Federal and Kansas Civil Procedure Update Lou Mulligan

Transcription

1 Federal and Kansas Civil Procedure Update Lou Mulligan May 29-30, 2014 University of Kansas School of Law

2 Kansas Rules of Civil Procedure Key Statutory and Case Law Developments Lumen Mulligan University of Kansas School of Law May 29, 2014 Overview 2. U.S. Supreme Court Constitutional Opinions of Note 3. U.S. Supreme Court Statutory Cases 4. Kansas Chapter 60 Statutory Amendments 5. Kansas Civil Procedure Cases 5/21/

3 Three broad sets of Rules changes likely to come into effect this December» Eliminating Rule 84 and the official forms following therewith.» Reforms concerning evidentiary spoilation under R. 37(e)» Numerous reforms stemming from the 2010 conference at Duke university. These amendments are through the advisory committee, before the standing committee, and highly likely to be promulgated by the Supreme Court this fall, with congressional approval likely in December. 5/21/ Proposed Rule 37(e).» Current Rule 37(e) provides protection against sanctions under these rules for loss of electronically stored information due to the routine, good-faith operation of an electronic information system. But litigation holds are not directly addressed.» Proposed Rule 37(e) preferences curative measures over sanctions.» It makes it clear that in all but very exceptional cases in which failure to preserve irreparably deprived a party of any meaningful opportunity to present or defend against the claims in the litigation sanctions (as opposed to curative measures) could be employed only if the court finds that the failure to preserve was willful or in bad faith, and that it caused substantial 5/21/2014 prejudice in the litigation. 4 2

4 Alter Rules 1, 4, 16, 26, 30, 31, 33, 34, 36, and 37. They form a package developed in response to the central themes that emerged from the conference held at the Duke Law School in May Participants urged the need for» Early, active judicial case management;» Proportionality in using procedural tools, most particularly discovery;» And increased cooperation. 5/21/ Early and Active Case Management» Concludes that early litigation is overly time consuming and costly.» Premise is that effective case management will reduce time and costs.» To this end substantial amendments to Rule 4(m). Rule 16(b). Rule 26(d)(1). 5/21/

5 Early and Active Case Management» Rule 4(m) Amendments Amended Rule 4(m) shortens the time to serve the summons and complaint from 120 days to 60 days. The district court retains the ability to grant additional time to serve for cause shown. KSA (a)(1) continues to provide 90 days for service. So federal practice swings from granting and extra 30 days for service to moving 30 days faster. 5/21/ Early and Active Case Management» Rule 16(b)(2) Amendment Current Rule 16(b)(2) provides that the judge must issue the scheduling order within the earlier of 120 days after any defendant has been served or 90 days after any defendant has appeared. Amended Rule 16(b)(2) cuts the times to 90 days after any defendant is served or 60 days after any defendant appears. Amended Rule 16(b)(2) has a new provision (which KS already has) that allows the judge to extend the time on finding cause. KSA (b) continues to provide that the conference be set as soon as possible and shall be conducted within 45 days of the filing of an answer absent extensions granted. 8 4

6 Early and Active Case Management» Rule 16(b)(1) Amendment Current Rule 16(b)(1) allows issuance of a scheduling order after (i) receiving the parties Rule 26(f) report without a conference or (ii) after consulting at a scheduling conference by telephone, mail, or other means. The committee considered strongly requiring ALL cases to go to a scheduling conference, not just after a 26(f) report, but ultimately rejected that change. Proposed Rule 16(b)(1) requires that all cases that do have a scheduling conference do so live by in person, by phone, etc. Conference by letter or is now excluded. Under KSA (a) either party may insist upon a scheduling conference or the court may call on its own authority. 9 Early and Active Case Management» Rule 16(b)(3)(B) Amendment Current Rule 16(b)(3)(B) lists matters that the parties and the court may consider at the scheduling conference. Proposed Rule 16(b)(3)(B) adds to this list» to provide for the preservation of electronically stored information and to include agreements reached under Rule 502 of the Federal Rules of Evidence (regarding inadvertent waiver of privilege).» to direct that before moving for an order relating to discovery the movant must request a conference with the court. KSA (b) lacks these specific points, but would not appear to preclude them. 10 5

