Re: Dismissed without prejudice as moot
Entrust
62 order Order on Motion to Amend/Correct Wed 4:46 PM
ORDER granting60 Joint MOTION to Amend/Correct24 Scheduling Order,25 Discovery Plan. Signed by Magistrate Judge Theresa Carroll Buchanan on 7/26/2017. (see Order for details) (dest, )
61 order Order on Motion to Withdraw Wed 4:21 PM
ORDER granting59 Motion to Withdraw. Defendants' Motion to Compel (Dkt. 50) is dismissed without prejudice as moot. Signed by Magistrate Judge Theresa Carroll Buchanan on 7/26/2017. (dest, )
60 motion Amend/Correct Wed 2:39 PM
Joint MOTION to Amend/Correct24 Scheduling Order,25 Discovery Plan by Cygnacom Solutions, Inc., Entrust Datacard Corporation, Entrust, Inc..(Ferenc, Christopher)
Att: 1 Proposed Order
59 motion Withdraw Wed 2:35 PM
MOTION to Withdraw50 MOTION to Compel by Cygnacom Solutions, Inc., Entrust Datacard Corporation, Entrust, Inc..(Ferenc, Christopher)
Att: 1 Proposed Order
3.3 Mootness
Updated 2016 by Jeffrey S. Gutman
Both the law of standing and the law of mootness derive from Article III’s requirement that the judicial power of the United States extends only to cases and controversies.1 While the law of standing involves whether the plaintiff had suffered or is threatened with injury in fact at the time of the filing of the complaint, the law of mootness inquires whether events subsequent to the filing of suit have eliminated the controversy between the parties. Generally, the burden of showing standing rests with the plaintiff, while the burden of demonstrating mootness lies with the defendant.2 Like standing, because mootness implicates the court’s jurisdiction, it can be raised at any time and cannot be resolved by stipulation.3 Moreover, counsel for the plaintiff has a duty to bring to the court’s attention facts which may raise an issue of mootness.4 Advocates can expect to encounter mootness issues in light of the Supreme Court’s decision in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, because governmental defendants often try to moot out cases in order to avoid paying attorney fees.5
3.3.A. Considering Mootness
Mootness issues can arise in cases in which the plaintiff challenges actions or policies which are temporary in nature, in which factual developments after the suit is filed resolve the harm alleged, and in which claims have been settled.
Generally, a case is not moot so long as the plaintiff continues to have an injury for which the court can award relief, even if entitlement to the primary relief has been mooted and what remains is small.6 Put differently, the presence of a “collateral” injury is an exception to mootness.7 As a result, distinguishing claims for injunctive relief from claims for damages is important. Because damage claims seek compensation for past harm, they cannot become moot.8 Short of paying plaintiff the damages sought, a defendant can do little to moot a damage claim. The virtual impossibility that unpaid damage claims can become moot gives rise to a technique for avoiding mootness: plead a claim for damages if the claim has a reasonable basis.9 Although later events may moot the claim for injunctive relief, the claim for damages presents an opportunity to determine the legality of the conduct at issue.10 An interest in attorney fees, however, will not save a case involving nothing more from mootness.11 Similarly, in considering mootness, it is important to distinguish between claims for different forms of injunctive relief. For example, claims for retroactive injunctive relief are not moot simply because claims for prospective relief are. The past injury has not been remedied.
In the absence of a claim for damages, a suggestion of mootness should not trigger a reflexive response in opposition to dismissal.12 Before investing substantial time and resources in an attempt to resuscitate an apparently moot claim, consider carefully whether any benefit is to be gained. Some cases are truly moot when no present consequences are traceable to the challenged conduct, and, for whatever reason, the conduct is unlikely ever to recur.13 In such cases, resisting dismissal without prejudice on the ground of mootness makes no sense. The suggestion of mootness should be an occasion to reevaluate both the factual and legal merits of a lawsuit. While the natural reaction during litigation is to resist, there are times when it is better to fight another day with a different plaintiff.
If such a fight is appropriate, it will likely be over whether one of the well-established exceptions to mootness applies or how the exception may apply in the class action context. We, therefore, focus upon three issues: When does the voluntary cessation of unlawful conduct render a case moot? When does the termination of an injury “capable of repetition yet evading review” render a case moot? How are mootness principles applied in class actions?
