I Hate Lame Affirmative Defenses.

Don't you just love it when a two-count complaint or single counterclaim somehow engenders an answer containing 58 affirmative defenses?

I don't know about you, but my eyes glaze over as you waste time reviewing pointless and rote affirmative defenses that are clearly so general as to be meaningless or merely restate or "reserve" arguments and defenses that aren't ripe or have no applicability to the facts at hand.

Generally I ignore them and, at the appropriate time, ask the Court to ignore them as well.

But if push comes to shove it's nice to see a judge "get" it:

The Court's order denying the motion to dismiss also found that Plaintiff had sufficiently pled her claim to survive a motion to dismiss. Affirmative Defense 19 essentially argues that Plaintiff has not adequately pled her claim, despite the Court's prior ruling. Furthermore, Affirmative Defense 19 is neither an affirmative defense or a specific denial of any of Plaintiffs allegations. Lastly, because Defendant cannot amend its pleadings without leave of Court, its reservation of rights is meaningless. Accordingly, Affirmative Defense 19 is stricken.

Question -- how much did an associate bill and/or partner review to file this defense?

Iqbal Unleashed!

I know many of you are tired of discussing Iqbal, but hey -- would you rather keep talking about Spencer?

But thanks to a tipster, here's a real-life, not overstated example of Iqbal gone terribly wrong at the district court level, requiring correction by the 11th Circuit (in an unpublished opinion):

The allegations in Watts’ complaint are not merely “[t]hreadbare recitals of the elements” of a Title VII claim. See Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. Nor are they “legal conclusions.” “They are non-conclusory descriptions of specific, discrete facts of the who, what, when, and where variety.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253 (11th Cir. 2013). They provide specific facts that, if true, plausibly show that Watts is entitled to relief. That is all that Rule 8 requires, and the district court erred by requiring more. See Fed. R. Civ. P. 8(a) (“A pleading that states a claim for relief must contain . . . a short an plain statement of the claim showing that the pleader is entitled to relief. . . .”).

In other words, district court -- heal thyself.

11th Circuit Reverses Judge King for Misinterpreting Iqbal!

 
Welcome back, plebes!

And thanks to the murderer's row of guest posts the last few days -- I've always depended on the kindness of strangers....

The capacity of Iqbal to wreak havoc in the district courts has long been a bugaboo of this blawg.

In an unpublished opinion, the 11th Circuit has reversed Judge King for dismissing a complaint with prejudice because he found the allegations mere "legal conclusions" entitled to no weight under Iqbal's vague, contour-less pleading standard:

 Lenbro contends the district court erred in refusing to consider the allegations in the Amended Complaint as to the parties’ state of mind on the basis that such allegations were “conclusory” and therefore not entitled to a presumption of truth. Following the Supreme Court’s approach in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009), the Eleventh Circuit has suggested that, when considering a motion to dismiss, courts: “(1) eliminate any allegations in the complaint that are merely legal conclusions; and (2) where there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quotations omitted). Allegations entitled to no assumption of truth include “[l]egal conclusions without adequate factual support” or “[f]ormulaic recitations of the elements of a claim.” Mamani v. Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011).

In its Amended Complaint, Lenbro alleged it “insisted that Simon Falic personally guarantee to pay the consulting fees provided for in those agreements and made clear that it would not enter into the Consulting Agreements without such a personal guarantee from Mr. Falic.” This allegation as to the parties’ intent is not a mere legal conclusion, nor is it a formulaic recitation of the elements of a claim. Instead, this allegation is factual, providing support for Lenbro’s contention that the Personal Guaranty and Consulting Agreements were inseparable parts of the same transaction. Therefore, the district court erred in determining these allegations were conclusory, and the allegations should be entitled to a presumption of truth for the purposes of a motion to dismiss.

Well that clears up everything, doesn't it?

Judge Ryskamp Dismisses With Prejudice Groundwater Contamination Case!

It turns out that a few years ago a bunch of poor minority residents living in the Acreage area of western Palm Beach County learned that they had unusually high rates of cancer -- a "cancer cluster" -- not exactly great for property values (let alone health).

