Table of Contents | In re: Application and Petition of Hanwei Guo Arbitration & Mediation, Civil Procedure, International Law US Court of Appeals for the Second Circuit | Firefighters' Retirement System v. Citco Group, Ltd. Civil Procedure US Court of Appeals for the Fifth Circuit | S J Associated Pathologists, PLLC v. Cigna Healthcare of Texas, Inc. Civil Procedure US Court of Appeals for the Fifth Circuit | In Re: Grand Jury Subpoena Dated August 14, 2019 Civil Procedure, Civil Rights, Constitutional Law US Court of Appeals for the Eighth Circuit | Canela v. Costco Wholesale Corp. Civil Procedure, Class Action US Court of Appeals for the Ninth Circuit | DeMartini v. DeMartini Civil Procedure US Court of Appeals for the Ninth Circuit | Boulder County Commissioners v. Suncor Energy Civil Procedure, Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law US Court of Appeals for the Tenth Circuit | Kapinski v. City of Albuquerque Civil Procedure, Civil Rights, Constitutional Law, Criminal Law US Court of Appeals for the Tenth Circuit | Trichell v. Midland Credit Management, Inc. Civil Procedure, Constitutional Law, Consumer Law US Court of Appeals for the Eleventh Circuit | Fitbit, Inc. v. Valencell, Inc. Civil Procedure, Intellectual Property, Patents US Court of Appeals for the Federal Circuit | Uniloc 2017 LLC v. Apple, Inc. Civil Procedure, Intellectual Property, Patents US Court of Appeals for the Federal Circuit | Kec v. Superior Court Arbitration & Mediation, Civil Procedure, Labor & Employment Law California Courts of Appeal | McAlpine v. Norman Civil Procedure, Medical Malpractice California Courts of Appeal | Johnson v. Preleski Civil Procedure, Criminal Law Connecticut Supreme Court | Hart v. Parker Civil Procedure, Personal Injury Delaware Supreme Court | Wilson v. Mocabee Civil Procedure, Real Estate & Property Law Idaho Supreme Court - Civil | DePhillips v. Hospital Service Dist. No. 1 of Tangipahoa Parish d/b/a North Oaks Medical Center et al. Civil Procedure, Contracts, Health Law, Insurance Law Louisiana Supreme Court | Nelson v. Nelson Civil Procedure, Family Law Supreme Court of Nevada | State, Department of Corrections v. DeRosa Civil Procedure, Labor & Employment Law Supreme Court of Nevada | State, Department of Taxation v. District Court Civil Procedure, Constitutional Law Supreme Court of Nevada | Monadnock Regional School District v. Monadnock District Education Association, NEA-NH Civil Procedure, Government & Administrative Law New Hampshire Supreme Court | Investors Bank v. Torres Banking, Civil Procedure, Consumer Law, Real Estate & Property Law Supreme Court of New Jersey | Little v. Kia Motors America, Inc. Civil Procedure, Class Action, Consumer Law, Products Liability Supreme Court of New Jersey | West Pleasant-CPGT, Inc. v. U.S. Home Corporation Arbitration & Mediation, Bankruptcy, Civil Procedure, Contracts, Real Estate & Property Law Supreme Court of New Jersey | Kinzua Resources v. DEQ Civil Procedure, Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use Oregon Supreme Court | Trapnell & Associates, LLC v. Legacy Resorts, LLC Civil Procedure, Real Estate & Property Law Utah Supreme Court |
Click here to remove Verdict from subsequent Justia newsletter(s). | New on Verdict Legal Analysis and Commentary | A Modest Proposal: A Heartbeat Bill for Those Who Don’t Wear Masks | MARCI A. HAMILTON | | University of Pennsylvania professor Marci A. Hamilton draws upon a strategy used by anti-abortion advocates in suggesting a way to encourage (or coerce) more people into wearing masks to avoid the spread of COVID-19. Hamilton proposes requiring persons who opt not to wear a mask in public (1) to watch, on a large screen, an adult's beating heart for 30 seconds, and (2) to be read a statement about how their decision unreasonably endangers others. | Read More |
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Civil Procedure Opinions | In re: Application and Petition of Hanwei Guo | Court: US Court of Appeals for the Second Circuit Docket: 19-781 Opinion Date: July 8, 2020 Judge: Debra Ann Livingston Areas of Law: Arbitration & Mediation, Civil Procedure, International Law | The Second Circuit affirmed the district court's denial of a petition for discovery pursuant to 28 U.S.C. 1782(a), seeking discovery from four investment banks related to their work as underwriters in the Tencent Music IPO. Petitioner alleged that he intended to use the documents in his pending CIETAC arbitration against the Ocean Entities and its founder. 28 U.S.C. 1782(a) authorizes federal courts to compel the production of materials "for use in a proceeding in a foreign or international tribunal" upon "the application of any interested person." In In National Broadcasting Co. v. Bear Stearns & Co., 165 F.3d 184 (2d Cir. 1999) ("NBC"), the court held that the phrase "foreign or international tribunal" does not encompass "arbitral bod[ies] established by private parties." The court held that nothing in the Supreme Court's decision in Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241 (2004), alters its prior conclusion in NBC that section 1782(a) does not extend to private international commercial arbitrations. Furthermore, the arbitration at issue here is a non-covered, private, international commercial arbitration. | | Firefighters' Retirement System v. Citco Group, Ltd. | Court: US Court of Appeals for the Fifth Circuit Docket: 19-30165 Opinion Date: July 7, 2020 Judge: James C. Ho Areas of Law: Civil Procedure | Plaintiffs, a group of Louisiana pension funds, filed suit against various defendants for their alleged involvement in a Ponzi scheme. The district court later entered