Kopf’s additional response to Ms. Farahany

Amanda A. Farahany has written in response to my earlier post providing her with my data regarding the issue of how employment cases are treated in the federal courts, and particularly the Northern District of Georgia as shown by a study conducted by Ms. Farahany.  In her most recent comment, she stated:

As you can see, your ‘statistics’ are actually lower than the Northern District of Georgia. (71% dismissal/14% ‘unscathed’ v. 82% dismissal/6% unscathed). Many of our judges who had seven cases dismissed 100%. Additionally, some of the judges that had twice your case load dismissed 100%.

What do you think about those differences?

Amanda, I have several responses. Here they are:

  • Initially, you write “as you can see . . . .”  If you intended to provide me with an analysis of my data beyond the words of your comment, I did not receive it.
  • With the foregoing in mind, my “dismissal” percentage should be higher. In the only case where I granted a SJ motion in part and denied it in part–Nugara v. Nebraska Association of Public Employees, et al., 4:09CV3212 (filing no.69 at CM/ECF pp. 24-26)–I pitched all the federal claims with prejudice, and, pursuant to the request of a defendant, declined to exercise jurisdiction over plaintiff’s remaining state law breach of contract claim, dismissing it without prejudice.  As a result, one can hardly argue that the plaintiff prevailed on any claim in that summary judgment proceeding. That being true, my dismissal rate becomes the converse of my unscathed rate. That is, 86% of the time I pitched everything and 14% of the time I left plaintiffs unscathed. If you buy that analysis, my true dismissal rate is four points higher than the rate in the Northern District of Georgia (86% v. 82%).
  • Additionally, you  state: “Many of our judges who had seven cases dismissed 100%. Additionally, some of the judges that had twice your case load dismissed 100%.” Please give me the table citations to your study from where you derive your facts so I can respond to the specifics of that comment. I tried to match up your comments with the tables and had trouble.
  • No matter how you look at it, my dismissal rate and the dismissal rate in the Northern District of George are both roughly equal. What that tells me is that the judges in the Northern District of Georgia and I approach SJ in employment cases about the same.
  • You might find it helpful to know more about how we deal with summary judgment motions in my chambers.  I have two career law clerks. Jan and Jim. Jim is 62 and Jan is 50 (or so). They have worked for me for a long time, they were top flight lawyers before coming to work for me, and they were honor graduates of our local law school. I honestly don’t know their political affiliations, but I suspect they are independents. They skew slightly left of center on politics whenever we chat about such things.
  • Jan and Jim take summary judgment motions according to an internal practice where Jan does the odd number cases and Jim the even number of cases. We try very hard to get SJ motions resolved in 60 days of the ripe date. I almost never discuss the case with Jan or Jim as they are working on the summary judgment motion. When they have completed their work, I receive one thing. That is, a fully completed draft opinion, with hyperlink cites to the record and the cases. I read the opinion and determine whether I agree or disagree with it. Almost always, I file the opinion without change and without discussion and that is because Jan and Jim are very good and very, very thorough. Jan and Jim’s only direction from me is to write these opinions in strict accordance with (1) the precedents in the Eighth Circuit and (2) with the our local rules of practice that place a high premium on a method for sorting out whether there are truly material facts in dispute. See Nebraska Civil Rules (NECivR), 56.1(a)&(b) at pp. 33-34. Having served as law clerk on the Court of Appeals myself (albeit long ago) and now having sat as a judge with the Circuit by designation several times, I like to think I have a better than average understanding of how to read the precedents from the Circuit.
  • So, what’s the point? Despite my high dismissal numbers, we do “it straight up.” I have no reason to suspect that your judges in the Northern District of Georgia do anything different. The fact is that the law on summary judgment motions in employment cases favors the granting of summary judgment motions in a high percentage of the cases and, not surprisingly, that is what you see happening in the Northern District of Georgia and with “yours truly” too.

RGK

Kopf’s response to Amanda A. Farahany’s request for data

Ms. Farahany wondered what my summary judgment dismissal rate was for cases falling in nature of suit codes 442 (civil rights: jobs) and 445 (Civil rights: Americans with Disabilities-Employment) during the years 2011 and 2012 regardless of when suit was filed. She asked for cases where summary judgment was granted in whole, granted in part, or denied in whole. See Amanda A. Farahany, October 22, 2013 at 2:38 pm here.

I had my judicial assistant run a query of CM/ECF to produce the requested information. I then had my judicial assistant contact the deputy-in-charge in Lincoln to verify her approach. The deputy-in-charge then ran another query using a different method and came up with the same results.  I played no part in running the numbers except for telling the staff the parameters requested by Ms. Farahany.

Here are some caveats:

*Cases where summary judgment was granted only in part include at least one case where the case went away on the federal level because I declined to exercise “supplemental jurisdiction” on state law claims.

*I have not gone back into the court file to read any of the orders. That is, I relied on the docket text for the disposition. I would suggest that the consumer of this data go into the docket of each case, click on the filing number for the order (which has been provided), and verify that the docket text is accurate.

*There were only 7 cases that fit the search criteria.  Our civil docket has dramatically fallen over the years. Vince says this is because plaintiffs’ lawyers avoid federal court like the plague. Whatever the reason, we end up doing a lot of federal criminal work. This year we rank 8th in the nation for federal criminal filings per active judge for the 12-month period ending June 30, 2013. We rank 7th in the nation for federal supervised release violation proceedings. This compares to our rank of 76th for civil cases.  Overall, we rank 27th in the nation for all filings per active judge.

*We do not normally employ magistrate judges to issue reports and recommendations for these types of summary judgment motions.

Here are the statistics for my docket for 2011 and 2012 using the aforementioned criteria:

Case style: Nugara v. Nebraska Association of Public Employees, et al.
Case number: 4:09CV3212
Summary judgment Memorandum and Order filing no.: 69
Summary judgment granted in whole: no
Summary judgment granted in part: yes
Summary judgment denied in whole: no

Case style: Williams v. Rehtmeyer, et al.
Case number: 8:10CV92
Summary judgment Memorandum and Order filing no.: 54
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no

Case style: Ryan v. Capital Contractors, Inc.
Case number: 4:10CV3019
Summary judgment Memorandum and Order filing no.: 61
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no

Case style: Bodfield v. AG Valley Cooperative, Non-Stock
Case number: 4:10CV3097
Summary judgment Memorandum and Order filing no.: 31
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no

Case style: Ellis et al. v. Houston, et al.
Case number: 8:10CV3222
Summary judgment Memorandum and Order filing no.: 134
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no

Case style: Chamberlin v. Cable USA
Case number: 7:10CV5011
Summary judgment Memorandum and Order filing no.: 39
Summary judgment granted in whole: no
Summary judgment granted in part: no
Summary judgment denied in whole: yes

Case style: Anderson v. Cabela’s, Inc.
Case number: 4:11CV3022
Summary judgment Memorandum and Order filing no.: 43
Summary judgment granted in whole: yes
Summary judgment granted in part: no
Summary judgment denied in whole: no

RGK

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