PBA FEDERAL PRACTICE COMMITTEE NEWSLETTER

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1 PBA FEDERAL PRACTICE COMMITTEE NEWSLETTER JANUARY 2013 PBA MID-YEAR MEETING ST. MAARTEN, N.A. The Federal Practice Committee will once again be presenting one of the feature programs at the 2103 Mid-Year Meeting in St. Maarten, N.A. A panel of judges from the 3rd Circuit and the three district courts and practitioners will discuss the impact of the term of the Supreme Court of the United States on federal practice. This will be an informative program because of the number of important decisions handed down this past term by the Supreme Court. The panel will be moderated by Hon. D. Michael Fisher, U.S. Court of Appeals for the Third Circuit, and Chair of the PBA Federal Practice Committee. Panelists include: Nancy Conrad, Esq., White and Williams, L.L.P., Vice Chair, PBA Federal Practice Committee Hon. J. Curtis Joyner, Chief Judge, U.S. District Court for the Eastern District of Pa. Hon. Yvette Kane, Chief Judge, U.S. District Court for the Middle District of Pa. Hon. Gary L. Lancaster, Chief Judge, U.S. District Court for the Western District of Pa. Hon. Theodore A. McKee, Chief Judge, U.S. Court of Appeals for the Third Circuit Kathryn Lease Simpson, Esq., Mette, Evans and Woodside St. Maarten, Netherlands Antilles PLAN TO ATTEND THE CIVIL LITIGATION SECTION ANNUAL MEETING IN GETTYSBURG, APRIL 5-6, 2013 On April 5-6, 2013 at the Best Western Hotel in Gettysburg, the FPC is cohosting a retreat with the Civil Litigation Section and the ADR and Labor & Employment Law sections of the PBA. On Saturday morning, FPC Vice-Chair Nancy Conrad is coordinating a mock oral argument in the case of S. J. W. v. Lee's Summit R-7 School District. The case will be argued at the retreat by FPC members Robert L. Byer, Duane Morris and Sharon Lopez, Triquetra Law. Judges for the program include Justice Michael Eakin, Hon. Jacqueline Shogun and Hon. John Jones. Nancy Conrad will moderate the program. This will be a great event at a historic location during the year of the 150th Anniversary of the Battle of Gettysburg. All FPC members are invited to attend. To learn more and register, please contact Michael Shatto, Civil Litigation Section Liaison, michael.shatto@pabar.org The Pennsylvania Memorial at the Gettysburg National PENNSYLVANIA BAR ASSOCIATION 100 South Street, PO Box 186, Harrisburg, PA Phone:

2 Page 2 FUNDING INTERPRETERS IN FEDERAL CIVIL CASES FOR LIMITED ENGLISH PROFICIENT INDIVIDUALS At our November Committee meeting, Art Read, General Counsel, Friends of Farmworkers, Inc., raised the question of funding for Interpreters in federal civil cases for Limited English Proficient Individuals. The information provided from studies by the ABA and other sources raises a question that the FPC has asked Circuit Executive Office of the Third Circuit to review with our district courts and the Administrative Office of the U.S. Courts. If FPC members have any information or history as it relates to this question, please share it with the committee. The next PBA Committee/ Section Day will be April 11, 2013 at the Radisson in Camp Hill. Watch INCREASING FEDERAL PRACTICE COMMITTEE CLE PROGRAMS The FPC will be working with PBI to do a follow-up program this spring based on the program presented at the PBA Mid-Year Meeting this February, The Impact of the Term of the Supreme Court of the United States on Federal Practice. We will keep you advised about the details. your and the PBA website for details. Let the Chair know if you would like us to host a local CLE program in your area, either independently or jointly with your local bar. We are prepared to present our Tips and Traps program and are exploring other program topics. The committee is interested in providing educational programs wherever interest exists. EASTERN DISTRICT A Clerk s Office Procedural Handbook dated September 2012 and numerous appendices can now be found at MIDDLE DISTRICT The court has voted to adopt changes to Local Rule of Criminal Procedure 32.1 (Presentence Procedure). The amended Rule, which can be found under Public Notice at will become effective on December 1, PENNSYLVANIA BAR ASSOCIATION 100 South Street, PO Box 186, Harrisburg, PA Phone:

