First Circuit Recognizes Split on Cocaine Possession Statute

Per U.S. v. Medina, 427 F.3d 88 (1st Cir. Oct. 25, 2005):

Medina urges that the trial court erred in instructing the jury on the charge of possession of cocaine base. He did not raise this objection at trial. In the absence of an objection below, we review the trial court's instruction of the jury for plain error. United States v. Bailey, 405 F.3d 102, 110 (1st Cir.2005).The trial judge instructed the jury that, in order to sustain its burden of proof as to the cocaine base charge under 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), the government was required to prove, inter alia, "that the controlled substance involved here was cocaine base." Medina claims that the instruction was deficient because it permitted the jury to convict him under the statute, which punishes trafficking in "cocaine base," § 841(b)(1)(A)(iii), without determining whether the substance he possessed was the particular form of cocaine base known as "crack" or was rather some other form of cocaine base.

The question whether the statute regulates only possession of crack or whether its rule encompasses other forms of cocaine base is the subject of some debate and of a conflict among the circuits. See, e.g., United States v. Edwards, 397 F.3d 570, 575-77 (7th Cir.2005) (describing split). In this circuit, however, it is settled that 21 U.S.C. § 841 regulates exactly what its terms suggest: the possession of any form of "cocaine base." United States v. Lopez-Gil, 965 F.2d 1124, 1134 (1st Cir.1992) (opinion on rehearing); see also United States v. Richardson, 225 F.3d 46, 49 (1st Cir.2000). Crack is a form of cocaine base and so is among the substances regulated by the statute, but the government is not required to prove that the substance involved in a given case is crack in order to secure a conviction under it. Medina cannot show plain error because the trial court's instructions were simply correct, and Medina's challenge on this score therefore also fails.


Family May Sue Over Jesus Poster, Court Says

The ABA Journal eReport has an article today on a Second Circuit case addressing an issue currently dividing the circuits: whether Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) permits viewpoint discrimination that is reasonably related to a legitimate educational concern.

For the full article, click here.


D.N.H. on Meaning of "Substantial Burden" in RLUIPA

A federal court in D. New Hampshire has addressed the meaning of the term "substantial burden" in Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Section 3 provides, in part, that "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution." Here's an excerpt from the case (Farrow v. Stanley, Slip Copy, 2005 WL 2671541 (D.N.H. Oct. 20, 2005):

Neither the Supreme Court nor the First Circuit has had occasion to interpret the term "substantial burden," and the circuit courts that have done so are in disagreement. The Eighth Circuit requires significant infringement on a "central tenet" or fundamental activity of religious practice.

. . .

Although the circuits have split, the better reasoned view is that the "substantial burden" requirement does not turn on the centrality of a particular religious practice to the plaintiff's religion. To hold otherwise disregards RLUIPA's definition of "religious exercise," which expressly protects practices that are not central to a practitioner's religious beliefs. Thus, I conclude that a prison policy substantially burdens religious exercise under RLUIPA if it coerces the inmate to modify his religious behavior significantly or to violate his religious beliefs.


Split on Applicability of Rule 26(b)(3) to Subsequent Litigation

Per Universal City Development Partners, Ltd. v. Ride & Show Engineering, Inc., 230 F.R.D. 688 (M.D. Fla. Sep. 23, 2005):

Rule 26(b)(3) does not expressly address the temporal scope of the work-product immunity. The "literal language of the Rule," however, protects materials "prepared for any litigation or trial as long as they were prepared by or for a party to the subsequent litigation." F.T.C. v. Grolier Inc., 462 U.S. 19, 25, 103 S.Ct. 2209, 76 L.Ed.2d 387 (1983) (emphasis in original).

Although the United States Court of Appeals for the Eleventh Circuit has not addressed the issue, the Court finds that the above language from Grolier provides a strong basis to conclude that Rule 26(b)(3) applies to subsequent litigation. See Frontier Ref. Inc. v. Gorman-Rupp Co., 136 F.3d 695, 703 (10th Cir.1998); In re Grand Jury Proceedings, 43 F.3d 966, 971 (5th Cir.1994) ("Grolier provides a strong hint that Rule 26 and a fortiori, Hickman (which is the genesis of Rule 26), applies to subsequent litigation"): cf. Peterson v. BMI Refractories, 124 F.3d 1386, 1392 n. 4 (11th Cir.1997) ("dicta from the Supreme Court is not something to be lightly cast aside").