summary judgment for a set of defendants—the Citco Group and various related entities. The Funds then voluntarily dismissed one defendant without prejudice and then resolved all remaining claims either by settlement or default judgment. The Fifth Circuit dismissed the appeal for want of appellate jurisdiction, holding that Williams v. Taylor Seidenbach, Inc., 958 F.3d 341, 343 (5th Cir. 2020) (en banc), was controlling in this case. In Williams, the court held that there is no final decision if a plaintiff voluntarily dismisses a defendant without prejudice, because the plaintiff is entitled to bring a later suit on the same cause of action. Furthermore, under Rule 54(b), in a suit against multiple defendants, there is no final decision as to one defendant until there is a final decision as to all defendants. In this case, the only difference between this case and Williams is the order of dismissals after the adverse decision. The Funds voluntarily dismissed one defendant without prejudice and then adjudicated their claims against other defendants. The court explained that that is a distinction without a difference. | | S J Associated Pathologists, PLLC v. Cigna Healthcare of Texas, Inc. | Court: US Court of Appeals for the Fifth Circuit Docket: 20-20188 Opinion Date: July 6, 2020 Judge: James L. Dennis Areas of Law: Civil Procedure | The Fifth Circuit vacated the district court's final judgment compelling arbitration and dismissing the case, remanding with instructions that the case be remanded back to the state court. The court held that the claims between plaintiff and defendant do not derive from the same nucleus of fact as the federal claim that was the sole source of the district court's original jurisdiction, and thus the district court lacked supplemental jurisdiction over these state law claims. | | In Re: Grand Jury Subpoena Dated August 14, 2019 | Court: US Court of Appeals for the Eighth Circuit Docket: 20-1404 Opinion Date: July 9, 2020 Judge: James B. Loken Areas of Law: Civil Procedure, Civil Rights, Constitutional Law | An August 14, 2019 subpoena duces tecum ordered the IDPS to appear before the court's grand jury and provide documents relating to the investigation of an ISP officer for misconduct or use of excessive force. IDPS complied with five of the listed document categories but filed a motion to quash categories 3 and 4, which seek any and all records relating to the investigation of Officer John Doe for misconduct and any and all records relating to complaints made against Officer John Doe. The Eighth Circuit affirmed the district court's order denying IDPS's motion to quash and rejected IDPS's assertion that quashing the subpoena is needed to protect the Fifth Amendment rights of IDPS employees who participated in internal investigations; the procedural protections established by Kastigar v. U.S., 406 U.S. 401 (1972), and Garrity v. New Jersey, 385 U.S. 493 (1967), provide sufficient protection from the improper use of compelled statements; the Fifth Amendment allows the government to prosecute using evidence from legitimate independent sources; and the district court did not abuse its Federal Rule of Criminal Procedure 17(c)(2) discretion in deciding that IDPS failed to meet its substantial burden to show that compliance with the challenged portions of the grand jury subpoena would be "unreasonable or oppressive" when balanced against the interests of the government in enforcing the subpoena. | | Canela v. Costco Wholesale Corp. | Court: US Court of Appeals for the Ninth Circuit Docket: 18-16592 Opinion Date: July 9, 2020 Judge: Wallace Areas of Law: Civil Procedure, Class Action | Plaintiff filed a class action in state court alleging that Costco violated California Labor Code 1198 by failing to provide her and other employees suitable seating. After Costco removed the case to federal court under 28 U.S.C. 1332(a) and the Class Action Fairness Act (CAFA), the district court ultimately granted summary judgment to plaintiff. The Ninth Circuit vacated the district court's grant of summary judgment with instructions to remand to state court, holding that the district court lacked subject matter jurisdiction at the time the action was removed to federal court. The panel first held that the district court lacked diversity jurisdiction under section 1332(a). The panel explained that, because plaintiff's pro-rata share of civil penalties, including attorney's fees, totaled $6,600 at the time of removal, and the claims of other member service employees may not be aggregated under Urbino v. Orkin Services of California, Inc., 726 F.3d 1118 (9th Cir. 2013), the $75,000 jurisdictional threshold was not met. The panel also held that the district court lacked subject matter jurisdiction under CAFA because plaintiff's stand-alone Private Attorney General Act lawsuit was not, and could not have been, filed under a state rule similar to a Rule 23 class action. Therefore, the district court erred by not remanding the case to state court. | | DeMartini v. DeMartini | Court: US Court of Appeals for the Ninth Circuit Docket: 17-16400 Opinion Date: July 6, 2020 Judge: Diarmuid Fionntain O`Scannlain Areas of Law: Civil Procedure | The Ninth Circuit dismissed the appeal seeking review of the district court's order remanding back to state court a partnership dissolution claim in an action that was originally filed in state court and removed to federal court. The panel held that 28 U.S.C. 1447, which governs procedure after removal and provides two separate authorizations for a district court's remand of a removed case, was applicable in this appeal. Furthermore, no matter whether the district