Against (mere) restyling

Notre Dame Law Review

Volumn 82, Issue 1, 2006, Pages 155-180

  Hartnett, Edward A ^a  

^a SETON HALL UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33846579563     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (133)

1. ADVISORY COMM. ON FED. RULES OF CIVIL PROCEDURE, REPORT OF THE CIVIL RULES ADVISORY COMMITTEE (2006) [hereinafter 2006 RESTYLED RULES], available at http://www.uscourts.gov/ rules/Appendix_D.pdf.
2. REPORT OF THE JUDICIAL CONFERENCE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE 25 (Sept. 2006), available at http://www.uscourts.gov/rules/Reports/ ST09-2006.pdf; Judicial Conference Action: September 2006 Session, http://www.us courts.gov/rules/#judicial0906 (last visited Oct. 20, 2006).
3. REPORT OF THE JUDICIAL CONFERENCE COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, supra note 2, at 21.
4. Edward H. Cooper, Restyling the Civil Rules: Clarity Without Change, 79 NOTRE DAME L. REV. 1761, 1785 (2004).
5. Id. at 1785-86.
6. COMM. ON RULES OF PRACTICE & PROCEDURE OF THE JUDICIAL CONFERENCE OF THE U.S., PRELIMINARY DRAFT OF PROPOSED STYLE REVISION OF THE FEDERAL RULES OF CIVIL PROCEDURE: (2005) [hereinafter 2005 DRAFT RULES], available at http://www. uscourts.gov/rules/Prelim_draft_proposed_pt1. pdf.
7. Cooper, supra note 4, at 1785.
8. FED. R. CIV. P. 65(a) (emphasis added).
9. 2005 DRAFT RULES, supra note 6, at 167 (emphasis added).
10. See, e.g., Stanley v. Univ. of S. Cal., 13F.3d 1313, 1326 (9th Cir. 1994) ("In this circuit, the refusal to hear oral testimony ... is not an abuse of discretion if the parties have a full opportunity to submit written testimony and to argue the matter.");
11. Aoude v. Mobil Oil Corp., 862 F.2d 890, 893-94 (1st Cir. 1988) (noting that courts normally "look askance" at the lack of an evidentiary hearing or oral argument, but adopting a pragmatic approach);
12. Williams v. Curtiss-Wright Corp., 681 F.2d 161, 163 (3d Cir. 1982) (saying a hearing is "salutary or at least expedient," but not required if submitted evidence does not present unresolved relevant factual issue);
13. see 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2947, at 126 (2d ed. 1995) ("Some type of a hearing also implicitly is required by subdivision (a) (2) ....");
14. id. § 2951, at 253 (noting that a temporary restraining order "is designed to preserve the status quo until there is an opportunity to hold a hearing on the application for a preliminary injunction");
15. cf. id. § 2949, at 225-31 (discussing the views of various courts as to when hearings are required).
16. 2006 RESTYLED RULES, supra note 1, at D-172 (emphasis added).
17. FED. R. CIV. P. 65(b) (emphasis added).
18. 2005 DRAFT RULES, supra note 6, at 167.
19. FED. R. CIV. P. 65 advisory committee's note (1966);
20. see 11A WRIGHT ET AL., supra note 10, § 2941, at 36-37 (noting that the amendment was prompted "because it was felt that the original wording of the rule could be misinterpreted to permit a party seeking a restraining order to refrain from giving informal notice when the circumstances did not allow formal notice and a hearing");
21. id. § 2951, at 263-64 (noting that the Advisory Committee was concerned about possible due process defects in ex parte proceedings);
22. id. § 2952, at 273-74 (describing the "informal notice requirement" as "consistent with notions of fair play and the general spirit of the federal rules," as well as the possibility of "constitutional dimension").
23. 2006 RESTYLED RULES, supra note 1, at D-172.