These residents then sued aeronautics giant Pratt & Whitney for contaminating their groundwater, claiming that the contamination emanated from a plant located several miles away.

On a second amended complaint, Judge Ryskamp dismissed the action with prejudice, relying on Iqbal and a lack of specificity in the allegations.

Here's an example:

The closest Plaintiffs come to making a specific allegation that something traveled from Pratt & Whitney to the Acreage is in Paragraphs 236 and 238, but those fall short of the mark. Plaintiffs allege that Pratt & Whitney and The Acreage “are underlain by” the same aquifer, and that “groundwater is drawn” from the Corbett Wildlife Management Area and Pratt & Whitney to the Acreage. Complaint, ¶236. Plaintiffs then allege that their experts:

confirm that the types of CCOCs . . . known to have been spilled . . . at the P&W site and by Pratt & Whitney in the Corbett National Wildlife Refuge [sic] have traveled to and physically invaded The Acreage, and are present in the groundwater of The Acreage Neighborhood and have contaminated the groundwater that the Plaintiffs’ and class members’ properties share with [THMs].

Sec. Am. Compl., ¶238. This allegation superficially appears specific, but is yet another generalized allegation that the “types of CCOCs” found at Pratt & Whitney traveled to somewhere under “The Acreage”—as opposed to under each Plaintiff’s property—and that these types of CCOCs “are present” in “the groundwater of The Acreage Neighborhood.” The mere allegation that chemicals at Pratt & Whitney “are present” in the groundwater of “the Acreage” does not mean that the chemical traveled from Pratt & Whitney to the Acreage, as any chemical in the Acreage could have come from a different source than Pratt & Whitney.

YUM -- time to bottle and sell that delicious vaguely contaminated Acreage water!

(Maybe they can sell some to that nearby Pratt & Whitney plant?)

BTW, plaintiffs' lawyer Craig Zobel said he had plenty of evidence:

“We respectfully disagree,” he said. Contrary to Ryskamp’s ruling, Zobel said, he submitted thousands of pages of records linking Pratt & Whitney to the cancer cluster. He hired an appraiser, who reviewed all 17,000 pieces of land and methodically showed how property values plunged. He hired hydrologists to track how toxins moved through underground water supplies. He hired urologists and toxicologists who linked Magaly Pinares’ kidney cancer to the toxins found in her well.

“We had a wealth of data,” he said.

But how much of it was in the second amended complaint?

11th Circuit Tackles Inchoate Iqbal Pleading Standard!

Careful readers know I have a obsession with fondness for certain people and issues that the blog tends to return to again and again -- or maybe I'm just out of material?

Anyways, I'm happy to see the 11th Circuit clarify the Iqbal pleading standard in an opinion reversing Judge Graham, who granted a 12(b)(6) motion on those grounds.

Let's see if you can tell what particular (and tragic) factual allegations really tipped the scales in favor of allowing the case to proceed past the initial stages of a motion to dismiss, as opposed to being gone for all eternity:

Appellants’ complaint alleges the following: a Carnival employee encouraged Appellants to visit Coki Beach in St. Thomas; Carnival was familiar with Coki Beach because it sold excursions there; Carnival generally knew of gang violence and public shootings in St. Thomas; Carnival knew of Coki Beach’s reputation for drug sales, theft, and gang violence; Carnival knew or should have known of the gang member’s shooting and funeral taking place near Coki Beach; Carnival failed to warn Appellants of any of these dangers; Carnival knew or should have known of these dangers because Carnival monitors crime in its ports of call; Carnival’s negligence in encouraging its passengers to visit Coki Beach and in failing to warn disembarking passengers of general and specific incidents of crime in St. Thomas and Coki Beach caused Liz Marie’s death; and Appellants have suffered various damages, including the loss of Liz Marie’s life. This negligent failure-to-warn claim is more than a mere recitation of the elements of the cause of action. The facts alleged in the complaint are plausible and raise a reasonable expectation that discovery could supply additional proof of Carnival’s liability. See Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. We consequently conclude that the district court erred in dismissing Appellants’ negligence claim under Iqbal.

See, it's like art or pornography (or pornographic art) -- you just know it when you see it!

