Articles Posted in Civil Procedure

The U.S. Court of Appeals for the Second Circuit has ruled that the 30-day period  for removing a case to federal court does not begin to run until "the plaintiff serves the defendant with a paper that explicitly identified the amount of damages sought."

Moltner sued Starbucks in state court in New York but did not state the amount of damages he sought. Moltner’s lawyer later sent a three million dollar demand letter to Starbucks.  Starbucks filed a petition to remove the case to federal court more than 30 days after it received the complaint but less than 30 days after receiving the $3 million demand.   The Second Circuit permitted the removal, rejecting the argument that Starbucks should have deduced from reading the complaint that the case sought damages in excess of the jurisdictional amount of the federal courts.

Here is the opinion in Moltner v. Starbucks Coffee Company, No. 09-4943 (2nd Cir. Nov. 2, 2010).

FDCC Quarterly,  a publication of the Federation of Defense and Corporate Counsel, has published an article on the impact of the relatively recent decisions of United States Supreme Court in Iqual and Twombly.  

This is how the authors summarize the holdings of the two decisions:  

Together, Iqbal and Twombly held that, to comply with the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must allege well-pleaded factual allegations (and not legal conclusions or bare recitations of the elements of a cause of action) that if presumed true ‘plausibly give rise to an entitlement to relief.’ Iqbal made clear this test should apply to all civil complaints.  [Footnotes omitted.]

Effective July 1, 2010 a party to a litigation may serve papers in Adobe PDF format via electronic mail to the attorney’s email address.  The process is a little more cumbersome than it need be, but it is a step-forward toward increasing the efficiency of law practice and reducing cost.

The rule change is a modification to Rule 5.02 of the Tennessee Rules of Civil Procedure.  View this rule change (and the other changes to the Tennessee Rules of Civil Procedure) here. 

Note:  the amendments proposed to Rules 3, 4 and 26 have not been adopted.

Yesterday I discussed a portion of the opinion S.C. Johnson and Son, Inc. v. Morris,   Appeal No. 2008AP1647  (Wis. Ct. App. Div. II Dec. 2, 2009)  concerning the assertion of the Fifth Amendment in civil litigation.  I wanted to bring to your attention a footnote (Footnote 1) that addressed  the failure of counsel to follow court rules for  writing appellate briefs.  Tennessee appellate courts have rules similar to that of Wisconsin and I have seen several recent opinions chastizing lawyers for failure to follow those rules.

We note that neither Russell’s nor Buske’s appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all “the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues,” as required by WIS. STAT.RULE 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court’s rulings on some of the issues on appeal. We impose a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.

Justice Robert Hansen once wrote the now familiar phrase that “[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). We are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 332, 129 N.W.2d 321 (1964). So to the extent that we may have missed an objection or point of contention, the fault lies with appellate counsel, not this court.