Latest 9 Cases This Week: WM Capital Partners 53, LLC v. Barreras, Inc. (1st Cir.), McShannock v. JP Morgan Chase Bank NA (9th Cir.), Ex parte ...

In Ruth We Trust: How the Pregnant Workers Fairness Act Can Promote Women’s Equal Citizenship and Justice Ginsburg’s Legacy

JOANNA L. GROSSMAN

In honor of the late Justice Ruth Bader Ginsburg, SMU Dedman School of Law professor Joanna L. Grossman explains how the Pregnant Workers Fairness Act (PWFA) can promote women’s equal citizenship and protect Justice Ginsburg’s legacy of shaping gender equality. Grossman argues that the PWFA could help break down entrenched occupational segregation in the American economy, and, in so doing, honor Justice Ginsburg’s lifelong commitment to ensuring that women can be full members of society.

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A Half Century After Its Publication, What Can “The Greening of America” Tell Us About the United States Today?

RODGER CITRON

In recognition of the 50-year anniversary of the publication of Charles Reich’s “The Greening of America,” Touro law professor Rodger D. Citron explains what Reich actually said in “The Greening,” explains why it generated such a strong response, and reflects on what the piece has to say about the fractures of our current moment. Citron cautions that the promise of a new consciousness is as alluring—and may be as illusory—as it was when Reich wrote the article and book, 50 years ago.

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WM Capital Partners 53, LLC v. Barreras, Inc.

Court: US Court of Appeals for the First Circuit

Docket: 19-1364

Opinion Date: September 22, 2020

Judge: Kermit Victor Lipez

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

The First Circuit dismissed for lack of appellate jurisdiction Defendant's appeal from the order of the district court granting Plaintiff's motion for summary judgment on its diversity action seeking a declaratory judgment specifying its property rights in a commercial complex in San Juan, Puerto Rico, holding that the district court never issued a final decision. After granting Plaintiff's motion for summary judgment and denying Defendant's motion for summary judgment, the district court directed Plaintiff to submit a proposed declaration for the Court's consideration and instructed the Clerk of Court to enter judgment as to Defendants. After Defendant filed a notice of appeal Plaintiff submitted its proposed declaration. The district court, however, stayed the proceedings pending the outcome of this appeal. The First Circuit dismissed Defendant's appeal for lack of appellate jurisdiction, holding that, without a final declaratory judgment, this Court lacked appellate jurisdiction.

McShannock v. JP Morgan Chase Bank NA

Court: US Court of Appeals for the Ninth Circuit

Docket: 19-15899

Opinion Date: September 22, 2020

Judge: Nelson

Areas of Law: Banking, Government & Administrative Law, Real Estate & Property Law

In 2005-2007, the borrowers obtained residential home mortgages on California properties. California law would normally have entitled them to “at least 2 percent simple interest per annum” on any funds held in escrow, California Civil Code Section 2954.8. The lender, a federal savings association organized and regulated under the Home Owners’ Loan Act of 1933 (HOLA), 12 U.S.C. 1461, did not pay interest because HOLA preempts California law. In a suit against the lender’s successor, Chase, a national bank organized and regulated under the National Bank Act, 12 U.S.C. 38, the district court denied the lender’s motion to dismiss; the Ninth Circuit has held that there is no “conflict preemption” between the National Bank Act and the California law. The Ninth Circuit reversed. HOLA field preemption principles applied to the claims against Chase even though its conduct giving rise to the complaint occurred after it acquired the loans in question. Because California’s interest-on-escrow law imposed a requirement regarding escrow accounts; affected the terms of sale, purchase, investment in, and participation in loans originated by savings associations; and had more than an incidental effect on the lending operations of savings associations, it was preempted by 12 C.F.R. 560.2(b)(6) and (b)(10), and 560.2(c).