There is a split among the circuits, however, as to whether the subsequent litigation must involve issues that are closely related to the case for which the documents were prepared initially, or whether the protection extends to all subsequent litigation. See Frontier, 136 F.3d at 703 (discussing split among the circuits). At least one circuit, the Third, has suggested that the doctrine should only apply to closely related subsequent litigation, although it has declined to expressly so hold. See In re Grand Jury Proceedings, 604 F.2d 798, 803-04 (3d Cir.1979). At least two additional circuits, the Fourth and Eighth, extend the privilege to all subsequent litigation, related or not. See United States v. Pfizer, Inc. (In re Murphy), 560 F.2d 326, 335 (8th Cir.1977); Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 487 F.2d 480, 484-85 & n. 15 (4th Cir.1973). At least three circuits have declined to decide the issue, and analyze the privilege under both approaches. Id. See In re Grand Jury Proceedings, 43 F.3d 966, 971 (5th Cir.1994) (explicitly recognizing two approaches and refusing to choose between the two); United States v. Leggett & Platt, Inc., 542 F.2d 655, 660 (6th Cir.1976) (no discussion of issue in appeal where subsequent litigation is closely related to underlying litigation); Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 557 (2d Cir.1967) (same).

N.D. Ohio on Split of Authority Re Available Damages under § 362(a) of the Bankruptcy Code

Per U.S. v. Harchar, --- F.Supp.2d ----, 2005 WL 2653643 (N.D. Ohio Sep. 28, 2005):

Under § 362(a) of the Bankruptcy Code, the filing of a petition for bankruptcy creates an automatic stay which precludes all debt collection efforts outside the bankruptcy proceedings. 11 U.S.C. § 362(a). The § 362(a) automatic stay is enforced by a separate provision, at issue in this case, that requires courts to award "actual damages, including costs and attorneys' fees," as well as punitive damages under appropriate circumstances, to individuals injured by a creditor's "willful violation of a stay." 11 U.S.C. § 362(h). The issue in this appeal, one in which the United States is the creditor, is whether § 362(h) authorizes compensation for injuries such as emotional distress.

. . .

The arguments made by the parties echo the analysis employed by different federal circuit courts of appeal resulting in a split of authority on the issue of what damages are authorized under § 362(h). Importantly, the circuit courts of appeals that have considered the issue agree that "actual damages" as used in § 362(h) is subject to different interpretations. See Dawson v. Washington Mutual Bank (In re Dawson), 390 F.3d 1139, 1146 (9th Cir.2004) (hereinafter Dawson II ) ("Even after examining the text and context of § 362(h), however, its meaning remains ambiguous."); e .g., Aiello v. Providian Fin'l. Corp., 239 F.3d 876, 879 (7th Cir.2001). Having agreed that § 362(h) is ambiguous, the split of authority concerns the differing interpretations of the ambiguous terms. While the Sixth Circuit has construed the term "willful" under § 362(h), it has not yet construed the terms at issue here.

. . .

Because neither the Sixth Circuit Court of Appeals nor the district courts within the Sixth Circuit have construed § 362(h), it is a matter of first impression within this circuit. Based upon the Sixth Circuit's careful adherence to the rules of statutory construction set forth by the United States Supreme Court, this Court disagrees with Dawson II and joins the Seventh Circuit in construing § 362(h) as authorizing compensation for only tangible/economic injuries.


Tenth Circuit Sticks to Its Position on a Standard of Review Issue

Here's circuit split commentary from the Tenth Circuit in Southern Utah Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735 (10th Cir. Sep. 8, 2005):

