Latest 29 Cases This Week: Mitchell v. Bailey (5th Cir.), Clabo v. Johnson & Johnson Health Care Systems, Inc. (6th Cir.), Hale v. Morgan Stanley ...

Joe, Joey, Joe-Baby, Sexist: Where’s Your Imposter Syndrome?

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman responds to a recent Wall Street Journal op-ed criticizing soon-to-be First Lady Jill Biden for using the academic title she earned. Professor Grossman dissects the op-ed, penned by a retired lecturer at Northwestern University, and explains the deep and pervasive sexism behind it.

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Mitchell v. Bailey

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-51123

Opinion Date: December 14, 2020

Judge: Carolyn Dineen King

Areas of Law: Civil Procedure, Constitutional Law, Native American Law

Plaintiff filed suit against defendant and the Hoopa Valley Tribe for violations of state tort and contract law. The district court, ruling on a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss, found sovereign immunity barred suit against defendant, in his official capacity, and the Hoopa Valley Tribe, dismissing the claims with prejudice. The Fifth Circuit held that it lacked original jurisdiction, concluding that the district court did not have federal-question jurisdiction over this case; the Hoopa Valley's presence as a party to the suit destroyed complete diversity and thus the district court did not have diversity jurisdiction under 28 U.S.C. 1332; and the district court did not have supplemental jurisdiction over this case under 28 U.S.C. 1367. The court also held that the district court erred when it dismissed claims pursuant to Rule 12(b)(1) with prejudice. Accordingly, the court vacated in part, affirmed the dismissal in part, reversed in part, and remanded with instructions to dismiss without prejudice.

Clabo v. Johnson & Johnson Health Care Systems, Inc.

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-5168

Opinion Date: December 14, 2020

Judge: Donald

Areas of Law: Civil Procedure, Drugs & Biotech, Products Liability

In 2003, Clabo underwent surgery to correct pelvic organ prolapse and urinary incontinence. Clabo’s doctor implanted her with a TVT transvaginal mesh sling device that the Defendants manufactured. By 2006, she began experiencing pelvic pain, urinary issues, scarring, and pain during sexual intercourse. After being notified by her doctor that the mesh from her device had eroded through her vaginal canal, Clabo had a procedure in April 2006 to remove the TVT implant. A month later, Clabo had surgery to implant a mesh sling similar to the one she had removed. In 2011, Clabo had another surgery to have pieces of her second implant removed and other parts repaired, again due to mesh erosion. Clabo alleges that it was not until July 2012 that she finally realized, after speaking with a physician-friend, that the TVT mesh product was the likely cause of her persistent pain and suffering. In May 2013, Clabo filed suit under the Tennessee Products Liability Act. The court dismissed Clabo’s claims as barred by Tennessee’s statute of repose, which prohibits product liability claims brought more than six years after the date of the injury that gave rise to the suit, finding that Clabo’s initial injury occurred during 2006. The Sixth Circuit affirmed; the record demonstrates that Clabo’s injuries occurred outside of the statute of repose period.

Hale v. Morgan Stanley Smith Barney LLC

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-3412

Opinion Date: December 15, 2020

Judge: Donald

Areas of Law: Arbitration & Mediation, Civil Procedure

Hale, employed by Morgan Stanley since 1984, was disciplined on several occasions between 2013 and 2016. Hale initiated an arbitration action and requested damages for his claims of negligence, defamation, breach of fiduciary duty, and intentional infliction of emotional distress. Following a four-day hearing, the arbitrator issued an award denying all of Hale’s claims. Hale filed suit, requesting that the arbitration award be vacated pursuant to the Federal Arbitration Act, 9 U.S.C. 1. The district court dismissed, holding that it lacked diversity and federal question jurisdiction over the suit. The Sixth Circuit reversed and remanded. There is complete diversity of citizenship between the disputing parties as required by 28 U.S.C. 1332(a) and the amount in controversy is met because Hale requested a damages award of $14.75 million in his complaint (filed as a motion to vacate). In actions where a party seeks to vacate a $0 arbitration award pursuant to section 10 of the FAA, courts should look to the complaint, including the amount sought in the underlying arbitration, for purposes of assessing whether the jurisdictional amount in controversy requirement has been met.

Bazile v. Finance System of Green Bay, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1298

Opinion Date: December 15, 2020

Judge: KANNE

Areas of Law: Civil Procedure, Consumer Law

Finance sent Bazile a letter seeking to collect medical debts. The dunning letter stated the date (September 19, 2017) and the total balance of the debt ($92.23), without indicating whether that amount may increase with the accrual of interest. Bazile filed suit, alleging that the letter’s exclusion of information concerning the accrual of interest was a violation of the Fair Debt Collection Practices Act (FDCPA) because the letter was misleading and did not provide “the amount of the debt,” 15 U.S.C. 1692g(a)(1), 1692e. The district court concluded that Bazile had Article III standing. The Seventh Circuit remanded for findings of fact. The complaint may survive dismissal as a matter of pleading but that’s not enough for the district court to decide the merits of the action. While Bazile’s allegations support an inference that interest was accruing on the debt, the defendant asserted that interest was not accruing and questioned whether the letter’s omission of information about interest affected Bazile’s response to the correspondence or to the debt. Facts necessary for standing have been called into doubt, requiring further inquiry into whether the court has subject‐matter jurisdiction, requiring an evidentiary hearing on the defendant’s motion to dismiss.

