Latest 33 Cases This Week: Lomax v. Ortiz-Marquez (U.S.), Barnet v. Ministry of Culture & Sports of the Hellenic Republic (2d Cir.), Waterfront ...

How the EEOC’s Maintenance of an “Alleged Offenders” Log Can Help Prevent the Next Harvey Weinstein

SAMUEL ESTREICHER, JOSEPH SCOPELITIS

NYU law professor Samuel Estreicher and recent graduate Joseph A. Scopelitis argue that the EEOC should maintain a log of “alleged offenders” to help prevent the next Harvey Weinstein. Estreicher and Scopelitis explain why such a log would effectively balance the interests of the alleged offender and victim, the employer, and the public.

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Lomax v. Ortiz-Marquez

Court: US Supreme Court

Docket: 18-8369

Opinion Date: June 8, 2020

Judge: Elena Kagan

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Criminal Law

The Prison Litigation Reform Act of 1995 (PLRA) established the three-strikes rule, which generally prevents a prisoner from bringing suit in forma pauperis (IFP) if he has had three or more prior suits dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. 28 U.S.C. 1915(g). Colorado inmate Lomax sued prison officials to challenge his expulsion from the facility’s sex-offender treatment program and moved for IFP status. He had already brought three unsuccessful legal actions during his time in prison. The district court and Tenth Circuit rejected Lomax’s argument that two of the dismissals should not count as strikes because they were without prejudice. The Supreme Court affirmed. Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without. A Section 1915(g) strike-call hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial effect. Courts can and sometimes do dismiss frivolous actions without prejudice.

Barnet v. Ministry of Culture & Sports of the Hellenic Republic

Court: US Court of Appeals for the Second Circuit

Docket: 19-2171

Opinion Date: June 9, 2020

Judge: Menashi

Areas of Law: Civil Procedure, International Law

The Second Circuit reversed the district court's decision concluding that it had subject-matter jurisdiction pursuant to the Foreign Sovereign Immunities Act (FSIA) over plaintiffs' suit seeking declaratory relief against Greece. This action stemmed from a dispute between the parties over the ownership of an ancient Greek artifact of a bronze horse figurine. The court held that Greece's claim of ownership over the figurine was not in connection with any commercial activity by Greece outside of the United States. Therefore, the court held that the FSIA does not authorize jurisdiction over this dispute. The court remanded with instructions to dismiss the action.

Waterfront Commission of New York Harbor v. Governor of New Jersey

Court: US Court of Appeals for the Third Circuit

Docket: 19-2458

Opinion Date: June 5, 2020

Judge: Smith

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

New Jersey and New York agreed more than 50 years ago to enter into the Waterfront Commission Compact. Congress consented to the formation of the Waterfront Commission Compact, under the Compacts Clause in Article I, section 10, of the U.S. Constitution, 67 Stat. 541. In 2018, New Jersey enacted legislation to withdraw from the Compact. To prevent this unilateral termination, the Waterfront Commission sued the Governor of New Jersey in federal court. The district court ruled in favor of the Commission. The Third Circuit vacated. The district court had federal-question jurisdiction over this dispute because the Complaint invoked the Supremacy Clause and the Compact (28 U.S.C. 1331) but that jurisdiction does not extend to any claim barred by state sovereign immunity. Because New Jersey is the real, substantial party in interest, its immunity should have barred the exercise of subject-matter jurisdiction.

Star v. TI Oldfield Development, LLC

Court: US Court of Appeals for the Fourth Circuit

Dockets: 18-2202, 18-2205

Opinion Date: June 10, 2020

Judge: G. Steven Agee

Areas of Law: Civil Procedure, Constitutional Law

After the Boards of Directors filed lawsuits raising claims related to a residential community, a resident filed a derivative action alleging similar claims against nearly identical defendants. The district court dismissed the derivative action and the Boards settled the lawsuits in the meantime. The Fourth Circuit held that the settlements mooted the resident's claims insofar as they were related to the ones asserted by the Boards. Therefore, the court dismissed his appeal as to those claims for lack of subject matter jurisdiction. To the extent the resident asserted claims falling outside the scope of those asserted by the Boards' complaints, the court concluded that those claims were either also rendered moot by the settlement agreements or were otherwise properly dismissed by the district court.

Cook v. Ohio National Life Insurance Co.

Court: US Court of Appeals for the Sixth Circuit

Docket: 19-3984

Opinion Date: June 9, 2020

Judge: Gilbert Stroud Merritt, Jr.

Areas of Law: Civil Procedure, Contracts

Cook sold variable annuities on behalf of Ohio National, under a contract between Ohio National and a broker-dealer, Triad. Ohio National paid commissions on the previously sold annuities to Triad, which in turn paid commissions to Cook pursuant to a separate agreement between Cook and Triad. After Ohio National terminated its agreement with Triad, Ohio National refused to pay further commissions on annuities sold during the term of the agreement. Cook sued Ohio National for breach of its agreement with Triad. Triad is not a party to the suit. Cook claimed that as a “third-party beneficiary” to the agreement between Ohio National and Triad, he had standing to bring suit. The district court found that, under Ohio law, Cook not an “intended” third-party beneficiary and could not maintain an alternative claim of unjust enrichment against Ohio National. The Sixth Circuit affirmed the dismissal of the suit. The plain language of the Selling Agreement makes it clear that plaintiff is not an intended third-party beneficiary under the Agreement. The Agreement unambiguously directs Ohio National to pay commissions to Triad; Cook is precluded from bringing an unjust enrichment claim against Ohio National.

Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1916

Opinion Date: June 5, 2020

Judge: Brennan

Areas of Law: Civil Procedure, Consumer Law

A medical supply company sent faxes to thousands of medical providers to solicit prescriptions to sell medical equipment to the providers’ patients. One provider received numerous faxes and filed a class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. The supply company failed to appear. A default judgment entered against the company as to liability but not damages. Later the supplier’s CEO was granted summary judgment. Concerned with inconsistency, the district court vacated the default judgment against the company and entered judgment for both the executive and the company. The Seventh Circuit affirmed as to the executive. Because the good cause standard was not applied in vacating the default judgment against the company, and inconsistent judgments between the individual and corporate defendants do not present a problem, the court reversed and remanded for further proceedings on the claim against the company. Judgments against these two defendants would not necessarily be inconsistent and the district court mistakenly believed that the plaintiff sought to “essentially” hold the CEO vicariously liable as an officer of the supplier, which would require uniformity in judgments. The plaintiff alleged joint and several liability, which is critically different from vicarious liability.

Burton v. Ghosh

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1360

Opinion Date: June 8, 2020

Judge: HAMILTON

Areas of Law: Civil Procedure

Burton injured his knee in 2009 while incarcerated. He repeatedly sought medical attention. Burton’s knee was not treated until 13 months later when Dr. Ghosh recommended a consultation with an orthopedic specialist. Burton had surgery more than 18 months after his injury. Burton’s discharge orders and his follow-up visit called for physical therapy and pain medication. Burton did not receive pain medication nor physical therapy for several months despite repeated letters and a formal grievance. Because of these delays, Burton claims, he has significant, permanent damage to his knee. In 2011, Burton filed suit alleging deliberate indifference to serious medical needs and retaliation. After several procedural missteps that resulted in dismissal, recruited counsel filed a new complaint. In 2018, after discovery was complete, and after newly‐recruited lawyers took Burton's case, Burton was allowed to file an amended complaint. The amendments were minor. The defendants filed a motion to dismiss, raising the new affirmative defense of res judicata, arguing that the dismissal of Burton’s first suit with prejudice in 2012 precluded the second, that they had become aware of Burton’s earlier dismissed case only days earlier, and that the amended complaint permitted new affirmative defenses. The district court dismissed. The Seventh Circuit reversed. The FRCP 8(c) and 15 standards for amending pleadings govern the raising of new affirmative defenses even when an amended complaint is filed. A district court is not required to allow any and all new defenses in response to any amendment, without regard for the substance of the amendment and its relationship to the new defenses. Here, the late amendment to the complaint was minor and did not authorize a new res judicata defense that had been waived or forfeited years earlier.

O'Neal v. Reilly

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-2981

Opinion Date: June 9, 2020

Judge: Barrett

Areas of Law: Civil Procedure, Civil Rights

O’Neal was convicted of aggravated battery of a police officer after an altercation during a traffic stop. While incarcerated and while his appeal was pending, O’Neal filed a pro se lawsuit that asserted 42 U.S.C. 1983 claims against the officers. Under "Heck," O’Neal’s section 1983 suit was barred unless his conviction was reversed or expunged. Heck-barred suits are usually stayed or dismissed without prejudice, but after O’Neal failed to comply with briefing deadlines, the court ordered O’Neal to show cause why his case should not be dismissed. O’Neal didn’t respond. The court dismissed his claims with prejudice for failure to prosecute. Months later, O’Neal’s conviction was overturned on appeal. Ten months later, O’Neal returned to court, with counsel, with a “Motion to Reinstate the Case and for Leave to File an Amended Complaint" under Fed. R. Civ. P. 15. His motion nowhere mentioned Rule 60(b), the mechanism for obtaining relief from judgment. The defendants' response, maintained that O’Neal was not entitled to Rule 60(b) relief. O’Neal’s reply brief attempted to articulate why Rule 60(b) relief was warranted. The court denied O’Neal’s Rule 15 motion, explaining that he could not file an amended complaint in a terminated case, and held that the Rule 60(b) argument was waived. The Seventh Circuit affirmed. O’Neal waived any argument under Rule 60(b) and, because the case was terminated on the merits, the court was right to deny his Rule 15 motion.

Quincy Bioscience, LLC v. Ellishbooks

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1799

Opinion Date: June 5, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Intellectual Property, Legal Ethics, Trademark

Quincy’s Prevagen® dietary supplement is sold at stores and online. Quincy registered its Prevagen® trademark in 2007. Ellishbooks, which was not authorized to sell Prevagen®, sold supplements identified as Prevagen® on Amazon.com, including items that were in altered or damaged packaging; lacked the appropriate purchase codes or other markings that identify the authorized retail seller; and contained tags from retail stores. Quincy sued under the Lanham Act, 15 U.S.C. 1114. Ellishbooks did not respond. The court entered default judgment. Ellishbooks identified no circumstances capable of establishing good cause for default. The district court entered a $480,968.13 judgment in favor of Quincy, plus costs, and permanently enjoined Ellishbooks from infringing upon the PREVAGEN® trademark and selling stolen products bearing the PREVAGEN® trademark. The Seventh Circuit affirmed and subsequently awarded Rule 38 sanctions. Ellishbooks’ appellate arguments had virtually no likelihood of success and its conduct during the course of the appeal was marked by several failures to timely respond and significant deficiencies in its filings. These shortcomings cannot be attributed entirely to counsel’s lack of experience in litigating federal appeals. A review of the dockets suggests that Ellishbooks has attempted to draw out the proceedings as long as possible while knowing that it had no viable substantive defense.

