COVID-19 Lays Bare the Cruelty of Neoliberalism

JOSEPH MARGULIES

Cornell law professor Joseph Margulies observes how the COVID-19 pandemic is exposing the cruel folly of neoliberal governance. Margulies points out that neoliberalism—the idea that social problems are better solved by the private sector than by government—has brought millions of Americans to the edge of financial and physical ruin, and COVID-19 will push them over. He argues that now more than ever, we must be communitarians rather than individualists.

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Amrhein v. eClinical Works, LLC

Court: US Court of Appeals for the First Circuit

Docket: 19-1429

Opinion Date: March 27, 2020

Judge: Ojetta Rogeriee Thompson

Areas of Law: Civil Procedure, Health Law

The First Circuit affirmed the judgment of the district court finding that Plaintiffs, patients whose healthcare providers used eClinicalWorks, LLC (ECW) software to record and store their medical records, lacked standing to bring this case, holding that, without further injury, Plaintiffs lacked standing to bring this case. Plaintiffs were the estates of two deceased patients whose medical records were kept and stored by healthcare providers using ECW. Plaintiffs alleged that ECW's system was riddled with bugs that showed healthcare providers false and incomplete data about patients' medical problems and treatments and that ECW hid the glitches from government regulators. Plaintiffs brought several state common-law claims and sought to represent a class of millions of other similarly-situated patients. The district court dismissed the case under Fed. R. Civ. P. 12(b)(1). The First Circuit affirmed, holding that the arguments as presented sought redress based on a moot risk of misdiagnosis or mistreatment that no statute or common-law claim makes suable. Therefore, Plaintiffs lacked standing to bring this case.

Chen v. Dunkin' Brands, Inc.

Court: US Court of Appeals for the Second Circuit

Docket: 18-3087

Opinion Date: March 31, 2020

Judge: Chin

Areas of Law: Civil Procedure, Consumer Law

The Second Circuit affirmed the district court's dismissal of plaintiffs' second amended complaint alleging that Dunkin Donuts deceptively marketed two of its trademarked products -- the Angus Steak & Egg Breakfast Sandwich and the Angus Steak & Egg Wake-Up Wrap. Plaintiffs alleged that through representations made in labeling and television advertisements, Dunkin Donuts deceived consumers into believing that the Products contained an "intact" piece of meat when the Products actually contained a ground beef patty with multiple additives. The district court dismissed claims based on lack of general personal jurisdiction in New York and failure to state a claim. The court held that, under New York law, the act of registering to do business under section 1301 of the New York Business Corporation Law does not constitute consent to general personal jurisdiction in New York. The court rejected plaintiffs' arguments that Dunkin Donuts' contacts with New York were sufficient to subject it to general personal jurisdiction in the state, and agreed with the district court that plaintiff failed to allege a plausible violation of sections 349 and 350.

Sonterra Capital Master Fund Ltd. v. UBS AG

Court: US Court of Appeals for the Second Circuit

Docket: 17-944

Opinion Date: April 1, 2020

Judge: Park

Areas of Law: Antitrust & Trade Regulation, Business Law, Civil Procedure

The Second Circuit reversed the district court's dismissal of plaintiffs' Sherman Act, RICO Act, and common-law claims against defendants for lack of Article III standing. Plaintiffs are a group of investment funds and defendants are a collection of financial institutions. Plaintiffs' claims stemmed from a scheme to fix the benchmark interest rates used to price financial derivatives in the Yen currency market. The court held that plaintiffs alleged an injury in fact sufficient for Article III standing, because plaintiffs plausibly alleged that defendants' conduct caused them to suffer economic injury. In this case, plaintiffs alleged that they entered into financial agreements on unfavorable terms because defendants manipulated benchmark rates in their own favor. Accordingly, the court remanded for further proceedings.