court issued the remand pursuant to section 1447(c) or, as here, pursuant to section 1447(e), section 1447(d)'s bar applies; the accusation of legal error does not permit this court to sidestep the command of section 1447(d); and the panel rejected defendants' contention that section 1447(d) does not bar review because the district court remanded a single claim to state court while section 1447(d) prevents the review of orders "remanding a case." In holding that the joinder of a diversity-destroying party is not separable from a section 1447(e) remand order and is therefore unreviewable, the panel joined the Fourth Circuit. Finally, the panel need not decide whether section 1447(d) barred review of pre-remand decisions to sever claims, and mandamus relief was not warranted nor permissible. | | Boulder County Commissioners v. Suncor Energy | Court: US Court of Appeals for the Tenth Circuit Docket: 19-1330 Opinion Date: July 7, 2020 Judge: Carolyn Baldwin McHugh Areas of Law: Civil Procedure, Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law | The issue this case presented for the Tenth Circuit's review centered on whether federal court was the proper forum for a suit filed in Colorado state court by local governmental entities for the global warming-related damage allegedly caused by oil and gas companies in Colorado. Suncor Energy and ExxonMobil advanced seven bases for federal subject matter jurisdiction in removing the action to federal court, each of which the district court rejected in its remand order. Suncor Energy and ExxonMobil appealed, reiterating six of those bases for federal jurisdiction. After review, the Tenth Circuit held that 28 U.S.C. 1447(d) limited its appellate jurisdiction to just one of them: federal officer removal under 28 U.S.C. 1442(a)(1). And because the Court concluded ExxonMobil failed to establish grounds for federal officer removal, the Court affirmed the district court’s order on that basis and dismissed the remainder of this appeal. | | Kapinski v. City of Albuquerque | Court: US Court of Appeals for the Tenth Circuit Docket: 19-2149 Opinion Date: July 6, 2020 Judge: Timothy M. Tymkovich Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Criminal Law | Anthony Kapinski shot and killed two men for which he was arrested and prosecuted for murder. But at trial, the jury found him not guilty on the basis of self-defense. Trial evidence included video surveillance footage of the incident. Kapinski brought civil rights claims under 42 U.S.C. 1983 against Detective Terra Juarez and the City of Albuquerque, alleging constitutional violations stemming from Detective Juarez’s failure to mention the video surveillance footage in her warrant affidavit for Kapinski’s arrest. He argued that if the court issuing the arrest warrant had been made aware of the video footage, it would not have found probable cause supporting the warrant. Detective Juarez moved for summary judgment on qualified immunity grounds, and the district court granted her motion. The court held Kapinski failed to show a constitutional violation because the video footage would not have negated probable cause for his arrest, and, even if Detective Juarez’s omission ran afoul of the Fourth Amendment, she was nonetheless entitled to summary judgment because the law on this issue was not clearly established. To this, the Tenth Circuit agreed Kapinski failed to show a clearly established constitutional violation and therefore affirmed summary judgment. | | Trichell v. Midland Credit Management, Inc. | Court: US Court of Appeals for the Eleventh Circuit Dockets: 18-14144, 19-10120 Opinion Date: July 6, 2020 Judge: Katsas Areas of Law: Civil Procedure, Constitutional Law, Consumer Law | The Eleventh Circuit held that plaintiffs lacked Article III standing to pursue their claims under the Fair Debt Collection Practices Act (FDCPA). Plaintiffs alleged that collection letters were misleading and unfair in falsely suggesting that they could be sued or that the debt could be reported to credit-rating agencies. The court wrote that plaintiffs seek to recover for representations that they contend were misleading or unfair, but without proving even that they relied on the representations, much less that the reliance caused them any damages. | | Fitbit, Inc. v. Valencell, Inc. | Court: US Court of Appeals for the Federal Circuit Docket: 19-1048 Opinion Date: July 8, 2020 Judge: Pauline Newman Areas of Law: Civil Procedure, Intellectual Property, Patents | Valencell’s patent, entitled “Methods and Apparatus for Generating Data Output Containing Physiological and Motion-Related Information,” concerns systems for monitoring information such as blood oxygen level, heart rate, and physical activity. Apple sought inter partes review (IPR) of claims 1–13. The Patent Board instituted review of several claims but denied review of claims 3–5. Fitbit then filed an IPR petition for claims 1, 2, and 6–13 and moved for joinder with Apple’s IPR. The Board granted Fitbit’s petition, terminating Fitbit’s separate proceeding. The Supreme Court then held that all patent claims challenged in an IPR petition must be reviewed by the Board if the petition is granted. The Board re-instituted conducted further proceedings and issued a Final Written Decision, finding claims 1, 2, and 6–13 unpatentable, and claims 3–5 not unpatentable. Following the decision, Apple withdrew from the proceeding. Valencell challenged Fitbit’s right to appeal as to claims 3–5. The Federal Circuit held that Fitbit has a right to appeal but vacated as to claims 3–5. Fitbit’s rights as a joined party apply to the entire proceedings and include the right of