24. FED. R. CIV. P. 65(c) (emphasis added).
25. See, e.g., Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th CIV. 1987) (noting that, in some circumstances, a trial court may "determine a bond is unnecessary," but that the court must at least consider whether to require a bond);
26. see 11A WRIGHT ET AL., supra note 10, § 2954, at 292-93 ("[I]t has been held that the court may dispense with security altogether if the grant of an injunction carries no risk of monetary loss to the defendant.");
27. cf. Ferguson v. Tabah, 288 F.2d 665. 675 (2d Cir. 1961) (relying on phrase "as the court deems proper" to permit court to find that no bond is required).
28. Cooper, supra note 4, at 1777.
29. Bass v. Richardson, 338 F. Supp. 478, 490 (S.D.N.Y. 1971);
30. see Wayne Chem., Inc., v. Columbus Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977) (holding that the "bond may be excused, notwithstanding the literal language" of the rule, where the plaintiff is indigent);
31. Brown v. Callahan, 979 F. Supp. 1357, 1363 (D. Kan. 1997) (following Bass);
32. 11A WRIGHT ET AL., supra note 10, § 2954, at 298 (describing Bass as "correct" and "followed by other courts").
33. For other examples, see Pharm. Soc'y of N.Y. v. N.Y. State Dep't of Soc. Servs., 50 F.3d 1168, 1169-70 (2d Cir. 1995) (holding that district court properly waived the bond requirement because litigation pursued "public interests");
34. Cal. ex rel. Van de Kamp v. Tahoe Reg'l Planning Agency, 766 F.2d 1319, 1325-26 (9th Cir. 1985) (finding discretion to dispense with the security requirement when plaintiff cannot afford bond, particularly where Congress has provided for private enforcement of a statute).
35. For academic treatment, see 13 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 65.52, at 65-97 to 65-98 (3d ed. 2006) (noting circumstances in which court "may waive security");
36. 11A WRIGHT ET AL., supra note 10, § 2954, at 300-03 (discussing approvingly cases that relax the bond requirement in public interest litigation).
37. 2005 DRAFT RULES, supra note 6, at 168 (emphasis added).
38. See 2006 RESTYLED RULES, supra note 1, at D-8 ("The restyled rules minimize the use of inherently ambiguous words. For example, the word 'shall' can mean 'must,' 'may,' or something else, depending on context. The potential for confusion is exacerbated by the fact that 'shall' is no longer generally used in spoken or clearly written English. The restyled rules replace 'shall' with 'must,' 'may,' or 'should,' depending on which one the context and established interpretation make correct in each rule.");
39. cf., e.g., Exodus 20:13 (New American Bible) ('You shall not kill."). Actually, given the restylers' plan to delete the abolition of demurrers from Rule 7(c), perhaps "shall" should replace demurrers as an abolished term. Thus Rule 7(c) would read, "Shall Abolished. Shall shall not be used." Or should that be "Shall Abolished. Shall must not be used."?
40. 2006 RESTYLED RULES, supra note 1, at D-173 (emphasis added).
41. FED. R. CIV. P. 65 (d).
42. See MOORE ET AL., supra note 19, § 65.61 [3], at 65-108 ("A party ... or non-party ... who has not received 'actual notice' of an injunction or restraining order will not be bound by its terms.");
43. 11A WRIGHT ET AL., supra note 10, § 2956, at 337 ("Another prerequisite for binding a person to an injunction is that the person must have notice of the order.");
44. id. at 351-52 ("Of course ... an officer or agent must have notice of the injunction to be held in contempt for acting in concert with the corporation.")
45. ; id. § 2960, at 381 (stating that contempt requires finding that "party to be charged had notice of the order").
46. Dole Fresh Fruit Co. v. United Banana Co., 821 F.2d 106, 109 (2d Cir. 1987) (noting the ambiguity and concluding that officers and agents, servants, employees and attorneys need not receive actual notice of the injunction, but vacating the contempt order on other grounds).
47. 2005 DRAFT RULES, supra note 6, at 169.
48. 2006 RESTYLED RULES, supra note 1, at D-174.
49. Id.
50. FED. R. CIV. P. 68.
51. 2005 DRAFT RULES, supra note 6, at 173.