Hoffman v. Houston Society for the Prevention of Cruelty to Animals

Court: US Court of Appeals for the Fifth Circuit

Dockets: 19-20513, 19-20515

Opinion Date: April 1, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure

The Fifth Circuit affirmed the district court's dismissal of plaintiffs' suit against the HSPCA, as well as Texas county and state officials, for unlawful search and seizure under 42 U.S.C. 1983. The court held that the district court correctly concluded that the statute of limitations barred plaintiffs' claims against defendants. Plaintiffs alleged that the seizure of their horses occurred on June 24, 2015, and thus they had to bring their claim no later than June 26, 2017. However, in this case, plaintiffs first filed suit after that date. Even accepting plaintiffs' claim that the seizure was only finalized when the justice court divested them of ownership, the court held that the record makes clear that the justice court issued its order on July 8, 2015 and their claims would still be time-barred.

Boal v. DePuy Orthopaedics

Court: US Court of Appeals for the Sixth Circuit

Dockets: 19-3494, 19-3501, 19-3503, 19-3504, 19-3505, 19-3506, 19-3507, 19-3508, 19-3510, 19-3511, 19-3512, 19-3513

Opinion Date: March 27, 2020

Judge: Murphy

Areas of Law: Civil Procedure, Products Liability

Since 2010, the Northern District of Ohio has been the home of multidistrict litigation involving a DePuy medical device used in hip-replacement surgeries that, at its peak, contained more than 8,500 cases. In 2013, the defendants entered into a broad settlement agreement with U.S. resident plaintiffs. Foreign plaintiffs brought the 12 suits at issue. In 2012, they filed “short-form” complaints, each alleging that a plaintiff had been implanted with the DePuy device during hip surgery in Spain. The complaints did not identify the basis for subject-matter jurisdiction; the civil cover sheets listed diversity jurisdiction under 28 U.S.C. 1332. The complaints alleged that the plaintiffs were Spanish residents and either Spanish or British citizens. The defendants never disputed diversity jurisdiction. In 2015, the defendants followed through on earlier notices by filing motions to dismiss based on forum non-conveniens. The court granted the motions, finding that Spain provided the better forum. The Sixth Circuit vacated. “After eight years the parties now concede that the district court lacked diversity jurisdiction all along.” If foreign citizens are on both sides of a dispute but a state citizen is on only one side, the fact pattern does not fit section 1332(a)(3) because citizens of different states do not fall on both sides. Section 1332(a)(2) does not apply because it requires “complete” diversity— only state citizens are on one side of the dispute and only foreign citizens are on the other.

Nessel v. AmeriGas Partners. L.P.

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-1098

Opinion Date: March 27, 2020

Judge: Eric L. Clay

Areas of Law: Civil Procedure, Class Action, Consumer Law

Michigan filed suit, alleging that AmeriGas, Michigan's largest provider of residential propane, violated the Michigan Consumer Protection Act (MCPA). Section 10 of the MCPA, Mich. Comp. Laws 445.910, titled “class actions by attorney general,” 10 states that: The attorney general may bring a class action on behalf of persons residing in or injured in this state for the actual damages caused by any of the following: (a) A method, act or practice in trade or commerce defined as unlawful under section 3 [unfair, unconscionable, or deceptive methods, acts, or practices]. AmeriGas removed the case to federal court, citing the Class Action Fairness Act (CAFA), 119 Stat. 4. The district court remanded to state court, finding that the lawsuit did not qualify as a “class action” because Section 10 “lacks the core requirements of typicality, commonality, adequacy, and numerosity that are necessary to certify a class under [Federal Rule of Civil Procedure] 23.” The Sixth Circuit affirmed. Section 10 is not a state statute “similar” to Rule 23 for purposes of CAFA removability, 28 U.S.C. 1332(d)(1)(B). The court declined “to effectively invalidate the Michigan Legislature’s determination that an Attorney General should be able to sue for injuries to consumers pursuant to Section 10.”

Lewis v. Liberty Mutual Insurance Co.