7 Early and Active Case Management» Rule 26(d)(1) Amendment Current Rule 26(d)(1) does not allow pre Rule 26(f) conference discovery requests, some exceptions excluded. Proposed Rule 26(d)(1) allows certain Rule 34 requests pre 26(f) conference, not for the purpose of starting the time to respond but to facilitate the 26(f) conference by allowing consideration of actual requests. Request may be served 21 days after the complaint, but will not start the response clock until the date of the 26(f) conference. KSA (d) continues to lack the constraints of either the current or amended federal rule. 11 Proportionality in Discovery Recognizes that many past attempts to control discovery costs have failed. In response:» The scope of discovery is directly limited by amending Rule 26(b)(1)» Promotes clearer responses to Rule 34 requests» Reduce the presumptive limits on the number and duration of depositions» Reduce the presumptive number of interrogatories» Add a presumptive limit to the number of requests for admission, other than those that relate to the genuineness of documents» Explicitly recognize the present implied authority to issue a protective order specifying an allocation of expenses incurred by discovery. 12 6

8 Proportionality in Discovery» Rule 26(b)(1) Amendments In 1983, Rule 26(b)(2)(C)(iii) was added to note that the court MUST limit the scope of discovery, so that discovery (a) be proportional to the needs of the case considering the amount in controversy, (b) relates to the importance of the issues at stake in the action, (c) relates to the parties resources, (d) relates to the importance of the discovery in resolving the issues, and (e) expenses do not outweigh its likely benefit. The committee notes these goals have not been realized. The proposal moves the language of 26(b)(2)(C)(iii) into Rule 26(b)(1), the main discovery scope provision. KSA (b) follows the current federal approach. 13 Proportionality in Discovery» Rule 26(b)(1) Amendments Current Rule 26(b)(1) has a 2-prong approach. First, party driven requests must be relevant to a claim or defense. Second, the court may allow For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Proposed Rule 26(b)(1) eliminates this latter provision. Requiring all discovery to be relevant to a claim or defense pled. KSA (b)(1) continues with a slightly different approach. It allows discovery relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. 14 7

9 Proportionality in Discovery» Rule 26(b)(1) Amendments Current Rule 26(b)(1), the penultimate sentence, reads: Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. The committee is concerned that this provision is erroneously used to expand the scope of discovery beyond its intended limits. Proposed Rule 26(b)(1) replaces the above with: Information within this scope of discovery need not be admissible in evidence to be discoverable. KSA (b)(1) continues with the unamended federal approach. 15 Proportionality in Discovery» Rule 26(c) Amendments Current Rule 26(c) implicitly recognizes that a court may allocate costs of discovery in a protective order, which is a power being exercised with increasing frequency. Proposed Rule 26(c)(1)(B) creates an explicit recognition of the authority to enter a protective order that allocates the expenses of discovery. KSA (c) lacks an explicit reference to allocation of costs in a protective order. 16 8

10 Proportionality in Discovery» Rule 30 Amendments Current Rule 30 establishes a presumptive limit of 10 depositions per party with each one limited to 1 day of 7 hours. Proposed Rule 30 reduces the presumptive limit on the number of depositions to 5 per party, and would reduce the presumptive duration to 1 day of 6 hours. Proposed Rule 30 continues to provide that the court must grant leave to take more depositions to the extent consistent with Rule 26(b)(1) and (2). KSA continues to have the # of depos set in the R. 16 conference, KS has no statutory time period for depo length. 17 Proportionality in Discovery» Rules 33 & 36 Amendments Current Rule 33(a)(1) sets a presumptive limit of 25 written interrogatories. There is no presumptive numerical limit for current Rule 36 requests to admit. Proposed Rule 33(a) presumptively limits to 15 interrogatories. Proposed Rule 36 adds a presumptive limit of 25 requests for admission, expressly exempting requests to admit the genuineness of documents. KS Sup. Ct. R. 135 continues to limit interrogatories to 30. KSA follows, mostly, the un-amended federal rule. 18 9

11 Proportionality in Discovery» Rule 34 Amendments Current Rule 34 does not require that objections to production requests be made with specificity nor does it require the responding party to state whether documents have been withheld. Current Rule 34 responses, then, often begin with a laundry list of objections, then produce volumes of materials, and finally conclude that the production is made subject to the objections. The requesting party is left uncertain whether anything actually has been withheld. Proposed Rule 34(b)(2)(B) requires that the grounds for objecting to a request be stated with specificity. Proposed Rule 34(b)(2)(C) requires that an objection state whether any responsive materials are being withheld on the basis of that objection. KSA largely follows the un-amended federal rule. 19 Cooperation» Rule 1 Amendments The Committee consider imposing a duty of cooperation, but dropped it as rife with potential problems. Proposed Rule 1. The parties are made to share responsibility for achieving the high aspirations expressed in Rule 1: [T]hese rules should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding. The Note observes that most lawyers and parties conform to this expectation, and notes that [e]ffective advocacy is consistent with and indeed depends upon cooperative and proportional use of procedure. The Committee hopes that Rule 1 will encourage cooperation by lawyers and parties directly, and will provide useful support for judicial efforts to elicit better cooperation when the lawyers and parties fall short

