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The federal court system enjoys jurisdiction over state law claims in a number of circumstances, including personal injury or other types of claims where diversity among the parties exists.   In fact, for certain types of matters -- including federal employment or wage actions, securities class actions, and mass tort actions -- federal courts may be the primary or only avenue by which our clients can achieve justice.  We hope that the Federal Courts Section will serve as a resource to those who may have specific questions or issues concerning federal practice, including federal procedure and evidence or a particular area of federal substantive law. 

Section Chair James O'Brien | Zoll & Kranz, LLC  


H.R. 985: Unfairness in Class Actions
By: Corey Artim, Esq.
In February, H.R. 985 was introduced to the House of Representatives by Rep. Bob Goodlatte (R-VA-6). H.R. 985 is titled the “Fairness in Class Action Litigation Act of 2017” but in reality is nothing more than an attempt to limit access to the court house for millions of Americans. 

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Why She Needs the Dog, and Why it Matters
By: Mark Skeldon, Esq.
The Individuals with Disabilities Education Act (IDEA) is the cornerstone of educational law in the United States as it applies to educating students with disabilities. Although it is in fact a funding statute, it’s substantive provisions have been adopted by each state as a condition of receiving certain federal funds. One of the primary purposes of IDEA is to, “(E)nsure that all children with disabilities have to them a free and appropriate public education that emphasizes special education, employment, and independent living.”
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No “Disaggregation” of Title VI Discrimination Claims in the Southern District
By: Sonia Walker, Esq.

Merriam Webster defines ‘disaggregate’ as the separation of a whole into component parts. To disaggregate instances of discrimination under Title VI, for purposes of summary judgment, is a ‘no-no’ in the Southern District of Ohio. Many oppositions to summary judgment often include a “throw in the kitchen sink” type of analysis. In response, the moving party tries to over-simplify matters in a way that prevents the Plaintiff from ever seeing a jury. 
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Putting the Horse Before the Cart: the Power of 30(b)(6) Depositions as an Early Discovery Tool
By: Alex C. Davis, Esq.
Through force of habit, plaintiffs’ attorneys often begin the discovery process with written interrogatories, requests for admission, and requests for production of documents. In cases involving large corporate defendants, this approach can lead to frustrating results when opposing counsel responds with boilerplate objections, partial answers, and incomplete document production. 
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The Impact of the Amendments to Federal Rule 26 on Initial Discovery in Federal Courts
By: Justin Hawal, Esq.
As of December 1, 2015, the Federal Rules of Civil Procedure have been amended to include changes that will presumably have a significant impact on the world of federal litigation. Although the full impact of these amendments remains to be seen, the changes to Federal Rule of Civil Procedure 26 figure to have an immediate effect on the way discovery is conducted in federal courts. At the very least, those who practice in federal court should be aware of the changes to the rule and the possible impact on discovery.
 

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Being a Litigator Versus Being a Litigation Manager
By: Michelle Kranz, Esq.
No shortage of experienced litigators will say the practice of law—and, in particular, litigating cases in federal court—has changed in the last two decades. Changes in the law, advances in technology, and the increasing availability and acceptance of alternative dispute resolution has transformed how cases march through the system. Furthermore, when it comes to mass actions, the federal MDL statute (28 U.S.C. § 1407) has a distinct playbook. The MDL statute allows a specially-created federal court (the Judicial Panel on Multidistrict Litigation) to consolidate actions from federal courts around the country and place them in front of a single judge for pretrial and discovery. That judge generally appoints a leadership team of ten to thirty attorneys to conduct document requests, document review, depositions, and nearly all other pretrial matters on behalf of all the consolidated cases. At the end of the discovery period, the court can return the consolidated cases to their various courts around the country with a complete set of discovery and nearly ready for trial.

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Requesting jury trials in Maritime cases
By: Donald A. "Andy" Mau; Herman, Herman & Katz, LLC; New Orleans, Louisiana
Thomas Jefferson once described trial by jury as “the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” It is quite ironic that Jefferson chose an anchor metaphor since for more than 160 years courts have held the Seventh Amendment’s right to a jury trial inapplicable to maritime claims but if the right to a trial by jury is so important, as Jefferson suggests, why is maritime law excluded? 