52. See Greenwood v. Stevenson, 88 F.R.D. 225, 229 (D.R.I. 1980) (concluding that a trial begins for the purpose of Rule 68 "when the trial judge calls the proceedings to order and actually commences to hear the case," not with jury selection).
53. 2006 RESTYLED RULES, supra note 1, at D-178.
54. FED. R. CIV. P. 68.
55. 2006 RESTYLED RULES, supra note 1, at D-178.
56. See Amati v. City of Woodstock, 176 F.3d 952, 958 (2d Cir. 1999) (finding it permissible for a defendant to impose such a condition, but leaving open the question whether it is effectual to shift costs to plaintiffs who signified their desire to accept the offer);
57. MOORE ET AL., supra note 19, § 68.04[9], at 68-34 (describing this as the "most problematic multiple-party situation").
58. See Chathas v. Local 134 IBEW, 233 F.3d 508, 511 (7th Cir. 2000) ("Rule 68 offers are much more common in money cases than in equity cases, but nothing in the rule forbids its use in the latter type of case.");
59. 12 WRIGHT ET AL., supra note 10, § 3001.1, at 79 (2d ed. 1997) (noting suggestions that the rule does not apply in actions for equitable relief, but rejecting those suggestions).
60. See Weiss v. Regal Collections, 385 F.3d 337, 344 n.12 (3d Cir. 2004) (Scirica, CJ.) ("Courts have wrestled with the application of Rule 68 in the class action context, noting Rule 68 offers to individual named plaintiffs undercut close court supervision of class action settlements, create conflicts of interests for named plaintiffs, and encourage premature class certification motions.");
61. Schaake v. Risk Mgmt. Alternatives, Inc., 203 F.R.D. 108, 111 (S.D.N.Y. 2001) ("[I]t has long been recognized that Rule 68 Offers of Judgment have no applicability to matters legitimately brought as class actions pursuant to Rule 23.");
62. MOORE ET AL., supra note 19, § 68.03[3], at 68-15 (noting "conflict in the few decisions addressing whether Rule 68 should apply to class actions" and stating that it is "questionable whether the offer of judgment rule should apply to cases such as class or derivative actions that require judicial approval of a settlement");
63. Comm. on Rules of Practice & Procedure of the Judicial Conference of the U.S., Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, reprinted in 98 F.R.D. 337, 363, 367 (1983) (proposing an amendment to make clear that the rule does not apply to class or derivative actions).
64. See 12 WRIGHT ET AL., supra note 10, § 3005, at 109-10 (asserting that while Rule 68 offers "may include provision for a specified injunctive regime," the "court cannot be compelled to enter the agreed judgment even though it emerged from a Rule 68 offer and acceptance and that "Rule 68 cannot remove th[e] authority and duty" of a court to determine whether the settlement of a class action is acceptable);
65. see also Acceptance Indem. Ins. Co. v. Se. Forge, 209 F.R.D. 697, 698 n.2 (M.D. Ga. 2002) (concluding that, in light of Rule 54, an accepted Rule 68 offer of judgment that does not include all claims and all parties does not result in a final judgment).
66. 2006 RESTYLED RULES, supra note 1, at D-8.
67. See, e.g., id. at 20 (Rule 4.1);
68. id. at 54 (Rule 16);
69. id. at 169 (Rule 62).
70. FED. R. CIV. P. 1.
71. FED. R. CIV. P. 82;
72. see also, e.g., U.S. CONST, amend. IX ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.");
73. id. amend. XI ("The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by Citizens or Subjects of any Foreign State.");
74. 1 U.S.C. § 112 (2000) (providing that, unless the context indicates otherwise, singular includes the plural, masculine includes the feminine, and "person" includes corporations);
75. 25 U.S.C. § 458aaa-11(f) ("Each provision of this part and each provision of a compact or funding agreement shall be liberally construed for the benefit of the Indian tribe participating in self-governance and any ambiguity shall be resolved in favor of the Indian tribe.").