Court: US Court of Appeals for the Ninth Circuit

Docket: 18-16140

Opinion Date: March 30, 2020

Judge: Jay S. Bybee

Areas of Law: Civil Procedure, Insurance Law

After plaintiffs were awarded more than $45 million in a products liability suit brought against EcoSmart, EcoSmart declared bankruptcy and plaintiffs brought a direct action against EcoSmart's insurer, LMIC, for payment on the judgment. LMIC argued that its policy with EcoSmart had a forum-selection clause designating Australian courts as the exclusive forum. The district court granted LMIC's motion to dismiss on grounds of forum non conveniens. The Ninth Circuit held that, because plaintiffs stand in the shoes of EcoSmart, their third-party creditors' rights are derivative of the rights and limitations held by the bankrupt insured, and thus the forum-selection clause applies. The panel also held that plaintiffs have not shown that the clause violates California public policy or that Australia is an inadequate forum for suit. Accordingly, the panel affirmed the district court's judgment.

Kientz v. Commissioner, SSA

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-3240

Opinion Date: April 1, 2020

Judge: Carson

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law, Military Law, Public Benefits

Plaintiff Steven Kientz spent many years as a "dual status" technician with the Kansas Army National Guard, where he worked as a mechanic on electronic measurement equipment. Plaintiff’s position required him to simultaneously serve as a member of the National Guard, a second job with separate pay and separate responsibilities. In retirement, Plaintiff receives a monthly pension payment under the Civil Service Retirement System based on his service as a dual status technician. Plaintiff also receives Social Security retirement benefits based on contributions he made to the Social Security system from his separate pay as a National Guard member. The issue this case presented for the Tenth Circuit's review centered on whether a dual status service technician’s civil service pension was “based wholly on service as a member of a uniformed service” under 42 U.S.C. 415(a)(7)(A). After review, the Court concluded Plaintiff's civil service pension is not “wholly” based on service as a member of a uniformed service, and his pension payments were therefore subject to the Windfall Elimination Provision ("WEP"). Plaintiff’s dual status technician work was at least partially distinct from the performance of his military duties. And Plaintiff received separate compensation and separate pensions for his performance of those distinct roles. The Court concurred with the district court and Social Security Administration that Plaintiff's Social Security retirement benefits were subject to the WEP.

United States ex rel. Barko v. Halliburton Co.

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 19-7064

Opinion Date: March 27, 2020

Judge: David S. Tatel

Areas of Law: Civil Procedure

Appellant filed a qui tam action under the False Claims Act, alleging that KBR and various subcontractors defrauded the US Government by inflating costs and accepting kickbacks while administering military contracts in wartime Iraq. After the district court granted summary judgment to KBR, the company filed a bill of costs with the clerk of the district court, seeking over $100,000 in costs. In this appeal, the DC Circuit considered the costs awarded under 28 U.S.C. 1920 subsection (4), which covers the costs of making copies of any materials where the copies are necessarily obtained for use in the case, and subsection (2), which covers fees for printed or electronically recorded transcripts necessarily obtained for use in the case. The court held that the district court awarded costs in excess of those authorized by subsections (4) and (2). Accordingly, the court reversed in part, affirmed in part, and remanded for the district court to retax costs.

Ex parte 4tdd.com, Inc., et al.

Court: Supreme Court of Alabama

Docket: 1180262

Opinion Date: March 27, 2020

Judge: Stewart

Areas of Law: Civil Procedure, Class Action, Securities Law

4tdd.com, Inc. ("4tdd"), Thomas Todd Martin III, and Martin & Associates Consulting Company, LLC ("MACC"), petitioned the Alabama Supreme Court for a writ of mandamus to instruct the Mobile Circuit Court ("the trial court") to dismiss a derivative shareholder action filed against them by Sheila Hale, individually and on behalf of the shareholders of Bay Area Nutrition, Inc., on the ground, inter alia, that Hale did not satisfy the requirement of Rule 23.1, Ala. R. Civ. P., that she allege with particularity in her complaint the efforts she had made to obtain the requested relief from the corporate directors of Bay Area Nutrition, Inc. ("BAN"), before filing an action against them. The Supreme Court determined, after careful consideration, that Hale indeed failed to comply with Rule 23.1, and directed the trial court to direct 4tdd.com, Martin and MACC's motion to dismiss.

Ex parte Huntingdon College.