Brunett v. Convergent Outsourcing Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-3256

Opinion Date: December 15, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Civil Procedure, Consumer Law

Convergent sent Brunett a letter demanding repayment of a debt that slightly exceeded $1,000, offering to accept 50% of the balance in satisfaction of the debt. The letter stated that, if the creditor ended up forgiving more than $600, it would be required to report the release of indebtedness to the IRS, because federal law treats as taxable income a loan that is not repaid. Brunett sued, arguing that the statement about the IRS violates the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692e(5), (10), because it threatens action that cannot legally be taken and amounts to a false representation. The Seventh Circuit ordered the dismissal of the suit for lack of jurisdiction after noting that the statement was not false. Brunett conceded that the letter had not injured her. She did not pay anything; the statement did not affect her credit rating or discourage anyone from doing business with her. A plaintiff who lacks a concrete injury cannot sue under the FDCPA. The state of confusion is not itself an injury. “If it were, then everyone would have standing to litigate about everything.” That Brunett’s confusion led her to hire a lawyer and that she felt "intimidated" do not change the evaluation.

Gunn v. Thrasher, Buschmann & Voelkel, PC

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-3514

Opinion Date: December 15, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Civil Procedure, Consumer Law

When the Gunn's debt for homeowners' association assessments reached $2,000, the association hired a law firm, which sent the Gunns a letter demanding payment. The letter states: If Creditor has recorded a mechanic’s lien, covenants, mortgage, or security agreement, it may seek to foreclose such mechanic’s lien, covenants, mortgage, or security agreement. The Gunns did not pay. The law firm filed suit in state court, seeking damages for breach of contract rather than foreclosure. The Gunns filed suit under the Fair Debt Collection Practices Act (FDCPA), which forbids false or misleading statements in dunning letters, 15 U.S.C. 1692e(2), (4), (5) & (10). The Gunns acknowledge that the statement is true but contend that it must be deemed false or misleading because the law firm would have found it too costly to pursue foreclosure to collect a $2,000 debt. The Seventh Circuit ordered the dismissal of the suit for lack of jurisdiction. The contested sentence did not injure the Gunns. They argued that they were annoyed or intimidated but did not contend that the letter was a forbidden invasion of privacy. The association and its law firm were entitled to communicate with them, If annoyance were enough, the very fact that a suit was filed would show the existence of standing. The asserted violation of a substantive FDCPA right does not guarantee standing. There must still be a concrete injury.

Sandri v. Finance System of Green Bay, Inc.

Court: US Court of Appeals for the Seventh Circuit

Dockets: 19-1557, 18-3582

Opinion Date: December 14, 2020

Judge: Diane S. Sykes

Areas of Law: Civil Procedure, Consumer Law

The plaintiffs received collection letters from Finance System, seeking payment of medical debts. Represented by the same law firm, they filed materially identical class-action claims under the Fair Debt Collection Practices Act, 15 U.S.C. 1692, alleging the use of false, deceptive, or misleading representations, or otherwise unfair or unconscionable methods to collect a debt. They cited the letters’ statement that: “You want to be worthy of the faith put in you by your creditor …. We are interested in you preserving a good credit rating with the above creditor.” The Seventh Circuit affirmed the dismissal of the claims, reasoning that the plaintiffs have not alleged any injury, or even an appreciable risk of harm, from the alleged statutory violations and, therefore, lack standing.

Spuhler v. State Collection Service, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2630

Opinion Date: December 15, 2020

Judge: KANNE

Areas of Law: Civil Procedure, Consumer Law

The Spuhlers incurred medical debts that State Collection sought to collect on behalf of the medical‐care provider. The collector sent the Spuhlers dunning letters that provided the debts’ sums but lacked a statement that interest would accrue on the debts. The Spuhlers, who sought to represent a class of consumers, filed a complaint under the Fair Debt Collection Practices (FDCPA), arguing that the omission of a statement that the debt amounts would increase from the accrual of interest made the letters’ account of the debts was misleading, 15 U.S.C. 1692e(2), 1692f. A magistrate granted the Spuhlers summary judgment and certified a class. The Seventh Circuit vacated. At the summary judgment stage of litigation, to demonstrate Article III standing to sue for an alleged violation of the FDCPA, the plaintiffs must “'set forth’ by affidavit or other evidence 'specific facts’” demonstrating that they have suffered a concrete and particularized injury that is both fairly traceable to the challenged conduct and likely redressable by a judicial decision. The plaintiffs here did not carry that burden.