76. Cf. Cooper, supra note 4, at 1767 ("The Style Project would be a disaster if-against all odds-it actually should succeed in freezing the 'present meaning' of every rule.").
77. See supra note 40 and accompanying text.
78. See, e.g., Karen Nelson Moore, The Supreme Court's Hole in Interpreting the Federal Rules of Civil Procedure, 44 HASTINGS L.J. 1039, 1076-85 (1993) (noting that while some cases suggest an affinity for plain meaning, the Supreme Court continues to use other canons of construction, such as legislative history and the other policies behind the rules);
79. Adam N. Steinman, "Less" is "More"? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act's Appellate Deadline Riddle, 92 IOWA L. REV. (forthcoming 2007) (manuscript at 4), available at http://www.ssrn.com/abstract=920692 (discussing the textualist and intentionalist divide among federal appellate judges regarding the requirement that an application for discretionary appellate review of removal under CAFA must be made "not less than 7 days after entry of the order" (quoting 28 U.S.C. § 1453(c)(1) (West Supp. 2005))).
80. See generally JEREMY WALDRON, THE DIGNITY OF LEGISLATION 25-28 (1999);
81. Edward R. Becker & Aviva Orenstein, The Federal Rules of Evidence After Sixteen Years-The Effect of "Plain Meaning" Jurisprudence, the Need for an Advisory Committee on the Rules of Evidence, and Suggestions for Selective Revision of the Rules, 60 GEO. WASH. L. REV. 857, 865-68 (1992);
82. William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 626-40 (1990) (discussing the role of congressional intent in statutory interpretation and how courts use various sources to identify that intent).
83. Some think that the textualists have sufficiently won the battle that there is not much difference these days between textualist judges and purposivist judges. Jonathan T. Molot, The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 3 (2006) ("Conventional wisdom has it that the textualists emphasize statutory text and purposivists emphasize statutory purposes. But when one considers how modern textualists go about identifying textual meaning and how purposivists go about identifying statutory purposes, the differences between textualism and purposivism begin to fade.");
84. id. at 5 (claiming that the "battle is largely over");
85. see also Exxon Mobil Corp. v. Allapattah Servs., Inc., 125 S. Ct. 2611, 2617-22 (2005) (applying a textualist analysis to conclude (basically) that the supplemental jurisdiction statute, 28 U.S.C. § 1367, permits supplemental jurisdiction over claims involving an insufficient amount in controversy, and a purposive analysis to conclude that it does not do so as to claims involving lack of diverse citizenship);
86. cf. John F. Manning, What Divides Textualists from Purposivists, 106 COLUM. L. REV. 70, 75 (2006) (agreeing that there is "more conceptual common ground than textualists ... have sometimes emphasized" but arguing that textualists are concerned with semantic context and purposivists are concerned with policy context).
87. The tension bubbles to the surface in the Advisory Committee's Notes to proposed Rule 65 (d). There, the Advisory Committee's Notes include not only the standard claim that the changes are merely stylistic, but also a statement that the changes restore the meaning of a statute that was imperfectly expressed in the original 1938 rules. See 2006 RESTYLED RULES, supra note 1, at D-174.
88. See id. at D-5 ("The best sign of our success may be that in a few years, the bench and bar will have forgotten that there ever was a Style Project.").
89. See Cooper, supra note 4, at 1783 ("As time passes, memory of the Style Project will fade. New meaning will be found without any awareness of the earlier language or meaning. In part that will be a good thing: substantive changes will be made because the new meaning is better than perpetuating the old. We cannot effectively prevent that process, and we may not wish to.");
90. cf. RICHARD H. FALLON, JR., DANIEL J. METZLER & DAVID L. SHAPIRO, HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 908 (5th ed. 2003) (describing how federal officer removal was expanded by the 1948 revision of the Judicial Code);
91. Robert D. Goldstein, Blyew: Variations on a Jurisdictional Scheme, 41 STAN. L. REV. 469, 514 (1989) (criticizing the Commission on Revision and Consolidation of the Statutes of the United States for eliminating "the important provision for postjudgment removal");
92. Edward Hartnett, A New Trick From an Old and Abused Dog: Section 1441(c) Lives and Now Permits the Remand of Federal Question Cases, 63 FORDHAM L. REV. 1099, 1129-31 (1995) (describing the changes made to separable claim removal by the 1948 revision of the Judicial Code).