The circuits are split over the standard of review of decisions whether to recognize the primary jurisdiction of an administrative agency. This Court, like the Fourth and District of Columbia circuits, reviews decisions regarding primary jurisdiction under an abuse of discretion standard. Marshall v. El Paso Natural Gas Co., 874 F.2d 1373, 1377 (10th Cir.1989); Brumark Corp. v. Samson Res. Corp., 57 F.3d 941, 947-948 (10th Cir.1995). Accord, Nat'l Tel. Coop. Ass'n v. Exxon Mobil Corp. 244 F.3d 153, 156 (D.C.Cir.2001); Envtl. Tech. Council v. Sierra Club 98 F.3d 774, 789 (4th Cir.1996). Other circuits review such decisions de novo. E.g., Access Telecomms. v. Southwestern Bell Tel. Co., 137 F.3d 605, 608 (8th Cir.1998) (reviewing the primary jurisdiction issue de novo without deciding the question); Newspaper Guild of Salem v. Ottaway Newspapers, Inc., 79 F.3d 1273, 1283 (1st Cir.1996); National Communications Ass'n v. Am. Tel. & Tel. Co., 46 F.3d 220, 222 (2d Cir.1995); Int'l Bhd. of Teamsters v. Am. Delivery Ser. Co., 50 F.3d 770, 773 (9th Cir.1995). We adhere to this circuit's standard of review, while noting that any error of law is presumptively an abuse of discretion and questions of law are reviewed de novo.

Second Circuit Holds There Is Not Complete Preemption under the RLA

The Second Circuit in Sullivan v. American Airlines, Inc., 424 F.3d 267 (2d Cir. Sep. 13, 2005) has held that there is no complete preemption under the Railway Labor Act (RLA):

In holding that there is no complete preemption under the RLA, we align ourselves on one side of a circuit split and follow what seems to be an emerging trend. Compare Roddy v. Grand Trunk W. R. Inc., 395 F.3d 318, 326 (6th Cir.2005) (finding no complete preemption under the RLA); Geddes v. Am. Airlines, Inc., 321 F.3d 1349, 1357 (11th Cir.2003) (same); and Ry. Labor Executives Ass'n v. Pittsburgh & Lake Erie R.R. Co., 858 F.2d 936, 942-43 (3d Cir.1988) (same), with Graf v. Elgin, Joliet & E. Ry. Co., 790 F.2d 1341, 1344-47 (7th Cir.1986) (finding complete preemption under the RLA); and Deford v. Soo Line R.R. Co., 867 F.2d 1080, 1085 (8th Cir.1989) (same, based on the inaccurate observation that the Supreme Court in Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), allowed reliance on the RLA for removal jurisdiction). See also Adames v. Executive Airlines, Inc., 258 F.3d 7 (1st Cir.2001) (case removed on RLA-preemption grounds; no discussion of complete preemption); Ertle v. Continental Airlines, Inc., 136 F.3d 690 (10th Cir.1998) (same); Kollar v. United Transp. Union, 83 F.3d 124 (5th Cir.1996) (same); Holman v. Laulo-Rowe Agency, 994 F.2d 666, 669 n. 4 (9th Cir.1993) (noting intra-circuit conflict on RLA complete preemption).


Fourth Circuit Reasserts Unwillingness to Review Denial of Summary Judgment after Full Trial and Judgment on the Merits

The Fourth Circuit in Varghese v. Honeywell Intern., Inc. 424 F.3d 411 (4th Cir. Sep. 14, 2005) has reaffirmed its position that it will not review a district court's pretrial denial of summary judgment after a full trial and final judgment on the merits. This position is at odds with the view of courts in other circuits. Here's an excerpt:

Here, Honeywell seeks appellate review of a district court's denial of summary judgment after a full trial and final judgment. However, under binding circuit precedent, this is exactly the type of situation in which appellate review is not available. Recognizing this problem, Honeywell attempts to extricate itself from underneath the Chesapeake [Paper Products Co. v. Stone & Webster Engineering Corp., 51 F.3d 1229 (4th Cir.1995)] umbrella. Specifically, Honeywell argues that the ERISA preemption issue was not raised in its JMOL motion because such motions challenge the sufficiency of the evidence presented by an opposing party at trial. As such, Honeywell contends a JMOL motion was not the appropriate avenue for its legal challenge and that appellate review of the pretrial denial of summary judgment is therefore proper.

However, these arguments were addressed in Chesapeake. Again, we expressly rejected "the contention that our review should depend on whether the party claims an error of law or an error of fact." Chesapeake, 51 F.3d at 1235. In fact, we stated that although a dichotomy between reviewing denials of summary judgment based on an erroneous legal conclusion and those based on an erroneous *423 factual determination "is supported by the reasoning in Holley [Holley v. Northrop Worldwide Aircraft Serv., 835 F.2d 1375, 1378 (11th Cir.1988) ] ... we decline to follow Holley and therefore need not describe specific circumstances in which this Court would review the denial of summary judgment after trial." Id. at 1235 n. 8. In other words, the Chesapeake Court did not need to discuss "specific circumstances" because there are none. The express rejection of Holley, a case that supported such a dichotomy, makes that point clear. At no point does the opinion suggest otherwise.