Alfaro-Huitron v. WKI Outsourcing Solutions

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-2091

Opinion Date: December 11, 2020

Judge: Harris L. Hartz

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

Plaintiffs–Appellants were United States citizens or lawful permanent residents who worked as farm laborers. Defendants–Appellees Cervantes Agribusiness and Cervantes Enterprises, Inc. (collectively, Cervantes) were agricultural businesses owned and managed by members of the Cervantes family in southern New Mexico. Plaintiffs brought claims against Cervantes for breach of contract, civil conspiracy, and violations of the Migrant and Seasonal Agricultural Worker Protection Act (AWPA), based on Cervantes’s failure to employ them after a labor contractor, allegedly acting on Cervantes’s behalf, recruited them under the H-2A work-visa program of the United States Department of Labor (DOL). The district court granted summary judgment in favor of Cervantes on all claims. After review of the trial court record, the Tenth Circuit reversed the trial court’s ruling on the breach-of-contract and AWPA claims because the evidence, taken in the light most favorable to Plaintiffs, was sufficient to support a finding that the contractor was acting as Cervantes’s agent when it recruited them. But the Court affirmed summary judgment in favor of Cervantes on the conspiracy claim because of the lack of evidence of an agreement between Cervantes and the contractor to engage in unlawful acts.

Securities and Exchange Commission v. Marin

Court: US Court of Appeals for the Eleventh Circuit

Dockets: 19-13990, 19-14871

Opinion Date: December 14, 2020

Judge: Marcus

Areas of Law: Civil Procedure, Securities Law

The Eleventh Circuit affirmed separate district court orders directing defendant and MinTrade to comply with SEC subpoenas for the production of documentary evidence and testimony. The court held that the district court properly exercised personal jurisdiction over defendant in the Southern District of Florida. As to MinTrade, the court held that the district court did not abuse its discretion in not holding an evidentiary hearing. On the merits, the court held that neither district court abused its considerable discretion in concluding that the subpoenas were relevant to a legitimate investigation into possible violations of the Securities Exchange Act of 1934.

Alabama v. Two White Hook Wreckers et al.

Court: Supreme Court of Alabama

Docket: 1190180

Opinion Date: December 11, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure

The State of Alabama appealed a temporary restraining order ("TRO") allowing Gary Lamar Smith, Jr., and SOS Towing, Inc. ("SOS"), the family business owned and operated by Smith, Jr., to recover seized personal property during the pendency of a forfeiture action. SOS would sometimes tow vehicles for the Mobile Police Department; in September 2019, the Smiths were arrested in Mobile for alleged insurance fraud regarding that work. The City of Mobile alleged that the Smiths had committed fraud by charging insurance companies towing and storage fees that were greater than the maximum fees allowed under a city ordinance. The police seized three tow trucks owned by SOS and a tow truck owned by Smith, Sr., and used by SOS. The State later filed a complaint seeking the forfeiture of the four trucks. Smith, Jr., and SOS moved for a TRO or a preliminary injunction, seeking the return of the tow trucks during the pendency of the forfeiture action. The parties disagreed about whether Alabama's forfeiture statutes provided the exclusive means of obtaining the return of seized personal property during forfeiture proceedings. The trial court concluded that section 28-4-287 did not provide such means for a claimant to obtain possession of seized property during forfeiture proceedings. Thus, the trial court issued the TRO under Rule 65, ordering the return of the tow trucks. The trial court did order Smith, Jr., and SOS to post a $5,000 bond to receive their trucks, to which they complied. The Alabama Supreme Court determined section 28-4-287 was indeed the exclusive means for obtaining seized personal property during the pendency of a forfeiture action, and injunctive relief under Rule 65 was unavailable as a means for a claimant to obtain such property. Accordingly, the Court concluded the trial court erred by entering a TRO ordering the trucks to be returned to Smith, Jr. and SOS. Judgment was reversed and the matter remanded for further proceedings.

