General Note. Rule 3 and Rule 4 combine to require that a notice of appeal be filed with the clerk of the district court within the time prescribed for taking an appeal. Because the timely filing of a notice of appeal is "mandatory and jurisdictional," United States v. Robinson, 361 U.S. 220, 224, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), compliance with the provisions of those rules is of the utmost importance. But the proposed rules merely restate, in modified form, provisions now found in the civil and criminal rules (FRCP 5(e), 73; FRCrP 37), and decisions under the present rules which dispense with literal compliance in cases in which it cannot fairly be exacted should control interpretation of these rules. Illustrative decisions are: Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964) (notice of appeal by a prisoner, in the form of a letter delivered, well within the time fixed for appeal, to prison authorities for mailing to the clerk of the district court held timely filed notwithstanding that it was received by the clerk after expiration of the time for appeal; the appellant "did all he could" to effect timely filing); Richey v. Wilkins, 335 F.2d 1 (2d Cir. 1964) (notice filed in the court of appeals by a prisoner without assistance of counsel held sufficient); Halfen v. United States, 324 F.2d 52 (10th Cir. 1963) (notice mailed to district judge in time to have been received by him in normal course held sufficient); Riffle v. United States, 299 F.2d 802 (5th Cir. 1962) (letter of prisoner to judge of court of appeals held sufficient). Earlier cases evidencing "a liberal view of papers filed by indigent and incarcerated defendants" are listed in Coppedge v. United States, 369 U.S. 438, 442, n. 5, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
as overly restrictive and under-protective of a plaintiff’s substantive and procedural rights should be required to articulate the elements of the less demanding standard with which they would replace it. The only conceivably less restrictive alternative is a standard that would permit a plaintiff merely to allege, in the most vague and conclusory manner, that a defendant had committed a violation of law. While presumably the plaintiff would need to assert violation of a specific right, that requirement hardly provides either the defendant or the system with meaningful protection against waste or abuse (both internal and external) due to the inefficiencies and burdens of what turns out to have been wasted discovery. It is simply too easy for a plaintiff to camouflage a total absence of any real basis for suit under a conclusory allegation of law violation. The realistic alternative to a standard grounded in an assessment of a complaint’s plausibility, then, is not this substantially less demanding version of notice pleading (what can be appropriately described as “notice pleading minus”); use of such a standard would amount to the imposition of no standard at all and an invitation to procedural chaos. The only arguably viable alternative to an approach grounded in reasonable suspicion is therefore the even more demanding fact pleading standard of the pre-FederalRules days—a standard the Rules’ drafters wisely rejected in all but the narrowest category of exceptions. 56
Jim worked at the local plant for forty-two years. Jim was a meat and potatoes guy, who had a sedentary lifestyle and was overweight. Jim started having chest pain and was taken to the emergency room, where the doctors there found that his heart was enlarged. He was taken to surgery for a cardiac catheterization and placement of a stent. After the procedure, his heartbeat was irregular. Because of this, he was admitted to the hospital again. He was placed in the cardiac unit with continuous telemetry monitoring so that his doctors and nurses could more easily monitor his heart rhythm at a central desk. In the middle of one night, a Code Blue is called on Jim, because his heart had stopped. Despite the quick work of the doctors and nurses, Jim did not survive. Six months later, an attorney representing Jim’s family requested his medical records including all of the continuous monitoring data for the time that Jim was in the cardiac unit. The attorney also requests all of the images from the catheterization lab and the time sheets of all staff.
Helicopter Textron Inc., the Fifth Circuit improperly dismissed the relator’s complaint despite the relator attaching copies of the false claims submitted to the government and names of violating employees along with pleading the relevant time period in 1998. United States ex rel. Williams v. Bell Helicopter Textron Inc., 417 F.3d 450, 454 (5th Cir. 2005). The court stated that even though the complaint alleged that “Bell Helicopter discovered these false charges and failed to report them to the government,” the complaint did not contain the appropriate level of detail as a basis for the defendant’s knowledge. Id. The Fifth Circuit ignored the second half of Rule 9(b) that states that knowledge may be pled generally and decided to arbitrarily apply the heightened pleading requirement even to the knowledge element of the FCA action. Id. Williams stands as another example of courts misapplying the Rule, and acting against the proper focus of a qui tam complaint: allowing the federal government to benefit from the provision allowing a relator to bring an action on behalf of the attorney general.
