Trump Swings His Wrecking Ball at Social Security

NEIL H. BUCHANAN

Neil H. Buchanan—UF law professor and economist—dispels some common misunderstandings about the future of Social Security but explains why President Trump’s recent comments are cause for concern. Buchanan explains why, contrary to claims by reporters and politicians, Social Security is not at the brink of insolvency, but points out that if Trump were to permanently eliminate payroll taxes, that would doom the program on which tens of millions of retirees depend.

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Rodriguez v. Gusman

Court: US Court of Appeals for the Second Circuit

Docket: 19-2213

Opinion Date: August 31, 2020

Judge: Pooler

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

Plaintiff appealed the district court's order adopting the Magistrate Judge's sua sponte order administratively closing plaintiff's civil rights suit against defendants and denying his motion to reconsider. The district court concluded that, because plaintiff had been deported to the Dominican Republic, plaintiff would be unavailable in the United States for depositions, further medical examinations, and trial testimony, and the case should be closed. The Second Circuit held that an administrative closure in such circumstances is a last resort that is appropriate only when all other alternatives are virtually impossible or so impractical as to significantly interfere with the operations of the district court or impose an unreasonable burden on the party opposing the plaintiff's claim. In this case, the court held that numerous alternatives to the issues identified by the district court exist, and none seems virtually impossible or so impractical as to significantly interfere with the operations of the district court or impose an unreasonable burden on the party opposing plaintiff's claim. Accordingly, the court vacated the district court's order and remanded for further proceedings.

In Re: Plavix Marketing, Sales Practices and Products Liability Litigation

Court: US Court of Appeals for the Third Circuit

Docket: 18-2472

Opinion Date: September 1, 2020

Judge: Bibas

Areas of Law: Business Law, Civil Procedure

Two doctors and a former pharmaceutical sales representative formed a partnership, JKJ, to sue several pharmaceutical companies as a qui tam relator under the False Claims Act with respect to the marketing of the anti-clotting drug, Plavix. When one of them left the partnership and was replaced, that change amounted to forming a new partnership. The defendant’s moved to dismiss because the Act’s first-to-file bar stops a new “person” from “interven[ing] or bring[ing] a related action based on the [same] facts,” 31 U.S.C. 3730(b)(5). The Third Circuit vacated the dismissal, after noting responses by the Delaware Supreme Court to certified questions indicating that the two partnerships were distinct. The verb “intervene” means to inject oneself between two existing parties, as under Federal Rule of Civil Procedure 24. The new partnership did not do that but instead came in as the relator. The district court ruling was based mainly on a dictum from a Supreme Court case on a very different issue and never considered the issue here. The Act’s plain text bars only intervention or bringing a related suit.

Macsherry v. Sparrows Point, LLC

Court: US Court of Appeals for the Fourth Circuit

Dockets: 19-1281, 19-1321

Opinion Date: September 1, 2020

Judge: Albert Diaz

Areas of Law: Civil Procedure, Contracts

A jury awarded plaintiff $1 million on his claims against Sparrows Point for nonpayment of a commission on the sale of a large parcel of industrial property located on the Sparrows Point peninsula. Defendants contend that the evidence is insufficient to support the jury's verdict as to all claims. In the alternative, they seek a new trial, contending that the district court erred in admitting evidence of an alleged effort to compromise plaintiff's claim to a commission and in granting plaintiff a jury trial. The Fourth Circuit held that the evidence of defendants' effort to compromise plaintiff's claim was not admissible for any purpose under Federal Rule of Evidence 408 and the error was not harmless. The court explained that, even assuming that the evidence is sufficient as a matter of law to support the jury's verdict, the court cannot be confident that the jury was not substantially swayed by the evidentiary error. Therefore, the court held that defendants are entitled to a new trial. Finally, the court found that the district court enjoyed ample discretion to grant plaintiff's untimely request for a jury trial under Federal Rule of Civil Procedure 39(b), and thus the new trial may remain before a jury.