Caton v. City of Pelham

Court: Supreme Court of Alabama

Docket: 1190589

Opinion Date: December 11, 2020

Judge: Mendheim

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

Mark Caton appealed the grant of summary judgment entered in favor of the City of Pelham ("the City"), in his action alleging retaliatory discharge against the City. In approximately 2001, he was hired as a police officer by the City. In 2004, while he was still a police officer, Caton injured his neck when he was wrestling with a suspect. Caton did not receive treatment for his neck at the time, but the pain from the injury gradually increased. In April 2006, Caton transferred from the Police Department to the Pelham Fire Department. In 2012, Caton had a vertebrae-fusion surgery. In 2015 and 2016, Caton would have periods of excruciating pain leading to unexcused absences from work. He received reprimands and suspensions. Caton would consult with multiple doctors and pain specialists for rehabilitation therapy and pain management each time he was reinjured as a result of his work. In 2016, Caton was referred to Dr. Michelle Turnley, a physiatrist at the Workplace Occupational Health Clinic located on the campus of the University of Alabama at Birmingham ("UAB"). Dr. Turnley and Caton tell differing stories of an encounter at the UAB clinic September 2016. Caton testified that he asked Dr. Turnley for pain medication for the next time his pain became too intense, but Dr. Turnley reminded Caton that on his first visit he had not signed a pain contract and he had refused to provide a urine sample, so she declined to give him pain medication. Caton denied the doctor's account, but Dr. Turnley's clinical notes described her encounter with Caton as him being "fairly aggressive requesting pain medication... he was fairly loud and refused to leave the clinic and UAB police were called. ... He did not appear to have any functional deficits. Additionally, someone in the waiting room saw him sling the door open like he was about to 'pull it off the hinges'; therefore, obviously he has no strength deficits." In October, Dr. Turnley sent Caton a letter dropping him as a patient. By November, the City terminated Caton's employment, citing in part, the visit to Dr. Turnley's office. His unemployment application was denied because of his discharge from the City for misconduct. Caton sued, alleging procedural issues with the unemployment compensation hearing, adding a retaliatory-discharge claim. The trial court entered summary judgment in favor of the City, finding Caton had a full opportunity to litigate his retaliatory-discharge claim at the unemployment hearing, thus he was barred from raising it again by collateral estoppel. The Alabama Supreme Court determined application of collateral estoppel did not violate Caton's right to a trial by jury, and concurred estoppel barred his retaliatory-discharge claim against the City. "Caton does not present any other reason why the trial court's judgment should be reversed. Therefore, we affirm summary judgment in favor of the City."

Ex parte Petway Olsen, LLC.

Court: Supreme Court of Alabama

Docket: 1190402

Opinion Date: December 11, 2020

Judge: Wise

Areas of Law: Civil Procedure, Legal Ethics, Personal Injury, Products Liability

Law firm Petway Olsen, LLC, petitioned the Alabama Supreme Court for a writ of mandamus to direct the Jefferson Circuit Court to set aside its order granting the motion filed by Mercedes-Benz USA, LLC ("MBUSA"), seeking to disqualify the firm from representing the plaintiffs in the underlying case and to enter an order allowing the firm to represent the plaintiffs. In 2017, Valisha Cartwell was driving a 1998 Mercedes ML320. As she was pulling into a parking space in front a dental office operated by Vital Smiles Alabama, P.C., the vehicle suddenly accelerated and crashed into the front of the dental office, killing a six-year-old child and injuring others. Grelinda Lee, as personal representative of the child's estate, sued Cartwell and the owner of the Mercedes ML320 (and other fictitiously named defendants) for wrongful death. An amended complaint added Mercedes-Benz USA, LLC. The second amended complaint was signed by D. Bruce Petway of Petway Olsen and included the names of other attorneys with different law firms who were also representing the plaintiffs. Both Mercedes-Benz U.S. International, Inc. ("MBUSI") and MBUSA asserted as a defense that Petway Olsen was "disqualified [from representing the plaintiffs] because one of its members [was] a former in-house attorney and general counsel for MBUSI." After review, the Supreme Court determined the trial court erred when it granted MBUSA's motion to disqualify Petway Olsen from representing the plaintiffs. The petition for mandamus relief was granted and the trial court directed to vacate its previous order granting MBUSA's motion.

Ex parte The Water Works and Sewer Board of the City of Anniston.

Court: Supreme Court of Alabama

Docket: 1190436

Opinion Date: December 11, 2020

Judge: Tommy Bryan

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

The Water Works and Sewer Board of the City of Anniston ("the Board") petitioned the Alabama Supreme Court for a writ of mandamus to direct the Calhoun Circuit Court ("the trial court") to vacate its order entering a partial summary judgment in favor of plaintiffs Betty Milner and Teresa Holiday. In 2018, plaintiffs sued the Board seeking compensatory and punitive damages based on claims of breach of contract, nuisance, continuing trespass, negligence, and wantonness. Plaintiffs alleged that in February 2016 they instructed the Board to cut off water supply to a house they owned; that plaintiffs "returned to reopen" the house in February 2018 and discovered that the water supply to the house had not been completely cut off; and, that the Board's failure to properly cut off the water supply caused severe damage to the house. The Board filed an answer that included general denials of plaintiffs' allegations and asserted a number of "affirmative defenses," including that plaintiffs' injuries were the result of the "intervening and superseding" actions of an individual or entity other than the Board or anyone under its control. Viewing the evidence before it in a light most favorable to the Board, the Supreme Court concluded that the trial court could have assigned some culpability to the Board. However, the Court determined the Board could not have known plaintiffs would initiate litigation against the Board once it was discovered that, at least from the Board's perspective, water was running to plaintiffs' house only because a third party had tampered with the cap and lock device, not because the Board had failed to properly cut off the water in 2016. Moreover, the Court concluded plaintiffs failed to demonstrate that fundamental fairness required the most severe sanction available to the trial court to impose upon the Board. Therefore, the Court determined the Board established a clear legal right to mandamus relief. The petition was granted and the writ issued.