Ex parte Advanced Disposal Services South, LLC

Court: Supreme Court of Alabama

Docket: 1190148

Opinion Date: September 18, 2020

Judge: Tommy Bryan

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law, Personal Injury, Real Estate & Property Law

Advanced Disposal Services South, LLC, Advanced Disposal Services Alabama Holdings, LLC, Advanced Disposal Services, Inc., Tallassee Waste Disposal Center, Inc., and Stone's Throw Landfill, LLC (collectively, "Advanced Disposal"), petitioned the Alabama Supreme Court for a writ of mandamus to order the Macon Circuit Court ("the trial court") to dismiss, an action filed by Jerry Tarver, Sr., because, they claimed, the action cannot proceed in the absence of the City of Tallassee ("the City") as a party. In May 2017, Tarver sued Advanced Disposal, the utilities board, and fictitiously named defendants seeking monetary damages as well as injunctive relief for exposure to allegedly contaminated water that had been illegally "discharged" into the river and ultimately sold by the utilities board for consumption by its customers. The complaint alleged Advanced Disposal unlawfully discharged its leachate into the City's stabilization pond, knowing that the leachate could not be properly treated before the resulting effluent was discharged into the river. Tarver also alleged Advanced Disposal discharged "pollutants" into various creeks and tributaries flowing into the river in violation of its storm-water discharge permit. The Alabama Supreme Court denied relief, finding that this action could proceed in equity and good conscience without the City. "The City's role in the underlying dispute potentially makes the City a joint tortfeasor with Advanced Disposal, the utilities board, and MCWA; it does not, however, make the City an indispensable party under the particular facts of this case."

Nationwide Property and Casualty Insurance Company v. Steward

Court: Supreme Court of Alabama

Docket: 1190011

Opinion Date: September 18, 2020

Judge: Tom Parker

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

Aaron Kyle Steward sued Nationwide Property and Casualty Insurance Company ("Nationwide"), seeking uninsured-motorist ("UM") benefits after he was injured in an accident at a publicly owned and operated all-terrain-vehicle ("ATV") park. The circuit court entered summary judgment in Steward's favor, ruling that the ATV that collided with the one on which he was riding was an "uninsured motor vehicle" for purposes of Steward's automobile-insurance policies with Nationwide, and Nationwide appealed. Because the Alabama Supreme Court concluded that the roads on which the accident occurred were "public roads" under the policies, judgment was affirmed.

Berry v. City of Chicago

Court: Supreme Court of Illinois

Citation: 2020 IL 124999

Opinion Date: September 24, 2020

Judge: Anne M. Burke

Areas of Law: Constitutional Law, Government & Administrative Law, Personal Injury, Real Estate & Property Law

Named plaintiffs filed a two-count class-action complaint on behalf of “all residents of the City of Chicago who have resided in an area where the City has replaced water mains or meters between January 1, 2008, and the present.” The complaint raises claims of negligence and inverse condemnation in relation to the replacement of water meters and water main pipes, as well as the partial replacement of lead service lines that run between the water mains and residences throughout Chicago. The complaint claimed the city’s actions created an increased risk that lead will be dislodged or leach from the residents’ individual service lines. The appellate court reversed the dismissal of the complaint. The Illinois Supreme Court reinstated the dismissal. The complaint did not allege that anyone is suffering from any physical impairment, dysfunction, or physically disabling consequence caused by the city's actions. An increased risk of harm is not, itself, an injury consistent with the traditional understanding of tort law. The plaintiffs have alleged only that the replacement of water mains and meters has made the proposed class members’ property “more dangerous.” The concept of “dangerousness” is not susceptible to objective measurement and, thus, cannot by itself constitute damage under the Illinois takings clause.