12 2. Federal Constitutional Cases Daimler AG v. Bauman, --- US --- (Jan. 14, 2014)» Ps bring human rights torts against Daimler (German Corp) for events that happened in Argentina. P claims general jurisdiction in Cal. b/c a wholly owned subsidiary of Daimler, MB USA (Del. Corp., HQ d in NJ), does enough business in Cal. to qualify for general jurisdiction there.» SCOTUS held Daimler cannot be sued in California for injuries allegedly caused by conduct of its Argentinian subsidiary when that conduct took place entirely outside of the United States. Cannot bootstrap MB USA s contacts to Daimler for general jurisdiction. 5/21/ Federal Statutory Cases Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas --- US --- (Dec 3, 2013)» Parties entered into a K w/ a forum-selection clause, choosing VA. J-Crew filed in Texas.» Atlantic Marine moved to dismiss, arguing that the forum-selection clause rendered venue "wrong" under 28 U.S.C. 1406(a) and "improper" under Federal Rule of Civil Procedure 12(b)(3).» In the alternative, Atlantic Marine moved to transfer the case to the Eastern District of Virginia under 28 U.S.C. 1404(a).» SCOTUS held that a forum-selection clause may be enforced by a motion to transfer under 28 U.S.C. 1404(a), which provides that, [f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. But Texas forum was not wrong or improper. 5/21/

13 3. Federal Statutory Cases Mississippi ex rel. Hood v. AU Optronics Corp., --- US --- (Jan. 14, 2014)» Mississippi sued AU Optronics, a liquid crystal display (LCD) manufacturer, in state court, alleging violations of state law and seeking, restitution for LCD purchases made by itself and its citizens. D removed under CAFA arguing this was in reality a mass tort action.» Under the Class Action Fairness Act, because Mississippi is the only named plaintiff, the suit does not qualify as a "mass actions" that is, a civil action "in which monetary relief claims of 100 or more persons are proposed to be tried jointly on the ground that the plaintiff's claims involve common questions of law or fact. That the state was suing on behalf of citizens does not alter that plain language of the statute. 5/21/ Federal Statutory Cases Ray Haluch Gravel Co. v. Central Pension Fund of the International Union of Operating Engineers and Participating Employers, --- US --- (Jan. 15, 2014)» The district court entered judgment on the merits of a union contract dispute on June 17, and awarded attorney s fees under the statute and contract to Ps on July 25. Ps assumed the July date was the final order purposes of filing appeal under 28 USC 1291 and filed notice of appeal on August 15.» SCOTUS held that a decision on the merits is a "final decision" even if the award or amount of attorney's fees remains to be determined. P s appeal was untimely. 5/21/

14 4. Kansas Statutory Amendments Numerous sections throughout KSA 60 and 61 change filing fees. 5/21/ Kansas Statutory Amendments KSA , New Fee To File Summary Judgment (h) Fee for filing a motion for summary judgment. (1) On and after July 1, 2014, any party filing a motion for summary judgment shall pay a fee in the amount of $195 to the clerk of the district court. (2) A poverty affidavit may be filed in lieu of a fee as established in K.S.A , and amendments thereto. (3) The fee shall be disbursed in accordance with K.S.A , and amendments thereto. (4) Such fee shall only be established by an act of the legislature and no other authority is established by law or otherwise to collect a fee. (5) The state of Kansas and all municipalities in this state, as defined in K.S.A a, and amendments thereto, shall be exempt from paying such fee. (6) The provisions of this subsection shall not apply to an action pursuant to the code of civil procedure for limited actions. L. 2014, ch. 82, 34, eff. July 1, /21/