Guthrie v. Fanning

Court: Supreme Court of Alabama

Docket: 1190852

Opinion Date: December 11, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Personal Injury

Winston Guthrie sued David Ray Fanning seeking damages for false arrest, malicious prosecution, and defamation. In August 2009, Guthrie entered a guilty plea to the charges of sodomy and sexual abuse of several minor boys, including Fanning's son ("the victim"). Guthrie was sentenced to 10 years' imprisonment; that sentence was split and Guthrie served 1 year followed by 3 years' supervised probation. As a convicted sex offender, Guthrie was required to comply with all parts of the Alabama Sex Offender Registration and Community Notification Act ("the ASORCNA"). At issue in this appeal was section 15-20A- 16(c), Ala. Code 1975, a part of the ASORCNA, which provided that "[n]o sex offender shall make any harassing communication, directly or indirectly, in person or through others, by phone, mail, or electronic means to the victim or any immediate family member of the victim." Any person who knowingly violated section 15-20A-16(c) was guilty of a Class C felony. In April 2018, Guthrie sent a letter addressed to Fanning and Fanning's wife that Fanning perceived as harassing. A district-court magistrate issued a complaint against Guthrie charging him with the offense of harassing communications, a violation of section 13A-11-8(b)(1)(a), Ala. Code 1975, which is a Class C misdemeanor. The district attorney assigned to prosecute the case determined that Guthrie should not have been charged with the misdemeanor offense of harassing communications, instead, he should have been charged with the felony offense of contacting the victim's family with the intent to harass under the ASORCNA. At that time, Guthrie also had another indictment pending charging him with two counts of failing to properly register as a sex offender as required by the ASORCNA. Guthrie entered into a plea agreement as to the ASORCNA violations, and he was sentenced to eight years' imprisonment; that sentence was split, and Guthrie was ordered to serve one year in a community-corrections program followed by four years' probation. While serving time in the community-corrections program, acting pro se, Guthrie sued Fanning seeking the damages at issue in this appeal. The circuit court entered judgment in favor of Fanning in the defamation case. Finding no reversible error, the Alabama Supreme Court affirmed judgment.

Calleros v. Rural Metro of San Diego

Court: California Courts of Appeal

Docket: D075400(Fourth Appellate District)

Opinion Date: December 15, 2020

Judge: Judith L. Haller

Areas of Law: Civil Procedure, Labor & Employment Law

Two ambulance employees filed a class action lawsuit against several ambulance entities claiming the entities violated wage and hour laws by requiring the employees to remain on call during their rest breaks. One day after the court denied plaintiffs’ class certification motion, California voters passed Proposition 11, enacting provisions requiring ambulance employees to remain reachable by a communications device during their work shifts, including rest breaks. Plaintiffs challenged the denial of class certification. Defendants opposed these arguments on their merits, and also moved to dismiss the appeal, arguing the claims were moot. The Court of Appeal agreed the appeal was moot and therefore dismissed the appeal. The Court rejected plaintiffs’ contentions that Proposition 11 was not retroactive and/or that a retroactivity finding was unconstitutional because it would interfere with their vested rights. Based on its mootness determination, the Court did not reach the merits of the court’s order denying plaintiffs’ class certification motion, nor did it discuss the factual issues pertaining only to the merits issues.

Keep Our Wells Clean, et al. v. DNREC

Court: Delaware Supreme Court

Docket: 138, 2020

Opinion Date: December 15, 2020

Judge: Seitz

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law

The Delaware Department of Natural Resources and Environmental Control reviewed wastewater treatment facility construction permit applications under regulations adopted in 1999. In 2014, DNREC revised its regulations and adopted new requirements. In this appeal, the issue presented for the Delaware Supreme Court was whether Artesian Wastewater Management, Inc.’s 2017 construction permit application, which Artesian characterized as an amendment to its existing 2013 wastewater treatment facility construction permit, had to comply with the new requirements of the 2014 regulations. The Environmental Appeals Board and the Superior Court decided Artesian did not have to comply with the new requirements. The Supreme Court agreed and affirmed.

