Daily Archives: July 24, 2012

Public Defenders lose at arbitration

Minnesota Lawyer Blog reports on an arbitration award denying the grievance of public defenders.  In summary, public defenders filed a grievance alleging a collective bargaining agreement (CBA) violation when public defenders were assigned too many cases.

The grievants asked for the arbitrator to order the board of public defense to adopt a maximum caseload standard of 400. Evidence presented by the grievants shows that defenders in the Third District have an average of between 660 and 745 cases in the last five years. They say this excessive caseload violates their union contract because it brings rise to ethical concerns over whether the attorneys can provide adequate representation to their clients and creates a risk that the attorneys will violate the Rules of Professional Conduct.

Arbitrator Befort found that there was no violation since the CBA did not mention a caseload cap.  Further, Arbitrator Befort found that there had been no discipline of attorneys relating to having too many cases.

Befort concluded that the issue was best decided by the state legislature that allocates funding for public defense, and not a union contract dispute.

“[T]his is not a problem that has been caused by the failure of the State Board of Public Defense to fulfill its obligations under the parties’ collective bargaining agreement. Ultimately, the problem at hand is political in nature and requires resolution at a different forum,” he wrote.

A copy of the decision is here.

via PDs lose at arbitration – MinnLawyer Blog.

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District of MN Bill of Costs

The District Court of Minnesota has put up an amended Bill of Costs Guide in order to conform to the recent US Supreme Court decision regarding document translation services (previously reported on this blog) and the taxation of costs statute.

You can access the Bill of Costs Guide here.


In sum, on page 10, the Guide states that translation services are not taxable costs.

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District of Minnesota amendments to Local Rules

Starting on July 23, 2012, the United States District Court for the District of Minnesota’s amendments will come into play.  Most of these amendments are stylistic.  However, there are a couple of substantive changes.

As of note, this summary is intended only as a summary of these changes.  This summary is not exhaustive. The summary is not intended to be legal advice on the rules.


The amendments for the Local Rules are as follows:

Local Rule 1.3, Sanctions

The language was amended in accordance with the restyling process.  In addition, LR 1.3 now specifies that it applies to “an attorney, law firm, or party.”


Local Rule 3.1, Civil Cover Sheet

The language was amended in accordance with the restyling process.

Local Rule 4.1, Service

The language was amended in accordance with the restyling process.

Local Rule 4.2, Fees

The language was amended in accordance with the restyling process.Subsection (a)(2) replaced the phrase “motion for permission to proceed in forma pauperis” with the actual title of the form from the clerk’s office, “application to proceed in district court without prepaying fees or costs.”

Subsection (a)(2) deleted the sentence “If permission to proceed in forma pauperis is later denied, the complaint shall be stricken.”  The District Court explained that “if the court denies a party’s application to proceed without prepaying fees or costs, the court gives the party an opportunity to pay those fees or costs before the court strikes the party’s complaint.”

Local Rule 5.3,  Time for Filing After Service

The language was amended in accordance with the restyling process.

Local Rule 5.5, Redaction of Transcripts

The language was amended in accordance with the restyling process.

The new subsection (f) reflects the substance of the last sentence of former subsection (b).  Subsection (f) states “The court does not review transcripts to assess whether personal identifiers should be redacted.  Attorneys and unrepresented parties must do so themselves.”

Local Rule 6.1, Continuance

The language was amended in accordance with the restyling process.

Local Rule 7.1, Civil Motion Practice

The language was amended in accordance with the restyling process.

LR 7.1 was reorganized to add subsections (a) Meet and confer requirement, and (d) Motions for Emergency injunctive relief

Under subsection (a), parties must meet and confer before filing any civil motion, except a TRO, and file a meet and confer statement with the motion.  Parties must file a joint stipulation if parties agree on the resolution of all or part of the motion after the meet and confer statement is filed.

Under subsections (b) and (c), the District Court clarified that parties should file motions and supporting documents simultaneously.  In addition, the method of calculating deadlines has been changed.  Deadlines are now based on the filing date of the moving party’s motion and supporting documents, rather than on the hearing date.  Parties also now have 14 days to prepare a reply brief for a dispositive motion rather than the 7 days previously provided.