appeal, conforming to the statutory purpose of avoiding redundant actions by facilitating consolidation, while preserving statutory rights, including judicial review. The court remanded for review of the patentability of claims 3-5 in light of claims of obviousness. | | Uniloc 2017 LLC v. Apple, Inc. | Court: US Court of Appeals for the Federal Circuit Docket: 19-1922 Opinion Date: July 9, 2020 Judge: Haldane Robert Mayer Areas of Law: Civil Procedure, Intellectual Property, Patents | Uniloc filed patent infringement actions against Apple, which moved to dismiss, arguing that Uniloc had granted its creditor a license with the right to sublicense in the event of a Uniloc default. According to Apple, Uniloc had defaulted and “lacked the right to exclude Apple from using the patents.” Apple’s motion referenced material that Uniloc had designated as highly confidential. Uniloc asked the court to seal most of the materials in the parties’ filings, including citations to case law, quotations from published opinions, and 23 entire exhibits, including matters of public record. The court denied that motion. Uniloc sought reconsideration, stating that it was willing to make public more than 90 percent of the material it had originally sought to shield; it submitted a declaration including individual grounds for redacting or sealing the remaining materials and declarations from third-party licensees that disclosure would cause them significant competitive harm. The court denied Uniloc’s motion. The Federal Circuit affirmed with respect to Uniloc’s requests to seal its purportedly confidential information and that of its related entities and vacated with respect to licensees. In denying Uniloc’s “sweeping motion,” the court sent a strong message that litigants should submit narrow, well-supported sealing requests and “took seriously the presumption of public access.” The court failed to make sufficient findings on balancing the public’s right of access against the interests of the third parties in shielding their financial and licensing information from public view. | | Kec v. Superior Court | Court: California Courts of Appeal Docket: G058119(Fourth Appellate District) Opinion Date: July 9, 2020 Judge: Raymond J. Ikola Areas of Law: Arbitration & Mediation, Civil Procedure, Labor & Employment Law | The parties’ arbitration agreement purported to waive class actions and any “other representative action” (the representative waiver). There was no dispute that this representative waiver was broad enough to cover a Labor Code Private Attorneys General Act of 2004 (PAGA) claim, and was thus invalid. The arbitration agreement went on to provide that the provision containing the class action and representative waiver was not modifiable nor severable. The arbitration agreement also contained a provision that if the representative waiver was found to be invalid, “the Agreement becomes null and void as to the employee(s) who are parties to that particular dispute,” the so-called "blow-up provision." Plaintiff Nichole Kec brought individual, class, and PAGA claims against defendants R.J. Reynolds Tobacco Company, Reynolds American Inc., and three individual employees at R.J. Reynolds Tobacco Company, alleging in essence, that she and others were misclassified as exempt employees, resulting in various violations of the Labor Code. R.J. Reynolds Tobacco Company and Reynolds American Inc., moved to compel arbitration of plaintiff’s individual claims except the PAGA claim. The court granted the motion. The court reasoned: (1) because defendants had not asked the court to rule on the enforceability of the representative waiver, it had not found the representative waiver invalid, and thus the blow-up provision had not been triggered; and (2) the blow-up provision could apply only to the attempted waiver of the PAGA claim, not to the arbitrability of plaintiff’s claims under the Labor Code. The Court of Appeal concluded defendants could not selectively enforce the arbitration agreement in a manner that defeated its goals. "Had the parties intended to permit defendants to proceed with arbitration notwithstanding an invalid waiver of representative claims, they would have simply made that provision severable, like every other term in the agreement. But that is not what they did. Instead, by specifically making section 5 not severable, the agreement evinces an intent not to allow defendants to selectively enforce the arbitration agreement." The Court issued a writ of mandate ordering the trial court to vacate its order granting arbitration, and to enter a new order denying the motion in its entirety. | | McAlpine v. Norman | Court: California Courts of Appeal Docket: C088327(Third Appellate District) Opinion Date: July 8, 2020 Judge: Krause Areas of Law: Civil Procedure, Medical Malpractice | Plaintiff Christi McAlpine filed a medical malpractice action against defendant Dr. Daniel Norman for injuries she suffered as a result of colonoscopies performed on her in 2015. In 2018, with trial approaching, Norman filed a summary judgment motion, supported by a declaration from an expert who reviewed McAlpine’s medical records, and opined that Norman’s actions were within the standard of care. McAlpine opposed the motion, but did not submit a competing expert opinion. While the summary judgment motion was pending, McAlpine sought leave to amend her complaint. The trial court denied leave to amend and granted summary judgment. McAlpine appealed the grant of summary judgment and the order denying her motion for leave to amend, arguing that the expert declaration presented in support of the motion for summary judgment was conclusory