Faculty of Federal Advocates
P.O. Box 12025
Denver CO 80212-0025
Administrator:
Patricia Murphy
pmurphyffa@aol.com
Copyright © 2004-2012
Faculty of Federal Advocates
Faculty of Federal Advocates Newsletter
October 2010 Volume 12, Number 1 Table of Contents:
Recent Articles and
CLE Handouts Available for Download: Jury
Verdicts 2009 Depositions
in Federal Court Cases The Faculty would like to thank Judges Boland and Mix for providing these articles to our members. Killing Two Ethical Obligations with One Stone:
Our profession is governed by many obligations. Two, however, are particularly relevant to the Faculty of Federal Advocates’ (FFA) Counsel / Co-Counsel (CCC) program:
The first rule facilitates access to justice by requiring us to represent those who cannot afford us, while the second ensures the ongoing ethical practice of law, in part by imposing a mentoring relationship between new and old lawyers. The FFA’s CCC program is a “one-stop shop” for
all of us to meet these ethical obligations. It offers
an opportunity for senior and junior lawyers to co-counsel federal
cases in the areas of employment law, civil rights, and prisoners’ rights. The
cases are easy to sign up for, lend help to those in need, and
typically lead to substantive courtroom experience, including
trials, in federal district and From its inception in 2003, the CCC program has placed 149 cases. Six cases remain open from 2009-2010. Twelve Denver area firms have participated in the program in the past two years. Right now, the FFA has a backlog of thirteen CCC cases needing placement. Counsel and co-counsel oftentimes select one another, or the FFA can match senior with junior lawyers to take on a case. Ironically, it’s easy to find junior attorneys to participate. The challenge is finding experienced attorneys to mentor and oversee cases. We would urge senior and junior lawyers alike to undertake a CCC case. Where else can you get the opportunity to support the Constitution, advocate for those who cannot afford counsel, learn new law, and spend time in federal court? Please call either me (303.295.8099) or Pat “Murph” Murphy (303.455.0927) with any questions or to take on a case. The Faculty of Federal Advocates Bankruptcy Pro Bono Program As of January 1, 2010, the Faculty of Federal Advocates’ Bankruptcy Pro Bono Program has a new coordinator. After five rewarding years, Brent Cohen passed the torch to Chad Caby to continue the long tradition of providing quality pro bono legal services to those in the most need. With the help of the Faculty of Federal Advocates and volunteer attorneys, Chad hopes to continue to expand this program during the next five years. Since 2001, the Bankruptcy Pro Bono Program, with the support of the Judges of the U.S. Bankruptcy Court for the District of Colorado, has provided indigent debtors with qualified legal representation in both discharge and dischargeability proceedings under the Bankruptcy Code. The program not only provides assistance to those in need, but also has offered a valuable opportunity for newer attorneys to work with more experienced bankruptcy professionals to defend individual debtors in bankruptcy adversary proceedings. This mentor-mentee program continues to be a great success, and has been augmented by the Faculty of Federal Advocates’ Trial Advocacy Program, which allows attorneys of all levels to hone and polish their trial skills while being mentored by the bankruptcy judges and some of Colorado’s most-respected trial attorneys. In 2010, for the first time, the Trial Advocacy Program was conducted in the U.S. Bankruptcy Court as well as the U.S. District Court for the District of Colorado. This year’s program boasted 32 participants, three U.S.
District Court Judges, four U.S. Magistrate Judges and four U.S.