93. 28 U.S.C. § 2072(a) (2000).
94. Id. § 2072 (b).
95. Three caveats: 1) any Rule promulgated by the Supreme Court under the Rules Enabling Act must also comport with the substantive rights limitation of that Act, see id. ("Such rules shall not abridge, enlarge or modify any substantive right."); 2) Congress retains the power to repeal the Rules Enabling Act, in whole or in part; and 3) both Federal Rules and Acts of Congress must comply with the Constitution.
96. See, e.g., 15 U.S.C. § 78u-4(b)(1) (2000) (requiring a complaint to "specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, [to] state with particularity all facts on which that belief is formed");
97. id. § 78u-4(b)(2) (requiring a complaint to "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind");
98. Morris v. Wachovia Sec., Inc., 448 F.3d 268, 276 (4th Cir. 2006) ("[F]or private securities fraud suits Congress altered the consequences of a Rule 11 (b) violation ....").
99. See Cal. ex rel. Van de Kamp v. Tahoe Reg'l Planning Agency, 766 F.2d 1319, 1325-26 (9th Cir. 1985) (exercising discretion to dispense with the security requirement when plaintiff cannot afford bond, particularly where Congress has provided for private enforcement of a statute);
100. Bass v. Richardson, 338 F. Supp. 478, 491 (S.D.N.Y. 1971) ("If any difference exists between the language of Rule 65(c) and Congressional intent clearly embodied in the remedial statutes at issue, the federal statutes control.");
101. 11A WRIGHT ET AL., supra note 10, § 2954, at 302 (using this quotation from the Bass case to summarize the "thrust of the argument for a court exercising its discretion under Rule 65(c) in a permissive fashion");
102. see also id. § 2954, at 300 (noting that waiving the security requirement for the indigent "is consistent with the purposes of actions permitted in forma pauperis").
103. 13 MOORE ET AL., supra note 19, § 68.08[1], at 68-54;
104. see N.C. Shellfish Growers Ass'n v. Holly Ridge Assocs., 278 F. Supp. 2d 654, 666-69 (E.D.N.C. 2003);
105. R.N. v. Suffield Bd. of Educ., 194 F.R.D. 49, 52 (D. Conn. 2000) (relying on a statute that invokes Rule 68, but includes an exception).
106. There are conflicting decisions whether a Rule 68 offer to provide a plaintiff with the maximum he could recover individually moots a proposed class action. MOORE ET AL., supra note 19, § 68.03[3], at 68-15 to 68-98;
107. 12 WRIGHT ET AL., supra note 10, § 3001.1, at 3 (Supp. 2006);
108. see Weiss v. Regal Collections, 385 F.3d 337, 348 (3d Cir. 2004) ("Absent undue delay in filing a motion for class certification ... where a defendant makes a Rule 68 offer to an individual claim that has the effect of mooting possible class relief asserted in the complaint, the appropriate course is to relate the certification motion back to the filing of the class complaint.");
109. Schaake v. Risk Mgmt. Alternatives, Inc., 203 F.R.D. 108, 112 (S.D.N.Y. 2001) (noting that to permit such a tactic would "allow defendants to essentially opt-out of Rule 23"). One basis for concluding that such an offer does not moot the class action has been that the statute being enforced contemplated class actions.
110. Weiss, 385 F.3d at 345 (stating that a "significant consideration" is that "Congress explicitly provided for class damages" and intended that the statute be enforced "by private attorney generals," and concluding that "[r]epresentative actions ... appear to be fundamental to the statutory' structure").