and insufficient to meet the initial burden for summary judgment. She also argued the trial court abused its discretion in denying her request for leave to amend. The Court of Appeal found no abuse of discretion in the order denying leave to amend, but agreed the trial court improperly granted summary judgment based on an expert opinion unsupported by factual detail or reasoned explanation. Accordingly, the Court reversed the grant of summary judgment and remanded for further proceedings. | | Johnson v. Preleski | Court: Connecticut Supreme Court Docket: SC20104 Opinion Date: July 14, 2020 Judge: Richard A. Robinson Areas of Law: Civil Procedure, Criminal Law | The Supreme Court reversed the judgment of the Appellate Court affirming the trial court's dismissal of Petitioner's petition for a new trial brought against Respondent, the state's attorney, as time barred, holding that the Appellate Court improperly disregarded the remedial purpose of Conn. Stat. Ann. 52-593a in concluding that the successful fax transmission of process to the state marshal is not personal delivery as contemplated by the savings statute. Petitioner was convicted of murder and sentenced to forty-five years imprisonment. Petitioner subsequently sought to file a petition for a new trial on the basis of newly discovered evidence. Respondent claimed that the petition as time barred because Petitioner did not serve process on him until one day after the expiration of the three-year limitation period. The trial court agreed, determining that there was no proof of timely delivery of process to the state marshal for purposes of section 52-593a because the state marshal did not endorse the date of delivery, and Petitioner failed to provide support for the proposition that a fax constituted personal delivery as a matter of law. The Supreme Court reversed, holding that Petitioner satisfied the personal delivery requirement via successfully faxing process to the state marshal for service. | | Hart v. Parker | Court: Delaware Supreme Court Docket: 472, 2019 Opinion Date: July 9, 2020 Judge: Montgomery-Reeves Areas of Law: Civil Procedure, Personal Injury | Appellants Nancy and Scott Hart brought suit alleging tort damages from an automobile accident caused by Daniel Parker. Before the Harts filed their complaint, Daniel Parker passed away. The Harts were unsure as to whether Parker was still alive when they filed their complaint and named both Parker and the Estate of Daniel Parker (the “Estate”) as defendants. The Appellee-Estate moved to dismiss the Harts’ complaint on numerous grounds. The Superior Court granted the Appellee’s motion, holding that the complaint was time-barred by 12 Del. C. 2102(a). On appeal, the Harts challenged the Superior Court’s order dismissing their claims against the Estate and argued that the Superior Court erred as a matter of law when it held that the Harts’ claims were time-barred by Section 2102(a). The Delaware Supreme Court agreed that the Harts’ claims were not time-barred by Section 2102(a), reversed the dismissal, and remanded to the Superior Court for further proceedings. | | Wilson v. Mocabee | Court: Idaho Supreme Court - Civil Docket: 47056 Opinion Date: July 6, 2020 Judge: Bevan Areas of Law: Civil Procedure, Real Estate & Property Law | Appellant Sean Mocabee and Respondent Lindsey Wilson lived together, but were not married. In 2013, after receiving a large inheritance, Wilson fully funded the purchase of a home in Kootenai County, Idaho. Per Wilson’s instruction to the title company, Mocabee’s name was included on the deed. In 2017, Wilson and Mocabee split. Shortly thereafter, Wilson filed a complaint against Mocabee for quiet title, unlawful detainer and partition of the home. Mocabee answered and counterclaimed, seeking partition and for the district court to declare Mocabee owned a fifty percent interest in the home. Mocabee also moved for summary judgment arguing the statute of limitations barred Wilson’s quiet title action. The district court granted Mocabee’s motion for summary judgment as to the quiet title action. Then case then proceeded to trial on the partition action. Mocabee filed a motion in limine asking the district court to exclude evidence demonstrating Wilson did not intend to give Mocabee a fifty percent ownership interest in the home. The district court denied the motion. After a bench trial, the district court concluded Wilson had a one hundred percent ownership interest in the home because she had contributed one hundred percent of the purchase price and the evidence did not establish Wilson intended to give Mocabee any ownership interest. As a result, the district court held that a partitioning of the home was unnecessary. Mocabee timely appealed, arguing the district court erred in: (1) using partition statutes to deprive him of any interest in the home; (2) denying Mocabee’s motion in limine; and (3) concluding Mocabee did not own a fifty percent ownership interest in the home by way of a gift from Wilson. Finding no reversible error, the Idaho Supreme Court affirmed the district court's judgment. | | DePhillips v. Hospital Service Dist. No. 1 of Tangipahoa Parish d/b/a North Oaks Medical Center et al. | Court: Louisiana Supreme Court Docket: 2019-C-01496 Opinion Date: July 9, 2020 Judge: Crichton Areas of Law: Civil Procedure, Contracts, Health Law, Insurance Law | This matter arose from alleged violations of the Health Care Consumer Billing and Disclosure Protection Act (“Balance Billing Act” or “Act”). The Louisiana Supreme Court granted certiorari review to resolve the question of whether a patient’s claims against a contracted healthcare provider for