Bankruptcy Court Judges, as well as some of Ed Schroeder of Rothgerber Johnson & Lyons LLP, one of this
year’s participants in the Trial Advocacy Program, said: “The
trial advocacy program was tremendously valuable for me as a
relatively young attorney. The program emphasizes The Bankruptcy Pro Bono Program is always looking for both experienced and less experienced attorneys to assist with the Program. For additional information regarding the Bankruptcy Pro Bono Program and how you may contribute, call Chad S. Caby at Rothgerber Johnson & Lyons LLP, 303-628-9583. For additional information regarding the 2011 Trial Advocacy Program, contact Brent R. Cohen at Rothgerber Johnson & Lyons LLP, 303-628-9521. The
Involvement Is It’s Own Reward
In 1995, Colorado Bar Association president Phillip S. Figa solicited attorneys to participate in the Federal Pro Bono/Pro Se Mentor Program being launched by the CBA in conjunction with the Civil Justice Reform Act Advisory Committee of the U.S. District Court for the District of Colorado. In March of 1996, the pro bono/pro se mentor program completed the trial of its first two cases. The mentor and mentee lawyers who handled those cases reported: “We did not succeed in obtaining a plaintiff’s verdict, but we did succeed in vigorously presenting our client’s case and we had a great time doing so.” Fifteen years later, by dint of the continuing hard work of numerous attorneys, judges, court personnel, and other committed individuals, that pilot effort has become the Counsel/Co-Counsel program of the Faculty of Federal Advocates, an institution that we now take for granted. A number of years ago, inspired by the accounts of the first participants, I accepted my first case under the program. The case involved Section 1983 claims arising out of a Denver police “no-knock” raid. The plaintiff had been subjected to physical intimidation by the brandishing of a gun, racial slurs, and threats of re-incarceration during his arrest. Because of the procedural posture of the case (qualified immunity motions), Scott LaBarre and I ended up briefing and arguing constitutional and qualified immunity issues in the district and appellate courts for the next several years. By the time we were finished, however, Scott had had his first argument in the Tenth Circuit, and the Court’s opinion had extended the circuit’s Fourth Amendment jurisprudence in excessive force cases. Recently, Emily Bright and I concluded a case involving an inmate confined in the Colorado State Penitentiary in Canon City. He filed a Section 1983 case against two correctional officers who allegedly retaliated against him for filing grievances under the prison grievance system. When we entered the case, the inmate had survived a motion for summary judgment, and the case was scheduled for a jury trial. Discovery was closed, but the Court granted permission for informal interviews of the defendants (transcribed by a court reporter volunteering her time to the FFA program). In September of 2009, we commenced trial, with Visiting Judge Leonard of the Western District of Oklahoma presiding. On the second day, during a break in the proceedings, one of the defendants became seriously ill with an undisclosed condition and was rushed from the courthouse to the hospital. He was unable to return, the judge declared a mistrial, and that jury was discharged. The case was rescheduled for trial in December. Meanwhile, the judge ordered a trial preservation deposition of the defendant, and that deposition was taken at the penitentiary. In December, we picked another jury and tried the case to conclusion. The client had been in solitary confinement ever since he filed the grievances at issue; even though the verdict was not in his favor, he was gratified that his claims finally had been heard by an independent tribunal. Emily Bright, the young attorney who took the laboring oar on the case, has a few observations of her own about the experience:
Pro se cases are challenging, and, as noted above, can take some unusual twists and turns. Typically, the odds are stacked against the client. But, if the case has survived and been referred to the Counsel/Co-Counsel program, it is sufficiently complex to warrant appointment of counsel. The defendant(s) invariably will be represented by counsel, and there is an undeniable need for plaintiff’s representation in order to level the playing field. These cases can be immensely rewarding on a number of levels – from helping a client to achieve more equal access to justice, to assisting the Court in alleviating the burden of pro se cases, to mentoring an attorney just starting out (we all were there), to learning new areas of the law. Anyone who has handled a case under the program will tell you the same thing. With the assistance of Edward P. Butler, Legal Officer, of the United States District Court, the FFA has made it easy to participate. Mr. Butler maintains the list of pro bono Counsel/Co-Counsel programcases awaiting volunteer counsel. That list contains an individual summary of each available case. With the benefit of that information, you can select an interesting case well-suited to your particular circumstances. Patricia Murphy, the FFA’s capable Administrator, also will help guide you along the way. The Counsel/Co-Counsel teams of volunteer attorneys who serve as advocates for the pro se plaintiffs who need another voice are the backbone of the program. We all take advantage of the FFA’s top-notch CLE programs and other membership benefits, and we all need to give back by participating in the Counsel/Co-Counsel program. Inevitably, you will receive as much or more than you give. You wouldn’t be a lawyer practicing in federal court and a member of the Faculty if you were afraid of challenges. Contact Murph or Ed today, get the list, sign up for a case, and take on that new challenge. You won’t regret it. (Besides,