compel the use of precise form objections over their plainer kin. As a prelude, Part II summarizes the relevant Rules and the conflicting case law. Part III thereupon discusses the problems posed by uncertain denotations and the Rules’ abstruse terminology and contradictory history. These preliminaries completed, Part IV proposes a rigorous defense for the use of precise form objections and an attack on the preference for simple form objections exhibited by too many. So as to cement this analysis’ viability, Part IV first gives a short rundown of the law’s most basic interpretive canons. Often overlooked, these controlling precepts must be consulted in an effort to divine the propriety of a particular form objection, for they dictate how the meaning of the Rules entire must be gleaned. Once these tenets are employed, as Part IV proceeds to show, precise form objections have three clinching virtues: unlike simple form objections, they (1) conform to the plain language of Rule 30(c)(2), (2) comport with the text and rationale of Rule 30(d), and (3) are more likely to attain Rule 32(d)(3)’s utilitarian ends. Further buttressing this normative conclusion, Part IV concludes by demonstrating that only these objections accord with the oral deposition’s purpose and discovery’s spirit. Proposed with caution, a resolution to a bubbling dispute lies herein, one that may ensure more modern depositions measure up to Rule 30’s lofty ambitions, 24 rooted deep and not yet gone. 25
Interpretation of Rule 42 of the Federal Rules of Criminal Procedure A Further Restriction on the Use of Summary Proceedings SMU Law Review Volume 20 | Issue 2 Article 9 1966 Interpretation of Rule 42[.]
That process may now be in the early stages of repeating itself. Congress has again identified several contentious areas of patent law for reform, including pleading, discovery, attorneys’ fees, and customer suits. Those legislative proposals, however, have been blocked by interest groups worried about patent law becoming too favorable to defendants. In the meantime, other institutions are changing the law in those areas. The Supreme Court has enhanced courts’ discretion to award attorneys’ fees, the Federal Circuit may soon expand the customer suit exception, and, although not directly catalyzed by Congress, changes to the FederalRules of Civil Procedure will soon negate the need for legislation on the issues of pleading and discovery. It remains to be seen whether other bodies’ engagement with these contentious issues will enable Congress to pass legislation that is narrowly tailored to fix discrete
Additional amendments were adopted by the Court by order dated February 28, 1966, transmitted to Congress by the Chief Jus- tice on the same day (383 U.S. 1029; Cong. Rec., vol. 112, pt. 4, p. 4229, Exec. Comm. 2094; H. Doc. 391, 89th Cong.), and became effec- tive July 1, 1966. The amendments affected Rules 1, 4, 8, 9, 12, 13, 14, 15, 17, 18, 19, 20, 23, 24, 26, 38, 41, 42, 43, 44, 47, 53, 59, 65, 68, 73, 74, 75, 81, and 82, and Forms 2 and 15, and added Rules 23.1, 23.2, 44.1, and 65.1, and Supplementary Rules A, B, C, D, E, and F for certain Admiralty and Maritime claims. The amendments govern all proceedings in actions brought after they became effective and also all further proceedings in actions then pending, except to the extent that in the opinion of the Court an application in a par- ticular action then pending would not be feasible or would work injustice, in which event the former procedure applies.
Comment to 2002 change: Rule 25.2, for criminal cases, is amended. Subdivision 25.2(a) states the parties’ rights of appeal that are established by Code of Criminal Procedure article 44.01 and by article 44.02, the proviso of which was repealed when rulemaking power was given to the Court of Criminal Appeals. Subdivision 25.2(b) is given the requirement that a notice of appeal be in “sufficient” form, which codifies the decisional law. The requirement in former subdivision 25.2(b)(3) that a plea-bargaining appellant’s notice of appeal specify the right of appeal is replaced by a requirement in subdivision 25.2(d) that the trial court certify the defendant’s right of appeal in every case in which a judgment or other appealable order is entered. The certificate should be signed at the time the judgment or other appealable order is pronounced. The form of certification of the defendant’s right of appeal is provided in an appendix to these rules. If the record does not include the trial court’s certification that the defendant has the right of appeal, the appeal must be dismissed. If a sufficient notice of appeal or certification is not filed after the appellate court deals with the defect (see Rules 34.5(c) and 37.1), preparation of an appellate record and representation by an appointed attorney may cease.
Trends in Federal Administrative Procedure SMU Law Review Volume 19 | Issue 2 Article 3 1965 Trends in Federal Administrative Procedure John L FitzGerald Follow this and additional works at https //sc[.]
2. When a Chamber receives a request or application raising a challenge or question concerning its jurisdiction or the admissibility of a case in accordance with article 19, paragraph 2 or 3, or is acting on its own motion as provided for in article 19, paragraph 1, it shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing. It may join the challenge or question to a confirmation or a trial proceeding as long as this does not cause undue delay, and in this circumstance shall hear and decide on the challenge or question first.