Subsection (b)(4) identifies types of motions that are considered nondispositive:  (i) motions to amend pleadings; (ii) motions with respect to third party practice; (iii) discovery-related motions; (iv) motions related to joinder and intervention of parties; and (v) motions to conditionally certify a case as a collective action.

Subsection (c) was amended to reflect the different practices of district judges.

Subsection (d) was added to provide guidance on filing motions for emergency injunctive relief.

Subsection (e) was amended to clarify that after filing a timely post-trial or post-judgement motion, the moving party must contact the judge’s calendar clerk to obtain a briefing schedule.

Local Rule 9.3,  Standard forms for habeas corpus petitions and motions by prisoners

The language was amended in accordance with the restyling process.

Local Rule 15.1, Amended pleadings and motions to amend

The language was amended in accordance with the restyling process.

Local Rule 16.1, Control of Pretrial Procedure by Individual Judges

The language was amended in accordance with the restyling process.  In addition, the language regarding ADR was moved to 16.5.  The language requiring parties to consider the use of ADR was removed because it was addressed in LR 26.1 and Forms 3-4.

Local Rule 16.2, Initial Pretrial Conference and Scheduling Order

The language was amended in accordance with the restyling process.

The previous language in (a) was moved to LR 26.1 regarding the initial pretrial conference.

Subsections (c) and (d)(2) were added to specify that issues related to confidential or protected documents must be addressed at the initial pretrial conference and may be addressed in the scheduling order.

Subsection (d)(3) clarifies the nature of discovery deadlines.  The language states, “The discovery deadlines… are deadlines for completing discovery, not for commencing discovery.  To be timely, a discovery request must be served far enough in advance of the applicable discovery deadline that the responding party’s response is due before the discovery deadline.”

Local Rule 16.3, Modification of a Scheduling Order

The language was amended in accordance with the restyling process.

The changes to subsections (a) and (b) are intended to clarify for parties that they cannot simply stipulate to a change in a scheduling order.  Instead, parties must move to modify a scheduling order.

Local Rule 16.4, Case Management Conference

The language was amended in accordance with the restyling process.

Local Rule 16.5, Alternative Dispute Resolution and Mediated Settlement Conference

The language was amended in accordance with the restyling process.

The rule was amended to emphasize that a mediated settlement conference is not required in certain actions.

The time limit (which previously required a mediated settlement conference to be held within 45 days prior to trial) was eliminated.  Subsection (b) states that the mediated settlement conference must occur before trial (except in a proceeding listed in Fed.R.Civ.P. 26(a)(1)(B)).

Other subsections were amended to conform to the language of the Alternative Dispute Resolution Act, 28 USC 651-658.

Local Rule 16.6, Final Pretrial Conference

The language was amended in accordance with the restyling process.

Subsection (b) clarified that although parties must be prepared to discuss the listed subjects, if some of the subjects are not relevant in a particular issue, the court is not required to discuss them.

Subsection (b)(13) clarified that the final pretrial conference can embrace any subjects identified in the relevant provisions of the Federal Rules of Civil Procedure.

Local Rule 16.7, Other Pretrial Conferences

This section was abrogated as redundant.

Local Rule 17.1, Settlement of Action or Claim brought by Guardian or Trustee

The language was amended in accordance with the restyling process.

Local Rule 23.1, Designation of “Class Action” in the Caption

The language was amended in accordance with the restyling process.

Local Rule 26.1, Conference of the Parties Under Fed.R.Civ.P. 26(f); Report; Protective Orders

The language was amended in accordance with the restyling process.

The new subsections (a) and (b) clarify the parties’ obligations to meet and confer and file a report (Form 3 or 4).  Forms 3 and 4 were revised.

The new subsection (c) was added to require the parties to address whether a protective order is necessary and incorporates reference to Forms 5 and 6.

Local Rule 26.2, Form of Certain Discovery Documents


This local rule was abrogated.  It was considered unnecessary due to the direction provided in LR 37.1.