Congrats to Phil Parrish on a big win -- now you get to litigate your case and try to prove up some of these allegations (the ruling on duty to warn should help).

Have a great weekend!

Yes Virginia, the Twombly/Iqbal Pleading Standard Applies to FLSA Cases Too!

I see Judge Moreno had to explain -- again -- that the Supreme Court's imprecise pleading standard revision in Twombly/Iqbal (discussed or perhaps overdiscussed at length on this blog) cuts across all civil cases, even FLSA suits:

As they did with their response to the first motion to dismiss, Plaintiffs begin their present response by attempting to differentiate the heightened pleading requirements of Twombly and Iqbal from the FLSA context.  Relying on language from a pre-Iqbal Eleventh Circuit decision, they maintain that the requirements to state an FLSA claim are "quite straightforward" in comparison to the complexity of the pleadings involved in Twombly.....As the Supreme Court has stressed, Twombly "expounded the pleading standard for all civil actions.''' Iqbal, 556 U.S. at 684 (emphasis added). Courts in the Eleventh Circuit have affirmed this holding in FLSA cases, specifically distinguishing past contrary case law.

Now, should I repeat this holding one more time?

Oh well, the Court denied the motion to dismiss anyway.

Judge Moreno also denied a motion to stay all discovery pending disposition of the motion to dismiss.

(Given this was the second time around for the plaintiff I can perhaps see the reasoning, but in general I'm no fan of such motions because they can tick off the judge, are rarely warranted, even more rarely granted, and are often filed reflexively.)

Let's Talk About Love!

Yes kids, it's Valentine's Day and I'm feeling impossibly romantic.

I hope you are too?

Let's do a love edition:

1.  Wouldn't it be great if our wide-eyed, reptilian Governor said something like this:

"Look into your hearts and ask yourselves: 'Isn't it time?' " said Gregoire, as cheering supporters chanted "Thank you! Thank you! Thank you!"

"We did what was just. We did what was fair. We stood for equality, and we did it together, Republicans and Democrats, gay and straight, young and old, and a number of our faith organizations. I'm proud of who and what we are as a state," the governor said.

2.  More depos for Rothstein (somebody somewhere is loving this).

3.  Judge Marra refuses to dismiss punitive damages allegations in case involving an allegedly defective pain pump.

Through their Complaint, Plaintiffs allege actual knowledge of the danger posed by using the pain pump through the reports identified in subsections 20(c) and 20(d) of the Complaint. Plaintiffs further allege that “Although I-Flow had the capacity to use vendors to reach out to all orthopedic surgeons nationally, I-Flow’s officers and/or directors chose not to send out any Dear Doctor or Dear Healthcare Professional letters to surgeons or hospitals.” Complaint at ¶ 20(f). At least one Florida Court has determined that a product manufacturer’s actual knowledge of a danger followed by a failure to warn of that danger supports punitive damages. See Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191-92 (Fla. 4 DCA 2005) (“We agree with plaintiffs that the proffer reflected facts from which it could be found that Firestone knew about the tread separation, but delayed warning the public in order to protect its own financial interests. Such a finding would support punitive damages.”) The Court finds that Plaintiffs have met the pleading requirements articulated in Iqbal and Twombly and dismissal of their claim for punitive damages is not warranted.

(Ok, I only quoted this because I love talking about Iqbal/Twombly.)

4.  More love for Jeremy Alters:

The former nanny, Katelyn Sullivan, meanwhile, said in a suit filed two weeks ago that Alters charged more than $170,000 on her credit cards, withheld $20,000 in pay, and even made her sell her old Volvo because he didn't like how it looked in his driveway.

Both are bunk, Alters says. He has filed a motion to dismiss the Argentine case and this week plans to file a similar motion against Sullivan's claims.

"Her lawsuit is nonsense. Her claims are false," he says.

The part about the Volvo better be!

Thanks for the Shout-Out, Judge Scola!

Let's start by heaping praise on Brett Barfield and his team at the FBA who continually put on highly informative and well-run programs and events, including today's must-attend, completely sold-out Judge Scola luncheon.