Maryland Shall Issue, Inc. v. Hogan

Court: US Court of Appeals for the Fourth Circuit

Docket: 19-1469

Opinion Date: August 31, 2020

Judge: G. Steven Agee

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

MSI, a non-profit organization dedicated to gun owner rights, individuals, and Atlantic, a family-owned, federally licensed firearms dealer that operates Maryland commercial gun stores, challenged Maryland Senate Bill 707 banning "rapid-fire trigger activators," which when attached to a firearm, increase its rate of fire or trigger activation, citing the Takings Clause and alleging that the statute was void for vagueness. The Fourth Circuit initially affirmed the dismissal of the complaint for lack of standing. In an amended opinion, the court reversed in part. Atlantic has standing to pursue the Second Amendment claim. Uncontroverted testimony plus Maryland State Police records and Atlantic's year-over-year sales records are sufficient to establish an injury in fact for purposes of Article III standing. The extent of Atlantic's economic injury—including its ability to identify lost customers as well as the scope of the purported decline in handguns sold and lost revenue— are material issues of fact to be resolved in the Second Amendment analysis on the merits. Atlantic also has third-party standing to challenge the handgun qualification license requirement on behalf of potential customers like the individual plaintiffs and other similarly situated persons. The court otherwise affirmed the dismissal. MSI lacked organizational standing; it failed to prove the law hindered its ability to pursue its mission. The individual plaintiffs had not sought licenses.

Flack v. Commissioner of Social Security

Court: US Court of Appeals for the Sixth Circuit

Dockets: 19-3886, 19-1579, 19-1581, 19-1586, 19-1889, 19-1977

Opinion Date: September 1, 2020

Judge: Helene N. White

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

The plaintiffs sought Social Security disability and/or supplemental security income benefits. In each case, the application was denied, and an ALJ upheld the denial. The Appeals Council denied relief. The plaintiffs sought judicial review. While the appeals were pending, the plaintiffs moved to raise an issue they had not raised during administrative hearings--a challenge to the ALJs’ appointments, citing the Supreme Court’s 2018 "Lucia" decision that SEC ALJs had not been appointed in a constitutionally legitimate manner and that remand for a de novo hearing before a different ALJ was required. The district courts agreed that the Appointments Clause challenges were forfeited and affirmed the denials of benefits. The Sixth Circuit vacated and remanded for new hearings before constitutionally appointed ALJs other than the ALJs who presided over the first hearings. There is no question that Social Security ALJs are inferior officers who were required to be, but were not, appointed consistently with the Appointments Clause. There are no statutory or regulatory exhaustion requirements governing Social Security proceedings and, while a court may still impose an implied exhaustion rule, such a requirement is inappropriate because the regulations provide no notice to claimants that their failure to raise an Appointments Clause challenge at the ALJ level will preclude them from later seeking a judicial decision on the issue.

Krakowski v. Allied Pilots Ass'n

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1816

Opinion Date: August 28, 2020

Judge: Stras

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

Plaintiff filed suit against Allied Pilots in state court for conversion and unjust enrichment, arguing that he was entitled to keep his whole profit sharing payment rather than give some of it to the union for "dues." The union removed to federal court, contending that plaintiff's claims are preempted by the Railway Labor Act (RLA). The district court held that state law claims fell away due to preemption and the federal claims did not survive summary judgment. The Eighth Circuit reversed and held that the district court erred by relying on the complete-preemption doctrine, finding that the RLA wholly displaced plaintiff's state law claims. In this case, the RLA does not require disputes between an employee and a union to be heard by an adjustment board, so there is no federal cause of action at all, much less an exclusive one. Accordingly, the court vacated the district court's judgment and instructed the district court, on remand, to return this case to state court.

Baca v. Department of Army

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-9536

Opinion Date: September 2, 2020

Judge: Stephanie Kulp Seymour

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

In September 2018, petitioner Larry Baca was removed from his position in the Directorate of Public Works at the U.S. Army White Sands Missile Range, New Mexico. Baca sought review of this decision by the Merit Systems Protection Board (MSPB), asserting three affirmative defenses to his removal. The MSPB rejected all of Baca’s defenses and affirmed his removal. He appealed only the MSPB’s determination with respect to one of his affirmative defenses, that his firing was unlawful retaliation for whistleblowing in violation of the Whistleblower Protection Act (WPA). Finding no reversible error, the Tenth Circuit affirmed the MSPB's decision.

