Upcoming Events
LatinX Heritage Month Program. Please mark your calendars and plan to join your fellow FJA members on October 10, 2023, at 4:00 p.m. EST/3:00 p.m. CST/2:00 p.m. MST/1:00 p.m. PST for a very special Hispanic Heritage Month program. Hon. Esther Salas of the District Court for the District of New Jersey and Hon. Marina Garcia Marmolejo of the District Court for the Southern District of Texas will have a frank and open discussion of race, gender, and the bench, including the challenges diverse judges have faced and ideas for a positive path forward. You won’t want to miss this!
To join, please use the Zoom instructions below.
Join Zoom Meeting
Meeting ID: 750 218 0992
Passcode: 092421
“Thirst for Knowledge Thursdays” Programs. The next installment of ‘Thirst for Knowledge Thursdays’ is scheduled for Thursday, October 19, 2023, at 7:30 p.m. EDT/6:30 p.m. CST/5:30 p.m. MST/4:30 p.m. PST. Dr. Diana Uchiyama (J.D., Ph.D.), the executive director of the Illinois Lawyers Assistance Program, will discuss best practices for judges in communicating and interacting with persons struggling with emotional and mental issues. Dr. Uchiyama is a former Assistant Public Defender, drug court coordinator, staff psychologist, and supervisor of domestic violence intervention and substance abuse programs. Her presentation promises to be a practical guide to techniques members can use (or avoid) in oral and written interactions with litigants.
The Appellate Judges Education Institute (AJEI) Summit will be held on November 2-5, 2023, in Washington, DC. FJA President J. Michelle Childs (also chairperson of the program committee) will interview Supreme Court Justice Brett Kavanaugh and Solicitor General Elizabeth Prelogar, as well as serve on a panel. Other FJA members serving as speakers/panelists include Ret. Judge Thomas I. Vanaskie (3rd Cir.); Toby J. Heytens (4th Cir.); Jennifer Choe-Groves (Court of International Trade); Amy St. Eve (7th Cir.); James C. Ho (5th Cir.); John B. Owens (9th Cir.); Al Diaz (4th Cir.); and M. Margaret McKeown (9th Cir.)
The Federal Judicial Center (FJC) will pay the registration fees and certain travel costs for a limited number of FJA appellate judges who wish to attend the AJEI. You may register for the AJEI Summit on the National Judicial College website. When you get to the Payment Method section, please select “Pay by Check.” FJC will pay the registration fee directly. In the “Notes” field, please enter “FJC.” For further questions, you may contact Brenda Baldwin-White, Senior Judicial Education Attorney, at the FJC, at [email protected]; 202-215-1158.
Committee Reports:
Civics and Service: Chair, Robin Rosenbaum
2) Please submit submissions for the FJA’s Speech Bank, which members can use as a starting place when they need to give speeches. The Speech Bank has speeches covering a variety of topics. The Speech Bank can be found on the FJA website. If you wish to have one of your speeches archived there, please send them to the communications chair, Mary Scriven, at [email protected].
Communications: Chair, Mary S. Scriven
The Communications Committee is very excited to continue our new member highlights. See below the highlight of Judge Blackwell. If you know of a “new” member, one who has been in the FJA for eight years or less, who you would like to have recognized, please send their name to Judge Scriven, [email protected], and we will work on preparing a highlight. We are publishing one per circuit until we cover all circuits and then will be circling back around. Thanks for your suggestions and contributions. Additionally, on the website, we would like to post any special accomplishments and awards that our members have achieved or received. It can be personal (completed a marathon), civic (hosted a high school civics course), or professional (judicial recognition). If you would forward those to Judge Scriven as well, we will get them posted. We are a wealth of inspiration- please share! Finally, our President suggested that we name our newsletter, and the Committee proposed the “FJA Bench Press” as the name. Please look for the new name in the November newsletter.
Announcements
Advisory Committee on Civil Rules
IMMEDIATE RESPONSE REQUESTED NO LATER THAN OCTOBER 12, 2023
In response to several proposals, the committee has created a subcommittee, chaired by Judge Cathy Bissoon, W.D. Pennsylvania, to address whether, due to a circuit split, any amendments should be made to Federal Rule of Civil Procedure 41(a), which pertains to voluntary dismissal of actions by plaintiffs. The Advisory Committee seeks your input. Does 41(a) create confusion or complication, in your experience? Should the committee undertake the project of amending the rule, do you have any suggestions with respect to what any such amendment should attempt to accomplish, and how it might accomplish it? The current text of the rule is:
Rule 41. Dismissal of Actions
(a) Voluntary Dismissal.
(1) By the Plaintiff.
(A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable federal statute, the plaintiff may dismiss an action without a court order by filing:
(i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or,
(ii) a stipulation of dismissal signed by all parties who have appeared.
(B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.
(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.
****
Currently, the circuits interpret the meaning of the word “action” in the rule differently. In some circuits, a plaintiff seeking to dismiss a case under this rule must dismiss her entire case—that is, all claims against all defendants. Under this interpretation of the rule, voluntary dismissal of less than the entire action may not be achievable with or without a court order. Other circuits have interpreted the scope of the rule more flexibly to permit a plaintiff either to dismiss: (a) all claims against one of multiple defendants, while allowing the claims against any other defendants to go forward or (b) one of multiple claims against a defendant.
One threshold question, on which we would appreciate your feedback, is whether this disuniformity alone should prompt a rule amendment. In this case, the circuits diverge significantly on the meaning and applicability of the rule, and the differences in interpretation have spillover effects on the application of other rules, availability of appeal, and preclusive effect of judgments.
At the same time, however, it is not clear whether, despite the different application of the rule and its effects in different circuits, there is a “real-world problem” to solve, or whether a rule amendment, with its inherent risks of unanticipated consequences, is prudent. For example, any such rule amendment inevitably would affect the panoply of rules that govern the modification of a case after it is filed, including amendments under Rule 15. Ultimately, should the committee decide to amend the rule, it will need to face a set of fundamental policy questions about how flexible the rules should be with respect to allowing parties to streamline cases prior to trial.
The original purpose of Rule 41(a), the text of which has remained essentially unchanged since the 1938 promulgation of the Federal Rules, was to shorten the time frame in which a plaintiff could dismiss unilaterally (that is, without a court order) and without prejudice. Prior to the adoption of the Federal Rules—and presently in some states—a plaintiff may voluntarily dismiss an action without prejudice when the litigation is well advanced, including at trial, and refile the case anew in another court. Rule 41(a) therefore serves to restrict the time-period in which a plaintiff may unilaterally dismiss without prejudice before the filing of an answer or motion for summary judgment. After that period, a court order is necessary to dismiss, and the judge may place conditions on that order. There does not appear to be any suggestion that the drafters of the rule considered the question that causes confusion today—perhaps understandably, given the increase in complex multiparty and multiclaim litigation since 1938. Some courts have responded to this development by permitting flexible application of the rule or by permitting parties to stipulate to dismissal of some but not all claims after a court order, while other courts have streamlined, using other rules. This diversity of approaches may serve as evidence that the rule needs to be amended, or that it is best left alone.
If you have any insights, experiences, or concerns regarding Rule 41(a), please send comments in an email detailing those issues to [email protected] no later than October 12, 2023. Unattributed responses will be compiled and made public by the Civil Rules Advisory Committee.
