Damages Blog]
- Study: pro se cases aside, not clear that Iqbal/Twombly pleading decisions have done much to alter case outcomes [William Hubbard via Brian Wolfman, CL&P]
- “Historic tobacco case revisited: biggest litigation win ever or a complete scam?” [Mark Curriden, Dallas News back in April]
- Should the Federal Rules of Civil Procedure move to a requester-pays system of discovery? [Alexander Dahl and A. Benjamin Spencer, Federalist Society podcast]
- Alan Dershowitz, Harvard lawprof, suing TD Garden over slip and fall in bathroom three years back [Boston Globe]
- “Harsh Sanction Proposed For Attorney Who Blogged About Probate Case” [Mike Frisch, Legal Profession Blog]
- Maryland veto sets back reform: “Governor Hogan, Civil Asset Forfeiture Is Inherently Abusive” [Adam Bates, Cato]
- “‘Vape’ bans have little to do with public health” [Jacob Grier, Oregonian in February]
- Academics prosper through expert witness work, part one zillion [Ira Stoll]
- Sounds good: call for civil procedure reform includes fact-based pleading, strict discovery limits, case-specific rules, and more [Jordy Singer, Prawfs, on recommendations from American College of Trial Lawyers Task Force on Discovery and Civil Justice and Institute for the Advancement of the American Legal System]
- Draft plan would arm FTC with vast power over data practices [James C. Cooper, Morning Consult, via @geoffmanne]
- “The makers of smokeless tobacco products like to claim that their products are safer than cigarettes.” Hey, New York Times, that’s ’cause it’s true! [Jacob Sullum]
- New York Attorney General Eric Schneiderman pursues high-profile case against Standard & Poor’s, accepts $50K contribution from CEO of another credit rating firm [Richard Pollock/Daily Caller, some background]
- Megan McArdle on child support and the difficulty of replacing social norms with law [Bloomberg View, my recent Cato post and podcast]
- “Wisconsin Chief Justice Shirley Abrahamson should drop her lawsuit” [Milwaukee Journal Sentinel editorial, earlier; AP (federal judge declines to block law’s implementation while suit is pending)]
- CVS opposes certification of securities class action, saying government pension managers filing it were influenced by political donations from plaintiff’s law firm [Law360, reg]
- “Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)” [Adam Steinman, Civil Procedure Blog, arguing from premises different from mine, on Fourth Circuit’s decision in McCleary-Evans v. Maryland Department of Transportation]
- The Maryland knife law angle in the Freddie Gray story [Patrik Jonsson, Christian Science Monitor; my post at Free State Notes]
“A federal judge in Manhattan is ordering lawyers in a United Parcel Service lawsuit to file new pleadings that are short and plain, in keeping with Rule 8 of the Federal Rules of Civil Procedure. … UPS ‘launched its relatively straightforward claims with a sprawling 175-paragraph complaint, larded with more than 1,400 pages of exhibits,’ [U.S. District Judge William Pauley III] wrote. Lawyers for former franchisees responded with a 210-page answer with counterclaims and ‘voluminous exhibits,’ later expanded in an amended answer to a ‘breathtaking’ 303 pages that ‘brims with irrelevant and redundant allegations,’ Pauley said.” [ABA Journal]
Some lawyers have filed attempted mass suits (earlier here, here, etc. on Mohawk Industries case) claiming that by hiring undocumented workers employers have engaged in “racketeering” for which they should owe money under the RICO law to other workers, above and beyond whatever wages were agreed to at the time or prescribed by statute. It was always a strained theory, and now is said to be encountering tougher going because courts are being more particular about requiring that plaintiffs’ pleadings spell out plausible theories of proximate cause, injury and damages, under the Twombly/Iqbal standard by which the U.S. Supreme Court has toughened early scrutiny of lawsuits. If that’s so, chalk up one more Twiqbal victory for common sense and restraint in litigation. [Workplace Prof, from the Spring]
Eleventh Circuit federal judge Gerald Bard Tjoflat has long been a critic of “shotgun pleadings,” which have been defined as pleadings that make it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief,” as when every succeeding count indiscriminately incorporates the allegations of all previous counts. He’s back at it in a decision last month [Paylor v. Hartford Fire Insurance, PDF; South Florida Lawyers]:
We add, as a final note, that the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. . . .
That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem.
After describing a vague complaint brought under the Family and Medical Leave Act (FMLA):
Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer.
That not having happened, and the judge not having sua sponte instructed the plaintiff’s lawyer to file a more definite statement of claim,
the District Court tossed the case overboard to a Magistrate Judge for discovery.
At that point it was too late: the discovery goat rodeo had begun.
Result: a voluminous and contentious discovery record much of which bore on points irrelevant to the actual resolution of the case.
The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case.