McCraw v. City of Oklahoma City

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-6008

Opinion Date: August 31, 2020

Judge: Carlos F. Lucero

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

Oklahoma City Ordinance 25,777 prohibited standing, sitting, or remaining for most purposes on certain medians. Plaintiffs were Oklahoma City residents, a minority political party in Oklahoma, and an independent news organization. They used medians to panhandle, engage in protests or other expressive activity, mount political campaigns, cover the news, or have personal conversations. After they were no longer able to engage in such activity due to the ordinance, plaintiffs sued Oklahoma City and its chief of police, William Citty, (together, “the City”) alleging violations of their First and Fourteenth Amendment rights. The district court dismissed plaintiff Trista Wilson’s First Amendment claim; granted summary judgment favoring the City on plaintiffs’ due process vagueness claims; and, following a bench trial, entered judgment against plaintiffs on all other claims. After review, the Tenth Circuit Court of Appeals reversed the court’s entry of judgment in favor of the City on plaintiffs’ First Amendment claims; it reversed the dismissal of Wilson’s First Amendment claim; and affirmed on all other claims.

McDaniel v. Navient Solutions

Court: US Court of Appeals for the Tenth Circuit

Docket: 18-1445

Opinion Date: August 31, 2020

Judge: Jerome A. Holmes

Areas of Law: Bankruptcy, Civil Procedure

Plaintiffs-appellees Byron and Laura McDaniel claimed they discharged some private student loans in their Chapter 13 bankruptcy. Defendant-Appellant Navient Solutions, LLC (“Navient”), the loans’ creditor, moved to dismiss the McDaniels’ claim under Federal Rule of Civil Procedure 12(b)(6), contending that the loans were excepted from discharge under 11 U.S.C. 523(a)(8)(A)(ii). This case raised a question of first impression to the Tenth Circuit of whether an educational loan constituted “an obligation to repay funds received as an educational benefit,” within the meaning of section 523(a)(8)(A)(ii). The Court concluded that it did not, therefore, the Court affirmed the bankruptcy court’s interlocutory order denying Navient’s motion, and remanded the case for further proceedings.

Santiago v. Raytheon Technologies Corp.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-15104

Opinion Date: August 31, 2020

Judge: Marcus

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

In 1996, when she was an infant, Cynthia's family moved to the "Acreage" in Palm Beach County, Florida, about 10 miles from undeveloped land that Pratt used for tests that contaminated the soil. By 1993, most of the soil at the site required removal. Cynthia’s parents allege that in 1993-2000, Pratt excavated contaminated soil that was sold as “fill” for the Acreage and that runoff from the contaminated soil leached into the Acreage’s water supply. In 2009, the Florida Department of Health found a cluster of pediatric brain cancer cases in the Acreage. In 2009, doctors diagnosed Cynthia with ependymoma brain cancer, which metastasized to her spine. Doctors detected thorium-230 in Cynthia’s spine hundreds of times higher than would normally be expected. Cynthia turned 18 in 2014 and filed suit, alleging she was unaware of the contamination until 2014. Cynthia died in 2016. Her Florida law wrongful death by negligence and trespass claims were untimely under Florida's four-year limitations period. With respect to claims under the Price-Anderson Act, 42 U.S.C. 2210(n)(2), her parents cited the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. 9601, which tolls the statute of limitations until a plaintiff knows (or reasonably should have known) her injury was caused by a hazardous substance, or until the plaintiff reaches the age of majority. The Eleventh Circuit affirmed the dismissal of the suit CERCLA’s discovery-tolling provision applies only to actions “brought under State law.” Actions under the Price-Anderson Act borrow from the state where the incident occurred, so Florida’s four-year statute of limitations governs.

Committee on the Judiciary of the United States House of Representatives v. McGahn

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

Docket: 19-5331

Opinion Date: August 31, 2020

Judge: Thomas Beall Griffith

Areas of Law: Civil Procedure, Government & Administrative Law

After the Committee on the Judiciary of the House of Representatives ordered former White House Counsel McGahn to testify, the president instructed McGahn to assert absolute testimonial immunity from compelled congressional process. The D.C. Circuit initially ordered the dismissal of the Committee's suit. The en banc court subsequently held that the Committee has Article III standing to seek judicial enforcement of the subpoena. On remand for consideration of the remaining issues, the panel held that the Committee has no cause of action to enforce its subpoena and the case must be dismissed. Implied statutory limitations foreclose suits by the House and suits that implicate a governmental privilege. The Declaratory Judgment Act, 28 U.S.C. 2201(a), does not itself “provide a cause of action,” as the “availability of declaratory relief presupposes the existence of a judicially remediable right.” If Congress (rather than a single committee in a single chamber thereof) determines that its current mechanisms leave it unable to adequately enforce its subpoenas, it remains free to enact a statute that makes the House’s requests for information judicially enforceable.