The ever eloquent Judge took time from his busy calendar to answer pressing and important questions from curious federal court practitioners, such as:

1.  What is your favorite color?
2.  Boxers or briefs?

and my personal favorite:

3.  How do you pronounce Reese's Pieces?

In other words, all your important questions were answered!

Seriously, the Judge is a major dude and a fantastic speaker, and we appreciated the shout out -- it's probably better to be known for repeatedly highlighting a recent flawed Supreme Court opinion than, say, Bo Derek or the pros and cons of Keytars.

Thanks for taking the time, Your Honor.

Twombly/Iqbal Applies to Affirmative Defenses!

What's good for the goose and fool the gander once and all that, says Magistrate Judge O'Sullivan:

An affirmative defense may be stricken if it fails to satisfy the pleading requirements of Rule 8 and Twombly. See Twombly at 1362. The defendant has failed to satisfy the pleading requirements of Rule 8 and Twombly in this matter because the defenses merely states conclusions. Accordingly, the plaintiffs’ motion is granted....

BTW, the Notice Pleading Restoration Act appears dead in the water.

Denzel Washington Now Offers PIP Coverage!

There's a lot a talk each legislative session about reforming Florida's PIP laws, but I say if blockbuster Hollywood legend Denzel Washington is now offering PIP coverage, we have to be doing something right:

That at all times, the Defendant Denzel Washington was in the State to provide business, including but not limited to personal injury protection (pip) coverage.

My suggestion to Ms. Miller is that she get a hold of one of Bismarck's relatives and really learn how to load up the allegations when she amends the complaint.

(You gotta pay attention to Iqbal, folks!)

This Complaint Makes Perfect Sense to Me!

Bismark/Jung Complaint

Maybe it was the two cafecitos this morning, or perhaps the three Dewar's last night, but this pro se complaint pending before Judge Zloch seems reasonable and actually explains quite a lot.

Take note, young writers -- here's the gripping first paragraph, which should definitely be made into a graphic novel or big-screen blockbuster:

The Petitioner is being subjected to an ongoing conspiracy of discrimination due to his mother being a descendant of King Bismarck of Germany.  The marriage between the Petitioner's German mother of Erica Jung and American father of Richard Delaney was arranged by President Dwight Eisenhower when the Petitioner's father was stationed in Germany in the American military.  Upon returning to America, Director Allan Dulles of the CIA arranged for Richard Delaney to become employed by Chevron Oil Company owned by the Rockefellers in a game of the Mother, the Child, and the Dragon in the Book of Revelations, but only because he knew that Nelson Rockefeller controlled British intelligence at the time.  This led to David Rockefeller instructing Richard Delaney to name his three German children Michael John Delaney, Larry Paul Delaney, and Valerie Jean Delaney.  David Rockefeller further instructed to give all three German children the Nazi SS nicknames of Squirt, Stinky and Spike, all beginning with an S.

If you keep reading, the causation argument becomes quite interesting.

Any guesses on how it will do under the new Iqbal/Twombly pleading standard?

Listen to Local Lawyers Give Impressions!

Boy I miss Fred Travelena.

I mean, no one rocked the Tonight Show or the Jerry Lewis Telethon with a better impression of Sammy Davis or Wayne Newton than big Freddie, RIP.

Well if you want to hear local lawyers do some of their favorite impressions then tune in at 5 p.m. on Tuesdays on AM radio 880:

"The Lawmen Show" is a call in talk show featuring three attorneys with their live impressions of legal issues and business news, sometimes controversial and sometimes it's just fun. 

Sounds fun -- here's my impression of Iqbal!

And here's my impression of Venetian Salami!

The attorneys are careful to explain to callers that they are only offering their impressions during short phone calls...

Right, do not confuse their wicked impression of Judge King with the real thing!

Judge Tjoflat Holds An Iqbal Party!

 
It's Friday afternoon, so of course that's the perfect time for the 11th Circuit to drop a major pharmaceutical drug ruling.

Read it and -- depending on your perspective -- weep or woot.

The Judge does adopt a fairly novel policy argument rooted in how insurers supposedly price their premiums, effectively killing any kind of recovery for the insurers.