you, too, then may have a chance to tell your story in
these pages.) Tenth Circuit Pleading Standards After Iqbal:
When Enough is “Enough” to Survive a Motion to Dismiss
Since the Supreme Court clarified the notice-pleading standard1 in Twombly2 and Iqbal3, federal courts have been re-examining, and re-stating, the law as to when a complaint’s allegations are sufficient to survive a motion to dismiss. In two recent decisions, the Tenth Circuit explained the differences between pleading standards pre- and post- the Twombly/Iqbal line of cases. In Robbins v. Oklahoma, decided after Twombly but before Iqbal, and Phillips v. Bell, decided after both Twombly and Iqbal, the Tenth Circuit explained that in the past, “courts generally embraced a liberal construction of the pleading requirement,” under which a complaint would not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Robbins, 519 F.3d 1242, 1246-47 (10th Cir. 2008) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Phillips, 365 F. App’x 133, 137-43 (10th Cir. 2010). Under the “no set of facts” standard, “a complaint containing only conclusory allegations could withstand a motion to dismiss unless its factual impossibility was apparent from the face of the pleadings,” meaning a complaint would not be dismissed “if it left open the possibility that a fact not alleged in the complaint could render the complaint sufficient.” Robbins, 519 F.3d at 1246. In contrast, after Twombly/Iqbal a complaint must allege “enough” factual matter, taken as true, to actually suggest that the pleader is entitled to relief. Robbins, 519 F.3d at 1247; Phillips, 365 F. App’x at 138. No longer is it sufficient to plead merely enough to avoid the appearance of facial impossibility. Rather a plaintiff must plead enough to show facial plausibility of the claims. Robbins, 519 F.3d at 1247; Phillips, 365 F. App’x at 138-39 (quoting Twombly, 550 U.S. at 556, 570). What is required to reach the “plausibility” threshold, however, is claim and context dependent. The quantity and quality of the factual allegations needed will depend on the type of case and the judge’s experience and common sense. Robbins, 519 F.3d at 1248. While the Twombly/Iqbal precedent may require more facts to survive
a motion to dismiss, the Tenth Circuit has also somewhat limited its impact. The
Tenth Circuit still recognizes that granting a motion to dismiss “is
a harsh remedy” that must be used cautiously. Accordingly, the
Tenth Circuit is mindful that a well-pleaded complaint should not be dismissed “even
if it strikes a savvy judge that actual proof of those facts is improbable
and that Moreover, courts within the Tenth Circuit have limited the application of Iqbal’s “plausibility” requirements
in other contexts. The United States District Court for the District
of Colorado has declined to extend Iqbal pleading standards to motions
to strike affirmative defenses under Federal Rule of Civil Procedure 8(b)(1), Holdbrook
v. Saia Motor Freight Line, LLC, No. 09-cv-02870-LTB-BNB, 2010 WL 865380,
at *2 (D. Colo. Mar. 8, 2010), or to motions to dismiss for lack of personal
jurisdiction under Rule 12(b)(2). Tripoli Mgmt., LLC v. Waste Connections
of Kan., Inc., No. 09-cv-01767-CMA-KLM, 2010 WL 845927, at *5, n.9 (D.
Colo. Mar. 9, 2010). The Iqbal standards have been applied
to motions to dismiss for lack of subject matter jurisdiction, however, where
the court converted such a motion into a Rule 12(b)(6) motion because resolution
of the jurisdictional question was intertwined with the merits of the case. Licht
v. Beta Eta Chapter of Kappa Alpha Order, No. CIV-09-00012-M, 2010 WL
654329, at *1-2 (W.D. Okla. Feb. 22, 2010). Changes to the Federal Time - Computation Rules
On December 1, 2009, the rules for calculating deadlines and time periods in the federal courts changed. Most federal practitioners likely have encountered the anomalous results produced by the former dual-track time computation method. As the Sixth Circuit put it, if asked whether a ten-day period or a fourteen-day period ends first, “most sane people would suggest the ten-day period.” See Miltimore Sales, Inc. v. Int’l Rectifier, Inc., 412 F.3d 685, 686 (6th Cir. 2005). Under the former version of the federal rules, however, deadlines of less than eleven days were calculated to exclude intervening weekends and holidays. Thus, ten-day time periods always lasted at least fourteen days, and could last fifteen or even sixteen days. In contrast, a fourteen-day time period usually lasted just fourteen days. The amended rules have removed such inconsistencies. No longer are time periods calculated differently depending upon whether the time period is fewer or greater than eleven days. The amended rules eliminate the