We recognize that several other circuits have taken a different approach on this issue, allowing appeals from a denial of summary judgment after a trial where the summary judgment motion raised a legal issue and did not question the sufficiency of the evidence. See, e.g., Pavon v. Swift Transp. Co., 192 F.3d 902 (9th Cir.1999); Rekhi v. Wildwood Industries, Inc., 61 F.3d 1313 (7th Cir.1995). However, as the Seventh Circuit noted in Chemetall GMBH v. ZR Energy, Inc., 320 F.3d 714, 721 (7th Cir.2003), their approach simply conflicts with our own. There, the Seventh Circuit expressly noted the disagreement stating: "[t]he Fourth Circuit, however, has rejected any distinctions between factual and legal issues like the one we drew in Rekhi, holding that in either case, review of the district court's denial of summary judgment is barred after trial." Id.

In Chesapeake, we concluded that we would not review a district court's pretrial denial of summary judgment after a full trial and final judgment on the merits. [citations omitted] After the denial of Honeywell's summary judgment motion, there was a full trial and final judgment on the merits. Honeywell had the option to move for judgment as a matter of law (the denial of which we will review), arguing that ERISA preempted Dr. Varghese's state law separation pay claims. As we noted in Chesapeake, "a party may appropriately move for judgment as a matter of law on discrete legal issues." Id. at 1236 (emphasis added). Although Honeywell moved for judgment as a matter of law, they did not so move on this issue and therefore failed to preserve it for appeal. Therefore, binding circuit precedent mandates that the appeal be dismissed.


Second Circuit on Appealability of Interlocutory Order Granting Eleventh Amendment Immunity

Morris-Hayes v. Board of Educ. of Chester Union Free School Dist., 423 F.3d 153 (2d Cir. Sep. 12, 2005):

Eleventh Amendment immunity is a form of absolute immunity. Accordingly, when the Supreme Court was confronted with the question whether "a district court order denying a claim by a State or a state entity to Eleventh Amendment immunity from suit in federal court may be appealed under the collateral order doctrine of [Cohen ]," it answered the question in the affirmative. Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 143, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Whether an interlocutory order granting Eleventh Amendment immunity is appealable is not so well settled. The First Circuit, extending the holding of Metcalf & Eddy, has held that an interlocutory appeal "is proper as to the Eleventh Amendment issue, as pre-trial orders granting or denying Eleventh Amendment immunity are immediately appealable." Rosie D. v. Swift, 310 F.3d 230, 233 (1st Cir.2002). [citations omitted]. The Supreme Court in Metcalf & Eddy, however, never held that an order granting immunity could be appealed from prior to the entry of a final judgment. We never have interpreted Metcalf & Eddy to permit appeals from interlocutory orders granting Eleventh Amendment immunity, citing it only for the proposition for which it stands: the appealability of orders denying Eleventh Amendment immunity. . . . With respect to interlocutory orders relating to qualified immunity, we have noted the following: "All circuits that have considered whether the collateral order doctrine confers appellate jurisdiction over appeals arising from a grant of partial summary judgment based on qualified immunity have universally held that such a judgment is not immediately appealable." LaTrieste Rest. & Cabaret, 96 F.3d at 599. In joining our sister circuits, we explained that the reason for not allowing an interlocutory appeal of an order granting qualified immunity is that "[a] grant of summary judgment based on qualified immunity does not lead to any loss of [a] right that cannot be remedied on appeal." Id. [citations omitted]. The same rationale leads us to conclude that an interlocutory order granting Eleventh Amendment immunity likewise is non-appealable.