Not sure where he is coming up with some of this fact-finding in the context of a motion to dismiss:

The insurers have pled no facts in the complaint that suggest the insurers established premiums in a way inconsistent with the insurance industry’s conventional ratemaking procedures. We therefore must infer that the insurers do charge premiums established in that conventional manner. As a consequence, because the insurers consciously chose to assume the risk of paying for all medically unnecessary or inappropriate prescriptions of formulary-listed drugs—like Seroquel—we must further infer that they adjusted their premiums upward to reflect the projected value of claims for these prescriptions. Such estimates, when calculated properly, take into account all known risks that might cause the insurers to pay for medically unnecessary or inappropriate prescriptions.

Ah yes, all businesses and their chief executives always act rationally and utilize the very best business practices, I think that's the big takeaway from the last few years.

Me, I'm hitting the surf -- have a great weekend!

Dwyane Wade Charter School Lawsuit Survives Motion to Dismiss.

Wade Charter School

Dwyane Wade's charter school project is embroiled in a legal dispute with an entity that alleges it was supposed to provide consulting services and help develop charter schools for 20k a month, but alleges it has not been paid.

Judge Marra has denied defendant's motion to dismiss the complaint, which alleges unjust enrichment in addition to the usual contract and quasi-contract.

I happen to like the simple, straightforward way that Judge Marra deals with unjust enrichment and Rule 8(a):

Next Generation next argues that Lichfield failed to assert all of the ultimate facts necessary for its unjust enrichment and quantum meruit claims. Specifically, Next Generation contends that Lichfield failed to allege the specific services, the dates that the services were provided, and what benefits Next Generation retained.

The essential elements of unjust enrichment are “(1) a benefit conferred on upon a defendant by the plaintiff, (2) the defendant’s appreciation of the benefit, and (3) the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1274 (11th Circ. 2009) (quoting Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla.Dist.Ct.App. 2006)).

In count IV of the complaint, Lichfield alleged, in part, that:

45. Plaintiff conferred a benefit upon NEXT GENERATION, which services and materials were appreciated and accepted by the Defendant NEXT GENERATION that resulted in a substantial benefit to NEXT GENERATION thereby.
46. Defendant NEXT GENERATION accepted and retained the benefits of LICHFIELD’s consulting, public-relations, political and other related services to and for the Defendant under circumstances that would make it inequitable, unfair and unjust for Defendant to do so without paying the value of said benefits and
services.
47. Defendant NEXT GENERATION knew that LICHFIELD expected to be compensated for its efforts in an amount not less than $20,000.00 per month for a 12 month period, i.e., August 2009-August 2010.
48. Plaintiff LICHFIELD fully performed said services and provided all required consulting, public-relations, political and other related services to and for Defendant, which resulted in a substantial benefit to Defendant NEXT GENERATION.
***
Compl. ¶45-48.

Federal Rule of Procedure 8(a) only requires that a plaintiff include a “short and plain statement of the grounds for the court’s jurisdiction”, “a short and plain statement of the claim showing that the pleading is entitled to relief”, and “a demand for the relief sought.”  Fed.R.Civ.P. 8(a). Clearly, Lichfield fulfilled the pleading requirements for the unjust enrichment count since it properly alleged that a benefit was conferred upon Next Generation, Next Generation appreciated the benefit, and the circumstances make it inequitable for Next Generation to retain the benefit without paying for it.

This isn't rocket science, people.

Magistrate Judge Brown Denies "Extension of Mercy" For Lack of "Extremely Good Cause."

Extremely Good Cause Order

Hey, I just report this stuff, but that  "holiday somnambulance" a/ka/ "extension of mercy" motion has been denied for lack of "extremely good cause."

This may be a looser standard than Iqbal.

BTW, has anyone heard back from Mr. Browning?

Microsoft Billionaire Foiled By Iqbal!

Boy this lame-duck Congress is actually getting a few things done -- (a few) new federal judges even!

So what's the status of efforts to roll back Twombly or Iqbal?

Senator Spector's bill is D.O.A., as is the House version.

That's good news for some, except Microsoft billionaire Paul Allen:

A judge has dismissed Microsoft co-founder Paul Allen’s lawsuit against Google, Apple, Facebook and others for patent infringement.
Back in August, Allen originally claimed that 11 different companies, including YouTube (), Netflix and AOL, had violated four different patents associated with web search and e-commerce. These patents are tied to both software and business methods.

