II

104TH CONGRESS

1ST SESSION S. 243

To provide greater access to civil justice by reducing costs and delay, and

for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 19 (legislative day, JANUARY 10), 1995

Mr. GRASSLEY introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To provide greater access to civil justice by reducing costs

and delay, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Civil Justice Reform

5 Act of 1995’’.

6 SEC. 2. DIVERSITY OF CITIZENSHIP JURISDICTION; AWARD

7 OF ATTORNEYS’ FEES TO PREVAILING PARTY.

8 (a) AWARD OF FEES.—Section 1332 of title 28,

9 United States Code, is amended by inserting after sub10 section (e) the following new subsection:
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1 ‘‘(f)(1) The prevailing party in an action under this

2 section shall be entitled to attorneys’ fees only to the ex3 tent that such party prevails on any position or claim ad4 vanced during the action. Attorneys’ fees under this para5 graph shall be paid by the nonprevailing party but shall

6 not exceed the amount of the attorneys’ fees of the

7 nonprevailing party with regard to such position or claim.

8 If the nonprevailing party receives services under a contin9 gent fee agreement, the amount of attorneys’ fees under

10 this paragraph shall not exceed the reasonable value of

11 those services.

12 ‘‘(2) In order to receive attorneys’ fees under para13 graph (1), counsel of record in any actions under this sec14 tion shall maintain accurate, complete records of hours

15 worked on the matter regardless of the fee arrangement

16 with his or her client.

17 ‘‘(3) The court may, in its discretion, limit the fees

18 recovered under paragraph (1) to the extent that the court

19 finds special circumstances that make payment of such

20 fees unjust.

21 ‘‘(4) This subsection shall not apply to any action re22 moved from a State court under section 1441 of this title,

23 or to any action in which the United States, any State,

24 or any agency, officer, or employee of the United States

25 or any State is a party.
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1 ‘‘(5) As used in this subsection, the term ‘prevailing

2 party’ means a party to an action who obtains a favorable

3 final judgment (other than by settlement), exclusive of in4 terest, on all or a portion of the claims asserted in the

5 action.’’.

6 (b) STUDY AND REPORT.—(1) The Director of the

7 Administrative Office of the United States Courts shall

8 conduct a study regarding the effect of the requirements

9 of subsection (f) of section 1332 of title 28, United States

10 Code, as added by subsection (a) of this section, on the

11 caseload of actions brought under such section, which

12 study shall include—

13 (A) data on the number of actions, within each

14 judicial district, in which the nonprevailing party

15 was required to pay the attorneys’ fees of the

16 prevailing party; and

17 (B) an assessment of the deterrent effect of the

18 requirements on frivolous or meritless actions.

19 (2) No later than 4 years after the date of enactment

20 of this Act, the Director of the Administrative Office of

21 the United States Courts shall submit a report to the

22 appropriate committees of Congress containing—

23 (A) the results of the study described in para24 graph (1); and
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1 (B) recommendations regarding whether the re2 quirements should be continued or applied with re3 spect to additional actions.

4 (c) REPEAL.—No later than 5 years after the date

5 of enactment of this Act, this section and the amendment

6 made by this section shall be repealed.

7 SEC. 3. OFFER OF JUDGMENT.

8 (a) IN GENERAL.—Part V of title 28, United States

9 Code, is amended by inserting after chapter 113 the

10 following new chapter:

11 ‘‘CHAPTER 114—PRETRIAL PROVISIONS

‘‘Sec.

‘‘1721. Offer of judgment.

12 ‘‘§ 1721. Offer of judgment

13 ‘‘(a)(1) In any civil action filed in a district court,

14 any party may serve upon any adverse party a written

15 offer to allow judgment to be entered for the money or

16 property specified in the offer.

17 ‘‘(2) If within 14 days after service of the offer, the

18 adverse party serves written notice that the offer is accept19 ed, either party may file the offer and notice of acceptance

20 and the clerk shall enter judgment.

21 ‘‘(3) An offer not accepted within such 14-day period

22 shall be deemed withdrawn and evidence thereof is not ad23 missible, except in a proceeding to determine reasonable

24 attorney fees.
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1 ‘‘(4) If the final judgment obtained by the offeree is

2 not more favorable than the offer made under paragraph

3 (1) which was not accepted by the offeree, the offeree shall

4 pay the offeror’s reasonable attorney fees incurred after

5 the expiration of the time for accepting the offer, to the

6 extent necessary to make the offeror whole.