Court: Supreme Court of Alabama

Docket: 1180148

Opinion Date: March 27, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Trusts & Estates

Huntingdon College, a beneficiary of the Bellingrath-Morse Foundation Trust ("the Foundation"), petitioned the Alabama Supreme Court for a writ of mandamus directing the Mobile Probate Court to vacate its order denying Huntingdon's motion to dismiss an action filed by the Foundation's trustees, on behalf of the Foundation, and to enter an order dismissing the action for lack of jurisdiction. Walter Bellingrath established the Foundation, a charitable trust ("the Trust Indenture"). Mr. Bellingrath contributed to the Foundation, both at its inception, and through his will and codicil, substantial property, including the Bellingrath Gardens ("the Gardens") and his stock in the Coca-Cola Bottling Company. Beneficiaries of the Foundation included three privately supported Christian colleges: Huntingdon College, Rhodes College, and Stillman College. The Foundation’s trustees and the beneficiaries have historically disagreed as to whether the Trust Indenture contemplated the subsidy of the Gardens by the Foundation and, if so, to what extent and with what limitations, if any. The trustees had difficulty operating the Gardens based on agreed-upon caps to the Garden's subsidy, and have voted to increase the distribution amount to the Gardens. They sought declaratory relief in order to maintain a reserve for the repair and capital improvement of the Gardens, and to distribute to the Gardens, in the trustees' sole discretion, such amount of the Foundation's income they deemed necessary for the maintenance, repair and operation of the Gardens. The Alabama Supreme Court determined the the probate court lacked jurisdiction to modify the Mobile Circuit Court's final judgment approving a 2003 Amendment. The Supreme Court therefore granted the petition for a writ of mandamus and directed the probate court to dismiss the trustees' action.

Lawler Manufacturing Co., Inc. v. Lawler

Court: Supreme Court of Alabama

Docket: 1180889

Opinion Date: March 27, 2020

Judge: Michael F. Bolin

Areas of Law: Business Law, Civil Procedure

Lawler Manufacturing Co., Inc., appealed an order requiring Chris Lawler, president of Lawler Manufacturing, among other things, to authorize and give his consent to a pending shipment of goods from China, and to refrain from engaging in conduct that is contrary to the best interest of Lawler Manufacturing. In 2019, Lawler Manufacturing sued Delmas Lawler, a shareholder, vice president, and alleged former employee of Lawler Manufacturing, and Sandra Lawler, an alleged former employee, alleging breach of fiduciary duty, theft, and conspiracy. Delmas moved the court to order Lawler Manufacturing and Chris, as president of Lawler Manufacturing, to continue the business operations of Lawler Manufacturing in the usual and customary manner in which business affairs had been conducted before the litigation was commenced, which would include authorizing the shipment of an order from China that had been placed earlier. The trial court granted the motion and ordered Chris to act in the best interest of the company. The Alabama Supreme Court determined the trial court did not have jurisdiction to enter the order. The presiding judge disqualified himself from this case, and no longer had authority to appoint his successor or to enter the order appointing the judge who entered the order requiring Chris Lawler to act in Lawler Manufacturing's best interest. " Therefore, Presiding Judge Woodruff's appointment of Judge Fannin was not a valid judicial appointment, and that order is vacated."

Sholem v. Honorable David Gass

Court: Arizona Supreme Court

Docket: CV-19-0149-PR

Opinion Date: March 30, 2020

Judge: Gould

Areas of Law: Civil Procedure, Medical Malpractice

In this case involving the construction of Ariz. R. Civ. P. 4(i), the Supreme Court held that, under Rule 4(i), if a plaintiff shows good cause for failing to serve a defendant within ninety days, a court is required to extend the time for service, but also under the rule, a court in its discretion may extend the period for service without a plaintiff showing good cause. Melissa Langevin filed a complaint against Dr. Steven Sholem. More than ten months after the ninety-day deadline had expired, Langevin filed a motion pursuant to Rule 4(i) seeking to extend the time for service. The trial court determined there was good cause to grant the motion and extended the deadline. After Langevin served Sholem he moved to dismiss, arguing that the complaint did not show good cause for extending the deadline. The trial court denied the motion to dismiss. The Supreme Court affirmed, holding that there was no good cause for an extension under rule 4(i), but there were discretionary grounds in the record to deny Sholem's motion to dismiss.