Frank v. Autovest, LLC

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

Docket: 19-7119

Opinion Date: June 9, 2020

Judge: Thomas Beall Griffith

Areas of Law: Civil Procedure, Constitutional Law, Consumer Law

Plaintiff filed a putative class action against Autovest and its debt-collection agency under the Fair Debt Collection Practices Act (FDCPA), alleging claims related to a prior collection action. The DC Circuit vacated the district court's order granting summary judgment to defendants, holding that plaintiff lacked Article III standing because she did not suffer a concrete injury-in-fact traceable to the alleged false representations or alleged statements for requested contingency fees. Rather, plaintiff testified unequivocally that she neither took nor failed to take any action because of these statements. Nor did plaintiff testify that she was otherwise confused, misled, or harmed in any relevant way during the collection action by the contested affidavits. In this case, although plaintiff stated that Autovest's collection action caused her stress and inconvenience, she never connected those general harms to the affidavits. Therefore, the court remanded with instructions to dismiss the complaint.

Alabama Department of Revenue v. Panama City Wholesale, Inc.

Court: Supreme Court of Alabama

Docket: 1190321

Opinion Date: June 5, 2020

Judge: Tom Parker

Areas of Law: Business Law, Civil Procedure, Government & Administrative Law, Tax Law

Alabama imposed a license or privilege tax on tobacco products stored or received for distribution within the State ("the tobacco tax"). Under Alabama law, the Department of Revenue could confiscate tobacco products on which the tobacco tax had not been paid. Panama City Wholesale, Inc. ("PCW") was a wholesale tobacco-products distributor located in Panama City, Florida, and owned by Ehad Ahmed. One of PCW's customers, Yafa Wholesale, LLC ("Yafa"), was an Alabama tobacco distributor owned by Sayeneddin Thiab ("Thiab"). On October 10, 2018, Hurricane Michael destroyed the roof on PCW's warehouse. Department surveillance agents observed observed one of Thiab's vehicles being unloaded at two of the recently rented storage units. The day after that, agents observed one of Thiab's delivery vehicles being loaded with tobacco products from a recently rented unit following the storm. On October 23, 2018, the Department confiscated 1,431,819 cigars from four storage units leased by persons connected to Yafa and Thiab. It is undisputed that the tobacco tax had not been paid on the cigars. Ahmed filed an action against Vernon Barnett, as Commissioner of the Department, seeking a judgment declaring that the cigars were Ahmed's and that they were not subject to confiscation. The case was transferred to the Jefferson Circuit Court, PCW was substituted for Ahmed, and the parties were realigned to make the Commissioner of the Department the plaintiff and PCW the defendant in a civil forfeiture action. On PCW's motion, the circuit court entered a summary judgment in PCW's favor, ruling that the Commissioner failed to present substantial evidence that the cigars were in the possession of a retailer or semijobber, as the court believed was required by the confiscation statute. The Commissioner appealed. A divided Alabama Supreme Court reversed, concluding the circuit court erred in interpreting the confiscation statute to apply only to untaxed tobacco products in the possession of retailers and semijobbers, and because the Commissioner presented substantial evidence that the cigars were subject to confiscation under a correct interpretation of the statute, the Court reversed summary judgment and remanded for further proceedings.

Craft v. McCoy et al.

Court: Supreme Court of Alabama

Docket: 1180820

Opinion Date: June 5, 2020

Judge: Michael F. Bolin

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

Justin Craft and Jason Craft appealed the grant of summary judgment entered in favor of members of the Lee County Board of Education ("the Board") and the Superintendent of the Lee County Schools, Dr. James McCoy. During July, August, and September 2016, the Board hired S&A Landscaping to perform three projects of overdue lawn maintenance at Lee County schools. S&A Landscaping was owned by an aunt by marriage of Marcus Fuller, the Assistant Superintendent of the Lee County Schools. The Crafts, who were employed as HVAC technicians by the Board, questioned the propriety of hiring S&A Landscaping for those projects. The Crafts expressed their concerns with various current and former Board members and individuals at the State Ethics Commission ("the Commission") and at the Alabama Department of Examiners of Public Accounts. Although an individual at the Commission instructed Jason Craft on how to file a complaint with the Commission, neither of the Crafts did so. During this time, McCoy, Fuller, and others suspected various maintenance employees, including the Crafts, of misusing their Board-owned vehicles and misrepresenting their work hours. To investigate their suspicions, the Board had GPS data-tracking devices installed in Board-owned vehicles being used by employees to monitor their use and the employees' activities. A review of the GPS data indicated that certain employees, including the Crafts, had violated Board policy by inappropriately using the Board-owned vehicles and by inaccurately reporting their work time. McCoy sent letters to the Crafts and two other employees, advising them that he had recommended to the Board the termination of their employment. The letters detailed dates, times, and locations of specific incidents of alleged misconduct. The Crafts were placed on administrative leave, then returned to work to custodial positions that did not require them to use Board-owned vehicles. The Crafts appealed their job transfers, arguing they had not been afforded due process. An administrative law judge determined the Students First Act did not provide an opportunity for a hearing before the imposition of a job transfer. The Crafts thereafter sued the Board members and McCoy, seeking declaratory relief based on alleged violations of the anti-retaliation provision of section 36-25-24, Ala. Code 1975, arguing that they were punished for contacting the Commission. The Alabama Supreme Court determined the anti-retaliation protection was triggered only when an employee filed a complaint with the Commission. Because it was undisputed the Crafts did not file a complaint, they were not entitled to those statutory protections. Therefore, summary judgment in favor of the Board and McCoy was affirmed.

Ex parte Sean Allen, One Bonehead Trucking, Inc., & FedEx Ground Package System, Inc.

Court: Supreme Court of Alabama

Docket: 1190276

Opinion Date: June 5, 2020

Judge: Tom Parker

Areas of Law: Civil Procedure, Personal Injury

Following an automobile accident in Lee County, Alabama between Dionne Drisker and Sean Michael Allen, Drisker sued Allen, One Bonehead Trucking, Inc. ("Bonehead"), and FedEx Ground Package System, Inc. ("FedEx"), in Macon County, where Drisker resided. The defendants sought a writ of mandamus directing the Macon Circuit Court to transfer this case to the Lee Circuit Court under the interest-of-justice prong of the forum non conveniens statute. Because the defendants demonstrated that the connection between this case and Macon County was weak and that the connection between this case and Lee County was strong, the trial court exceeded its discretion by denying the defendants' motion to transfer the case to Lee County. The Alabama Supreme Court therefore directed the trial court to transfer this case to Lee County.