15 4. Kansas Statutory Amendments KSA ; Expert Witness Rule Changed to Adopt Daubert Standard (a) If the witness is not testifying as an expert, the testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds: (1) Are rationally based on the perception of the witness; (2) are helpful to a clearer understanding of his or her testimony the testimony of the witness; and (3) are not based on scientific, technical or other specialized knowledge within the scope of 5/21/2014 subsection (b) Kansas Statutory Amendments KSA cont. (b) If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case. (c) Unless the judge excludes the testimony, the judge shall be deemed to have made the finding requisite to its admission. (d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact. KSA also amended to facilitate pre-trial hearings on expert witnesses and use by experts of background facts prevalent in the field. 5/21/

16 4. Kansas Statutory Amendments KSA , amended to bar a cause of action for wrongful death under this section on behalf of a unborn child adds sections (b)-(e). Specifically eliminates a 1901 cause of action arising after an abortion. 5/21/ Kansas Statutory Amendments KSA , New Statute This provision bars a cause of action for wrongful life or wrongful birth 5/21/

17 4. Kansas Statutory Amendments KSA 60-19a02; amended to raise noneconomic damages cap, over time, to $350,000. The Miller court last year stated that the legislature's failure to increase the $250,000 cap on noneconomic damages over the more than 20 years since it first set that amount is troubling to this court. 295 Kan. at 664. In response, the legislature increased the cap for non-economic damages to» $300,000 for actions accruing after July 2014» $325,000 for actions accruing after July 2018» $350,000 for actions accruing after July /21/ Kansas Statutory Amendments Answer of garnishee; attachment of intangible property other than earnings This section shall apply if the garnishment is to attach intangible property other than earnings of the judgment debtor. (a) The answer of the garnishee shall be substantially in compliance with the forms set forth by the judicial council. (b) Within 14 days after service, other than that required pursuant to K.S.A , and amendments thereto, upon a garnishee of an order of garnishment the garnishee shall complete the answer in accordance with the instructions accompanying the answer form stating the facts with respect to the demands of the order and. (1) Except as otherwise provided in subsection (b)(2), the garnishee shall send the completed answer to the judgment creditor's attorney at the address listed on the answer form or, if the judgment creditor does not have an attorney, to the judgment creditor and judgment debtor at the addresses listed on the answer form. The answer shall be supported by unsworn declaration in the manner set forth on the answer form. (2) If the garnishee does not have assets of the judgment debtor, the garnishee shall send the completed answer to the judgment creditor's attorney at the address listed on the answer form or, if the judgment creditor does not have an attorney, to the judgment creditor at the address listed on the answer form. The answer shall be supported by unsworn declaration in the manner set forth on the answer form

18 4. Kansas Statutory Amendments Answer of garnishee; attachment of intangible property other than earnings This section shall apply if the garnishment is to attach intangible property other than earnings of the judgment debtor. (a) Within 14 days after service upon a garnishee of an order of garnishment the garnishee shall complete the answer in accordance with the instructions accompanying the answer form stating the facts with respect to the demands of the order and. (b)(1) Except as otherwise provided in subsection (b)(2), the garnishee shall send the completed answer to the judgment creditor's attorney at the address listed on the answer form or, if the judgment creditor does not have an attorney, to the judgment creditor and judgment debtor at the addresses listed on the answer form. The answer shall be supported by unsworn declaration in the manner set forth on the answer form. (2) If the garnishee does not have assets of the judgment debtor, the garnishee shall send the completed answer to the judgment creditor's attorney at the address listed on the answer form or, if the judgment creditor does not have an attorney, to the judgment creditor at the address listed on the answer form. The answer shall be supported by unsworn declaration in the manner set forth on the answer form. 5/21/ Kansas Civil Rules Cases Fisher v. DeCarvalho 298 Kan. 482 (2013)» Mailing summons and petition using unrestricted certified mail sent D s business address, failed to substantially comply with statutory requirements for service of process at a business address, even though physician received actual notice of commencement of action; in serving process at physician's business address, patient was required to use certified mail sent by restricted delivery & » D's request for extension of time to file an answer was not a voluntary appearance, and thus did not waive Dt's challenge to personal jurisdiction based upon an insufficiency of the service of process.» P entitled to additional 90 days to perfect service of process following dismissal for lack of personal jurisdiction due to improper service of process, pursuant to statute providing 90-day extension of time in cases in which service of process purported to have been made but was later adjudicated to have been invalid due to any irregularity in form or procedure, disapproving Grimmett v. Burke, 21 Kan.App.2d 638, 906 P.2d 156. See (b). 5/21/