Rockefeller Technology Investments (Asia VII) v. Changzhou SinoType Technology Co.

Court: Supreme Court of California

Docket: S249923

Opinion Date: April 2, 2020

Judge: Carol Corrigan

Areas of Law: Arbitration & Mediation, Civil Procedure, Contracts

The Supreme Court held that the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Convention) does not apply when parties have agreed to waive formal service of process in favor of a specified type of notification. Defendant, a company based in China, and Plaintiff entered into a contract providing that the parties would submit to the jurisdiction of California courts and to resolve disputes between them through California arbitration. The parties further agreed to provide notice and service of process to each other through Federal Express or a similar courier. Plaintiff later sought arbitration. Defendant neither responded nor appeared for the arbitration, and the arbitrator awarded Plaintiff $414,601,200. Defendant moved to set aside default judgment for insufficiency of service of process, arguing that Plaintiff's failure to comply with the Convention rendered the judgment confirming the arbitration award void. The motion was denied. The court of appeal reversed. The Supreme Court reversed, holding (1) the Convention applies only when the law of the forum state requires formal service of process to be sent abroad; and (2) because the parties' contract constituted a waiver of formal service under California law in favor of an alternative form of notification, the Convention does not apply.

Early v. Becerra

Court: California Courts of Appeal

Docket: C087947(Third Appellate District)

Opinion Date: April 2, 2020

Judge: Vance W. Raye

Areas of Law: Civil Procedure, Election Law, Legal Ethics

Appellants Eric Early and his election committee, Eric Early for Attorney General 2018 (collectively, Early), appealed the denial of their petition for writ of mandate to preclude respondent Xavier Becerra from running for Attorney General in 2018. Early contended that Becerra, appointed Attorney General by former Governor Brown in 2016, was not eligible for the office under Government Code section 12503. Becerra was an “inactive” member of the California State Bar from 1991 to the end of 2016. Government Code section 12503 provided: “No person shall be eligible to the office of Attorney General unless he shall have been admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election or appointment to such office.” Early argues that an “inactive” attorney may not practice law in California and therefore is not “admitted to practice” under Government Code section 12503. The Court of Appeal disagreed, finding both active and inactive attorneys were members of the State Bar. The phrase “admitted to practice” referred to the event of admission to the bar and the status of being admitted, and did not require engagement in the “actual” or “active” practice of law. Becerra did not cease to be “admitted to practice” in California when he voluntarily changed his status to “inactive.”

Marriage of Everard

Court: California Courts of Appeal

Docket: D075110(Fourth Appellate District)

Opinion Date: March 30, 2020

Judge: Patricia D. Benke

Areas of Law: Civil Procedure, Family Law

Appellant Kyle Linley Everard (Kyle) appealed a trial court's order granting reciprocal domestic violence restraining orders (DVROs) against Kyle and respondent spouse Valerie Ann Everard (Valerie). In issuing the DVROs, the trial court found, pursuant to Family Code section 6305, both parties acted as primary aggressors and neither acted primarily in self-defense in multiple domestic violence incidents. Kyle claimed the trial court erred in including him in the DVROs based on its admission of an unauthenticated 2013 police report offered by Valerie, which report Kyle claimed was allegedly the exclusive basis for the court's findings against him under section 6305. Because the Court of Appeal conclude substantial evidence in the record supported the court's findings independent of the 2013 police report, and because it further concluded the court's findings satisfied section 6305, the DVRO against Kyle was affirmed.