111. Floyd v. U.S. Postal Serv., 105 F.3d 274 (6th Cir. 1997). The court found a conflict that overcame the maxim that repeals by implication are not favored.
112. Id. at 277-78;
113. cf. Baugh v. Taylor, 117 F.3d 197, 201 & n.16 (1997). The court in Baugh concluded that the 1996 statute did not conflict with the relevant provision of Federal Rule of Appellate Procedure 24 because the 1996 statute "merely moved" the provision from one subsection to another.
114. Id. at 201.
115. Such relocation was not viewed as "evidence of congressional intent to abrogate procedures in Rule 24," and there was "no hint of such intent in the legislative history." Id. at 201 n. 16.
116. For a critique of the use of the canon against repeals by implication in the context of clashes between statutes and Federal Rules, see Bernadette Bollas Genetin, Expressly Repudiating Implied Repeals Analysis: A New Framework for Resolving Conflicts Between Congressional Statutes and Federal Rules, 51 EMORY L.J. 677 (2002).
117. Callihan v. Schneider, 178 F.3d 800, 803-04 (6th Cir. 1999). Callihan cannot be understood as simply an effort to undermine Floyd: both Floyd and Callihan were written by Chief Judge Martin.
118. Autoskill Inc. v. Nat'l Educ. Support Sys., Inc., 994 F.2d 1476, 1485 n.8 (10th Cir. 1993) (quoting FED. R. APP. P. 4(a)(1) advisory committee's note (1979));
119. see also Local Union No. 38, Sheet Metal Workers Int'l Ass'n v. Custom Air Sys., Inc., 333 F.3d 345, 348 n.2 (2d Cir. 2003) (following Autoskill and describing the 1979 amendment as involving "minor revisions").
120. Supersession and the Style Project (May 8, 2006), in 2006 RESTYLED RULES, supra note 1, at D-229, D-231 to D-232 [hereinafter Supersession].
121. 2006 RESTYLED RULES, supra note 1. at D-208.
122. Id. at D-209.
123. One could even go a step further and inquire whether a given Federal Rule of Civil Procedure that took effect in 1938 actually "first" took effect much earlier, perhaps with the Equity Rules of 1912.
124. See McConville v. United States, 197 F.2d 680, 682 (2d Cir. 1952) (Clark, J.) (holding that a Federal Rule of Civil Procedure governed, both because the statute was designed to be in conformity with the Federal Rule and because the Federal Rule "was reenacted (with some changes not here pertinent)" with an effective date subsequent to the statute and, "in accordance with the terms of the governing statute, supersedes all inconsistent statutory enactments" (citation omitted)).
125. Supersession, supra note 58, at D-231.
126. See Pennsylvania v. Union Gas Co., 491 U.S. 1, 30 (1989) (Scalia, J., dissenting) ("It is our task, as I see it, not to enter the minds of the Members of Congress-who need have nothing in mind in order for their votes to be both lawful and effective-but rather to give fair and reasonable meaning to the text of the United States Code, adopted by various Congresses at various times.").
127. See supra notes 55-56 and accompanying text.
128. See supra note 57 and accompanying text.
129. 2006 RESTYLED RULES, supra note 1, at D-208.
130. Id. at 209.
131. In 2005, there were 253,273 civil cases filed in United States District Courts, and 68,473 appeals filed in regional United States Courts of Appeals. See DEP'T OF JUSTICE, JUDICIAL FACTS AND FIGURES tbls.2.1 & 4.1, http://www.uscourts.gov/judicial factsfigures/contents.html (last visited Oct. 20, 2006).
132. In 2005, there were 253,273 civil cases and 69,575 criminal cases filed in United States District Courts. See id. tbls.2.1 & 5.1.
133. See CAROLINE WOLF HARLOW, BUREAU OF JUSTICE STATISTICS, DEFENSE COUNSEL IN CRIMINAL CASES 1 (2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/dccc.pdf (reporting that thirty percent of accused felons were represented by a Federal Defender Organization and thirty-six percent were represented by a panel attorney, leaving approximately one-third represented by private counsel).