Resurrection of Life, Inc. v. Dailey

Court: Supreme Court of Alabama

Docket: 1180154

Opinion Date: June 5, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Personal Injury

Christian Dailey, a minor, suffered a catastrophic personal injury at a day-care facility run by Resurrection of Life, Inc., d/b/a Perfect Place Christian Academy ("Resurrection of Life"). Christian's parents, Mark and Valerie Dailey, sued Resurrection of Life and its employee Latoya Mitchell Dawkins (hereinafter "the day-care defendants") on his behalf and, following a jury trial, obtained a sizable compensatory-damages award. The day-care defendants did not challenge the size of that award, but they did challenge the trial court’s refusal to grant them a new trial on the ground of juror misconduct. Because the day-care defendants were not entitled to a new trial, the Alabama Supreme Court affirmed.

Walters v. De'Andrea

Court: Supreme Court of Alabama

Docket: 1190062

Opinion Date: June 5, 2020

Judge: Mendheim

Areas of Law: Civil Procedure, Personal Injury

Clint Walters appeals from a summary judgment entered by the Montgomery Circuit Court in favor of Montgomery Police Department ("MPD") patrol officer Jessica De'Andrea and Progressive Casualty Insurance Company ("Progressive"). Walters was driving his motorcycle when he came to a complete stop at a red light. De'Andrea was traveling in her MPD police vehicle when she came to a stop directly behind Walters's motorcycle at the intersection of the Eastern Boulevard and Monticello Drive. De'Andrea testified in her deposition that she had completed her patrol shift and that she was on her way to the MPD South Central Headquarters on the Eastern Boulevard to end her shift. When the light turned green, De'Andrea saw that other vehicles were moving. She wasn't sure if Walters' brake light was intact; the officer assumed Walters was moving and proceeded to go, hitting Walters from behind. Walters alleged he suffered multiple injuries as a result of the accident, and filed an action against De'Andrea, Progressive, and State Farm Mutual Automobile Insurance Company ("State Farm"). Walters asserted claims of negligence and wantonness against De'Andrea in her individual capacity; he asserted claims for uninsured-motorist benefits against Progressive and State Farm. State Farm moved for summary judgment, attesting Walters did not have any insurance policies with State Farm in force at the time of the accident. De'Andrea moved for summary judgment, arguing she was entitled to state-agent immunity; Progressive and State Farm also moved for summary judgment, arguing that if De'Andrea was entitled to be dismissed, they too should be dismissed because Walters would not be "legally entitled to recover damages" from De'Andrea. The circuit court entered summary judgments in favor of De'Andrea, Progressive, and State Farm. The summary-judgment order did not detail the circuit court's reasons for its decision. Walters filed a postjudgment motion requesting that the circuit court alter, amend, or vacate its summary-judgment order. The postjudgment motion was denied. The Alabama Supreme Court reversed, finding De'Andrea failed to demonstrate that Walters's claims arose from a function that would entitle her to State-agent immunity. Therefore, the summary judgment in De'Andrea's favor was due to be reversed. Because Progressive's summary-judgment motion was predicated solely on the ground that Walters would not be "legally entitled to recover" uninsured-motorist benefits if De'Andrea was entitled to State-agent immunity, the summary judgment in its favor was also reversed. The case was remanded for further proceedings.

Kenneth P. Jacobus, P.C. v. Kalenka

Court: Alaska Supreme Court

Docket: S-16977

Opinion Date: June 5, 2020

Judge: Carney

Areas of Law: Civil Procedure, Contracts, Legal Ethics

After a conflict of interest between an attorney and a long-time client arose during settlement negotiations, the attorney filed a confidential motion with the superior court criticizing his client. The client discharged the attorney and hired new counsel. But the attorney continued to control the settlement funds and disbursed himself his fee, even though the amount was disputed by the client. The court found that the attorney’s actions had violated the rules of professional conduct and ordered forfeiture of most of his attorney’s fees. Finding no reversible error in that decision, the Alaska Supreme Court affirmed the superior court.

Weaver v. ASRC Federal Holding Co.

Court: Alaska Supreme Court

Docket: S-17406

Opinion Date: June 5, 2020

Judge: Joel H. Bolger

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

Gregory Weaver worked at remote sites for ARCTEC Alaska1 off and on for several years as a relief station mechanic. His job involved heavy labor, and he filed several reports of injury during the times he worked for ARCTEC. He reported in December 2010 that he had “pulled something in the lower spinal area” while adjusting tire chains on a dump truck. He filed another injury report related to his back in early 2012, after he experienced back pain while installing garage door panels. Weaver passed “fit for duty” physical examinations after both of these injuries. In 2013, however, he woke up one morning with back pain that made it hard for him to walk. He said his back pain “had been building up for several months,” but he could not identify a specific task related to the onset of pain. He said “the majority of the heavy lifting” he did that summer had been at Indian Mountain, but he described work at Barter Island as including significant shoveling and pushing wheelbarrows of rocks over difficult surfaces. He thought the camp bed provided inadequate back support. He asked to be flown out because of his back pain and has not worked since. Weaver began receiving About six months later his employer controverted all benefits based on a medical opinion that the work caused only workers’ compensation benefits after experiencing severe low back pain at a remote job site. About six months later his employer controverted all benefits based on a medical opinion that the work caused only a temporary aggravation of a preexisting condition. Weaver the Alaska Workers’ Compensation Board to join a prior back injury claim against the same employer. Following a lengthy and complex administrative process, the Board denied the worker’s claim for additional benefits, and the Alaska Workers’ Compensation Appeals Commission affirmed the Board’s decision. Finding no reversible error, the Alaska Supreme Court affirmed the Board's and Commission's decisions.