Pott v. Lazarin

Court: California Courts of Appeal

Docket: H044587(Sixth Appellate District)

Opinion Date: April 1, 2020

Judge: Nathan D. Mihara

Areas of Law: Civil Procedure, Communications Law, Constitutional Law, Intellectual Property

Audrie, the Potts’ daughter, was sexually assaulted while unconscious from intoxication. Her assailants distributed intimate photographs of her. Audrie committed suicide. The Potts, as the registered successors-in-interest to “deceased personality” rights for Audrie under Civil Code 3344.1, authorized the use of Audrie’s name and likeness in a documentary. The Potts sued Lazarin under section 3344.1, claiming that Lazarin (who claims to be Audrie’s biological father) had used Audrie’s name and likeness "for the purpose of advertising services” without their consent. Lazarin admitted that he had displayed Audrie’s photograph “to change the law regarding parental rights” but argued that he had not acted to promote “goods or services.” The Potts submitted evidence that Lazarin solicited donations for a suicide prevention group, using Audrie’s name and photograph. Lazarin brought an unsuccessful special motion to strike the complaint under Code of Civil Procedure 425.16. The court of appeal reversed. Lazarin made a prima facie showing that the Potts’ suit was based on his “written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” The Potts failed to establish that there was a “probability” that they would “prevail” on their Civil Code section 3344.1 suit; they did not show that Lazarin “misappropriate[ed] the economic value generated by [Audrie’s] fame through the merchandising” of her name or likeness.

Weimer v. Nationstar Mortgage, LLC

Court: California Courts of Appeal

Docket: C080550(Third Appellate District)

Opinion Date: April 2, 2020

Judge: William J. Murray, Jr.

Areas of Law: Banking, Civil Procedure, Real Estate & Property Law

Plaintiff Robert Weimer, Jr., purchased real property in Carnelian Bay in 1993. He refinanced the mortgage in 2006 with a loan from defendant Bank of America, N.A. (BANA). After defaulting, plaintiff entered into a loan modification process with BANA. Subsequently, loan servicing was transferred, successively, to defendants Specialized Loan Servicing, LLC (SLS) and Nationstar Mortgage, LLC (Nationstar). According to plaintiff, BANA, SLS, and Nationstar successively each engaged in deliberate and negligent misconduct in the loan modification process. In 2014, BANA transferred beneficial interest in the loan to defendant U.S. Bank, N. A. (U.S. Bank), as trustee for the Certificateholders of Banc of America Funding Corporation Mortgage Pass Through Certificates Series 2007-7. Eventually, Nationstar, acting as U.S. Bank’s agent, recorded a notice of trustee’s sale and had an agent enter onto the property and change the locks. After plaintiff commenced this action, BANA, U.S. Bank, and Nationstar demurred to a first amended complaint. The trial court sustained the demurrer without leave to amend as to BANA, concluding that the action against it was time-barred. As to the other defendants, the court sustained the demurrer with leave to amend. Plaintiff filed a second amended complaint, asserting intentional and negligent misrepresentation, negligence, trespass to land, seeking declaratory relief, and asserting violations of the unfair competition law. U.S. Bank and Nationstar demurred, SLS separately demurred, and the trial court sustained the demurrers without leave to amend. On appeal, plaintiff contended the trial court erred in concluding that the action against BANA was time-barred because BANA’s actions were part of a civil conspiracy with the other defendants, and the timeliness of plaintiff’s action against BANA must be measured from the last overt act. Plaintiff further asserted the trial court erred in sustaining the demurrers to the second amended complaint because he sufficiently stated each cause of action. Furthermore, plaintiff asserted the trial court should have granted him leave to amend, however, he largely contended his complaint required no amendment. In the unpublished portion of its opinion, the Court of Appeal concluded that the action as asserted against BANA was indeed time-barred. The Court further concluded plaintiff sufficiently stated causes of action sounding in intentional and negligent misrepresentation and violations of the unfair competition law against the remaining defendants. In the published portion of its opinion, the Court concluded the remaining defendants had a duty of care and that plaintiff sufficiently stated a cause of action for negligence against them. Therefore, the Court reversed the judgments of dismissal as to U.S. Bank, SLS, and Nationstar and reversed the orders sustaining the demurrers as to the causes of action in the second amended complaint for intentional misrepresentation, negligent misrepresentation, negligence, and violations of the unfair competition law. In all other respects, the judgments were affirmed.