Hankton v. Louisiana

Court: Louisiana Supreme Court

Docket: 2020-C-00462

Opinion Date: December 11, 2020

Judge: Genovese

Areas of Law: Civil Procedure, Labor & Employment Law, Personal Injury

Plaintiff Sherome Hankton, an officer with the New Orleans Police Department, filed this personal injury suit for damages resulting from an attack upon her by a prisoner, Conrad Jackson, while Officer Hankton was guarding Jackson during a hospital stay. Following a bench trial, the trial court apportioned 50% fault to Jackson, 40% fault to the hospital, and 10% fault to Officer Hankton; it then awarded damages totaling $1,134,287.44. The court of appeal affirmed in part, amended in part, and affirmed as amended. The Louisiana Supreme Court granted certiorari to review the trial court’s allocation of fault. After review, the Supreme Court reallocated the percentages of fault: Jackson 50%, Officer Hankton 10%, University Hospital 25%, and NOPD 15%. As amended, the trial court's judgment was affirmed.

Rismiller v. Gemini Insurance Co.

Court: Louisiana Supreme Court

Docket: 2020-CA-00313

Opinion Date: December 11, 2020

Judge: Boddie

Areas of Law: Civil Procedure, Constitutional Law, Family Law, Insurance Law, Personal Injury

Defendant Gemini Insurance Company appealed a district court's holding La. C.C. arts. 2315.1, 2315.2 and 199 were “unconstitutional as applied to children given in adoption” and overruling the defendants’ peremptory exceptions of no right of action. At issue was whether plaintiffs Daniel Goins and David Watts, two adult children who were given in adoption as minors, had a right to bring wrongful death and survival actions stemming from the deaths of their biological father and his two minor children, who were not given in adoption, and were plaintiffs’ biological half-siblings. After a de novo review, based on the clear and unambiguous wording of La. C.C. arts. 2315.1 and 2315.2, the Louisiana Supreme Court concluded Goins and Watts were “children of the deceased” and “brothers of the deceased” who were permitted to bring wrongful death and survival actions arising from the death of their biological father and half-siblings. In view of the Court's holding that plaintiffs had a right to assert survival and wrongful death actions, the Court declined to address their argument that La. C.C. arts. 2315.1, 2315.2 and 199 were unconstitutional as applied to children given in adoption.

Estate of Gorman v. Mississippi Gaming Commission

Court: Supreme Court of Mississippi

Citation: 2019-CA-01240-SCT

Opinion Date: December 17, 2020

Judge: Josiah D. Coleman

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

Robert Sharp shot and killed John Gorman during a firearm-training exercise ("a multitude of lapses in safety protocols"). Sharp and Gorman were employees of the Mississippi Gaming Commission and were acting in the course and scope of their employment. The Commission Shooting Review Board concluded that the incident “was an accidental discharge of an agency weapon,” it also concluded that the “failure to follow the prescribed policies, procedures and lesson plans” was the most significant contributing factor. After the incident, Gorman’s heirs began receiving automatic workers’ compensation payments. Each heir brought independent actions against the Commission that were later consolidated. Once consolidated, the Commission filed a joint motion for summary judgment in August 2017, stating the exclusivity of Mississippi Workers’ Compensation law barred further remedy. Gorman’s heirs opposed the motion by way of a pleading, memorandum, and a supplement with affidavits and admissions purportedly deemed admitted. The circuit court later granted summary judgment for the Commission. On appeal, the heirs argued: (1) the circuit court erred in determining the Workers' Compensation Act was the exclusive remedy to recover for the wrongful death of John Gorman; and (2) the circuit court erred in determining complete immunity applied regarding the Mississippi Tort Claims Act. Finding no triable issues of material fact in the record, the Mississippi Supreme Court affirmed the circuit court.

Venture, Inc. d/b/a Save-A-Lot v. Harris

Court: Supreme Court of Mississippi

Citation: 2019-IA-01498-SCT

Opinion Date: December 17, 2020

Judge: Chamberlin

Areas of Law: Civil Procedure, Personal Injury

Mattie Harris filed a premises-liability action against Venture, Inc., d/b/a/ Save-A-Lot after Harris allegedly tripped over the base of a temporary iron display rack while shopping at a Save-A-Lot grocery store. Harris claimed that Venture created a dangerous condition on the premises by placing a temporary iron display rack on the edge of a shopping aisle so that the base and the legs of the display rack protruded into the aisle and obstructed the walking clearance of customers. Harris claimed that Venture negligently maintained the premises by creating a dangerous condition on the premises and failed to warn invitees of the condition. The dangerous condition, Harris claimed, was the proximate cause of her fall and the resulting injuries. Both Harris and Venture moved for summary judgment, and Venture filed a motion to stay proceedings for the parties to complete discovery. The trial court granted in part Harris' motion on the issue of liability, and denied Venture's two motions. Aggrieved, Venture sought interlocutory appeal and argued the trial court abused its discretion by denying its Rule 56(f) motion and by granting Harris’s motion for summary judgment. Venture further asserted that the trial court erred by denying its motion for summary judgment because no unreasonably dangerous condition existed on the premises. Because this case was fact intensive and the two parties submitted conflicting evidence as to whether the rack constituted a dangerous condition, the Mississippi Supreme Court found that summary judgment in favor of either party was inappropriate and that the question of whether the rack constituted a dangerous condition should have been resolved by a trier of fact in a trial on the merits. Judgment was reversed and the matter remanded for further proceedings.