3 Page 3 IN RE: GRAND JURY, NO ABC Corp., John Doe 1, and John Doe 2 were subjects of an ongoing grand jury investigation into an alleged criminal tax scheme. As part of that scheme, ABC Corp., under the direction of John Doe 1 and John Doe 2, purchased and subsequently sold numerous companies. These consolidated appeals concerned whether documents and testimony relating to legal advice obtained by ABC Corp. in connection with these transactions are shielded by the attorney-client and work product privileges. 1. ABC Corp. has standing to contest the grand jury subpoenas because it claims privilege in the sought-after documents and testimony. John Doe 1 and John Doe 2, in contrast, lack standing because they are not privilege holders, and do not have any other legally cognizable interest in the documents or testimony. 2. Even though ABC Corp. has standing, CA3 lacks jurisdiction to hear its appeal from the March Order because ABC Corp. may travel the well-worn contempt path to jurisdiction. If ABC Corp. wishes to appeal this Order immediately, it must take possession of its documents from Blank Rome, refuse to produce them to the Government, and appeal any resulting contempt sanctions. Because the parties have been unable to agree on a mechanism for transferring the documents, the stay was lifted to allow the District Court to effect an appropriate transfer. In doing so, the Court, if it wishes, may designate a representative of ABC Corp. to receive delivery of the documents or direct ABC Corp. to do so. April 11, 2013 PBA Committee/ Section Day Radisson Hotel, Camp Hill, PA May 8-10, 2013 PBA Annual Meeting Wyndham Grand Pittsburgh Downtown Pittsburgh, PA 3. CA3 decided it had jurisdiction to hear the appeal by ABC Corp. from the June Order because that Order is not directed to it and its former employees are unlikely to risk contempt sanctions on its behalf. Contrary to the Government s suggestion, the Court declined to hold that the Supreme Court s decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 130 S. Ct. 599 (2009), precludes Perlman appeals by grand jury subjects. 4. Finally, in reaching the merits of ABC Corp. s appeal from the June Order, CA3 held that the Court correctly (a) applied the crime-fraud exception to deny ABC Corp. a privilege protection over testimony and two documents sought from its former in-house counsel and (b) determined that three documents sought from those counsel do not qualify as privileged. IN RE: ARTHUR BALDWIN, NO Concerned about the consequences of a District Court order setting a 7.5 hour per side limit on the parties presentation of evidence at trial, the sixteen named defendants in this litigation (the Lemington Defendants ) sought a writ of mandamus to vacate the time-limit order. Since a direct appeal presents an adequate means for the Lemington Defendants to challenge the District Court s order, the Court of Appeals denied the petition for a writ of mandamus. In denying mandamus relief, CA3 emphasized that they were not ruling on the propriety of the time-limit order. The Committee sued sixteen individual defendants, and many of the defendants may need to testify to present their own defenses, even if some of their testimony is duplicative. Because 7.5 hours may ultimately be too little time for the Lemington Defendants to adequately present their case, CA3 did not conclude that the time-limit order is permissible or valid. It held only that a post-judgment appeal is adequate to assure meaningful review of the propriety of the time-limit order.