Now, however, a court has sided with Google et al. in a motion to dismiss the case, saying Allen’s claims were too vague and lacked “adequate factual detail to satisfy the dictates of Twombly and Iqbal” — two cases that are precedents for requiring adequate evidentiary support.

Sheesh, you'd think Allen's lawyers would know how to plead around this standard, but apparently not.

From the Court order:

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. Plaintiff only indicates that Defendants have websites, hardware, and software that infringe on the patents or that they are encouraging third parties to use products that infringe on the patents. This fails to indicate to Defendants which of their myriad products or devices may be at issue. These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n.10). They are also too generic to satisfy Form 18. Plaintiff urges the Court and Defendants to have patience and simply await delivery of the infringement contentions as required by Local Rule. This ignores that Local Rules do not trump the Federal Rules of Civil Procedure or the Supreme Court's mandate in Twombly and Iqbal. Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953. Plaintiff's complaint is little more than labels and conclusions, which are inadequate under Twombly, Iqbal, and even Form 18. The Court GRANTS the motions to dismiss.

I don't do patent litigation, but I'm not sure a heightened pleading standard made the difference here.

You can read the complaint and judge for yourself.

Are Federal Courts Growing Increasingly Partisan?

As the ten year anniversary of Bush v. Gore is recalled, not especially fondly (or worse -- ok, somebody likes it), an interesting debate is emerging over whether the federal courts -- on key politically charged issues -- are simply breaking down along partisan lines:

"The constitutionality of health care reform has gone from a fairly obscure and almost frivolous issue to a litmus test for what judges stand for," Toobin says.

For decades, and with few exceptions, he notes, the commerce clause has been more or less understood as a blank check for Congress. The health care row changed all that.

Says Toobin, "it's an example of how the center has shifted to the right in judicial politics." 

I would say in addition to health care and the Commerce Clause, we've seen some strange preemption arguments over Proposition 8, the federal government's right to set immigration policy,and DADT that have turned traditional conservative/liberal notions of jurisprudence on its head.

You could probably add that case about plausibility in pleading standards to the list, though who the hail gives a hoot about that dumb issue?

11th Circuit Applies Iqbal "Judgment" and "Experience" to Tempur-Pedic Antitrust Complaint; Complaint Now Sleeps With the Fishes

Courtesy of the Chef, I see that the 11th Circuit yesterday applied Iqbal to an interesting antitrust complaint alleged against those crappy, overpriced flexible beds, and found the complaint lacking in terms of alleging a submarket specifically for crappy, overpriced flexible beds:

Here, because the district court dismissed his complaint based on its legal insufficiency, Jacobs argues that he did not have the chance to add facts in discovery which would have established visco-elastic foam mattresses as a separate relevant product submarket.

We cannot accept this argument, however, because it would absolve Jacobs of the responsibility under Twombly to plead facts “plausibly suggesting” the relevant submarket’s composition. Jacobs’s skimpy allegations of the relevant submarket do not meet this obligation. The complaint alleges, without elaboration, that “[v]isco-elastic foam mattresses comprise a relevant product market, or submarket, separate and distinct from the market for mattresses generally, under the federal antitrust laws.” This conclusional statement merely begs the question of what, exactly, makes foam mattresses comprise this submarket. The complaint provides no factual allegations of the cross-elasticity of demand or other indications of price sensitivity that would indicate whether consumers treat viscoelastic foam mattresses differently than they do mattresses in general. Consumer preferences for visco-elastic foam mattresses versus traditional innerspring mattresses, and the costs associated with their sale, may vary widely, may vary little, or may not vary at all. Jacobs’s complaint, however, gives no indication of which of these is the case. The allegations that visco-elastic foam mattresses are more expensive than traditional innerspring mattresses and that visco-elastic foam mattresses have “unique attributes” are similarly of little help. They do not indicate the degree to which consumers prefer visco-elastic foam mattresses to traditional mattresses because of these unique attributes and differences in price.  Would, for example, a consumer whose innerspring mattress was due for replacement be more likely to purchase another innerspring mattress or substitute a visco-elastic foam model for it? Are visco-elastic foam mattresses put to different uses (as luxury goods, such as in fine hotels and within higher income brackets) than are traditional mattresses? These types of questions, which our precedent makes clear are crucial to understanding whether a separate market exists, go unanswered in the complaint.