Capitol Farmers Market, Inc. v. Delongchamp

Court: Supreme Court of Alabama

Docket: 1190103

Opinion Date: August 28, 2020

Judge: Tommy Bryan

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

Capitol Farmers Market, Inc. appealed a circuit court order entered in favor of Cindy C. Warren Delongchamp. In 2003, Delongchamp acquired two adjacent parcels of property burdened by restrictive covenants by her predecessor-in-interest. In 2015, Capitol Farmers Market acquired two adjacent parcels of property. The parties agreed that one of the parcels ("the Capitol Farmers Market property") was included within the property similarly burdened by the restrictive covenants (the 1982 Declaration). The Capitol Farmers Market property abutted the Delongchamp property; it was undisputed that the other parcel acquired by Capitol Farmers Market was not subject to the restrictive covenants set out in the 1982 Declaration. In September 2017, Delongchamp filed a complaint in the circuit court that, as amended, sought a declaratory judgment and injunctive relief regarding the Capitol Farmers Market property, alleging that Capitol Farmers Market was planning to "subdivide the Capitol [Farmers Market p]roperty into a high density residential subdivision with proposed lots being substantially less than the required five (5) acre minimum." Delongchamp sought a judgment declaring that the Capitol Farmers Market property was encumbered by the restrictive covenants set out in the 1982 Declaration and that Capitol Farmers Market was required to abide by the restrictive covenants on the Capitol Farmers Market property. Delongchamp also sought an injunction restraining Capitol Farmers Market from "violating" the restrictive covenants set out in the 1982 Declaration "to include, but not limited to, subdividing the Capitol [Farmers Market] property into lots less than five (5) acres." In August 2019, the special master filed a report of his findings and his recommendation in the circuit court. On appeal, the Alabama Supreme Court determined an adjacent property owner, whose property was also burdened by the 1982 covenants, should have been joined as a party to this action. "If Alfa cannot be made a party, the circuit court should consider the reasons Alfa cannot be joined and decide whether the action should proceed in Alfa's absence. In light of the foregoing, we express no opinion concerning the merits of the arguments made by the parties on appeal."

Ex parte Berry Stephens.

Court: Supreme Court of Alabama

Docket: 1190457

Opinion Date: August 28, 2020

Judge: Mendheim

Areas of Law: Civil Procedure, Trusts & Estates

Berry Stephens petitioned the Alabama Supreme Court for a writ of mandamus to direct the Coffee Circuit Court to appoint him administrator ad litem of the estate of his mother, Louise Gennuso. The Supreme Court determined the estate's personal representative had an interest adverse to the estate. Therefore, the circuit court had a duty to appoint an administrator ad litem for the estate, but failed to do so. The Court thus granted Stephens' petition, and directed the circuit court to appoint Stephens as administrator ad litem for the estate of Gennuso.

Caliber Paving Co. v. Rexford Industrial Realty and Management

Court: California Courts of Appeal

Docket: G058406(Fourth Appellate District)

Opinion Date: September 1, 2020

Judge: Richard D. Fybel

Areas of Law: Civil Procedure, Construction Law, Contracts

Caliber Paving Company, Inc. (Caliber) sued Rexford Industrial Realty and Management, Inc. (Rexford) for intentional interference with a contract between Caliber and Steve Fodor Construction (SFC). The trial court granted Rexford’s motion for summary judgment on the ground that Rexford, although not a party to the contract, had an economic interest in it and therefore could not be liable in tort for intentional interference with contract. Caliber appealed. In a case of first impression, the Court of Appeal held that under Applied Equipment Corp. v. Litton Saudi Arabia Ltd., 7 Cal.4th 503 (1994), a defendant who is not a party to the contract or an agent of a party to the contract is a noncontracting party or stranger to the contract and, regardless whether the defendant claims a social or economic interest in the contractual relationship, may be liable in tort for intentional interference with contract. Applied Equipment did not confer immunity for intentional interference with contract on noncontracting parties having a social or economic interest in the contractual relationship from liability. The Court also concluded Caliber submitted admissible evidence sufficient to meet its burden of raising a triable issue of fact as to whether Rexford interfered with the contract between SFC and Caliber. Judgment was reversed and the matter remanded for further proceedings.