4 Page 4 CHERYL JAMES V. THE CITY OF WILKES-BARE, NO This appeal required CA3 to decide whether the District Court erred when it denied a police officer s motion to dismiss a civil rights action. Cheryl James brought suit against Officer Marshall for false arrest and false imprisonment pursuant to 42 U.S.C in the Court of Common Pleas of Luzerne County, Pennsylvania. Officer Marshall then removed the case to the United States District Court for the Middle District of Pennsylvania, and filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). In the alternative, Officer Marshall argued that he was entitled to qualified immunity. Mrs. James had not pleaded that she was seized within the meaning of the Fourth Amendment. She was urged by officers to accompany her daughter in the ambulance, and she agreed to do so. She was free to leave at any time. Indeed, she does not allege that any Wright Township police officers accompanied her in the ambulance or even that they proceeded to the hospital separately. Accordingly, Mrs. James cannot show that she was falsely imprisoned. Therefore, the District Court erred when it failed to grant Officer Marshall qualified immunity on this claim as well. FRANKLIN BENJAMIN V. PA DEPARTMENT OF PUBLIC WELFARE, NO Appellees were individuals with mental retardation who resided in intermediate care facilities operated by Defendant, PA Department of Public Welfare. By and through their respective next friends, this class action was brought in the U.S.D.C. M.D. of PA, alleging that DPW failed to offer community services in violation of the integration mandates of the Americans with Disabilities Act and the Rehabilitation Act. The Appellants were several intermediate care facility residents who, by and through their own guardians or next friends, have continued to oppose community placement and, among other things, have sought to intervene in this case. This matter was already before CA3 in a prior appeal, and the District Court s denial of a motion to intervene filed by all but one of the current Appellants in connection with the merits stage of this case was affirmed. In this appeal, Appellants specifically appealed from the District Court s order denying the motions to intervene filed in connection with the remedy stage of this litigation, as well as from the District Court s subsequent order granting final approval to the settlement agreement between Plaintiffs and Defendant. CA3 concluded that the District Court abused its discretion by denying intervention as of right pursuant to F.R.C.P. 24(a)(2) and vacated the District Court s intervention order insofar as it denied Appellants motions to intervene as of right in the remedy stage of this litigation, as well as its order granting final approval to the parties settlement agreement.

5 Page 5 WARDELL LEROY GILES V. GARY CAMPBELL, NO Wardell Leroy Giles appealed the District Court s denial of his motion to substitute Gary Campbell s estate as a defendant pursuant to F.R.C.P. 25(a). A. Whether the claim is extinguished when a party to a lawsuit dies. Since Giles s claim against Campbell were pending under Delaware law at the time of Campbell s death, the claim is not barred under Delaware law. Thus, Giles s claim against Campbell was not extinguished by Campbell s death and it may proceed against the estate. B. Whether the District Court had personal jurisdiction over Campbell s estate. Because neither the Government nor Giles served the estate pursuant to Rule 4, CA3 treated their filings as nullities, see Atkins, 547 F.3d at 874, and concluded that the District Court lacked personal jurisdiction over the estate. The District Court s denial of Giles s motion to substitute was vacated and the case was remanded for Giles to have an opportunity to refile his motion to substitute and serve the estate. AN AREA OF LAW TO WATCH - RESTATEMENT THIRD OR SECOND? Recent activity in the area of product liability cases, has people wondering when and how the Pennsylvania Supreme Court will decide which Restatement governs torts law in Pennsylvania. Below are a few opinions for further reading on this issue: Federal Middle District Judge Jones Says Restatement (Second) Still Law in Pennsylvania Federal court versus state court: which restatement of the law of torts applies in Pennsylvania? Will The Pennsylvania Supreme Court Ever Adopt The Restatement Third Of Torts In Strict Liability Cases? Will Somebody Properly Ask The Question? Third Circuit Affirms Its Prediction That Pennsylvania Will Apply The Third Restatement In Product Liability Actions RESOURCES Pennsylvania Bar Association Become a member of the PBA Federal Practice Committee - Join now Federal Judicial Center U.S. District Court for the Middle District of Pennsylvania U.S. District Court, Eastern District of Pennsylvania U.S. District Court Western District Pennsylvania SAVE THE DATES April 11, 2013 PBA Committee/Section Day Radisson Hotel, Camp Hill, PA May 8-10, 2013 PBA Annual Meeting Wyndham Grand Pittsburgh Downtown Pittsburgh, PA