Ok, these are fair points raised by the 11th, and since it was the plaintiffs' first shot at a complaint and they never amended and the defendant never answered, I would assume they'll get a chance to fill in this helpful factual detail at the amended complaint stage, which was inexplicably denied by the district court below.

That assumption would be wrong:

Having read Jacobs’s motion, we conclude that it did nothing but ask the district court to reexamine an unfavorable ruling. Reconsidering the merits of a judgment, absent a manifest error of law or fact, is not the purpose of Rule 59. We find nothing in the district court’s order that would constitute a manifest error of law or fact. Jacobs’s remedy, if he thought the district court ruling was wrong, was to appeal, a step he has taken. Since we have concluded that the court did not err in dismissing Jacobs’s complaint, it necessarily follows that it did not abuse its discretion in denying Rule 59(e) relief.

As noted in the LA Times and USA Today just this morning, there is a major judicial crisis, with huge vacancies and overloaded courts struggling to administer justice.

So it's good to see the 11th Circuit doing its part to quickly clear all those clogged federal dockets.

The NYT Throws A TwIqbal Party!

I'm always amused by judges who caution lawyers not to be verbose in filings, and to adhere strictly to the page limits in briefing.  This is usually accompanied by a whine about "all the paper" the Court has to deal with and that brevity is a virtue and you should be able to convey your legal position succinctly and clearly.

Yet many of these judges write long, repetitive, confusing opinions, sometimes twice the page limits of the briefs submitted by the parties themselves.

In a truly fascinating article, no court is more guilty of this than our own Supremes:

Yet the number of words per decision has been climbing. The Roberts court set a record last term, issuing majority opinions with a median length of 4,751 words, according to data collected by two political scientists, James F. Spriggs II of Washington University in St. Louis and Ryan C. Black of Michigan State. The lengths of decisions, including the majority opinion and all separate opinions, also set a record, at 8,265 words.

In the 1950s, the median length of decisions was around 2,000 words.

The opinions in Citizens United v. Federal Election Commission, the January decision that lifted restrictions on corporate and union spending in candidate elections, spanned 183 pages and more than 48,000 words, or about the length of “The Great Gatsby.” The decision — ninth on the list of longest majority opinions — was controversial, but the questions it addressed were not particularly complicated.

Long opinions are perilous, said Edward H. Cooper, a law professor at the University of Michigan. “The more things you say, the more chances you have to be wrong and the more chances you have to mislead the lower court,” he said. 

Not only are recent Supreme Court opinions ponderously long, they are also frustratingly vague and confusing!

Guess which ones gets featured:

In a pair of civil procedure decisions in 2007 and 2009 that have been cited many thousands of times, the court gave trial judges more authority to throw out cases early based on, in the words of the later decision, their “experience and common sense.”

That standard, Arthur R. Miller wrote last month in The Duke Law Journal, is “shadowy at best” and has caused “confusion and disarray among judges and lawyers.” 

You don't say!

We Recommend........Nothing.

2010 Civil Rules Report

That seems to be the net result of the Judicial Conference Advisory Committee on Civil Rules and the Committee on Rules of Practice and Procedure – a select group of hipster federal judges, various wonky academics, practitioners with time on their hands, and business groups  – which held a swanky conference last Spring to debate proposed changes to the Federal Rules of Civil Procedure.

There was much ado about electronic discovery, "metadata," anecdotal examples of discovery gone amok -- in other words, line up the usual suspects.

After all that effort, the committee has finally produced their interim report to Chief Justice Roberts.

Reading the report, I don't get any sense any big changes to the Rules are in the pipeline.  They seem to be taking a very neutral position, merely describing the bigger controversies without proposing any resolutions to them.

Perhaps that is a result of holding the conference at dreaded Duke.

Sheesh, how'd this blog get so procedural all of a sudden?