Eleventh Circuit Holds that "Regarded-As" Disabled Individuals Entitled to Reasonable Accommodation

The Eleventh Circuit in D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220 (11th Cir. Aug. 30, 2005) has weighed in on a matter that has split the federal circuits thus far:

Whether the ADA's reasonable accommodation requirement applies to the regarded-as category of disabled individuals is an issue of first impression in this Circuit and a question on which our sister Circuits are split. The district court based its holding that it does not on the decisions of the Fifth, Sixth, Eighth, and Ninth Circuits. See Kaplan v. N. Las Vegas, 323 F.3d 1226, 1233 (9th Cir.2003); Weber v. Strippit, Inc., 186 F.3d 907, 916-17 (8th Cir.1999); Workman v. Frito-Lay, Inc., 165 F.3d 460, 467 (6th Cir.1999); Newberry v. E. Tex. State Univ., 161 F.3d 276, 280 (5th Cir.1998). The Third Circuit has parted ways with these courts, holding that under the plain language of the ADA, employers are obliged to provide reasonable accommodations for individuals falling within any of the ADA's definitions of disabled, including those "regarded as" being disabled. Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 772-76 (3d Cir.2004). The First Circuit has also addressed the issue but only indirectly, assuming without expressly holding that the ADA requires reasonable accommodations for employees regarded as disabled. Katz v. City Metal Co., 87 F.3d 26, 32-34 (1st Cir.1996). Because a review of the plain language of the ADA yields no statutory basis for distinguishing among individuals who are disabled in the actual-impairment sense and those who are disabled only in the regarded-as sense, we join the Third Circuit in holding that regarded-as disabled individuals also are entitled to reasonable accommodations under the ADA.


Fifth Circuit Joins Those Holding Transexualism to Be a "Serious Medical Need"

Recently in Praylor v. Texas Dept. of Criminal Justice, 423 F.3d 524 (5th Cir. Aug. 26, 2005) the Fifth Circuit announced it would adopt the view of several other circuits that gender dysphoria or transexualism is a serious medical need raising Eighth Amendment considerations:

"Although this circuit has not addressed the issue of providing hormone treatment to transsexual inmates, we will follow those circuits that have determined transsexualism to be a serious medical need raising Eighth Amendment considerations. See Cuoco v. Moritsugu, 222 F.3d 99, 103 (2d Cir.2000); White v. Farrier, 849 F.2d 322, 325 (8th Cir.1988); Meriwether v. Faulkner, 821 F.2d 408, 413 (7th Cir.1987); Supre v. Ricketts, 792 F.2d 958, 963 (10th Cir.1986)."

The Sixth Circuit is also in accord with this view. See Murray v. U.S. Bureau of Prisons, 106 F.3d 401 (Table) (6th Cir. 1997). Other circuits appear not to have addressed the issue.


Split on Admissibility of Redacted Statements Concealing Co-Defendants Name Noted

From U.S. v. Reyes, 384 F.Supp.2d 926 (E.D. Va. Aug. 29, 2005):

In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Supreme Court held that the admission of a defendant's confession, accompanied by a limiting instruction, does not violate a co-defendant's confrontation right if "the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Id. at 211, 107 S.Ct. 1702. And this is so even when other evidence properly admitted at trial otherwise links the co-defendant to the statement. See id. at 208-211, 107 S.Ct. 1702. In other words, under Richardson, a defendant's statement redacted to eliminate the co-defendant's name and any reference to his or her existence does not run afoul of Bruton even if there is other evidence in the case linking the co-defendant to the statement.

Notably, Richardson raised, but did not resolve, another question left open in Bruton, namely whether a statement redacted such that the co-defendant's name is replaced with a neutral pronoun, such as "person," "individual," or "associate," may be admitted under Bruton. See Richardson, 481 U.S. at 208-09, 107 S.Ct. 1702; Bruton, 391 U.S. at 134 n. 10, 88 S.Ct. 1620. One aspect of this question was addressed in Gray v. Maryland. There, the Supreme Court concluded that it is not enough to replace the co-defendant's name "with an obvious blank, the word 'delete,' a symbol, or similarly notify the jury that a name has been deleted," such that it is nonetheless "facially incriminatory" and "directly accusatory"; such a redacted statement still falls within the Bruton rule and is inadmissible. Id. at 193-95, 88 S.Ct. 1620. Gray did not, however, address whether redactions that replace the co-defendant's name with a neutral pronoun, instead of a deletion or blank space, might, in some circumstances, be constitutionally permissible where other independent evidence might permit the jury to conclude that the co-defendant is the person referenced in the redacted statement.