Crim v. Dietrich

Court: Supreme Court of Illinois

Citation: 2020 IL 124318

Opinion Date: April 2, 2020

Judge: Lloyd A. Karmeier

Areas of Law: Civil Procedure

The Crims, acting on behalf of their son, Collin, filed a medical malpractice claim, alleging that Dietrich failed to obtain informed consent to perform a natural birth despite possible risks associated with Collin’s large size, and negligently delivered Collin, causing him injuries. Finding that the Crims failed to present expert testimony that a reasonable patient would have pursued a different form of treatment, the circuit court granted a directed verdict on the issue of informed consent. The jury returned a defense verdict on professional negligence. The Crims did not file any post-trial motions. On appeal, the Crims referred to the directed verdict. The appellate court remanded. On remand, Dietrich moved to exclude any evidence relating to negligent delivery. The circuit court certified the question: “Whether the ruling ... reversing the judgment and remanding this case for a new trial requires a trial de novo on all claims.” The appellate court answered yes, stating that it had issued a general remand without specific instructions. The Illinois Supreme Court reversed; 735 ILCS 5/2-1202 requires a litigant to file a post-trial motion in order to challenge the jury’s verdict even when the circuit court enters a partial directed verdict as to other issues. The failure to file such a motion deprived the circuit court of an opportunity to correct any trial errors involving the verdict and undermined any notion of fairness on appeal. The Crims failed to preserve any challenge to the jury’s verdict for appellate review. The appellate court could not remand the matter on an issue never raised.

Paquette v. Department of Corrections

Court: Maine Supreme Judicial Court

Citation: 2020 ME 37

Opinion Date: March 31, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Government & Administrative Law

The Supreme Judicial Court dismissed as moot this appeal from the decision of the superior court dismissing Appellant's petition against the Maine Department of Corrections for failure to serve the Department pursuant to Me. Rev. Stat. 5, 11003(1), holding that events in the superior court had overtaken this appeal, rendering it moot. After Appellant filed this action, the trial court, treating the action as a petition for review of agency action, issued Appellant an order requiring him to show cause why his appeal should not be dismissed for failure to serve the Department. The court ultimately dismissed the petition for insufficient service of process. After Appellant's appeal was docketed, Appellant filed a motion asserting that the Department had acknowledged receipt of process. The court then negated its dismissal of Appellant's action. Therefore, the Supreme Court dismissed the appeal as moot.

Mutual of Omaha Insurance Co. v. Driskell

Court: Supreme Court of Mississippi

Citation: 2019-IA-00252-SCT

Opinion Date: April 2, 2020

Judge: Maxwell

Areas of Law: Civil Procedure, Contracts, Insurance Law

Theresa Driskell, with the help of an insurance agent, submitted applications for a life insurance policy and a disability income rider. When reviewing the application, the insurance company discovered Driskell was ineligible for the disability income rider. So it issued her a life insurance policy that varied from her application: a policy that did not provide disability income. Driskell received this policy and reviewed it. She did not reject or return it. Instead, she accepted the policy and began making premium payments. Nearly three years later, Driskell made a claim with the insurer for disability income. Because the policy did not include a disability income rider, the insurer denied her claim. Driskell sued the insurer, citing her expectation of disability income coverage. The insurer moved for summary judgment, which the trial judge denied. The Mississippi Supreme Court granted the insurer’s interlocutory appeal to decide if summary judgment was wrongly denied. After review, the Court determined it was clear the policy issued to Driskell and accepted by her did not include a disability income rider. Therefore, it reversed the denial of summary judgment and rendered a judgment in the insurer’s favor.

Loeffler v. Bernier

Court: New Hampshire Supreme Court

Docket: 2019-0107

Opinion Date: March 31, 2020

Judge: Anna Barbara Hantz Marconi

Areas of Law: Civil Procedure, Real Estate & Property Law

Defendant Paul Bernier appealed two superior court orders granting partial summary judgment to plaintiff Thomas Loeffler, and denying his subsequent motion for reconsideration. The court ruled that defendant was estopped by deed from denying that plaintiff had an implied easement to access a right-of- way located on defendant’s property from a specific point on plaintiff’s property. The court also denied defendant leave to raise new arguments at the reconsideration stage asserting that plaintiff had abandoned any implied easement and, alternatively, that the purpose of any implied easement had been frustrated. Finding no reversible error in the superior court's judgments, the New Hampshire Supreme Court affirmed.