7 ‘‘(5) In no case shall an award of attorney fees under

8 this section exceed the amount of the judgment obtained.

9 The court may reduce the award of costs and attorney

10 fees to avoid the imposition of undue hardship on a party.

11 ‘‘(6) The fact that an offer is made under this section

12 shall not preclude a subsequent offer.

13 ‘‘(7)(A) Subject to the provisions of subparagraph

14 (B), when the liability of 1 party has been determined by

15 verdict, order, or judgment, but the amount or extent of

16 the liability remains to be determined by further proceed17 ings, any party may make an offer of judgment, which

18 shall have the same effect as an offer made before trial.

19 ‘‘(B) The court may shorten the period of time an

20 offeree may have to accept an offer under subparagraph

21 (A), but in no case shall such period be less than 7 days.

22 ‘‘(b) A party making an offer shall not be deprived

23 of the benefits of an offer it makes by an adverse party’s

24 subsequent offer, unless the subsequent offer is more

25 favorable than the judgment obtained.
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1 ‘‘(c) If the judgment obtained includes nonmonetary

2 relief, a determination that it is more favorable to the

3 offeree than was the offer shall be made only when the

4 terms of the offer included all such nonmonetary relief.

5 ‘‘(d) This section shall not apply to class or derivative

6 actions under rules 23, 23.1 and 23.2 of the Federal Rules

7 of Civil Procedure.

8 ‘‘(e)(1) Except as provided under paragraph (2), the

9 provisions of this section shall not be construed to prohibit

10 an award or reduce the amount of an award a party may

11 receive under a statute which provides for the payment

12 of attorney’s fees by another party.

13 ‘‘(2) The amount a party may receive under this sec14 tion may be set off against the amount of an award made

15 under a statute described in paragraph (1).’’.

16 (b) TECHNICAL AND CONFORMING AMENDMENT.—

17 The table of chapters for part IV of title 28, United States

18 Code, is amended by inserting after the item relating to

19 chapter 113 the following:

‘‘114. Pretrial provisions ................................................................. 1721’’.

20 SEC. 4. PRIOR NOTICE AS A PREREQUISITE OF FILING A

21 CIVIL ACTION IN THE UNITED STATES DIS22 TRICT COURT.

23 (a) IN GENERAL.—Chapter 23 of title 28, United

24 States Code, is amended by adding at the end the

25 following:
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1 ‘‘§ 483. Prior notice of civil action

2 ‘‘(a)(1) No less than 30 days before filing a civil ac3 tion in a court of the United States the claimant intending

4 to file such action shall transmit written notice to any in5 tended defendant of the specific claims involved, including

6 the amount of actual damages and expenses incurred and

7 expected to be incurred. The claimant shall transmit such

8 notice to any intended defendant at an address reasonably

9 expected to provide actual notice.

10 ‘‘(2) For purposes of this section, the term ‘transmit’

11 means to mail by first class-mail, postage prepaid, or con12 tract for delivery by any company which physically delivers

13 correspondence as a commercial service to the public in

14 its regular course of business.

15 ‘‘(3) The claimant shall at the time of filing a civil

16 action, file in the court a certificate of service evidencing

17 compliance with this subsection.

18 ‘‘(b) If the applicable statute of limitations for such

19 action would expire during the period of notice required

20 by subsection (a), the statute of limitations shall expire

21 on the thirtieth day after the date on which written notice

22 is transmitted to the intended defendant or defendants

23 under subsection (a). The parties may by written agree24 ment extend that 30-day period for an additional period

25 of not to exceed 90 days.
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1 ‘‘(c) The requirements of this section shall not

2 apply—

3 ‘‘(1) in any action to seize or forfeit assets sub4 ject to forfeiture or in any bankruptcy, insolvency,

5 receivership, conservatorship, or liquidation proceed6 ing;

7 ‘‘(2) if the assets that are the subject of the ac8 tion or would satisfy a judgment are subject to

9 flight, dissipation, or destruction, or if the defendant

10 is subject to flight;

11 ‘‘(3) if a written notice prior to filing an action

12 is otherwise required by law, or the claimant has

13 made a prior attempt in writing to settle the claim

14 with the defendant;

15 ‘‘(4) in proceedings to enforce a civil investiga16 tive demand or an administrative summons;

17 ‘‘(5) in any action to foreclose a lien; or

18 ‘‘(6) in any action pertaining to a temporary re19 straining order, preliminary injunctive relief, or the

20 fraudulent conveyance of property, or in any other

21 type of action involving exigent circumstances that

22 compel immediate resort to the courts.