Farina v. SAVWCL III, LLC

Court: California Courts of Appeal

Docket: B294516(Second Appellate District)

Opinion Date: June 10, 2020

Judge: Wiley

Areas of Law: Civil Procedure

Aspen brokered two loans for West Charleston, a Nevada real estate developer. Over 500 investors funded the loans, with the vast majority living in Aspen's home state of Nevada, a tenth living in California, and another 111 living in other states. Investors filed suit alleging that Aspen and Guinn conspired with Developers, raising 11 causes of action including fraud, breach of contract, and elder abuse. The trial court subsequently granted Developers' motion to quash service for lack of personal jurisdiction. The Court of Appeal held that the trial court correctly determined that Investors did not carry their burden to establish jurisdiction. In this case, no evidence shows that California has case-linked jurisdiction over Developers. The court held that Investors' arguments do not prove jurisdiction for several of the Developers, and their arguments also failed independently; because Developers did not direct Aspen's activities toward California, there is no jurisdiction in California; Developers did not purposefully avail themselves of California benefits through contracts with Investors; and, because Investors' claims do not arise out of or relate to Joint Venture's retention of California firms, jurisdiction does not exist.

Gascon v. HomeAdvisor, Inc.

Court: California Courts of Appeal

Docket: A154960(First Appellate District)

Opinion Date: June 5, 2020

Judge: Barbara J.R. Jones

Areas of Law: Civil Procedure, Communications Law, Consumer Law

The San Francisco District Attorney sued HomeAdvisor, alleging it violated California’s False Advertising Law, Business and Professions Code section 17500, and the Unfair Competition Law section 17200, claiming that many of HomeAdvisor’s advertisements “are false and misleading because they are likely to deceive consumers into believing that all service professionals hired through HomeAdvisor who come into their homes have passed criminal background checks." The only person who actually undergoes a background check is the owner/principal of an independently-owned business. The court of appeal affirmed a preliminary injunction that prohibited HomeAdvisor from broadcasting certain advertisements, but, excepting advertisements HomeAdvisor discontinued, permitted HomeAdvisor to continue broadcasting them for specified lengths of time if accompanied by a disclaimer. The court rejected arguments that the order was vague, indefinite, overbroad, and unconstitutional. The government may ban forms of communication more likely to deceive the public than to inform it.” By providing several specific examples of permissible and impermissible advertising, the preliminary injunction order is sufficiently definite for HomeAdvisor to determine what it “may and may not do” pending a trial on the merits of the claims. The enjoined advertisements and descriptions are inherently likely to deceive because they exploit the ambiguity of the term “pro.”

Hernandez v. FCA US LLC

Court: California Courts of Appeal

Docket: B296516(Second Appellate District)

Opinion Date: June 11, 2020

Judge: Stratton

Areas of Law: Civil Procedure, Legal Ethics

After plaintiff settled her civil action as the prevailing party, the trial court set a hearing three months out on an order to show cause (OSC) regarding dismissal, and ordered any motion for attorney fees to be filed and heard before the OSC date. Due to mistake, inadvertence, or neglect by counsel, plaintiff did not file a motion for fees by the court-ordered deadline. The trial court then refused to extend the deadline and dismissed the action pursuant to the settlement agreement. Four months later, counsel filed a motion to set aside the dismissal pursuant to the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b). The Court of Appeal affirmed the trial court's denial of the motion, holding that counsel missed the court-ordered deadline to move for attorney fees and section 473 provides no relief for such error. The court agreed with the trial court that dismissal was not caused by counsel's error. Rather, counsel's error simply caused plaintiff to lose the opportunity to file her fee motion.

Pulte Home Corp. v. CBR Electric, Inc.

Court: California Courts of Appeal

Docket: E068353(Fourth Appellate District)

Opinion Date: June 10, 2020

Judge: Slough

Areas of Law: Civil Procedure, Construction Law, Contracts, Insurance Law

After defending the general contractor in two construction defect actions, general liability insurer St. Paul Mercury Insurance Company (St. Paul) sought reimbursement of defense costs under an equitable subrogation theory against six subcontractors (defendants) that had worked on the underlying construction projects and whose contracts required them to defend the general contractor in suits involving allegations related to their work. After a bench trial, the court denied St. Paul’s claim. Relying on Patent Scaffolding Co. v. William Simpson Constr. Co., 256 Cal.App.2d 506, 514 (1967), the trial court concluded St. Paul had not demonstrated it was fair to shift all of the defense costs to defendants because their failure to defend the general contractor had not caused the homeowners to bring the construction defect actions. St. Paul argued this conclusion misconstrued the law governing equitable subrogation and therefore constitutes an abuse of discretion. To this, the Court of Appeal agreed: (1) a cause of action based on equitable subrogation allowed an insurer to step into the shoes of its insured and recover only what the insured would be entitled to recover from the defendants; and (2) the appropriate inquiry should have been whether defendants’ failure to defend the general contractor caused St. Paul to incur the defense costs, not whether that failure caused the underlying lawsuits. Judgment was reversed and the matter remanded to the trial court to grant judgment in St. Paul's favor and for a determination of defense costs each defendant owed.

Williams v. U.S. Bancorp Investments, Inc.

