Archives: Civil Procedure

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Supreme Court Limits Class-Action Tolling

The Supreme Court has held that class action tolling under American Pipe does not toll the time within which a suit must be filed under a statute of repose. In American Pipe the Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the … Continue Reading

Whose Right is it Anyway? Unconstitutional Speaker Discrimination in Texas’ Anti-SLAPP Scheme

Freedom of speech and thought lie at the core of liberty.  Though many philosophers, statesmen, and legal practitioners have opined on the value of free speech and thought, Justice Louis Brandies best captured the value of free speech and thought in our constitutional scheme: Those who won our independence believed that the final end of … Continue Reading

Using Texas’ Anti-SLAPP Statute to Combat SSAPP (Strategic Sanctions Against Public Participation)

Texas, like many other states, enacted legislation to curb meritless lawsuits whose purpose lies solely in chilling a person’s right to free speech and/or to petition his or her government.  Under Texas’ Anti-SLAPP (Strategic Litigation Against Public Participation) law, a party may file a motion to dismiss a legal action which is “based on, relates … Continue Reading

The Interplay Between Federal Rule 56 and Daubert

The Fifth Circuit Court of Appeals’ opinion in Operaciones Tecnicas Marinas, SAS v. Diversified Marine Services, LLC illustrates the interplay between the requirements of Federal Rule of Civil Procedure 56—the summary judgment rule—and the requirements of Daubert case law that an expert adequately exclude alternative causes. Diversified Marine Services, LLC (Diversified) was called upon to … Continue Reading

The Intersection of the Anonymous Right to Free Speech, the Texas Citizens Participation Act, and Rule 202 Pre-Suit Discovery

The Austin Court of Appeals recently considered how the Texas Citizens Participation Act (TCPA) applies to a Rule 202 petition for pre-suit discovery in a case involving anonymous online speech.  The TCPA requires a court to dismiss a legal action when a movant shows the action relates to the movant’s exercise of free speech rights. … Continue Reading

Federal Subject Matter Jurisdiction is not Lost by Voluntary Dismissal of the only Claim Conferring Jurisdiction

The Fifth Circuit has reiterated the rule that federal subject matter jurisdiction is measured at the time of removal and is not destroyed by subsequent events including the voluntary dismissal of the only claim conferring federal question jurisdiction. In GlobeRanger Corp. v. Software AG, No. 15-10121 (5th Cir. Sept. 7, 2016), the court untangled a … Continue Reading

DOES A DEPOSITION ON WRITTEN QUESTIONS IN LIEU OF AN AFFIDAVIT CONCERNING COST & NECESSITY OF SERVICES SATISFY TEXAS CIVIL PRACTICE & REMEDIES CODE §18.001?

If you are defense counsel in a personal injury suit, you may be accustomed to receiving an affidavit concerning cost and necessity of services from plaintiff’s counsel immediately or shortly following your answer to the suit. In many cases you may not know whether the case warrants hiring an expert to controvert the affidavit within … Continue Reading

The Texas Supreme Court Adopts a “Factual Plausibility” Pleading Standard

Did the Texas Supreme Court substitute fair notice pleading for well-pleaded complaints?  Texas Rule of Civil Procedure 91a was adopted in 2013, and provides a “no reasonable person could believe” standard.  Until recently, whether “no reasonable person could believe” meant “plausibility” remained an unanswered question.  In City of Dallas v. Sanchez, No. 15-0094 (July 1, … Continue Reading
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