While the circuits are split on this question, current Fourth Circuit authority interpreting Bruton, Richardson, and Gray teaches that a defendant's statements are admissible if the co-defendant's name is redacted and replaced with a neutral pronoun or phrase such as "person" or "individual," or even "friend," "partner," "associate," or "client," provided there is reasonable assurance that use of such a neutral phrase does not result in a statement that is "directly accusatory" or "facially incriminatory" in the same manner as an unredacted or unrevised statement. United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir.1999) Thus, the Fourth Circuit, like the majority of circuits, has explicitly extended the Bruton line of cases to permit admission of redacted statements that replace a co-defendant's name with "a symbol or neutral pronoun" such that the statement is not facially incriminatory, "even though the statement's application to [the co-defendant] is linked up by other evidence properly admitted against the defendant."

Split, Uncertainty on Some Booker Issues Noted by 11th Circuit

The Eleventh Circuit in U.S. v. Vernier, Slip Copy, 2005 WL 2496118 (11th Cir. Oct 11, 2005)noted some uncertainty and a circuit split with respect to a couple of issues related to United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005) :

Whether exercise of a court's discretion to depart upward is a decision made under a "mandatory Guidelines regime," as needed for Booker error, is a matter of some uncertainty. Compare United States v. May, 413 F.3d 841, 848 (8th Cir.2005) (stating that it is "unclear" whether a departure within the district court's discretion is Booker error), with United States v. Cunningham, 405 F.3d 497, 504 (7th Cir. 2005) ("To the extent that [defendant] argues that the court's upward departure [not mandated by the guidelines] violates the Sixth amendment, he is correct."). This Circuit has yet to squarely address whether discretionary departures may even constitute Booker error. This case will not be our first foray into that debate. Even if the Defendant could establish that the district court's upward departure somehow amounted to Booker error, and that the error was plain, in satisfaction of the first two prongs of the plain error standard, Vernier would fail still again because he cannot show that the error affected his substantial rights.

. . .

Finally, we consider the district court's order to pay restitution under § 3663A of the MVRA. Recently, we observed that neither this Court nor the Supreme Court has addressed whether Booker applies to restitution orders and other circuits are split on the question. United States v. King, 414 F.3d 1329, 1330 (11th Cir. 2005). Thus, even if a court's restitution order constituted Booker error, that error was not "plain." Id. Defendant's argument cannot succeed for this reason.


SCOTUS Denies Review in Case Addressing Date of Accrual of Interest on Attorneys' Fee Award

Today the Supreme Court denied review in Bernback v. Greco, a case out of the Third Circuit that sought resolution of a circuit split regarding whether interest on an award of attorneys' fees is calculated from the time of entry of the judgment establishing a right to the fees as the Fifth, Sixth, Eighth, Ninth, Eleventh, and Federal Circuits hold, or from the time of entry of a later order fixing the amount of fees, as the Third, Seventh, and Tenth Circuits hold.


Split on Burden of Proof for Contractual Jury Waivers Noted

The court in Popular Leasing USA, Inc. v. Terra Excavating, Inc., Slip Copy, 2005 WL 2468069 (E.D. Mo. Oct 06, 2005), recently noted, but failed to take a position on, the circuit split on the quesiton of which party bears the burden of proving that a contractual jury waiver was knowing and voluntary. The court noted that the Eighth Circuit has yet to rule on this issue:

The federal circuits are split on the question of which party bears the burden to prove that a contractual jury waiver was knowing and voluntary. See Pierce v. Atchison Topeka & Santa Fe Ry. Co ., 110 F.3d 431, 435 n. 4 (7th Cir.1997) (collecting cases); Hulsey v. West, 966 F.2d 579, 581 (10th Cir.1992) (identifying the split among the circuits). The Eighth Circuit does not appear to have ruled on this point. A district court in this circuit has persuasively commented that the party seeking to enforce the waiver should bear the burden of proof, because it is the party seeking to benefit from the waiver and "can prepare to meet that burden by careful drafting of the provision, its conspicuous presentation, and preparation of a record that the provision was explained and reviewed, for example, by requiring that the provision be initialed." Cooperative Fin. Ass'n, 871 F.Supp. at 1172 n. 2.

This Court need not resolve which party bears the burden of proof with respect to a jury waiver, because even if the burden is placed on the defendants, they have met their burden to establish that the waiver was not knowing and voluntary. Under the circumstances of this case, the jury waiver provision in the Leases fails to overcome the presumption against waiver of the fundamental constitutional right to trial by jury.