What makes maritime different? The Seventh Amendment’s inapplicability is partly textual: Maritime claims are not at “common law.”4 However, the more important reason is historical. Following the Revolutionary War, national security concerns prevented juries from participating in maritime cases.
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When Local Rules and Practice Collide with Federal Civil Rules
By: Carrie M. Lymanstall, Esq. 
The ever-expanding patchwork of local rules, general orders, and judge-specific practices have added layers of complexity and challenges for lawyers practicing across the 94 federal district courts.  Motion practice exemplifies the tension between the Federal Civil Rules and a district court’s desire to manage the cases before it through local rules.  An increasing number of judges require pre-motion conferences or pre-motion screening procedures. See, e.g., Thunderhorse v. Pierce, 232 F. App’x 425, 426 (5th Cir. 2007) (“The order required any party wishing to file a dispositive motion to request and receive permission to file such a motion.”); Andrews v. Freemantlemedia N.A., Inc., No. 13 Civ. 5174, 2014 WL 6686590, at *15 (S.D.N.Y. Nov. 20, 2014) (noting that the district court’s Individual Rule 2(b) “requires parties to request a pre-motion conference and either attend such a conference or receive leave from the Court before making a motion”).

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42 U.S.C. 1981 - A Powerful History anchors an unbridled remedy
By: Jarrett Northup
When the allegations were laid out by the potential client, I was stunned.  His supervisor called him the company’s “token minority”.  He was commonly referred to in the most racist of terms and was frequently the subject matter of lynching discussions.  He was assigned to menial work while Caucasians with no experience were hired as supervisors.  Witnesses’ affidavits bore out his credibility. In a landscape of federal and state caps on damages and unsatisfactory administrative remedies, the egregious discrimination at issue needed to be atoned for despite limited economic damages.  What law could provide a full measure of accountability for such awful conduct?

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Recent Wage and Hour cases prove FLSA work is alive and well in Ohio
By: Jami Oliver, Esq.
While FLSA cases are filed every day in this country, it is not often that the Southern District of Ohio sees the filing of multiple wage and hours cases where the Defendants are all unique but where each Defendant engaged in the same alleged behavior.  However, the banking industry has witnessed multiple cases filed against it over the last several years, three of which were filed by OAJ members in Columbus. Three of the recent cases filed against companies in the banking industry for wage and hour violations included Huntington National Bank, PNC Bank, and U.S. Bank. 

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Motion to strike? They probably didn't mean that (and how to take on the admissibility of the evidence in the summary judgement context) 
By: Jim O’Brien, Esq., Toledo, OH
The defense has filed a Summary Judgment Motion in your case. You oppose it by pointing to extensive evidence a jury could use to find in your favor. The defense moves to “strike” your evidence on the grounds it is inadmissible; they claim it is hearsay, it relies on unauthenticated records, etc.
First, it’s not a Motion to Strike
When the Court redid the Rules in 2010, it changed Rule 56 to streamline the summary judgment process. But, few people noticed. The 2010 notes to section (c)(2) said the movant (or, for that matter, you) can object to the admissibility of evidence in the briefing. Motions to Strike still exist, Rule 12(f), but the standard is completely different: that rule allows the Court to strike “redundant, immaterial, impertinent, or scandalous matter,” but has nothing to do with the former practice of moving to strike evidence inadmissible for the purpose of summary judgment. 

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Removal to Federal Court: How to Identify, How to Attack, and How to Remand
By: Ashley Rutherford Starling, Esq.
When you represent plaintiffs, some cases are just better off in state court. Whether it is your aversion to Twombly and Iqbal’s pleading standards or just your personal preferences as a lawyer, you as the plaintiff’s attorney are master of the complaint. However, if you want to remian in state court, you must properly identify whether removal to federal court is possible before you file the original complaint. Then, you must decide what you need to do to prevent removal. The purpose of this article is to discuss some common situations that can lead to removal, what is generally required for removal, some methods to avoid removal, and some considerations on whether to file a motion for remand. This article is not intended to be exhaustive, but instead will discuss some of the more common themes.

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Will The Proposed Changes To The Federal Rules Of Civil Procedure Stifle Discovery?
By: Jeff Sefton, Keating Muething & Klekamp, PLL, Cincinnati, OH

The Federal Rules of Civil Procedure were first adopted by the United States Supreme Court in 1937, becoming effective on September 16, 1938.  Since then, the Rules have been amended numerous times to accommodate changes in the nature of federal litigation and to address perceived shortcomings, most recently in 2010.   Over the last few years, a number of organizations have clamored for additional rule changes to limit discovery in numerous respects, contending that discovery has become too much of a weapon in and of itself and that justice requires limiting the ability of parties – particularly plaintiffs – to seek and require the production of expansive amounts of discovery.  The changes to the Rules currently proposed would do precisely that, curtailing the use of the fundamental discovery mechanisms provided by the Rules.
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Rule 23: 3 Supreme Court Decisions and Their Impact on Federal Class Action Status
Rule 23 of the Federal Rules of Civil Procedure, which provides for class actions in federal court, was first enacted in 1937.  Since then, federal courts have struggled to define the scope of such actions, including when they may be certified under the Rule and when they may be precluded.  The United States Supreme Court heard and decided a number of cases this term considering these very issues.  While all are significant in numerous respects, three are worth particular mention.
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