an alleged violation of La. R.S. 22:1874(A)(1) were delictual in nature. The consolidated lawsuits in this matter were filed by Matthew DePhillips and Earnest Williams, individually and on behalf of putative classes, against Hospital District No. 1 of Tangipahoa Parish d/b/a North Oaks Medical Center/North Oaks Health System (“North Oaks”). In February, 2011, Williams was injured in a motor vehicle accident. He sought emergency medical treatment from North Oaks. At the time of the accident, Williams was insured under an insurance policy administered by Louisiana Health Service & Indemnity Company d/b/a Blue Cross and Blue Shield of Louisiana (“BCBS”). North Oaks is a contracted healthcare provider with BCBS pursuant to a certain Member Provider Agreement (the “MPA”) between North Oaks and BCBS. After Williams’ treatment, North Oaks filed a claim with BCBS, and BCBS paid a discounted rate on the claims as provided by the MPA. Thereafter, North Oaks sought to collect from Williams by filing a medical lien against his liability insurance claim for the full and undiscounted charges. Williams alleged that North Oaks filed this lien despite being a contracted healthcare provider with BCBS and despite its legal and contractual requirements to accept the insurance as payment in full. The trial court denied the exceptions of no right of action for breach of contract and prescription, but granted the North Oaks’ exception of no cause of action for claims arising before the effective date of the Balance Billing Act. The court of appeal granted writs in part, finding DePhillips did not have a right of action to assert a claim for breach of the MPA, as he was neither a party nor a third-party beneficiary to that agreement. The appellate court denied North Oaks’ writ application insofar as it related to the trial court’s denial of its exception of prescription. After review, the Supreme Court determined plaintiff's claims were delictual in nature, subject a one-year prescriptive period. | | Nelson v. Nelson | Court: Supreme Court of Nevada Citation: 136 Nev. Adv. Op. No. 36 Opinion Date: July 9, 2020 Judge: Stiglich Areas of Law: Civil Procedure, Family Law | The Supreme Court held that it does not have jurisdiction to review a district court order denying a request for a joint preliminary injunction pursuant to EDCR 5.517 in a family law matter because no court rule or statute permits an appeal of a district court order denying a request for a joint preliminary injunction. After Husband filed for divorce, the clerk of court issued a joint preliminary injunction pursuant to EDCR 5.85 prohibiting the parties from disposing of any property subject to any community interest claim. After the district court issued a divorce decree the Supreme Court remanded the case to conduct proper tracing to determine community interests. On remand, Wife moved for the district court to reaffirm its prior joint preliminary injunction pursuant to EDCR 5.517. The district court issued a preliminary injunction for two assets subject to community property claims but declined to extend the injunction to other assets in a spendthrift trust. Wife appealed. The Supreme Court dismissed the appeal, holding that joint preliminary injunctions under EDCR 5.517 are not subject to Nev. R. Civ. P. 65, and therefore, orders denying or granting injunctions under EDCR 5.517 are not appealable under Nev. R. App. P. 3A(b)(3). | | State, Department of Corrections v. DeRosa | Court: Supreme Court of Nevada Citation: 136 Nev. Adv. Op. No. 37 Opinion Date: July 9, 2020 Judge: Ron D. Parraguirre Areas of Law: Civil Procedure, Labor & Employment Law | The Supreme Court held that service of a petition for judicial review of an agency's decision does not require personal service under Nev. R. Civ. P. 4.2(a) because a petition for judicial review is best construed as a post-complaint filing so an alternative method of service under Nev. R. Civ. P. 5(b) will suffice. After Patricia DeRosa was fired by the Nevada Department of Corrections (NDOC), DeRosa requested a hearing. The hearing officer reversed the NDOC's decision. NDOC filed a petition for judicial review and served the petition on DeRosa by mailing it to her counsel under Rule 5(b). DeRosa moved to dismiss the petition for lack of personal service. The district court granted the motion, concluding that personal service was necessary under Nev. Rev. Stat. 233B.130(5). The Supreme Court reversed, holding that a petition for judicial review is best construed as a post-complaint pleading and that personal service is unnecessary and an alternative method of service under Rule 5(b) will instead suffice. | | State, Department of Taxation v. District Court | Court: Supreme Court of Nevada Citation: 136 Nev. Adv. Op. No. 42 Opinion Date: July 9, 2020 Judge: James W. Hardesty Areas of Law: Civil Procedure, Constitutional Law | The Supreme Court held that a government entity does not have "possession, custody, or control" over the content on the personal cell phones of former workers hired through a temporary employment agency so as to be required under Nev. R. Civ. P. 16.1 to disclose that material. Petitioner, the State of Nevada Department of Taxation, entered into an independent contractor relationship with a temporary employment agency to hire and train eight temporary workers to rank the applications received for recreational marijuana establishment licenses. Real party in interest Nevada Wellness Center, LLC sued the Department alleging that the Department employed unlawful and unconstitutional application procedures in awarding licenses. During discovery, Nevada Wellness moved to compel the production