Court: California Courts of Appeal

Docket: A156226(First Appellate District)

Opinion Date: June 9, 2020

Judge: Tucher

Areas of Law: Civil Procedure, Class Action

In the 2005 Burakoff class action, the court (in 2008) certified two subclasses of California Bancorp financial consultants for a period running through the date of the order. Subclass A “worked more than 40 hours in a week or 8 hours in a day, but did not receive overtime pay.” Subclass B were illegally required to pay their business expenses. Williams joined Bancorp in 2007, becoming a member of the Burakoff putative class. In 2010, he filed another class action, alleging similar causes of action for a class period beginning the day after the Burakoff class period ended, with consistent subclasses. The trial court stayed the Williams case pending Burakoff's resolution. In 2011, the court decertified the Burakoff overtime subclass, for lack of sufficient commonality. In 2012, the parties settled Burakoff. Williams participated in that settlement as a member of Subclass B. He did not, nor did any absent members of Subclass A, release his wage and hour claims. Bancorp then demanded arbitration under an agreement Williams had signed. Bancorp argued the Burakoff decertification order collaterally estopped Williams from relitigating the appropriateness of class certification. Williams agreed to the dismissal of his claim for unpaid business expenses. Following a remand, the trial court granted a motion to compel arbitration of Williams’s individual claims, concluding that a class decertification order may have collateral estoppel effect. The court of appeal reversed. An order denying certification to a proposed class does not preclude an absent member of the putative class from later seeking to certify an identical class in a second action; collateral estoppel does not bar an absent member in a putative class that was initially certified, but later decertified, from subsequently pursuing an identical class action.

Wittenberg v. Bornstein

Court: California Courts of Appeal

Docket: A154750(First Appellate District)

Opinion Date: June 11, 2020

Judge: Fujisaki

Areas of Law: Civil Procedure, Legal Ethics, Professional Malpractice & Ethics

Wittenberg and Daniel are the co-owners of Hertzel Enterprises LLC. Attorney Peretz formerly represented Hertzel and now represents Daniel. Wittenberg filed suit asserting claims, individually and derivatively on behalf of Hertzel, against defendants including Daniel and Peretz. Wittenberg alleged that Peretz breached his fiduciary duties of loyalty, care, and confidentiality by representing clients with interests adverse to those of Hertzel; using Hertzel’s confidential business information in his representation of clients with adverse interests; and conspiring with Daniel and others to dismiss with prejudice a cross-complaint that Hertzel had previously filed against Daniel. Peretz filed a special motion to strike under the anti-SLAPP law (Code Civ. Proc. 425.16). The trial court declined to strike the causes of action for breach of fiduciary duty and conspiracy, finding they arose not out of Peretz’s litigation conduct but the alleged breaches of his professional obligations. The court of appeal reversed, finding that Peretz carried his burden to show the two causes of action arise, in part, from protected activity, so that the burden shifted to Wittenberg to show minimal merit on her claims based on the allegation of protected activity, which she failed to do. The act underlying Peretz’s liability for this particular allegation is protected litigation conduct.

Forest View Co. v. Town of Monument

Court: Colorado Supreme Court

Citation: 2020 CO 52

Opinion Date: June 8, 2020

Judge: Harris L. Hartz

Areas of Law: Civil Procedure, Government & Administrative Law, Zoning, Planning & Land Use

The Town of Monument (the “Town”) purchased a piece of property on which it planned to build a water tower. Neighboring property owners objected, arguing that the property was subject to a restrictive covenant limiting construction to single-family residences. According to the property owners, if the Town were to violate that covenant by building a water tower, the Town would be taking the restrictive covenant from each of the covenant-subject properties, and it would therefore have to compensate the property owners for the diminution in value caused by that taking. The Colorado Supreme Court answered the question of whether a restrictive covenant diminished the value of property adjacent to the government property such that the change constituted a taking. In Smith v. Clifton Sanitation District, 300 P.2d 548 (Colo. 1956), the Court held that when state or local government acquires property subject to a restrictive covenant and uses it for purposes inconsistent with that covenant, “no claim for damages arises by virtue of such a covenant as in the instant case, in favor of the owners of other property” subject to the covenant. Petitioners asked the Supreme Court to confine "Smith" to its facts or overrule it entirely. The Court declined, instead reaffirming that where a government entity has obtained property for public purposes, the government may use that land for a purpose inconsistent with a restrictive covenant without compensating all of the other landowners who are subject to that restrictive covenant.

Jacobs v. Colorado

Court: Colorado Supreme Court

Citation: 2020 CO 50

Opinion Date: June 8, 2020

Judge: Gabriel

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use

Dr. Steven Jacobs, Casas Limited Partnership #4, LLP, and IQ Investors, LLC (collectively, “Jacobs”) contended the water court erred in: (1) granting summary judgment to the State Engineer and the Division Engineer for Water Division No. 2 (the “Engineers”) and partial summary judgment for the Park Forest Water District (“PFWD”); (2) imposing civil penalties for Jacobs’s violations of the Division Engineer’s order requiring Jacobs to cease and desist unlawfully storing state waters in two ponds on his properties; and (3) certifying its summary judgment rulings as final pursuant to C.R.C.P. 54(b). In 2012, Casas and IQ Investors acquired certain real properties, together with associated water rights and three ponds, in unincorporated El Paso County, Colorado. In order to satisfy the water needs of the properties, Jacobs negotiated with PFWD to join the properties to PFWD, and these parties formalized their arrangement in an Inclusion Agreement. Pursuant to the Inclusion Agreement, PFWD filed an application seeking to amend its augmentation plan to add Jacobs’s ponds to it. In seeking this amendment, PFWD made clear that it was not requesting new water storage rights for the ponds but rather was simply proposing to replace evaporative losses from them. The water court granted PFWD’s application and ruled that the ponds would be augmented consistent with the requirements of PFWD’s augmentation plan. Suspecting that the initial fill after reconstruction was thus not legally obtained, the commissioner requested that Jacobs provide him with the source of the initial fill and advised that if he did not receive such confirmation, then he would seek an order requiring the release of any illegally stored water. Discussion of this issue apparently went on for more than a year. In the course of such discussions, Jacobs took the position that the Inclusion Agreement covered the initial fill. PFWD, however, contended that that Agreement did not do so and that PFWD was not obligated to provide replacement water for the ponds. On December 23, 2016, having not received satisfactory proof that Jacobs’s initial fill of the ponds was lawful, the Division Engineer issued an administrative order (the “2016 Order”) to Jacobs. Jacobs did not comply with the 2016 Order by the deadline set forth therein. The Engineers thus filed a complaint in the water court for injunctive relief, penalties, and costs to enforce the 2016 Order. The Colorado Supreme Court concluded the water court properly granted both the Engineers’ summary judgment motion and PFWD’s motion for partial summary judgment, and properly imposed civil penalties.