Entrust
62 order Order on Motion to Amend/Correct Wed 4:46 PM
ORDER granting60 Joint MOTION to Amend/Correct24 Scheduling Order,25 Discovery Plan. Signed by Magistrate Judge Theresa Carroll Buchanan on 7/26/2017. (see Order for details) (dest, )
61 order Order on Motion to Withdraw Wed 4:21 PM
ORDER granting59 Motion to Withdraw. Defendants' Motion to Compel (Dkt. 50) is dismissed without prejudice as moot. Signed by Magistrate Judge Theresa Carroll Buchanan on 7/26/2017. (dest, )
60 motion Amend/Correct Wed 2:39 PM
Joint MOTION to Amend/Correct24 Scheduling Order,25 Discovery Plan by Cygnacom Solutions, Inc., Entrust Datacard Corporation, Entrust, Inc..(Ferenc, Christopher)
Att: 1 Proposed Order
59 motion Withdraw Wed 2:35 PM
MOTION to Withdraw50 MOTION to Compel by Cygnacom Solutions, Inc., Entrust Datacard Corporation, Entrust, Inc..(Ferenc, Christopher)
Att: 1 Proposed Order
3.3 Mootness
Updated 2016 by Jeffrey S. Gutman
Both the law of standing and the law of mootness derive from Article III’s requirement that the judicial power of the United States extends only to cases and controversies.1 While the law of standing involves whether the plaintiff had suffered or is threatened with injury in fact at the time of the filing of the complaint, the law of mootness inquires whether events subsequent to the filing of suit have eliminated the controversy between the parties. Generally, the burden of showing standing rests with the plaintiff, while the burden of demonstrating mootness lies with the defendant.2 Like standing, because mootness implicates the court’s jurisdiction, it can be raised at any time and cannot be resolved by stipulation.3 Moreover, counsel for the plaintiff has a duty to bring to the court’s attention facts which may raise an issue of mootness.4 Advocates can expect to encounter mootness issues in light of the Supreme Court’s decision in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, because governmental defendants often try to moot out cases in order to avoid paying attorney fees.5
3.3.A. Considering Mootness
Mootness issues can arise in cases in which the plaintiff challenges actions or policies which are temporary in nature, in which factual developments after the suit is filed resolve the harm alleged, and in which claims have been settled.
Generally, a case is not moot so long as the plaintiff continues to have an injury for which the court can award relief, even if entitlement to the primary relief has been mooted and what remains is small.6 Put differently, the presence of a “collateral” injury is an exception to mootness.7 As a result, distinguishing claims for injunctive relief from claims for damages is important. Because damage claims seek compensation for past harm, they cannot become moot.8 Short of paying plaintiff the damages sought, a defendant can do little to moot a damage claim. The virtual impossibility that unpaid damage claims can become moot gives rise to a technique for avoiding mootness: plead a claim for damages if the claim has a reasonable basis.9 Although later events may moot the claim for injunctive relief, the claim for damages presents an opportunity to determine the legality of the conduct at issue.10 An interest in attorney fees, however, will not save a case involving nothing more from mootness.11 Similarly, in considering mootness, it is important to distinguish between claims for different forms of injunctive relief. For example, claims for retroactive injunctive relief are not moot simply because claims for prospective relief are. The past injury has not been remedied.
In the absence of a claim for damages, a suggestion of mootness should not trigger a reflexive response in opposition to dismissal.12 Before investing substantial time and resources in an attempt to resuscitate an apparently moot claim, consider carefully whether any benefit is to be gained. Some cases are truly moot when no present consequences are traceable to the challenged conduct, and, for whatever reason, the conduct is unlikely ever to recur.13 In such cases, resisting dismissal without prejudice on the ground of mootness makes no sense. The suggestion of mootness should be an occasion to reevaluate both the factual and legal merits of a lawsuit. While the natural reaction during litigation is to resist, there are times when it is better to fight another day with a different plaintiff.
If such a fight is appropriate, it will likely be over whether one of the well-established exceptions to mootness applies or how the exception may apply in the class action context. We, therefore, focus upon three issues: When does the voluntary cessation of unlawful conduct render a case moot? When does the termination of an injury “capable of repetition yet evading review” render a case moot? How are mootness principles applied in class actions?
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