Rivera v. Shivers

Court: California Courts of Appeal

Docket: G057919(Fourth Appellate District)

Opinion Date: August 31, 2020

Judge: William W. Bedsworth

Areas of Law: Arbitration & Mediation, Civil Procedure, Landlord - Tenant

In 2008, appellants Robert and Linda Shivers rented a residential property in La Habra from respondent Wilfred Rivera. Almost seven years later, Rivera filed an unlawful detainer action against the Shivers, alleging they had not paid rent. He later amended his pleading to add causes of action based on the allegation they had damaged the property and taken appliances when they vacated it. The Shivers filed a cross-complaint, alleging Rivera had failed to make repairs to the property and had left it untenantable. The case was originally assigned to limited civil jurisdiction but was later reclassified to unlimited civil. Upon reassignment, the new trial judge ordered counsel to meet and confer regarding the appointment of a referee under Code of Civil Procedure section 638, and a status conference on the subject was scheduled for March 19, 2018. At the status conference, the parties advised the court they could not agree on a referee. The court took the matter under submission, but warned that a referee would be appointed if the parties could not agree on one. Thereafter, in a minute order dated one month later, the trial court, instead of appointing a referee, sua sponte ordered the matter to judicial arbitration. The issue this case presented for the Court of Appeal's review centered on whether the arbitration, originally statutory in nature, morphed into a contractual arbitration as the result of a vague stipulation by counsel for the parties. Neither side ever seemed to have entertained the notion that the completed arbitration was anything but binding, and treated it as such. The trial judge, however, decided on his own that the arbitration was not what the parties intended, a conclusion derived from their actions rather than their explicit words. As a result, the trial court denied the appellants’ petition to confirm, vacated the award, and set a trial date in the case. After review, the Court of Appeal concluded the trial court erred in not confirming the arbitration award and reversed it.

Bennett v. Bank of Eastern Oregon

Court: Idaho Supreme Court - Civil

Docket: 47346

Opinion Date: August 31, 2020

Judge: Roger S. Burdick

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

Bret and Mary Bennett filed an action to quiet title to their residence in Payette, Idaho, against the Bank of Eastern Oregon (“BEO”), seeking to remove a judgment lien and a deed of trust. In 2007, the Bennetts started a motorsports business in Ontario, Oregon, which leased its premises from a different business entity owned by the Bennetts. In 2008, the Bennetts personally guaranteed one or more loans between BEO and these businesses. Among these loans was a $100,000 promissory note (“the Note”) that was secured by a deed of trust on the Bennetts’ residence situated on the other side of the Snake River in Payette, Idaho (“the Property”). The deed of trust designated 1st American Title Company of Malheur County, Oregon as trustee. The parties signed the deed of trust on April 10, 2008. One day later, on April 11, 2008, BEO recorded the deed of trust in the Payette County Recorder’s Office. By its terms, the deed of trust was set to mature on May 5, 2009. The Bennetts later defaulted on the Note and other obligations to BEO. Rather than seeking to foreclose on the Property for a breach of the Note’s terms, BEO successfully pursued a collection action against the Bennetts in Oregon state court to recover on all of the Bennetts’ debts, including the Note. This appeal addressed whether a debtor could use Idaho’s single-action rule as a sanction to quiet title against a deed of trust when the secured creditor has violated the rule by filing an action against the debtor to recover on the debt before seeking satisfaction of the debt by foreclosing on the property serving as security. The Idaho Supreme Court determined the Bennetts stated a cause of action that could allow them to quiet title against BEO for the deed of trust. Construing the pleadings in favor of the Bennetts, BEO violated the single-action rule codified in Idaho Code section 45-1503(1) by seeking to recover from the Bennetts on the Note personally before seeking to foreclose on the Property. Thus, the Supreme Court reversed the district court's decision granting BEO's motion to dismiss, vacated the judgment of dismissal, and remanded for further proceedings.

