On July 28, 2020, the TTAB issued a precedential decision regarding an underutilized method for responding to summary judgment motions filed before the non-moving party has had a reasonable opportunity to obtain relevant discovery.In Anand K. Chavakula v. Praise Broadcasting AKA Praise FM (Cancellation No. 92071482), Chavakula filed a petition to cancel Praise FM’s registration for the mark PRAISELIVE & Design based on an alleged likelihood of confusion with Chavakula’s purportedly earlier, unregistered PRAISELIVE mark.Despite having repeatedly failed to respond to Praise FM’s discovery requests, Chavakula filed a motion for summary judgment prior to the close of discovery. Rather than file a brief in opposition, Praise FM invoked Federal Rule of Civil Procedure 56(d), an underutilized method for obtaining discovery necessary to adequately respond to a motion for summary judgment.Pursuant to Rule 56(d), if a party served with a motion for summary judgment shows, by affidavit or declaration, that, for specified reasons, it cannot present facts essential to justify its opposition, the court (or in this case, the TTAB) may (1) defer considering the motion or deny it, (2) allow the non-moving party time to obtain affidavits or declarations or to take discovery, or (3) issue any other appropriate order.

no prejudice to plaintiff, where she was long aware of witness's testimony that she was unaware of employee's charge filed with state agency. No abuse of discretion in denying FRCP56(d) motion where plaintiff had delayed until the end of discovery in noticing depositions and then, after getting leave to extend discovery, waited another two months to depose principal witness. Also, plaintiff failed to demonstrate probability that deposition would produce additional material facts.

s “scope” is “sufficiently broad to control the issue before the Court.”[17] In evaluating whether a federal rule is “sufficiently broad,”[18] the D.C. Circuit looks at whether the federal rule and D.C. law “can exist side by side, . . . each controlling its own intended sphere of coverage without conflict.”[19] Second, the court analyzes whether the state law serves the twin aims of Erie: “discouragement of forum-shopping and avoidance of inequitable administration of the laws.”[20] For example, in Burke v. Air Serv International, the D.C. Circuit held that D.C.’s law requiring an expert to testify on the standard of care could be applied “simultaneously” with Federal Rule of Evidence 702 governing expert testimony; therefore, the state law and the federal rule “can exist side by side” without conflict.[21]Every federal circuit court to face the question has held that state anti-SLAPP statutes apply in federal diversity cases because they supplement, rather than supplant, FRCP 12 and 56.[22] In United States ex rel. Newsham v. Lockheed Missiles & Space Co., the Ninth Circuit held that the anti-SLAPP statute “can exist side by side” with the federal rules, “each controlling its own intended sphere of coverage without conflict.”[23] The Ninth Circuit found “no indication that [FRCP] 8, 12, and 56 were intended to ‘occupy the field’” for “pretrial procedures aimed at weeding out meritless claims.”[24] It further noted that the appellee had not “identified any federal interests that would be undermined by application of the anti-SLAPP provisions,” while “California has articulated the important, substantive state interests furthered by the Anti-SLAPP statute.”[25] The Ninth Circuit has reaffirmed Newsham time and again over a dozen years, most recently in 2013, specifically noting the contrary opinion in 3M.[26]In 2010, the First Circuit in Godin v. Schencks determined that Maine’s anti-SLAPP statute could apply in federal court even though it has “both substantive and p

1.510 Summary Judgment Update: Florida Courts of Appeal Continue to Clarify Florida’s New Summary Judgment StandardOn May 1, 2021, the Florida Supreme Court overhauled its summary judgment standard by amending Florida Rule of Civil Procedure 1.510 to conform with the federal summary judgment standard. See In re Amendments to Fla. R. Civ. P. 1.510, 309 So.3d 192, 192 (Fla. 2020) (adopting the federal summary judgment standard); In re Amendments to Fla R. Civ. P. 1.510, 317 So. 3d 72, 74 (Fla. 2021) (largely replacing the text of existing rule 1.510 with the text of Federal Rule of Civil Procedure 56). However, in spite of the overhaul, Florida Rule 1.510 and Federal Rule 56 are not identical.

In ShortThe Situation: The Florida Supreme Court considered whether and how to amend Florida's summary judgment rule to comport with the federal summary judgment standard, which is easier to satisfy. The Result: The Florida Supreme Court amended Florida's summary judgment rule to largely adopt the language of Federal Rule of Civil Procedure 56. Looking Ahead: The amendment of Florida's summary judgment rule is designed to promote efficiency by weeding out unsupported claims early in the litigation. Indirectly, it likely will discourage Florida state court litigants from asserting weak claims.