19 5. Kansas Civil Rules Cases Bussman v. Safeco Ins. Co. of America 317 P.3d 70, 73 (Kan.,2014)» Under K.S.A (a) and (c), the purpose of a pretrial conference is to eliminate the element of surprise from trials and to simplify the issues and procedure by effecting full disclosure to all parties of the anticipated evidence and the contested issues, both factual and legal, and to consider other matters that may aid in the disposition of the action.» Generally, a trial court should not entertain an issue or claim that is omitted from the pretrial order. Rather, the pretrial order controls the course of the action unless modified to prevent manifest injustice pursuant to K.S.A (e). 5/21/ Kansas Civil Rules Cases Coulter v. Anadarko Petroleum Corp., 292 P.3d 289 (Kan. 2013)» The Kansas supreme court held that in determining whether a class action settlement is fair, reasonable, and adequate, as required for approval of settlement, a district court should consider all of the relevant circumstances affecting the particular settlement of the particular class action for the benefit of the particular class members.» The court listed the following relevant factors: (1) whether the settlement was fairly and honestly negotiated, (2) whether serious questions of law and fact exist that place in doubt the ultimate litigation outcome, (3) whether the value of immediate recovery outweighs the mere possibility of future relief after protracted and expensive litigation, and (4) whether the parties believe the settlement to be fair and reasonable. 5/21/

20 5. Kansas Civil Rules Cases Coulter v. Anadarko Petroleum Corp., 292 P.3d 289 (Kan. 2013)» The Coulter court held that a class representative, in settling a class action, is permitted to release an un-litigated claim that is based upon the same underlying facts and theory of liability as the asserted claims in a settled class action.» The supreme court delineated the district court's role with respect to a consensual class action settlement agreement as merely to ensure that the agreement is not the product of fraud or collusion and that, taken as a whole, the settlement is fair, adequate, and reasonable to all concerned.» Finally, the court held that an arbitration provision in a class action settlement agreement that is limited to requiring binding arbitration for disputes arising out of a stipulated settlement does not deprive the class members of their inviolate right to jury trial under Section 5 of the Kansas Constitution Bill of Rights. 5/21/ Kansas Civil Rules Cases KSA (Summary Judgment)» In Northern Natural Gas Co. v. ONEOK Field Services Co., 296 P.3d 1106 (Kan. 2013), the Kansas supreme court first held that an appellate court reviews for an abuse of discretion a trial court's refusal to permit additional discovery under (f). The court also held that a trial court does not abuse its discretion when it refuses to allow discovery of an issue that is immaterial to a pending summary judgment motion before ruling on the motion. 5/21/

21 5. Kansas Civil Rules Cases Mondonedo v. Shawnee County Dist. Atty., 301 P.3d 789 (Kan. App. 2013) Ralf M. Mondonedo filed a mandamus action in district court against Shawnee County District Attorney, in his official capacity, seeking an order from the court requiring the district attorney to do his job and prosecute an alleged act of forgery by Mondonedo's ex-wife on certain student loan documents. Contrary to the requirements of K.S.A.2012 Supp (d)(5) that he serve the petition on the attorney general, Mondonedo served an executive assistant in the office of the district attorney. The court held that the district court properly dismissed the petition due to insufficient service of process. 5/21/ Kansas Civil Rules Cases Bouton v. Byers, --- P.3d ---, 2014 WL (Kan. App. Mar. 14, 2014)» The 3 year limitations period in K.S.A (1) applies to promissory estoppel claims based on oral promises. 5/21/

22 5. Kansas Civil Rules Cases KSA (Survival of Actions)» In an action under the survival statute to recover damages for personal injury to plaintiff's decedent who died as result of such injury, recovery may not be had for loss of earnings or earning capacity beyond the time of death. In addition, a cause of action for legal malpractice brought by personal representative of testatrix's estate against testatrix's attorney did not qualify as a survival claim, as it did not accrue during testatrix's lifetime. Jeanes v. Bank of America, N.A., 295 P.3d 1045 (Kan. 2013). 5/21/ Kansas Civil Rules Cases Schlaikjer v. Kaplan, 293 P.3d 155 (Kan. 2013) The plain language of K.S.A applies to any witness who would give expert testimony on the standard of care in a medical malpractice action, regardless of whether the prospective witness is a treating physician. When applying K.S.A , "actual clinical practice" means "patient care," which is not limited to care delivered face-to-face and can include "advising on" and "addressing" care for a patient. It also can include handson-training or teaching of surgical resident and clinical research. 5/21/

23 All Done! My 5/21/