former dual-track computation method. In its place, the new rules provide that civil, criminal, bankruptcy, and appellate deadlines that must be computed are determined by counting every day as a day. See Fed. R. Civ. P. 6(a); Fed. R. Crim. P. 45(a); Fed. R. Bankr. P. 9006(a); Fed. R. App. P. 26(a). Under the new approach, practitioners no longer exclude intermediate Saturdays, Sundays, and holidays in calculating time periods. To compensate for the elimination of time that formerly would have been added for weekends and holidays, the rule changes also lengthen the time periods provided for most actions. Most five-day time periods are now extended to seven days; ten-day time periods are now extended to fourteen days; and twenty-day periods are extended to twenty-one days. The amended rules also attempt to simplify computation of time periods by making most new periods divisible by seven, thereby resulting in most time periods ending on the same day of the week as the period began. Further, concurrent with the federal rule changes, Congress amended twenty-eight court-related statutory time periods consistent with the time extension process used in the rules. See Statutory Time-Periods Technical Amendments Act of 2009, Pub. Law No. 111-16, 123 Stat. 1607 (codified as amended in scattered sections of 11, 18, 21, and 28 U.S.C.). The amended rules also remove ambiguities that formerly arose in computing deadlines determined by counting backwards from an event. Under the former rules, ambiguity existed when computing backwards-counted deadlines because, if such computation ended on a weekend or holiday, the rules provided no guidance as to whether the “next day” was the following Monday, or the preceding Friday. The rules now provide that the “next day” is determined by continuing to count forward if the period is measured after an event, and continuing to count backward when the time period is measured before an event. Fed. R. Civ. P. 6(a)(5). For example, if an order requires the parties to exchange copies of trial exhibits “fifteen days before trial,” and trial is scheduled to begin on Monday, September 20, 2010, the fifteenth day before trial is Sunday, September 5, 2010. Under the former rules, it was not clear whether the exchange was due on Friday, September 3, 2010, or Tuesday, September 7, 2010 (due to the Labor Day holiday on Monday, September 6, 2010). Under the new rules, however, the “next day” is defined as continuing to count forward if counting forward, and continuing to count backward if counting backward. Thus, under the new rules, the exhibit exchange is due on Friday, September 3, 2010, because the “last day” (the fifteenth day before trial) falls on a weekend, see Fed. R. Civ. P. 6(a)(1)(C), the deadline is computed by counting backward from an event, and the “next day” that is not a weekend or holiday is determined by continuing to count in the same direction. Fed. R. Civ. P. 6(a)(5). Other additions and clarifications include provisions that define the “last day” of a time period, address time periods stated in hours, and clarify the procedures applicable to inaccessibility of the clerk’s office. Under the new rules, unless the court, local rule, or statute provides otherwise, the “last day” ends at midnight for electronic filing, or at the time the clerk’s office closes for other means of filing. See, e.g., Fed. R. Civ. P. 6(a)(4). A deadline stated in hours begins to run immediately upon occurrence of the event triggering the deadline, counts every intervening hour, and ends when the time expires. See, e.g., Fed. R. Civ. P. 6(a)(2). If the period ends at a specific hour that falls on a weekend or holiday, then the deadline extends to the same time on the next day that is not a weekend or holiday. Id. When the clerk’s office is inaccessible, the filing date is similarly extended to the next day, or the same hour on the next day, when the clerk’s office is accessible. See, e.g., Fed. R. Civ. P. 6(a)(3). As noted above, the rule changes generally lengthen, by a few days, the time periods provided in the rules to accommodate the new time computation method. Certain amended time periods relevant to civil practitioners are altered more significantly. First, the former ten-day post-trial deadlines for motions for judgment as a matter of law, to amend or add findings and conclusions, or for a new trial or to alter or amend a judgment, are now extended to twenty-eight days. Fed. R. Civ. P. 50, 52, and 59(b), (d), and (e). The Judicial Conference’s Standing Committee on Rules of Practice and Procedure explained that “[e]xperience has proved that in many cases it is not possible to prepare a satisfactory post-judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and holidays.” See Judicial Conference Committee Memorandum, May 25, 2007 (Rev. June 29, 2007), at 28-29, 37. The amended rules further provide that the court can no longer extend the time allowed to act under Civil Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b). See Fed. R. Civ. P. 6(b)(2). Second, under the amended rules, any party may now move for summary judgment at any time during a case, even as early as the commencement of the action. Fed. R. Civ. P. 56(c). The amended Rule 56 also sets a presumptive deadline for summary judgment motions of thirty days after the close