If a plaintiff mails a request for waiver of service pursuant to Fed.R.Civ.P. 4(m) before the statute of limitations expires, but the defendant executes the waiver after expiration, is the suit time barred? In other words, does the execution relate back to the time of plaintiff's mailing or otherwise revive the claims? In what it perceived to be a case of first im ...

Timing is everything. The plaintiff in Morgan, Lewis & Bockius LLP v. IBuyDigital.com, Inc., 2007 NY Slip Op 50149U; 2007 N.Y. Misc. LEXIS 191 (Sup. Ct. N.Y. Co. Jan. 11, 2007), moved for summary judgment on an account stated claim for unpaid legal bills but its moving papers did not contain detailed enough affidavits as to its regular practice of mailing out bill ...

Professor Georgene Vairo of Loyola L.A. is fond of dividing the Circuits, for Rule 11 purposes, into hawks and doves. She identifies as the leading hawk Circuit the Seventh. In Malec Holdings II Ltd. v. English, 2007 U.S. App. LEXIS 2349 (7th Cir. Jan. 24, 2007), the Court lived up to its billing. The plaintiff in Malec commenced a frivolous §1983 action to r ...

The Supreme Court held in Grable & Sons Metal Prods., Inc. v. Darue Engr’g & Mfg., 545 U.S. 1 (2005), that federal question jurisdiction may exist over a state law claim that entails an important, embedded federal issue. Since that decision, the lower courts have been grappling with its ramifications. Two district court opinions from last week are illustrativ ...

Last week was not a good one for securities plaintiffs in New York. On Tuesday, the Second Circuit affirmed dismissal of a securities fraud class action alleging both 10b-5 and Section 14(a) claims, in an unreported decision last week, in Leykin v. AT&T Corp., 2007 U.S. App. LEXIS 2378 (2d Cir. Jan. 30, 2007) (also affirming dismissal of state law claims pursuant t ...

The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248 § 214 (signed into law on July 27, 2006) directed the Standing Committee on Rules of Practice and Procedure to ‛study the necessity and desirability of amending the Federal Rules of Evidence to provide that the confidential marital communications privilege and the adverse spousal privi ...

There is a split in the Circuits as to whether subjective bad faith is a prerequisite for the imposition of Rule 11 sanctions issued sua sponte. A split panel decision of the Second Circuit in In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir. 2003), answered this question Yes. On January 31, 2007, the Fifth Circuit — correctly — held that the answer is No. ...

Lin v. United States Dept. of Justice, 2007 U.S. App. LEXIS 1875 (2d Cir. Jan. 5, 2007), a petition for review of an asylum request that was denied, presented the Court of Appeals with a conundrum. Newly available evidence strongly indicated that the petitioner would be forcibly sterilized if returned to China. While the Court agreed with the petitioner that the n ...

Professor Lonny Hoffman has an interesting article on the Class Action Fairness Act in the current issue of the UC Davis Law Review: "The 'Commencement' Problem: Lessons from a Statute's First Year," 40 U.C. Davis L. Rev. 469 (2006). ...

A three-part test is generally used to determine whether a party has waived the attorney-client privilege by placing privileged communications ‛at issue.“ An implied waiver occurs when (1) the party asserts the privilege as a result of some affirmative act, such as filing suit; (2) through this affirmative act, the asserting party puts the privileged informa ...