of the temporary workers' cell phones for inspection. The district court granted the motion. The Department petitioned for a writ of prohibition or mandamus barring enforcement of the discovery order, arguing that the Department lacked "possession, custody, or control" over the cell phones pursuant to Nev. R. Civ. P. 16.1. The Supreme Court granted the petition, holding that the temporary workers' cell phones were outside the Department's possession, custody or control and that the district court exceeded its authority when it compelled the Department to produce that information. | | Monadnock Regional School District v. Monadnock District Education Association, NEA-NH | Court: New Hampshire Supreme Court Docket: 2019-0134 Opinion Date: July 8, 2020 Judge: Anna Barbara Hantz Marconi Areas of Law: Civil Procedure, Government & Administrative Law | Defendant Monadnock District Education Association, NEA-NH (the Association) appealed a superior court order granting summary judgment to plaintiff Monadnock Regional School District (the District), and denying the Association’s cross-motion for summary judgment. The superior court ruled that $392,381 in unexpended appropriations set aside over a period of four years pursuant to the parties’ collective bargaining agreement had lapsed. The New Hampshire Supreme Court determined the funds at issue did not lapse because they were encumbered by an enforceable obligation for their expenditure that arose prior to the end of the fiscal years for which they were appropriated. The Court therefore reversed trial court's ruling to the contrary. | | Investors Bank v. Torres | Court: Supreme Court of New Jersey Docket: a-55-18 Opinion Date: July 1, 2020 Judge: Anne M. Patterson Areas of Law: Banking, Civil Procedure, Consumer Law, Real Estate & Property Law | Defendant Javier Torres signed a promissory note (Note) secured by a residential mortgage (Mortgage). Torres defaulted on the Note. CitiMortgage, Inc., discovered that it had lost the original Note but had retained a digital copy setting forth its terms. CitiMortgage assigned the Mortgage and its interest in the Note to plaintiff Investors Bank (Investors). In this appeal, the issue presented for the New Jersey Supreme Court's review was whether Investors could enforce the Note. The Supreme Court affirmed the trial court: Investors Bank could enforce the note. Relying on two statutes addressing assignments, N.J.S.A. 2A:25-1 and N.J.S.A. 46:9-9, as well as common-law assignment principles, the Court held Investors had the right as an assignee of the Mortgage and transferee of the Note to enforce the Note. The Court construed N.J.S.A. 12A:3-309 to address the rights of CitiMortgage as the possessor of a note or other instrument at the time that the instrument was lost, but not to supplant New Jersey assignment statutes and common law in the setting of this appeal or to preclude an assignee in Investors’ position from asserting its rights according to the Note’s terms. Read together, "N.J.S.A. 12A:3-309, N.J.S.A. 2A:25-1, and N.J.S.A. 46:9-9 clearly authorized the assignment and entitled Investors to enforce its assigned Mortgage and transferred Note." | | Little v. Kia Motors America, Inc. | Court: Supreme Court of New Jersey Docket: a-24-18 Opinion Date: June 25, 2020 Judge: Anne M. Patterson Areas of Law: Civil Procedure, Class Action, Consumer Law, Products Liability | Plaintiff Regina Little asserted claims on her own behalf and on behalf of other New Jersey owners and lessees of 1997, 1998, 1999, and 2000 Kia Sephia vehicles distributed by defendant Kia Motors America, Inc., alleging that those vehicles had a defective brake system. The central question in this appeal was whether the trial court properly permitted plaintiff’s theory of damages based on the cost of brake repairs to be asserted classwide, supported only by aggregate proofs. The jury determined that defendant had breached its express and implied warranties and that the class had sustained damages. The jury found that the class members had suffered $0 in damages due to diminution in value but that each class member had sustained $750 in damages “[f]or repair expenses reasonably incurred as a result of the defendant’s breach of warranty.” The trial court granted defendant’s motion to decertify the class as to the quantum of damages each individual owner suffered. The parties cross-appealed. The Appellate Division reversed the trial court’s post-trial determinations, reinstated the jury’s award for out-of-pocket repair costs based on plaintiff’s aggregate proofs, and remanded for an award of attorneys’ fees. The appellate court held that, notwithstanding the jury’s rejection of plaintiff’s diminution-in-value theory, the trial court should have ordered a new trial on both theories of damages, which it found were not “fairly separable from each another.” Although aggregate proof of damages can be appropriate in some settings, the New Jersey Supreme Court considered such proof improper as presented in this case. The trial court erred when it initially allowed plaintiff to prove class-members’ out-of-pocket costs for brake repairs based on an estimate untethered to the experience of plaintiff’s class. The trial court properly ordered individualized proof of damages on plaintiff’s brake-repair claim based on the actual costs incurred by the class members. Thus, the trial court’s grant of defendant’s motions for a new trial and for partial decertification of the class were a proper exercise of its discretion. | | West Pleasant-CPGT, Inc. v. U.S. Home Corporation | Court: Supreme Court of New Jersey Docket: a-1-19 Opinion Date: July 8, 2020 Judge: Jaynee LaVecchia Areas of Law: Arbitration & Mediation, Bankruptcy, Civil Procedure, Contracts, Real Estate & Property Law | In 2005, U.S. Home Corporation entered into a contract to purchase two contiguous tracts of land, one of which was owned by West Pleasant-CPGT, Inc. Under the contract, West Pleasant and the other landowner were to gain certain approvals permitting development of the properties. Pursuant to the contract, U.S. Home paid advances to the landowners totaling over $1.5 million. As security for the advances, West Pleasant executed a mortgage and note on its property; the other landowner did not. When a contract dispute arose in 2006, U.S. Home sought to terminate the contract and get a return of its total advance. U.S. Home prevailed in arbitration and was awarded a judgment in the full amount of the advance, plus interest. The Appellate Division affirmed the judgment in 2009. When the judgment was not satisfied, U.S. Home commenced foreclosure actions against the properties. The foreclosure proceedings were stayed when West Pleasant and the other property owner filed for bankruptcy. In West Pleasant’s bankruptcy action, U.S. Home moved to dismiss and for relief from the automatic stay. West Pleasant and U.S. Home executed a Consent Order, in which West Pleasant dismissed its bankruptcy proceeding, waived a fair market valuation and its right to object to a sheriff’s sale of its property, and released U.S. Home from any claims in law or equity. U.S. Home never proceeded with any deficiency action against either landowner. Nonetheless, the landowners commenced the affirmative litigation that gave rise to this appeal, seeking a declaration that the arbitration award was fully satisfied, as well as compensation “in the amount of the excess fair market value of the properties obtained by defendant U.S. Home over the amount of its outstanding judgment.” The second property owner then assigned its rights to West Pleasant. After trial, the court valued the second property as worth almost $2.4 million and West Pleasant’s property as worth almost $2 million. The court ordered U.S. Home to pay the fair market value of the West Pleasant property, plus interest, and extinguished the arbitration award on the second property. On appeal, the Appellate Division determined that West Pleasant had waived its right to a fair market valuation on its property but that it was owed a fair market value credit for the second property. The Appellate Division remanded the matter to the trial court for recalculation of damages. The New Jersey Supreme Court reversed, finding use of fair market value credit by this debtor to obtain a money judgment against a creditor, in the absence of a deficiency claim threatened or pursued or any objection being raised at the time of the sheriff’s sales, was "inconsistent with sound foreclosure processes and, moreover, inequitable in the circumstances presented." The judgment of the Appellate Division was reversed and the matter remanded for further proceedings. | | Kinzua Resources v. DEQ | Court: Oregon Supreme Court Docket: S066676 Opinion Date: July 9, 2020 Judge: Flynn Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use | The dispute in this case arose from an Environmental Quality Commission order, which concluded that petitioners were persons “controlling” an inactive landfill site and imposed liability on them for failing to per- form the statutory closure requirements. At issue here was whether the legislature intended that the category of persons “controlling” the landfill site would extend to those having the legal authority to control the site, as the commission concluded, or would be limited to “those persons actively involved in the operation or management of a landfill site,” as the Court of Appeals concluded. The Oregon Supreme Court concluded the legislature intended the category of persons “controlling” the site to include persons having the authority to control the site, regardless of whether that authority has been exercised. The matter was remanded to the Court of Appeals to consider petitioners’ remaining challenges to the order in light of the correct legal standard. | | Trapnell & Associates, LLC v. Legacy Resorts, LLC | Court: Utah Supreme Court Citation: 2020 UT 44 Opinion Date: July 6, 2020 Judge: Pearce Areas of Law: Civil Procedure, Real Estate & Property Law | In this appeal arising from a dispute between lien holders regarding the distribution of the money a foreclosure sale of Zermatt Resort had generated the Supreme Court vacated the decision of the court of appeals concluding that it had jurisdiction to resolve a procedural matter and affirming the district court, holding that the court of appeals did not have jurisdiction to resolve the matter. After the district court entered its final judgment in this matter but before the time to appeal expired Trapnell & Associates, LLC purchase the plaintiff's interest in the litigation. Trapnell filed a notice under Utah R. Civ. P. 17 that it was a real party in interest and, on that same day, lodged a notice of appeal. The court of appeals noted that it would have been better had Trapnell filed a motion invoking Utah R. Civ. P. 25(c) instead of a notice invoking rule 17 but ruled on the merits of Trapnell's arguments, concluding that because Trapnell had intended to become a party and the district court had treated Trapnell as a party, Trapnell had become a party. The Supreme Court vacated the court of appeals' decision, holding that the court of appeals erred in concluding that Trapnell had properly substituted into this matter. | |
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