Rocky Mountain Planned Parenthood, Inc. v. Wagner

Court: Colorado Supreme Court

Citation: 2020 CO 51

Opinion Date: June 8, 2020

Judge: Gabriel

Areas of Law: Civil Procedure, Personal Injury

This case arose from the 2015 mass shooting at Planned Parenthood of the Rocky Mountains’ (“PPRM’s”) Colorado Springs facility, which left three people dead and nine seriously injured. The issue narrowed for the Colorado Supreme Court's review centered on whether plaintiffs introduced sufficient evidence to establish a genuine issue of material fact as to whether Robert Dear’s conduct as the shooter was the “predominant cause” of plaintiffs’ injuries such that PPRM’s conduct, even if it contributed to such injuries, could not be a substantial factor in causing them. Further, the Court was asked to address whether the plaintiffs established a genuine issue of material fact as to whether PPRM’s parent organization, Planned Parenthood Federation of America (“PPFA”), owed them a duty of care. The Court concluded plaintiffs indeed presented sufficient evidence to establish a genuine issue of material fact as to whether Dear’s conduct was the predominant cause of their injuries; and as a matter of law, plaintiffs did not establish that PPFA owed them a legal duty. The Court affirmed judgment of the appellate court.

McCandless v. Pease

Court: Idaho Supreme Court - Civil

Docket: 46936

Opinion Date: June 11, 2020

Judge: Moeller

Areas of Law: Civil Procedure, Personal Injury

Max Pease failed to stop his vehicle before rear-ending Brent Weddle’s vehicle. The force of the collision caused Weddle’s vehicle to cross over into oncoming traffic and collide with a pickup truck owned by Mabel Robin Blackeagle. Dana McCandless was the driver of the pickup truck and Blackeagle was a passenger. A jury found Pease and Weddle negligent and awarded damages as a result. Dissatisfied with the amount of the verdict, McCandless and Blackeagle moved for a new trial on the comparative negligence and damages, and argued there were errors at trial to warrant a new one. The district court granted their motion in part and ordered a new trial unless Pease agreed to an additur of $4,000. Pease accepted the additur. McCandless and Blackeagle appealed the district court’s order on their motion for a new trial. Finding no reversible error, the Idaho Supreme Court affirmed the district court’s order.

Appeal of Keith R. Mader 2000 Revocable Trust et al.

Court: New Hampshire Supreme Court

Docket: 2019-0061

Opinion Date: June 5, 2020

Judge: Anna Barbara Hantz Marconi

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

Eighteen petitioners appealed a New Hampshire Board of Tax and Land Appeals (BTLA) decision to dismiss their respective appeals of denials of applications for abatements of real estate taxes issued by respondent Town of Bartlett. he BTLA dismissed the appeals because the petitioners’ abatement applications failed to comply with the signature and certification requirement of New Hampshire Administrative Rules, Tax 203.02, and because the BTLA found that the petitioners did not demonstrate that these failures were “due to reasonable cause and not willful neglect.” There was no dispute in this case that petitioners did not personally sign or certify their abatement applications. Instead, petitioners contested the BTLA’s ruling that they did not demonstrate that the lack of signatures and certifications was due to reasonable cause and not willful neglect. "Although the question of whether reasonable cause or willful neglect exists in a particular case is one of fact for the BTLA, the questions of what elements constitute reasonable cause or willful neglect under Tax 203.02 are ones of law." Because the BTLA did not have the benefit of the construction of Tax 203.02(d) that the New Hampshire announced in its opinion of this case, BTLA's decisions were vacated, and each matter remanded for further consideration.

Riverbend Condo Association v. Groundhog Landscaping & Property Maintenance, Inc.

Court: New Hampshire Supreme Court

Docket: 2019-0264

Opinion Date: June 5, 2020

Judge: Gary E. Hicks

Areas of Law: Civil Procedure, Construction Law

Plaintiff Riverbend Condo Association appealed a superior court order dismissing its complaint against defendant Groundhog Landscaping and Property Maintenance, Inc., on res judicata grounds. In 2017, plaintiff brought a breach of contract action against defendant. Neither party appeared at the scheduled trial management conference set by the superior court. The superior court thus canceled trial and dismissed the case. Plaintiff filed a "motion to reopen," asking the court to reopen the matter and reschedule the trial management conference. The superior court denied the motion, stating that plaintiff's pleading constituted an untimely motion to reconsider. Plaintiff thereafter brought a second action, alleging among other things, breach of contact. Defendant moved to dismiss, arguing that the action was barred by res judicata. The trial court ultimately granted defendant's motion. On appeal, plaintiff contended its complaint was not barred by the trial court’s dismissal of its first action against defendant, as that dismissal was not a final judgment on the merits. Finding no reversible error, the New Hampshire Supreme Court affirmed.

