The Southern District of Indiana made modest changes to its Uniform Case Management Plans, both the general plan and the patent litigation plan, effective Nov. 1. The new, revised plans are in Word and pdf versions on the court’s website (go to the Attorneys pull-down menu, Case Management Plans). A red-lined version is also published on the site. The changes do not drastically change current practice, but of course the revised plans should be used going forward.
Among the changes: (a) the “statement of claims or defenses” filing — the modern equivalent of the old contentions requirement — is relocated to later in the plan, but still due seven days after the non-expert discovery deadline; (b) preliminary witness and exhibit list deadlines are now tied to seven and 14 days after initial disclosures rather than the previous “anchor date” concept; (c) the options for tracks are reduced from four versions to three; and (d) the prior “presumptive trial date is 20 months from the Anchor date” is removed, with the parties to suggest the trial readiness date instead.
In Hamer v. Neighborhood Hous. Servs., No. 160-658, 2017 U.S. LEXIS 6765 (Nov. 8, 2017), the Supreme Court ruled that only Congress by statute can set jurisdictional limits on appellate jurisdiction, and that a rule-based provision is not jurisdictional but instead a “claims-processing rule” subject to forfeiture if not raised. The issue arose in an employment discrimination case in which summary judgment was granted for the employer. Before the 30-day deadline for appealing, Plaintiff moved for a 60-day extension to appeal so that new counsel could be engaged for appeal. The employer did not object, and the 60-day extension was granted. The plaintiff filed her notice of appeal within that extended time period.
In the 7th Circuit, the court sua sponte raised the issue of timeliness of the appeal. The employer asserted for the first time that the appeal was untimely, pointing out that Fed. R. App. P. 4(a)(5)(c) only allows an extension up to 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later. The Seventh Circuit dismissed the appeal based on lack of jurisdiction. 835 F.3d 761 (7th Cir. 2016).
On certiorari, the Supreme Court reversed and remanded by unanimous opinion, holding that Rule 4(a)(5)(c) is not jurisdictional, but instead in essence a defense that can be forfeited. The Court explained, “Several Courts of Appeals, including the Court of Appeals in Hamer’s case, have tripped over our statement in (Bowles v. Russell) that “the taking of an appeal within the prescribed time is ‘mandatory and jurisdictional.’” 551 U. S., at 209, 1 (quoting Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 61, (1982) (per curiam)). The ‘mandatory and jurisdictional’ formulation is a characterization left over from days when we were ‘less than meticulous’ in our use of the term ‘jurisdictional.’”
The case was remanded for determination of several issues, including whether the employer’s failure to raise the excessively long extension in the district court constituted forfeiture of the issue. The Court further commented that the “terms waiver and forfeiture — though often used interchangeably by jurists and litigants — are not synonymous. [F]orfeiture is the failure to make the timely assertion of a right[;] waiver is the ‘intentional relinquishment or abandonment of a known right.’”
In Hightower v. Gordon Flesch Co., No. 1:17-cv-02455 (S.D. Ind. Oct 31, 2017), Magistrate Judge Debra McVicker Lynch denied plaintiff’s motion to strike defenses in defendant’s answer. Plaintiff asserted, among other grounds, that the defenses were not true affirmative defenses, but rather a refutation of one or more elements of the plaintiff’s claims.
Judge Lynch rejected that argument, writing, “The court is aware of no rule forbidding a defendant from providing information in the ‘affirmative defenses’ section of its answer about the nature of the challenges it believes it may make to the plaintiff’s proof. The court finds no benefit in striking defenses that serve to provide information even if an ‘affirmative’ defense label may not be strictly accurate.”
Judge Lynch continued, “Nor does the court find any benefit in striking defenses because they are repetitive of denials already made in the answer to some of the plaintiff’s allegations. Nor is anything wrong with a defense that the complaint fails to state a claim upon which relief may be granted.”
Federal Civil Practice Seminar
The annual federal civil practice seminar will be 1:15 to 4:30 p.m. Dec. 15 in Indianapolis. Speakers include Chief Judge Jane Magnus-Stinson, Magistrate Judges Tim Baker and Matthew Brookman, Clerk Laura Briggs, and Don Wall, counsel to 7th Circuit executive. Register online at theindianalawyer.com/events.
Missing Judge McKinney
On a personal note, no words can adequately describe my gratitude and affection for my former boss, the late Senior Judge Larry McKinney. Thirty years ago in his first year on the federal bench, Judge granted me an interview for a two-year clerkship. Fortunately, I got the job, and started my federal practice journey learning from a lawyer’s judge who loved being on the bench. Those were good days, full of life lessons with laughter each and every day.
• John Maley – firstname.lastname@example.org – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge McKinney from 1988-90.