Local Rule 26.3, Disclosure and Discovery of Expert Testimony


This local rule was abrogated.

Local Rule 26.4, Filing of Discovery Documents


This local rule was abrogated.

Local Rule 37.1, Form of Discovery Motions

The former LR 37.1 was abrogated.  LR 37.2 was renumbered was LR 37.1.

The language was amended in accordance with the restyling process.

This rule was amended to require parties to meet and confer before filing any motion, and to file a meet and confer statement with the motion.

Local Rule 37.2,


It was renumbered was LR 37.1 after the former LR 37.1 was abrogated.

Local Rule 38.1, Demand for a Jury Trial

The language was amended in accordance with the restyling process.  The rule now instructs parties that they may demand a jury trial either by the method prescribed in LR 38.1 or by any other method that complies with Fed.R.Civ.P. 38(b).

Local Rule 54.3, Time Limit for Motions for Award of Attorney’s Fees and for Costs other than Attorney’s Fees


The language was amended in accordance with the restyling process.

Local Rule 72.2, Review of Magistrate Judge Rulings

The language was amended in accordance with the restyling process.

The new subsection (d) clarifies that the format and filing requirements apply to objections and responses to objections filed under this rule in all cases, whether civil or criminal.

via United States District Court – District of Minnesota.

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Supreme Court Calendar

In case you are wondering what cases will be argued this coming term, this is the Supreme Court calendar for the months of October and November.

October calendar, day by day:

Mon., Oct. 1

10-1491 — Kiobel v. Royal Dutch Petroleum — application of Alien Tort Statute to human rights abuses on foreign soil; if the ATS is found to extend beyond the U.S., the issue will be whether aliens may sue corporations in U.S. courts for such overseas abuses

11-626 — Lozman v. City of Riviera Beach — definition of “vessel” for maritime law as applied to a floating structure not capable of navigation

Tues., Oct. 2:

11-184 — Kloeckner v. Solis (Labor Secretary) – appeal rights of federal government worker claiming discrimination in the workplace

11-192 — U.S. v. Bormes — liability of federal government for illegal disclosure of private credit information about a private citizen

Wed., Oct 3:

11-465 — Johnson v. Williams — federal habeas court duty to defer to state court ruling on a federal constitutional issue, if the state court has ruled without mentioning the issue (grant limited to Question 1)

11-597 — Arkansas Game & Fish Commission v. U.S. — government liability for damage from flooding following release of water from a federal dam; “takings” issue (Justice Elena Kagan is recused)

Mon., Oct. 8 — legal holiday, no arguments

Tues., Oct. 9:

11-218 — Tibbals v. Carter — delay of habeas case until mental competency is regained

11-930 — Ryan v. Gonzales — delay of habeas case until mental competency is regained  (The issue is the same, but the cases are not consolidated for argument and decision.)

Wed., Oct. 10:

11-702 — Moncrieffe v. Holder — state law conviction for possessing small amount of marijuana as a basis for deportation

11-345 — Fisher v. University of Texas — constitutionality of using race as a factor in admissions to public colleges and universities (Justice Kagan is recused)


November calendar, day by day:

Mon., Oct. 29:

11-1029 — Clapper v. Amnesty International USA — right to sue to challenge constitutionality of global terrorism wiretapping program

11-697 — Kirtsaeng v. John Wiley & Sons, Inc. — right to bring into the U.S. for resale a copyrighted item purchased abroad

Tues., Oct. 30:

11-820 — Chaidez v. U.S. — retroactivity of Padilla v. Kentucky on required legal advice to immigrants facing deportation after committing a crime

11-770 — Bailey v. U.S. — whether, if police have a warrant to search a home, they may detain the suspect elsewhere while they do the search

Wed., Oct. 31:

11-564 — Florida v. Jardines — scope of Fourth Amendment application to police use of a drug-sniffing dog on the exterior of a private home (grant limited to Question 1)

11-817 — Florida v. Harris — drug-sniffing dog’s “alert” as probable cause to search a car or truck

Mon., Nov. 5:

11-864 — Comcast v. Behrend — court power to allow a class-action lawsuit if the possibility of class-wide damages award is in doubt (grant limited to question as rewritten by the Court)