23 ‘‘(d) If the district court finds that the requirements

24 of subsection (a) have not been met by the claimant, and

25 such defect is asserted by the defendant within 60 days
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1 after service of the summons or complaint upon such de2 fendant, the claim shall be dismissed without prejudice

3 and the costs of such action, including attorneys’ fees,

4 shall be imposed upon the claimant. Whenever an action

5 is dismissed under this subsection, the claimant may refile

6 such claim within 60 days after dismissal regardless of

7 any statutory limitations period if—

8 ‘‘(1) during the 60 days after dismissal, notice

9 is transmitted under subsection (a); and

10 ‘‘(2) the original action was timely filed in

11 accordance with subsection (b).’’.

12 (b) CONFORMING AMENDMENT.—The table of sec13 tions at the beginning of chapter 23 of title 28, United

14 States Code, is amended by adding at the end the

15 following:

‘‘483. Prior notice of civil action.’’.

16 SEC. 5. CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS

17 ACT.

18 (a) EXHAUSTION OF ADMINISTRATIVE REMEDIES.—

19 Section 7 of the Civil Rights of Institutionalized Persons

20 Act (42 U.S.C. 1997e) is amended—

21 (1) by amending subsection (a) to read as

22 follows:

23 ‘‘(a) In any action brought pursuant to section 1979

24 of the Revised Statutes of the United States, by any adult

25 convicted of a crime confined in any jail, prison, or other
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1 correctional facility, the court shall continue such case for

2 a period not to exceed 180 days in order to require exhaus3 tion of such plain, speedy, and effective administrative

4 remedies as are available.’’; and

5 (2) in subsection (b)—

6 (A) by redesignating paragraphs (1) and

7 (2) as paragraphs (2) and (3), respectively; and

8 (B) by inserting immediately after ‘‘(b)’’

9 the following:

10 ‘‘(1) Upon the request of a State or local corrections

11 agency, the Attorney General of the United States shall

12 provide the agency with technical advice and assistance

13 in establishing plain, speedy, and effective administrative

14 remedies for inmate grievances.’’.

15 (b) PROCEEDINGS IN FORMA PAUPERIS.—Section

16 1915(d) of title 28, United States Code, is amended to

17 read as follows:

18 ‘‘(d) The court may request an attorney to represent

19 any such person unable to employ counsel and may dis20 miss the case if the allegation of poverty is untrue, or if

21 satisfied that the action fails to state a claim upon which

22 relief can be granted or is frivolous or malicious.’’.

23 (c) EFFECTIVE DATE.—The amendments made by

24 subsections (a) and (b) shall take effect on the date of

25 the enactment of this Act.
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1 SEC. 6. EXPERT WITNESSES.

2 (a) IN GENERAL.—Chapter 119 of title 28, United

3 States Code, is amended by inserting after section 1828

4 the following new section:

5 ‘‘§ 1829. Multiple expert witnesses

6 ‘‘In any civil action filed in a district court, the court

7 shall not permit opinion evidence on the same issue from

8 more than 1 expert witness for each party, except upon

9 a showing of good cause.’’.

10 (b) TECHNICAL AND CONFORMING AMENDMENT.—

11 The table of sections for chapter 119 of title 28, United

12 States Code, is amended by inserting after the item relat13 ing to section 1828 the following new section:

‘‘1829. Multiple expert witnesses.’’.

14 SEC. 7. SEVERABILITY.

15 If any provision of this Act or the amendments made

16 by this Act or the application of any provision or amend17 ment to any person or circumstance is held invalid, the

18 remainder of this Act and such amendments and the appli19 cation of such provision and amendments to any other per20 son or circumstance shall not be affected by that invalida21 tion.

22 SEC. 8. EFFECTIVE DATE.

23 Except as expressly provided otherwise, this Act and

24 the amendments made by this Act shall become effective

25 90 days after the date of the enactment of this Act. This
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1 Act shall not apply to any action or proceeding commenced

2 before such effective date.

Æ