Rochkind v. Stevenson

Court: Maryland Court of Appeals

Docket: 47/19

Opinion Date: August 28, 2020

Judge: Getty

Areas of Law: Civil Procedure, Personal Injury

In this case, the Court of Appeals chose to adopt Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), as the governing standard by which trial courts admit or exclude expert testimony, thus replacing Maryland's "Frye-Reed Plus" standard. The Frye-Reed standard, born of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and Reed v. State, 283 Md. 374 (1978), started in Maryland and continued to be the standard for determining the reliability of expert testimony after the United States Supreme Court decided Daubert. The Frye-Reed standard eventually morphed into the Frye-Reed Plus standard, which adopted several Daubert principles. For that reason, Appellant argued that this Court should adopt the Daubert standard and apply it to this case. The Supreme Court agreed and reversed this matter for pretrial proceedings and a new trial consistent with this opinion, holding (1) this Court adopts the Daubert standard in Maryland because those factors are persuasive in interpreting Maryland Rule 5-702; and (2) this case is remanded for the circuit court to apply this new evidentiary standard.

Adara Networks, Inc. v. Langston

Court: Supreme Court of Mississippi

Citation: 2018-IA-01686-SCT

Opinion Date: September 3, 2020

Judge: Michael K. Randolph

Areas of Law: Civil Procedure

Adara Networks Inc. (Networks Inc.) appeals the denial of a Rule of Civil Procedure 12(b)(2) motion to dismiss for lack of personal jurisdiction. At the time the complaint was filed, Networks Inc. was incorporated in Florida with its principal place of business in San Jose, California. Shane Langston was a member of the Mississippi Bar since 1984 and until 2016, was a resident of Mississippi. At the time of filing, he was a resident of Texas. Years before Langston moved to Texas, Langston purchased one million shares of preferred stock in Networks Inc. for $500,000. This purchase was made at the urging of his then-Madison County, Mississippi, neighbor, Ken Primos. Unknown to Langston, Primos was a paid shill for Networks Inc., acting to entice Langston and other Mississippians to invest in Networks Inc. In an affidavit filed in this proceeding, Primos swore that since at least 2002 he was paid monthly by Networks Inc. to solicit and influence investors for Networks Inc. including residents of Mississippi. Networks Inc. held one shareholder meeting over the twenty-year period that Langston was a shareholder. That shareholder meeting was held in Jackson, Mississippi, with roughly one hundred Mississippi shareholders in attendance. Langston sought multiple times to examine various corporate documents. Each time, Primos was dispatched by Networks Inc. to discourage Langston. Primos told Langston to withdraw his requests because a merger or buyout was imminent and disclosures would adversely impact Networks Inc. Networks Inc. countered the shareholders request by producing only selected documents. However, before allowing the investors to review any documents, Networks Inc. required execution of a confidentiality agreement. That agreement contained a clause requiring that any dispute arising under that agreement would be governed and interpreted by the laws of Mississippi and, further, that any disputes that arose were subject to the jurisdiction of Mississippi courts. Langston alleged that the selective production failed to encompass the documents requested and required by either Florida or Mississippi law. Langston filed a complaint for accounting; Networks Inc. responded with a Rule of Civil Procedure 12(b)(2) motion to dismiss for lack of personal jurisdiction. Networks Inc. also claimed that it had not subjected itself to the benefits and protections of Mississippi law, despite evidence to the contrary in the confidentiality agreement. The Mississippi Supreme Court determined the Mississippi Chancery Court properly denied Networks Inc.’s motion. "The chancery court can assert personal jurisdiction over Networks Inc. under either the doing-business prong of our long-arm statute or the tort prong. Langston pled sufficient facts to establish Networks Inc. did or does business in Mississippi and to plead the tort of breach of fiduciary duty. Therefore, we affirm the judgment of the chancery court."