Town of Sudbury v. Massachusetts Bay Transportation Authority

Court: Massachusetts Supreme Judicial Court

Docket: SJC-12738

Opinion Date: September 22, 2020

Judge: Gaziano

Areas of Law: Real Estate & Property Law

The Supreme Judicial Court affirmed the decision of the land court judge dismissing the Town of Sudbury's complaint seeking to prevent the Massachusetts Bay Transportation Authority (MBTA) from entering into an option agreement with Eversource Energy for an easement to install an electric transmission line underneath nine miles of a disused right of way (ROW), approximately 4.3 miles of which extend through the town, holding that the Town could not prevail on either of its claims. Here, the Town asked the Supreme Court to extend the common-law doctrine of prior public use and to determine that the doctrine barred the diversion of public land devoted to one public use to an inconsistent private use. The Supreme Judicial Court declined to adopt the Town's proposed reworking of the doctrine, holding that the Land Court judge did not err in dismissing the Town's complaint because (1) Eversource's proposed use of the MBTA ROW to construct and operate underground transmission lines is not a public use; and (2) the Town has not demonstrated that the benefits of expanding the prior public use doctrine to encompass subsequent inconsistent private uses outweigh the value of adhering to this Court's longstanding common-law formulation.

Richards v. Gernant

Court: Montana Supreme Court

Citation: 2020 MT 239

Opinion Date: September 22, 2020

Judge: Mike McGrath

Areas of Law: Real Estate & Property Law

The Supreme Court affirmed the order of the district court denying Appellant's petition compelling Appellee, the Missoula County Clerk and Recorder, to record Appellant's certificate of survey (COS), holding that Appellee did not have a clear legal duty to record the COS. The district court dismissed Appellant's petition for writ of mandamus, finding that Appellee was not under a clear, non-discretionary, legal duty to record Appellant's COS bearing language certifying that a subdivision qualified for an exemption that the relevant reviewing authority found to be inapplicable and declined to approve. The Supreme Court affirmed holding that the district court was correct in dismissing the petition for writ of mandamus because Appellee was not under a clear legal duty to record a COS bearing a certification of exemption from sanitary review that Appellant was not approved for.

Mineral County v. Lyon County

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 58

Opinion Date: September 17, 2020

Judge: Stiglich

Areas of Law: Environmental Law, Real Estate & Property Law

The Supreme Court answered in the negative a question certified to it by the Ninth Circuit Court of Appeals, holding that the public trust doctrine does not permit the reallocation of rights already adjudicated and settled under the doctrine of prior appropriation. This litigation stemmed from Mineral County's intervention in longstanding litigation over water rights in the Walker River Basin to protect and restore Walker Lake. Here, the Supreme Court was asked for the first time to consider whether the public trust doctrine permits reallocating water rights previously settled under Nevada's prior appropriation doctrine. The Supreme Court held that the doctrine, as implemented through the state's water statutes, does not permit reallocating water rights already adjudicated and settled under the doctrine of prior appropriation.

State ex rel. AWMS Water Solutions, LLC v. Mertz

Court: Supreme Court of Ohio

Citation: 2020-Ohio-4509

Opinion Date: September 23, 2020

Judge: Fischer

Areas of Law: Real Estate & Property Law

The Supreme Court reversed the judgment of the court of appeals granting summary judgment to the State and denying AWMS Water Solutions, LLC's petition for a writ of mandamus to compel the Ohio Department of Natural Resources and others (collectively, the State) to initiate property-appropriation proceedings, holding that genuine issues of material fact remained regarding whether AWMS had suffered a total or partial taking. AWMS, a disposer of waste from oil and gas production and drilling sites, obtained permits to drill and inject saltwater in wells on its property. After an earthquake occurred, AWMS was ordered to suspend its operations at one of its wells. In its petition for a writ of mandamus, AWMS alleged that a suspension order effected a governmental taking of its property requiring the State to pay just compensation. The court of appeals granted summary judgment for the State and denied the mandamus petition. The Supreme Court reversed, holding (1) AWMS was justified in pursuing compensation through a takings action and that its claim was ripe at the time it instituted its action; and (2) there was a genuine issue of material fact concerning whether the State's suspension of operations at the well deprived AWMS of all economically beneficial use of its leasehold.