B.C. v. Stake N Shake Operations, Inc.

Court: Supreme Court of Texas

Docket: 17-1008

Opinion Date: March 27, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Civil Rights, Labor & Employment Law

The Supreme Court reversed the judgment of the court of appeals upholding the trial court's grant of summary judgment without addressing its legal merit, holding that the trial court's recital in its final summary judgment order that it considered "the pleadings, evidence, and arguments of counsel" included a late-filed response and attached evidence. Plaintiff sued Defendant alleging that she had been sexually assaulted at work. Defendant moved for summary judgment, presenting traditional and no evidence grounds. The trial court granted the motion. On remand from the Supreme Court, the court of appeals affirmed, concluding that Plaintiff failed to file a timely response to the no-evidence motion and that the trial court did not consider the late-filed response. The court of appeals declined to consider the evidence that Defendant had attached to its combined motion because no timely response pointed out a fact issue raised by that evidence. The Supreme Court reversed, holding (1) the trial court's recital that it considered the "evidence and arguments of counsel," without limitation, was an "affirmative indication" that the trial court considered Plaintiff's response and the evidence attached to it; and (2) therefore, the court of appeals should have considered that evidence as well in its review of the trial court's summary judgment.

Ehrhart v. King County

Court: Washington Supreme Court

Docket: 96464-5

Opinion Date: April 2, 2020

Judge: Debra Stephens

Areas of Law: Civil Procedure, Government & Administrative Law, Health Law, Personal Injury

Brian Ehrhart died within days of contracting hantavirus near his Issaquah, Washington home in early 2017. His widow, Sandra Ehrhart, sued King County’s public health department, Swedish Medical Center, and an emergency room physician, arguing all three had negligently caused Brian's death. King County asserted public duty as an affirmative defense, arguing it was not liable for Brian’s death because it did not owe him any duty as an individual. Ehrhart moved for partial summary judgment asking the court to dismiss this defense and others. The trial court granted Ehrhart’s motion but conditioned its ruling on the jury finding particular facts. King County appealed, and the Washington Supreme Court accepted direct discretionary review. The issues presented were: (1) whether the trial court could properly grant summary judgment conditioned on the jury finding particular facts; and (2) whether the regulations governing King COunty's responsibility to issue health advisories created a duty owed to Brian individually as opposed to a non actionable duty owed to the public as a whole. The Supreme Court determined the trial court could not properly grant summary judgment conditioned on the jury finding particular facts; summary judgment was appropriate only when there were no genuine issues of material fact. The Court concluded King County did not owe an individualized duty to Brian, and no exception to the public duty doctrine applied in this case. The Supreme Court therefore reversed the trial court, and remanded for entry of judgment in favor of King County on its public duty doctrine defense.

145 East Harmon II Trust v. Residences at MGM Grand

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 14

Opinion Date: April 2, 2020

Judge: Silver

Areas of Law: Civil Procedure, Real Estate & Property Law

The Supreme Court held that a voluntary dismissal with prejudice generally conveys "prevailing party" status upon the defendant for purposes of an award of attorney fees and costs under Nev. Rev. Stat. 18.010(2) and Nev. Rev. Stat. 18.020, but district courts should consider the circumstances surrounding the voluntary dismissal with prejudice in determining whether the dismissal conveys prevailing party status. The Residences at MGM Grand - Tower A Owners' Association (the Association) was sued after it was discovered that a unit at The Signature at MGM Grand had mold damage. The Association requested dismissal from the case because it was not a proper party to the action. Eventually, the parties stipulated to dismiss the Association from the case with prejudice. Thereafter, the Association moved for attorney fees and costs. The Trust argued that the Association could not be considered a prevailing party because the case had not proceeded to judgment. The district court concluded that the Association was the prevailing party and awarded attorney fees and costs. The Supreme Court affirmed, holding that under the facts of this case, the dismissal with prejudice was substantively a judgment on the merits, and therefore, the Association was a prevailing party for purposes of sections 18.010(2) and 18.020.