Curtiss v. North Dakota

Court: North Dakota Supreme Court

Citation: 2020 ND 303

Opinion Date: December 17, 2020

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Criminal Law

Spencer Curtiss appealed the dismissal of his declaratory judgment action seeking relief from a criminal judgment and the district court’s subsequent order denying his motion for reconsideration. In 2011, Curtiss was convicted and sentenced to 25 years of imprisonment with all but 15 years suspended for Gross Sexual Imposition (GSI) with a minor. Curtiss has previously initiated a direct appeal of his conviction in the criminal case, filed two petitions for post-conviction relief under the Uniform Postconviction Procedure Act, moved for relief under N.D.R.Civ.P. 60, and moved to amend his probation. In February 2020, Curtiss filed a complaint in district court seeking a declaratory judgment, a vacation of the sex offender registration requirements of his sentence, and a removal of his probation period. Curtiss asserted a variety of claims challenging the underlying GSI conviction. The court dismissed the action under N.D.R.Civ.P. 12(b)(6) after finding the current action to be an impermissible collateral attack on the criminal judgment. Curtiss subsequently filed a motion for reconsideration of the dismissal of his action. The court denied the motion. On appeal, Curtiss argued the district court erred in dismissing his action and denying his motion to reconsider. Finding no reversible error, the North Dakota Supreme Court affirmed dismissal.

Discover Bank v. Hornbacher

Court: North Dakota Supreme Court

Citation: 2020 ND 307

Opinion Date: December 17, 2020

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure, Consumer Law, Contracts

Discover Bank (Discover) appealed a district court order denying its motion for judgment and dismissing the case. Discover sued Bryan Hornbacher, alleging he was indebted to it on a credit card debt for $14,695.13. The parties entered into a stipulation and consent. The stipulation provided an acknowledgment by Hornbacher that he had been served with the summons and complaint and an admission that he had no defenses to the allegations in the complaint. Hornbacher consented to entry of judgment in the amount of $14,695.13 in exchange for Discover’s agreement to accept $10,080.00 payable over three years as full satisfaction of the judgment, and to forego execution on the judgment unless there were a default in the agreed-upon payment schedule. In its order, the trial court found that “[p]laintiff files a stipulation stating it will not move for judgment unless the terms of the agreement are [breached].” The North Dakota Supreme Court found this was an error, as was the trial court's focus on the lack of default under the stipulation having occurred: "Discover was not moving to execute the judgment, but rather was, by affidavit, moving for judgment to be entered against Hornbacher pursuant to the stipulation. The court misread the stipulation and misapplied the law." Because the plain language of the stipulation provided for judgment against Hornbacher to be entered, the Supreme Court reversed and remanded for entry of judgment.

Interest of Buller

Court: North Dakota Supreme Court

Citation: 2020 ND 317

Opinion Date: December 17, 2020

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Constitutional Law, Government & Administrative Law

David Buller appealed a district court order granting a petition for commitment of a sexually dangerous individual. On January 23, 2020, the State filed a petition for civil commitment of Buller as a sexually dangerous individual. On January 28, 2020, following a preliminary hearing, the district court entered an order of dismissal of the petition after finding the State failed to establish Buller had a condition that was manifested by a sexual disorder, personality disorder, or other mental disorder or dysfunction. On January 30, 2020, sua sponte and without notice to the parties, the court issued an order vacating the prior order dismissing the petition and finding probable cause was established to commit Buller. On February 19, 2020, Buller filed a petition for writ of mandamus to this Court. This Court exercised supervisory jurisdiction and vacated the district court’s January 30, 2020 order after considering the procedural irregularity of the second order issued sua sponte and without notice to the parties. On March 6, 2020, the State filed a new petition and started a new proceeding seeking commitment of Buller as a sexually dangerous individual. Buller requested dismissal of the new petition asserting res judicata precluded a second petition because the January 28, 2020 order dismissing the petition following the preliminary hearing was not vacated in the first proceeding. After completion of an evaluation in which two doctors reached an opinion Buller met the criteria of a sexually dangerous individual, the district court again issued an order granting the petition seeking commitment. Buller argued the proceedings in this case were bared by res judicata and the order for commitment was not supported by clear and convincing evidence. Finding no reversible error, the North Dakota Supreme Court affirmed.

Kuntz v. Leiss, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 300

Opinion Date: December 17, 2020

Judge: Gerald W. VandeWalle

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

Riley Kuntz appealed the district court’s default judgment entered in his favor. Kuntz sued Ashlynn Leiss and Joseph Westbrook for trespass and theft of his cat trap. Neither Leiss nor Westbrook answered the complaint or otherwise appeared. Following an evidentiary hearing, the district court granted default judgment in favor of Kuntz. The court found a trespass and conversion of the cat trap had occurred. The court awarded Kuntz a money judgment for conversion of the cat trap, but found he did not suffer any actual damages as a result of the trespass. Kuntz argues the district court erred by denying his damages for trespass. Finding no reversible error, the North Dakota Supreme Court affirmed.

