Mark Your Calendars: How Long Can a Dismissal “Without Prejudice” Loom in Federal Court?By Christian KetterFederal Civil Practice, September 2025Federal courts may dismiss an action under Rule 41 of the Federal Rules of Civil Procedure either with or without prejudice. Whether with or without prejudice, both parties must remain vigilant after a dismissal for any future actions.
Responding To Work-From-Home Accommodation Requests in a Post-Covid EnvironmentBy Josh HeidelmanFederal Civil Practice, September 2025In the wake of the pandemic, it may be more difficult for employers to argue remote work is not a reasonable accommodation. Learn more about developing case law on the topic and steps employers can take to strengthen their positions in court.
“Three Strikes, You’re Out” for All Frivolous Pro Se Inmate Cases? The Prison Litigation Reform Act’s “Balls & Strikes”By Christian KetterFederal Civil Practice, September 2025The "three strikes" rule of the Prison Litigation Reform Act may only apply in certain circumstances. Some courts have held that the "three strikes" rule does not apply to removal from state court to federal court. Unless the Supreme Court speaks to this issue, this procedural loophole may allow a backdooring of cases that are otherwise malicious, frivolous, and fail to state a claim.
Too Much Litigation: “Frivolity” Results in SanctionsBy Michael R. LiedFederal Civil Practice, August 2025In Ruben Santoyo v. City of Chicago, the court of appeals upheld a sanction against a pro se plaintiff for filing frivolous litigation.
Recent False Claims Act Cases Show Trump Administration’s Continued Focus on International Customs and Trade FraudBy Jay SchleppenbachFederal Civil Practice, July 2025International trade has continually been in the news during President Trump’s second administration. From the imposition of tariffs on automobiles and their component parts to the broad reciprocal tariffs announced on Liberation Day and discussions of tariffs on foreign-made films, it is safe to say the landscape of international trade has continually shifted. Beyond these more dramatic moves on the international stage, however, there have been perhaps less visible but no less important signs that the Trump administration is prioritizing compliance with the nation’s customs and trade laws.
Substantive Elements in Special State Pleading LawsBy Jeffrey A. ParnessFederal Civil Practice, July 2025In Berk, the issue is whether a Delaware affidavit of merit (AOM) statute governing “healthcare negligence” claims, 18 Delaware Code 6853 (a)(1-3), applied in a diversity case involving the treatment of a Florida citizen in Delaware that was prompted by a fall in a Delaware home. Upon examining the principles of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) and its progeny, the Third Circuit determined that there was no conflict involving federal civil procedure rules
To Be or Not to Be…Discoverable: Third-Party Litigation FundersBy Lee S. Brenner, Alicia Sharon, & Matthew RaberFederal Civil Practice, July 2025This article explores under what circumstances can a court permit discovery of third-party litigation funding.
Lists of People with Claims or Pertinent Knowledge: Work Product-Protected or Not??By Thomas Spahn & McGuire WoodsFederal Civil Practice, May 2025In Civil Rights Dep’t v. Grimmway Enterprises, Inc., a California court addressed how the work product doctrine applies to lists of individuals in discovery. The court allowed the plaintiff agency to reference the defendant’s own business records (under Rule 33(d)) instead of providing a curated list of affected employees. It rejected the employer’s demand for a subjective list of key individuals, citing work product protection. The case illustrates that while litigants must identify people with relevant information, they aren’t required to reveal which individuals they view as most important to their case.
Ninth Circuit Upholds Mass Arbitration ConsolidationBy David M. Krueger, Meegan Brooks, & Carlo LipsonFederal Civil Practice, May 2025The Ninth Circuit's decision in Jones v. Starz Entertainment, LLC (2025) marks a significant development in managing mass arbitration. The court upheld the consolidation of over 7,200 individual claims into a single arbitration under JAMS rules, saving Starz over $12 million in fees. The court ruled that consolidation is a procedural matter for arbitration providers—not courts—and found that Starz did not refuse to arbitrate by supporting consolidation. The decision distinguishes consolidated arbitration from class arbitration and confirms that mass arbitration procedures are enforceable if the underlying agreement permits them. This ruling provides critical guidance for businesses to craft enforceable and cost-effective arbitration agreements amid the rise of mass arbitration strategies.
Reread All the Jury Instructions!By Michael LiedFederal Civil Practice, May 2025In a false advertising case between Republic Technologies and BBK Tobacco (HBI), the Seventh Circuit upheld the trial court’s decision to refer the jury back to the original instructions rather than clarify a question about the term “consumer.” Republic argued this was misleading, but the appeals court found the original instructions were accurate and broad enough to cover the issue. The court emphasized that trial judges have discretion in handling jury questions and that supplemental instructions are not required if the existing ones correctly state the law.
Inherent Federal Court Sanctioning AuthorityBy Jeffrey A. ParnessFederal Civil Practice, January 2025In Keyes Law Firm, LLC v. Napoli, (4th Cir. 2024), the court provided primers on the inherent sanctioning authority of federal courts for civil litigation misconduct and on the guidelines for determining related attorney fee awards. In doing so, it recognized that some problematic state court conduct could prompt federal court sanctions and that the fee award norms for such conduct should differ from those employed in many fee-shifting statutes.
Without Further Ado: Third Circuit Limits Discovery on Motions to Compel ArbitrationBy Bassam F. GergiFederal Civil Practice, January 2025More than a decade after its seminal decision in Guidotti v. Legal Helpers Debt Resolution, L.L.C., the Third Circuit Court of Appeals has clarified that a plaintiff’s claims may be sent straight to arbitration, without any discovery, if there is no challenge to an arbitration agreement’s existence or validity.
The Seventh Circuit Derails Mass Arbitration TacticsBy Gerald L. Maatman, Jr., Eden E. Anderson, Rebecca S. Bjork, & Ryan T. GarippoFederal Civil Practice, August 2024On July 1, 2024, in Wallrich, et al. v. Samsung Electronics America, Inc., the U.S. Court of Appeals for the Seventh Circuit dealt a major blow to mass arbitrations.
Disclosure of Document Preservation Efforts – What’s Required?By Tim O’SheaFederal Civil Practice, June 2024The recent federal court decision in Doe LS 340 v. Uber Technologies, Inc. sheds light on what may be required for disclosure of document preservation efforts.
The Supreme Court Ends Practice of Dismissing, Rather Than Staying, Lawsuits Compelled to ArbitrationBy Luis A. Perez, Ildefonso P. Mas, & Nikolas L. VolosinFederal Civil Practice, June 2024On May 16, 2024, the Supreme Court unanimously decided in Smith v. Spizziri that the Federal Arbitration Act divests federal district courts of any discretion to dismiss arbitrable claims that are compelled to arbitration.
In-SitesBy Kathryn KellyFederal Civil Practice, August 2023Useful websites that address consumer protection and fraud.
Binding Nonsignatories to Forum Selection ClausesBy Prof. Jeffrey A. ParnessFederal Civil Practice, December 2022The Franlink Inc. v. BACE Services court joined all other federal appellate courts in employing the “closely related” doctrine to determine whether a nonsignatory to a contract with a forum selection clause was bound by the clause.
Pattern Preliminary Civil Jury InstructionsBy Iain D. JohnstonFederal Civil Practice, December 2022One common way to familiarize the jury with the civil legal justice system generally and the task before it specifically is to provide the jury with preliminary instructions after the jury has been impaneled and sworn in.