Seals v. Pearl River Resort & Casino

Court: Supreme Court of Mississippi

Citation: 2019-CT-00012-SCT

Opinion Date: September 3, 2020

Judge: Michael K. Randolph

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

The Mississippi Supreme Court accepted this case on certiorari review from the Court of Appeals. Shaun Seals worked for the Pearl River Resort; he alleged he was terminated for reasons relating to a work-related injury. Donna Brolick, Pearl River Resort’s director of employment compliance, was called as a witness at the hearing before an administrative judge (AJ). Brolick testified that she was previously vice president of human resources at Pearl River Resort at the time Seals’s position was phased out and he was let go in January of 2013. Brolick further testified that in 2012 the resort changed its management. Multiple upper-level positions were eliminated or consolidated. Seals’s position as director of transportation was one of several positions that were eliminated. The Workers' Compensation Commission reversed the AJ’s order. The Commission found that Seals had reached maximum medical improvement on November 13, 2015, but failed to prove any permanent disability or loss of wage-earning capacity for two reasons. The Commission found that Seals was let go for unrelated economic reasons, noting his receipt of severance pay and other benefits as well as the testimony and evidence adduced by the Resort. Seals appealed the Commission's decision to the Court of Appeals. The appellate court held the Commission was correct in its assessment of the date of maximum medical improvement but that the Commission erred by finding Seals failed to prove any loss of wage-earning capacity. The Court of Appeals reversed and remanded the decision of the Commission and directed the Commission to calculate Seals’s loss of wage-earning capacity and to award corresponding compensation. The Resort petitioned the Supreme Court for a writ of certiorari, which was granted. The Supreme Court adopted "the well-reasoned analysis of the opinion concerning maximum medical improvement," but was "constrained to reverse the Court of Appeals’ majority regarding loss of wage-earning capacity. Sufficient evidence supported the Commission’s decision that Seals had not suffered loss of wage-earning capacity." The Commission's decision was reinstated in toto.

Summerfield v. OLCC

Court: Oregon Supreme Court

Docket: S066377

Opinion Date: August 28, 2020

Judge: Duncan

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

Plaintiff Gene Summerfield, worked for defendant Oregon Liquor Control Commission (OLCC), in its warehouse. In his complaint plaintiff alleged that he and other African-Americans had been subjected to racial discrimination and racial harassment at the warehouse. Plaintiff also alleged that he had repeatedly told defendant about the discrimination and harassment, but defendant had failed to take effective corrective action. Plaintiff filed a workers’ compensation claim for acute stress. The claim was accepted, and plaintiff received treatment. Plaintiff’s treatment provider eventually released plaintiff to return to work, and plaintiff requested reemployment. The jury rejected plaintiff’s first claim; on the verdict form, it answered the questions finding that defendant had not “intentionally discriminate[d] against plaintiff because of his race” and had not “subject[ed] plaintiff to a racially hostile work environment by his co-workers.” The jury also rejected plaintiff’s retaliation claim, finding that defendant had not “retaliate[d] against [plaintiff] for opposing or reporting racial dis- crimination or racial harassment.” But the jury accepted plaintiff’s whistleblowing claim, finding that defendant had “take[n] adverse enforcement [sic] action against plaintiff because he in good faith reported information that he believed was a violation of a law, rule or other regulation.” Plaintiff appealed, and the Court of Appeals affirmed. The Oregon Supreme Court determined the trial court did not err in granting defendant a directed verdict on plaintiff’s reemployment claim; plaintiff bore the burden of proving that defendant had available and suitable employment for him and plaintiff conceded that he had not done so. The Supreme Court also concluded that, although the trial court erred in failing to instruct the jury on the meaning of “adverse employment action” for the purposes of plaintiff’s retaliation claim, the error was harmless because there was no dispute that the actions plaintiff relied on to support his retaliation claim were adverse employment actions and the jury actually found that defendant had committed an adverse employment action. Finally, the Supreme Court concluded that plaintiff has not established that, under the circumstances of this case, the trial court abused its discretion in declining to award plaintiff equitable relief.

Weaver v. Recreation District

Court: South Carolina Supreme Court

Docket: 27991

Opinion Date: September 2, 2020

Judge: Donald W. Beatty

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

Appellant Don Weaver brought a declaratory judgment action to challenge the constitutionality of S.C. Code Ann. section 6-11-271 (2004), which addressed the millage levied in certain special purpose districts. Appellant owned property and was a taxpayer in the Recreation District, a special purpose district created to fund the operation and maintenance of parks and other recreational facilities in the unincorporated areas of Richland County, South Carolina. Appellant first argued section 6-11-271 was unconstitutional because it violated the South Carolina Constitution's prohibition on taxation without representation. Appellant next contended section 6-11-271 did not affect all counties equally and was, therefore, special legislation that was prohibited by the South Carolina Constitution. Appellant lastly argued section 6-11-271 was void because it violated Home Rule as set forth in the state constitution and the Home Rule Act. The circuit court found Appellant failed to meet his burden of establishing any constitutional infirmity. To this, the South Carolina Supreme Court concurred and affirmed judgment.