Tenth Circuit Joins Plurality of Circuits in Holding that Rule 24(a)(2) Intervenors Need Not Satisfy Article III Standing Requirements

The Tenth Circuit, in San Juan County, UT v. U.S., 420 F.3d 1197 (10th Cir. Aug. 30 2005), has taken a position with respect to the issue of whether parties seeking to intervene as a matter of right in an action under FRCP Rule 24(a)(2) must satisfy the requirements of Article III standing in addition to the requirements of Rule 24. The court joined the Second, Fifth, Sixth, Ninth and Eleventh Circuits in holding that an intervenor need only meet Rule 24(a)(2)'s requirements that the intervenor have an interest in the litigation and need not first establish its standing. The court also held that the same applies to parties seeking permissive intervention under Fed.R.Civ.P. 24(b). Here's the court's conclusion in the case:

"[W]e hold that a party seeking to intervene under Fed.R.Civ.P. 24, either as a matter of right or permissively, need not establish its own standing, in addition to meeting Rule 24's requirements, before the party can intervene so long as another party with constitutional standing on the same side as the intervenor remains in the case."

The Seventh, Eighth and D.C. Circuits have gone the other way, holding that an intervenor must establish its own standing, in addition to meeting Rule 24(a)(2)'s interest requirement, before intervening. Although the U.S. Supreme Court expressly mentioned this issue in Diamond v. Charles, 476 U.S. 54, 61, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986), the Court left the matter unresolved, leaving the door open for the current circuit split.

Second Circuit Holds that Nationwide Service Provision of the Clayton Act Is Only Available Where the Section's Sepcific Venue Provision Is Satisfied

The Second Circuit in Daniel v. American Bd. of Emergency Medicine, --- F.3d ----, 2005 WL 2470530 (2d Cir. Oct 07, 2005), has weighed in on an issue that currently divides the circuits: whether service of process (and personal jurisdiction) is available under Section 12 of the Clayton Act (15 U.S.C. § 22) only in cases satisfying the section's specific venue provision or regardless how venue is established. The court in Daniel opted for the former interpretation.

Here's an excerpt:

Our sister circuits are split over the proper interpretation of the venue and process provisions of Section 12. The Third and Ninth Circuits hold that Section 12's service of process provision is "independent of and does not require satisfaction of" the section's venue provision. In re Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288, 297 (3d Cir.2004); see Action Embroidery Corp. v. Atlantic Embroidery, Inc., 368 F.3d 1174, 1179- 80 (9th Cir.2004) (holding that, "under Section 12 of the Clayton Act, the existence of personal jurisdiction over an antitrust defendant does not depend upon there being proper venue in that court"); Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1408-13 (9th Cir.1989) (rejecting argument that antitrust plaintiff must satisfy Section 12's venue provision to avail itself of its worldwide service of process authorization). The District of Columbia Circuit, however, holds that "[t]he language of the statute is plain, and its meaning seems clear: ... [I]nvocation of the nationwide service clause rests on satisfying the venue provision." GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d 1343, 1351 (D.C.Cir.2000). We have acknowledged this split, without ourselves deciding the issue. See In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 207 (2d Cir.2003).*8 Not insignificantly, however, this court was among the first to consider the relationship between the venue and service provisions of Section 12 of the Clayton Act. Over forty years ago, in Goldlawr, Inc. v. Heiman, we noted that the two parts of Section 12 were so closely related that "the extraterritorial service privilege is given only when the other requirements [pertaining to venue] are satisfied," 288 F.2d 579, 581 (2d Cir.1961) (emphasis added), rev'd on other grounds, 369 U.S. 463 (1962). Because Goldlawr 's observation was not necessary to the court's ruling, it constitutes dictum that does not specifically control this case. Nevertheless, we recognize that the influence of Goldlawr 's dictum has been significant. When the D.C. Circuit construed the service of process provision of Section 12 to depend on satisfaction of the section's venue provision, it specifically cited Goldlawr and emphasized that, "[o]n the question of the meaning of Section 12, we align ourselves with the position taken by the Second Circuit." GTE New Media Servs. Inc. v. BellSouth Corp., 199 F.3d at 1351. Today, we bring the process full circle, joining the D.C. Circuit in concluding that the plain language of Section 12 indicates that its service of process provision applies (and, therefore, establishes personal jurisdiction) only in cases in which its venue provision is satisfied.

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