t developments and court decisions involving e-discovery issues:a U.S. Court of Appeals for the Sixth Circuit decision affirming a bankruptcy court’s award of over $165,000 as reasonable costs and fees to nonparty subpoena recipients in connection with their collection and review of documents responsive to burdensome subpoenasa U.S. District Court for the Southern District of California ruling allowing plaintiff to inspect all of defendants’ electronic devices to determine whether the devices were used in an online fraud and requiring defendants to provide a list of all their devices and produce any browser history records relevant to the allegationsa U.S. District Court for the District of Nevada order granting a motion to compel plaintiff in a slip-and-fall case to produce medical, police and insurance records relating to prior accidents, certain social media content, and email and text messagesa U.S. District Court for the Eastern District of California decision denying defendant’s Fed. R. Civ. P. 56(d) request for additional time to disclose its own records to rebut plaintiff’s summary judgment motion and granting the summary judgment motion1. In In re Modern Plastics Corp., 2018 WL 1959536 (6th Cir. 2018), the Sixth Circuit affirmed the bankruptcy court’s award of over $165,000 as reasonable costs and fees to nonparty subpoena recipients in connection with their collection and review of documents responsive to several burdensome subpoenas.This case arose out of an adversarial bankruptcy proceeding brought by New Products Corporation (NPC) against the Chapter 7 trustee and his surety alleging that the trustee breached his fiduciary duties with respect to NPC’s real estate holdings.

On September 7 the District of Columbia Court of Appeals reached an important issue about the D.C. Anti-SLAPP Act that it had reserved a few months earlier.1 In Banks v. Hoffman,2 the Court held “the discovery-limiting aspects of the D.C. Anti-SLAPP Act’s special-motion-to-dismiss procedure conflict with FRCP 56” and were therefore invalid as an effort to alter the requirement of D.C. Code § 11-946, that the Superior Court “conduct its business according to the Federal Rules of Civil Procedure … unless it prescribes or adopts rules which modify those Rules.”3 The Home Rule Act provides that “[t]he Council shall have no authority to . . . [e]nact any act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia Courts).” Because the Superior Court had not adopted a rule with the approval of the Court of Appeals that modifies Fed. R. Civ. P. 56, the Court invalidated the discovery limitations in the anti-SLAPP Act.The D.C. Anti-SLAPP ActThe District’s Anti-SLAPP Act,5 like comparable statutes in other jurisdictions, provides procedural mechanisms to dismiss so-called “strategic lawsuits against public participation.” The moving party may file a “special motion to dismiss” seeking to make a “prima facie showing” that the

Laws Federal courts are in conflict on whether state anti-SLAPP laws provide primarily substantive, or procedural remedies. If considered procedural, anti-SLAPP laws would conflict with Federal Rules of Civil Procedure and therefore be inapplicable in federal court. For more than two decades, the Ninth Circuit has held that the California anti-SLAPP law is primarily substantive and therefore does apply in federal court. See, e.g., United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir. 1999) (noting that California’s anti-SLAPP statute and the Federal Rules “can exist side by side . . . without conflict”) (quotation omitted).Recently, however, the Second Circuit held that California’s anti-SLAPP statute did not apply in federal court. See La Liberte v. Reid, 966 F.3d 79, 87-88 (2d Cir. 2020). There, the Court held that California’s anti-SLAPP statute was inapplicable in federal court because it conflicts with Federal Rules of Civil Procedure 12 and 56. Id. According to the Second Circuit, the question that federal courts must answer in deciding whether state anti-SLAPP statutes apply in federal courts is “whether ‘a Federal Rule of Civil Procedure answer[s] the same question as the [special motion to strike].’” Id. at 87 (quoting Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (alteration in original)). If so, the Federal Rule governs, unless it violates the Rules Enabling Act. Id.The Second Circuit’s La Liberte decision heavily relied on the Eleventh Circuit’s recent holding in Carbone v. Cable News Network, Inc. that the pleading standard set forth by California’s anti-SLAPP statute “abrogates [the already-established federal court pre-trial pleading] entitlement . . . by requiring the plaintiff to establish that success is not merely plausible but probable.” Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1353 (11th Cir. 2018). The Carbone decision also found that California’s anti-SLAPP statute confl

Outcome on Appeal: Affirmed [defendant]. Grounds: Court had subject- matter jurisdiction to consider, on a converted Fed. R. Civ. P. 56 motion, whether claim was barred by ministerial exception. Exception applied where employee duties as director of the Department of Religious Formation included "responsibilities that furthered the core of the spiritual mission of the Diocese, " e.g., supervising the Pastoral Studies Institute to "provide a solid foundation in Catholic theology to educate, nourish, strengthen, and renew the Catholic faith "; "the development and planning of theological and other religious education programs "; and teaching multiple religious courses at the Institute.

Rule 56(d)In response to Capital One’s motion for summary judgment, the Allens asked the court to deny or defer on the motion until it has addressed all discovery disputes. Fed. R. Civ. P. 56(d) To comply with Rule 56(d), a party must file an affidavit; identify the facts not available, their relevance, and what needs to be done to obtain them; explain why the facts precluding summary judgment cannot be presented; and state with specificity how time would enable the nonmoving party to meet its burden in opposing summary judgment.StandingThe Court stated it would not rule on the Allens’ standing on its 11 U.S.C. § 547 avoidable preference claim because the garnished wages were returned.