Rentz v. BNSF Railway Co.

Court: North Dakota Supreme Court

Citation: 2020 ND 301

Opinion Date: December 17, 2020

Judge: Jon J. Jensen

Areas of Law: Civil Procedure, Personal Injury, Transportation Law

BNSF Railway Co. (“BNSF”) appealed a jury verdict and money judgment entered in favor of David Rentz. In July 2012, a tractor-trailer driven by Rentz was struck by a train operated by BNSF and train engineer, Reinaldo Guitian, Jr. The collision occurred at a public railroad grade crossing. In December 2015, Rentz sued BNSF and Guitian for personal injuries sustained during the vehicle/train collision. Guitian was subsequently dismissed as a named defendant in the action. Trial was held over eleven days in January 2019. Guitian was designated as BNSF’s party representative under N.D.R.Ev. 615 and was not sequestered from the courtroom. The jury returned a verdict finding Rentz 15% at fault and BNSF 85% at fault. A money judgment was entered in favor of Rentz. BNSF asserted it was denied a fair trial because: (1) BNSF’s designated representative at trial was allowed to be questioned beyond the scope of his knowledge; (2) video and audio clips taken from discovery depositions of BNSF’s designated representatives were improperly played during opening and closing arguments; (3) BNSF’s internal operating procedures were improperly used to modify the standard of care; and (4) opinion testimony of the investigating highway patrol trooper was excluded from evidence. Because the North Dakota Supreme Court concluded the questioning of BNSF’s representative at trial exceeded his personal knowledge and affected a substantial right, judgment was reversed and the matter remanded for a new trial.

Sather v. Sather

Court: North Dakota Supreme Court

Citation: 2020 ND 306

Opinion Date: December 17, 2020

Judge: Crothers

Areas of Law: Civil Procedure, Family Law

Amber Sather appealed a trial court judgment in hers and Adam Sather's divorce, a judgment that included a parenting plan for the parties’ children. She argued the district court erred by failing to include certain parenting plan provisions in the judgment. The North Dakota Supreme Court found section 14-09-30, N.D.C.C., required all parenting plans, including plans stipulated to and adopted by the court, to contain provisions regarding decision-making responsibility, dispute resolution, transportation and exchanges, and summer parenting time; or an explanation as to why the provisions were not included. The parenting plan here did not include these provisions or explain why they were not included. Thus, the Supreme Court concluded the district court erred by adopting the parties’ parenting plan without either all of the information in N.D.C.C. section 14-09-30(2) being included, or after considering the best interests of the children as required by N.D.C.C. section 14-09- 30(1), providing its own findings regarding the same. Judgment was reversed and the matter remanded for further proceedings.

Twete v. Mullin, et al.

Court: North Dakota Supreme Court

Citation: 2020 ND 311

Opinion Date: December 17, 2020

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure

This was the second appeal involving this matter. In the first appeal, the North Dakota Supreme Court affirmed the jury’s finding that there was a confidential relationship between Richard Twete and Clinton Mullin, and that Mullin committed a breach of trust, but the Court reversed an attorney’s fees award to Twete against Mullin and remanded “for further consideration and explanation of the legal basis authorizing the award of attorney fees in this case.” On remand, the parties briefed and argued whether the district court should award Twete his attorney’s fees. In March of 2020, the district court again granted Twete’s attorney’s fees request. Mullin appealed that order, arguing the district court abused its discretion through misapplication and misinterpretation of the law. To this, the Supreme Court agreed: the district court misinterpreted the law and abused its discretion in awarding attorney’s fees. Judgment was reversed and the matter remanded again for further proceedings.

Johnson v. CSAA General Insurance Co.

Court: Oklahoma Supreme Court

Citation: 2020 OK 110

Opinion Date: December 15, 2020

Judge: James E. Edmondson

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

Tokiko Johnson's real property was damaged in a storm and she filed a claim with her insurance company. Johnson also executed an assignment of her insurance claim for the purpose of repairing the property with the execution in favor of Triple Diamond Construction LLC (the construction company). An appraiser retained by the construction company determined storm damage to the property in the amount of $36,346.06. The insurer determined the amount of damage due to the storm was $21,725.36. When sued, the insurer argued the insured property owner was required to obtain written consent from the insurer prior to making the assignment. The Oklahoma Supreme Court determined an insured's post-loss assignment of a property insurance claim was an assignment of a chose in action and not an assignment of the insured's policy. Therefore, the insured's assignment was not prohibited by either the insurance policy or 36 O.S. section 3624. Judgment was reversed and the matter remanded for further proceedings. The insurer's motion to dismiss the appeal was thus denied.