11-1085 – Amgen Inc.  v. Connecticut Retirement Plans — proof needed by investors in order to take advantage of a short-cut method of pursuing a securities fraud claim by a class-action lawsuit

Tues., Nov. 6 (this is election day, but the Court will hold arguments as usual):

11-8976 — Smith v. U.S. — does the prosecution or defense have the burden of proving to a jury whether an accused withdrew from a conspiracy and thus could not be prosecuted for a role in the plot

11-1327 — Evans v. Michigan — does a judge’s directed verdict of acquittal in mid-trial, based on a legal error, bar a new trial because of double jeopardy

Wed., Nov. 7:

11-982 — Already LLC v. Nike, Inc. — scope of federal judge’s authority to rule on the validity of a federally registered trademark

11 -1175 — Marx v. General Revenue Corp. — right of debt collector under federal law to recover its court costs if it wins a lawsuit against it over its collection practices (grant limited to Question 1)

via October and November calendars : SCOTUSblog.

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Union Relations Privilege

Mitchell H. Rubinstein, over at the Adjunct Law Prof Blog, sends along this important development in labor relations law from Alaska:

The Court held that “[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State’s union employees a union-relations privilege.”  The reasoning employed by the Court – that “the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee” and that recognizing a privilege “harmonizes [the state labor relations act]’s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules” – should be useful in other states and in other settings where this issue frequently arises.

I agree with Mich that this is a “major decision.” And like him, I hope other states soon follow suit. For those interested in this topic, Mitch wrote a law review article on this topic a few years ago: Is a Full Labor Relations Evidentiary Privilege Developing?, 29 Berkeley Journal of Labor and Employment Law 221 (2008).

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Ability to Pay considered for sanctions

As an attorney that has dealt with reducing costs for my clients based on ability to pay, it is interesting to see that other courts (9th Circuit Court of Appeals) have applied this same deference in other situations.  In this case, a lawyer was sanctioned by the court, but was unable to pay.

The ABA Journal writes,

Before imposing a financial penalty that a lawyer might not be able to pay, a federal district court can consider the impact on the attorney, a federal appeals court has ruled, giving a California lawyer—who said he made less than $20,000 annually—another chance to make his case for a reduction in a sanction of over $360,000 for pursuing frivolous litigation.

The San Francisco-based 9th U.S. Circuit Court of Appeals said it is remanding the Gregory Melvin Haynes matter because it appears that the district judge who sanctioned him under 28 U.S.C. § 1927 mistakenly thought the court had no discretion to consider the attorney’s financial situation. However, the district court has discretion to do so—just as it has discretion to hold a lawyer accountable, as it did in Haynes’ case, for the opposing side’s litigation costs, explained the appeals court in a Monday opinion (PDF).

Haynes, who had sued the city and county of San Francisco as well as a number of individuals over a psychotic woman’s involuntary hospitalization, engaged in “a wide variety of incompetent and unprofessional actions,” the 9th Circuit noted.

“We now hold that a district court may reduce Sec. 1927 sanctions award in light of an attorney’s inability to pay. Because the district court appeared to believe that it was without discretion to reduce the sanctions award on this ground, and accordingly failed to consider whether to exercise that discretion, we remand for further proceedings,” the appeals court wrote.

It said this is the first time the issue has been considered in the 9th Circuit, which is following the same approach previously adopted by the New York City-based 2nd U.S. Circuit Court of Appeals. The Chicago-based 7th U.S. Circuit Court of Appeals takes a different view of the issue, Trial Insider notes.

“We do not suggest by this holding that when the district court decides to reduce an amount on account of a sanctioned attorney’s inability to pay, it must reduce the amount to that which it determines that the attorney is capable of satisfying,” the opinion continues. “Just as it is within the discretion of the district court to decide whether to reduce the amount at all, the amount to which the sanction will be reduced is equally within the court’s discretion.”

via 9th Circuit Says Court Can Consider Ability to Pay, Orders Rehearing re $360K Attorney Sanction – News – ABA Journal.

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