of discovery. Id. Responses to summary judgment motions are due the later of twenty-one days after the motion is served or a responsive pleading is due, and a reply is due fourteen days after the response is served. Id. The court may modify such presumptive deadlines. Third, the amended rules modify the process by which a party may amend a pleading as a matter of course. Fed. R. Civ. P. 15(a)(1). Under the former Rule 15, a party could file an amended pleading once “as a matter of course” before being served with a responsive pleading, or within twenty days if no response is allowed. Now, a party may file an amended pleading within twenty-one days, or within twenty-one days of service of a responsive pleading or a Rule 12 motion. Id. Also effective December 1, 2009, the United States District Court for the District of Colorado amended its Local Rules to accommodate the new time-computation rules. Consistent with the new timing system provided by the new federal rules, the District Court adjusted its motion response and reply deadlines. Responses to motions are now due within twenty-one days (formerly twenty days), and replies are due within fourteen days (formerly fifteen days) after service of the response. D.C.COLO.LCivR 7.1C; see also D.C.COLO.LCivR 56.1A (same). The Court also modified other time periods fixed in the Local Rules, including the period for reasonable notice of a deposition, D.C.COLO.LCivR 30.1A (fourteen days, modified from eleven days), and the time for filing a bill of costs. D.C.COLO.LCivR 54.1 (fourteen days after entry of judgment or final order, modified from ten days). The Court also amended the Local Rules to clarify the effect of the “three-day rule” on motion deadlines. See Fed. R. Civ. P. 6(d) (three days are added after certain kinds of service, including service under Fed. R. Civ. P. 5(b)(2)(C) (mail), (D) (clerk), (E) (electronic means), or (F) (other consented means)). The former Local Rules provided that the Court’s motion deadlines ran from the date of “filing,” not from the date of “service,” as required for application of Federal Rule of Civil Procedure 6(d). Accordingly, Rule 6(d) (formerly located at 6(e) before the December 1, 2007 amendments) arguably did not apply to the former version of the Local Rules. See In re Armstrong, 99 Fed. App’x 866, 868-69 (10th Cir. 2004) (Rule 6(e) applies only to deadlines that run from service, not those triggered by filing); Kaiser-Hill Co. v. Mactec, Inc., No. 04-cv-02509-REB-CBS (D. Colo. May 23, 2006) (minute order striking response) (because [former] Local Civil Rule 7.1 is keyed to the date of the filing of the motion, rather than the date of service, Rule 6(e) is inapplicable). The amended Local Rules harmonize calculation of such deadlines with Fed. R. Civ. P. 5 and 6 by stating that motion deadlines are now calculated based upon the date of “service.” See D.C.COLO.LCivR 7.1C. Therefore, a deadline is calculated pursuant to Local Civil Rule 7.1C, using the methodology specified in Fed. R. Civ. P. 6(a), and then three days are added if service is made by one of the methods specified in Fed. R. Civ. P. 6(d). Thus, the Court’s presumptive deadline to file a response is effectively twenty-four days after a motion is served, and a reply is due seventeen days after a response is served. The Court also modified the Local Rules to provide that the “date of service” of an electronically-filed motion is “calculated from the date of electronic service, regardless of whether other means of service are also used by the filing party.” See D.C.COLO.LCivR 7.1C, D.C.COLO.LCivR 5.2E. Public comments filed with the Judicial Conference regarding the amended rules, and the reception of the new rules since adoption, have generally been positive. The amendments to the federal time-computation rules eliminate the anomalous results present under the former dual-track counting rules, and remove the ambiguity concerning the proper calculation of the “next day” in certain circumstances. Further, the amended rules better fit practical realities, such as allowing practitioners more time to prepare post-trial motions. While the amended rules appear simple enough to use, it is recommended that practitioners consider two important points regarding application of the new rules. First, the above calculation methods apply only to deadlines that must be calculated, and not to fixed deadlines such as those contained in a court order. See Fed. R. Civ. P. 6(a) (rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time); 16(b) (authority to set deadlines in Scheduling Orders); see also D.C.COLO.LCivR 7.1C (Court may modify any motion deadlines). Since fixed deadlines do not need to be computed, the calculation methods provided by the rules do not apply to such deadlines. Second, the rules in Colorado state courts generally continue to track the former federal time-computation rules, retaining the dual-track calculation methods that depend upon whether a time period is less than or greater than eleven days. Careful attention to the parallel sets of time-computation rules, the triggering events and dates, and the correct steps to take when the rules result in a period ending on a Saturday, Sunday, or holiday should result in correctly counted deadlines. 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