Progressive Northern Insurance Company v. Muller

Court: Vermont Supreme Court

Citation: 2020 VT 76

Opinion Date: August 28, 2020

Judge: Carroll

Areas of Law: Civil Procedure, Contracts, Insurance Law

Todd and Melissa Muller appealed a superior court decision granting summary judgment to their insurer, Progressive Northern Insurance Company. The Mullers challenged the court’s conclusions on how the setoff provision of their insurance policy should have been applied when there were multiple claimants. The Vermont Supreme Court agreed with the trial court that, construing the insurance policy as a whole, the setoff provision is unambiguous: It clearly provided that Progressive was entitled to reduce “all sums . . . paid” regardless of the number of claims made.

Hampton v. Meyer

Court: Supreme Court of Virginia

Docket: 191194

Opinion Date: August 27, 2020

Judge: William C. Mims

Areas of Law: Civil Procedure, Personal Injury

The Supreme Court held that the misidentification of a defendant in a complaint was a misnomer, not a misjoinder, and therefore, the filing of a new complaint to correct the error after a nonsuit was not barred by the statute of limitations. Calvin Hampton, who was injured in a car accident, filed a negligence complaint seeking damages. The complaint identified the driver of the other vehicle as Michael Meyer. Later, however, Hampton learned that Noah Meyer, and not his father Michael, had been driving the vehicle at the time of the collision. Hampton subsequently obtained an order nonsuiting his complaint. Hampton then filed a new complaint asserting that, under this Court's decision in Richmond v. Volk, 291 Va. 60 (2016), the use of the wrong name in his complaint was merely a misnomer rather than a misjoinder. Noah filed a plea in bar asserting that the new complaint was time-barred. The circuit court sustained the plea in bar, ruling that naming Michael in the original complaint was a misjoinder, not a misnomer. The Supreme Court reversed, holding (1) the misidentification of the driver in the original complaint were merely a misnomer, not a misjoinder; and (2) therefore, under Volk, the new complaint was not barred by the statute of limitations.

Burgess v. Lithia Motors, Inc.

Court: Washington Supreme Court

Docket: 98083-7

Opinion Date: September 3, 2020

Judge: Charles Johnson

Areas of Law: Arbitration & Mediation, Civil Procedure, Labor & Employment Law

Evette Burgess and Lithia Motors, Inc. entered into arbitration to resolve an employment dispute. During arbitration proceedings, Burgess filed a motion with the court to terminate arbitration, alleging that Lithia and the arbitrator breached the arbitration agreement. The superior court denied Burgess’s motion, citing a lack of jurisdiction, and certified the matter for direct review, which the Washington Supreme Court granted. Under the FAA, the Supreme Court determined judicial review was limited to deciding gateway disputes, which concern enforceability of the arbitration clause, and addressing the award after arbitration. Therefore, the Supreme Court affirmed the superior court.

In re Dependency of Z.J.G.

Court: Washington Supreme Court

Docket: 98003-9

Opinion Date: September 3, 2020

Judge: Montoya-Lewis

Areas of Law: Civil Procedure, Family Law, Government & Administrative Law, Native American Law

The "[Indian Child Welfare Act] ICWA and [Washington State Indian Child Welfare Act] WICWA were enacted to remedy the historical and persistent state-sponsored destruction of Native families and communities. . . . The acts provide specific protections for Native children in child welfare proceedings and are aimed at preserving the children’s relationships with their families, Native communities, and identities. The acts also require states to send notice to tribes so that tribes may exercise their independent rights and interests to protect their children and, in turn, the continuing existence of tribes as thriving communities for generations to come." At issue in this case was whether the trial court had “reason to know” that M.G and Z.G. were Indian children at a 72-hour shelter care hearing. The Washington Supreme Court held that a trial court had “reason to know” that a child was an Indian child when a participant in the proceeding indicates that the child has tribal heritage. "We respect that tribes determine membership exclusively, and state courts cannot establish who is or is not eligible for tribal membership on their own." The Court held that an indication of tribal heritage was sufficient to satisfy the “reason to know” standard. Here, participants in a shelter care hearing indicated that M.G. and Z.G. had tribal heritage. The trial court had “reason to know” that M.G. and Z.G. were Indian children, and it erred by failing to apply ICWA and WICWA standards to the proceeding.