Sanchez v. Fitness Factory Edgewater, LLC

Court: Supreme Court of New Jersey

Docket: a-93-18

Opinion Date: May 28, 2020

Judge: Faustino J. Fernandez-Vina

Areas of Law: Civil Procedure, Consumer Law, Contracts

Plaintiff Henry Sanchez filed a class action seeking relief based on the Retail Installment Sales Act, N.J.S.A. 17:16C-1 to -61 (RISA). He contended the “initiation fee” charged in defendant Fitness Factory’s gym membership contract, among other provisions, violated RISA. The trial court dismissed Sanchez’s complaint, finding that RISA did not apply to the contract because it was a contract for services. The Appellate Division affirmed. While acknowledging that RISA applied to some services contracts, the Appellate Division found that RISA applied only to contracts that contained a financing arrangement. The New Jersey Supreme Court determined that by its own terms, RISA applied to services contracts. Further, in the statute as written, there was no requirement that a contract include a financing arrangement to be covered by RISA. Judgment was reversed and the matter remanded for further proceedings.

Whelan v. Armstrong International, Inc.

Court: Supreme Court of New Jersey

Docket: a-40-18

Opinion Date: June 3, 2020

Judge: Barry T. Albin

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

Plaintiff Arthur Whelan filed suit against seven defendants, who allegedly manufactured or distributed products integrated with asbestos-containing components. Whelan claimed he was exposed to asbestos dust while working on those products, including their original asbestos-containing components or asbestos-containing replacement components. Defendants contended that Whelan could not establish that his exposure to asbestos was the result of any product they manufactured or distributed, disclaiming any liability for Whelan’s exposure to asbestos-containing replacement parts that they did not manufacture or distribute, even though the parts were incorporated into their products. Whelan countered that it made no difference whether he was exposed to defendants’ original asbestos-containing components or a third party’s asbestos-containing components -- defendants’ duty to warn and liability attached to both. The trial court granted summary judgment in favor of defendants. The Appellate Division reversed, determining that defendants had a duty to warn about the dangers of the asbestos-containing replacement components necessary for the continued functioning of their products and that defendants could be held strictly liable for the failure to do so, provided Whelan suffered sufficient exposure to the replacement components to contribute to his disease. After Whelan appealed, the Appellate Division issued Hughes v. A.W. Chesterton Co., 435 N.J. Super. 326 (App. Div. 2014), which held that a defendant had a duty to warn, regardless of who manufactured the replacement components, because under the facts of that case, “it was reasonably foreseeable . . . that the gaskets and packing would be replaced regularly with gaskets and packing that contained asbestos.” The Appellate Division found that Whelan had “presented sufficient evidence detailing his exposure to asbestos,” either from defendants’ original or replacement components or from a third party’s replacement components, to withstand summary judgment. Thus, the Whelan panel reversed the summary judgment order and left the disputed issues of fact to be resolved by a jury. Finding no reversible error in the appellate panel's judgment, the New Jersey Supreme Court affirmed.

Nelson, et al. v. Nelson

Court: North Dakota Supreme Court

Citation: 2020 ND 130

Opinion Date: June 8, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Civil Procedure, Trusts & Estates

William Nelson appealed a district court judgment denying his claims relating to a quitclaim deed executed by his mother Elsie Haykel before her death. Elsie Haykel executed estate planning documents and a quitclaim deed conveying a remainder interest in a Bismarck condominium to her children, Steven Nelson, Gail Nelson-Hom, and William Nelson. Haykel died in 2014. In January 2016, Steven and Gail sued William seeking a partition and sale of the condominium. William counterclaimed, alleging the 2011 quitclaim deed was invalid because Haykel lacked mental capacity and was unduly influenced. The district court entered partial summary judgment in favor of Steven and Gail, but the North Dakota Supreme Court reversed and remanded, concluding William Nelson raised genuine issues of material fact on his claims of lack of capacity and undue influence. After a two-day trial in July and August 2019, the district court entered a judgment concluding the quitclaim deed was valid because Haykel did not lack mental capacity to execute the deed and was not unduly influenced. The judgment also awarded Steven and Gail attorney’s fees and costs, granted Steven authority to sell the condominium, and denied William's discovery claims and his motion to stay the proceedings to reopen Haykel’s probate. William raised twenty-one issues on appeal. The Supreme Court determined William did not seek a stay of the judgment before the condominium was sold. In addition, he did not claim his appeal involved great public interest. Therefore, the Court concluded the issues in the appeal relating to the sale of the condominium were moot, and dismissed that part of William Nelson’s appeal. Finding no other reversible error, the Supreme Court affirmed the trial court's judgment.

Griffin v. Snow Christensen & Martineau

Court: Utah Supreme Court

Citation: 2020 UT 33

Opinion Date: June 10, 2020

Judge: Peterson

Areas of Law: Civil Procedure, Professional Malpractice & Ethics

The Supreme Court affirmed the ruling of the district court that Plaintiff's post-judgment motion was timely, holding that the district court's order of dismissal did not constitute a separate judgment under Utah R. Civ. P. 58A(1), and therefore, the judgment was not complete and entered until 150 days after the clerk recorded the order of dismissal. This appeal stemmed from a legal malpractice claim. The district court dismissed the complaint. On April 10, the district court signed the proposed order of dismissal with prejudice. On May 9, Plaintiff filed a post-judgment motion requesting various forms of relief. Defendant argued that the motion was untimely because it was filed more than twenty-eight days after the April 10 order. The district court granted Plaintiff's motion and vacated the April 10 order, concluding that the order was not a separate judgment under Rule 58A(a) and therefore did not start the time to file post-judgment motions. The Supreme Court affirmed, holding (1) the district court did not err in concluding that the April 10 order was not a separate judgment pursuant to Rule 58A(a); and (2) because the April 10 order did not constitute an "entry of judgment" that started the time to file post-judgment motions, Plaintiff's post-judgment motion was timely.