Plaintiff suffered severe injuries when he lost control of his 1996 BMW Z3 roadster convertible while driving on a freeway transition road. Plaintiff brought suit alleging negligence, strict products liability and breach of warranty. The court during trial instructed the jury on some matters before the presentation of evidence, including that the jury must not consider whether any party had insurance. During the trial defense counsel asked questions of a witness that brought about the subject of insurance. Plaintiff’s counsel moved for a mistrial based on the reference to insurance. The court took the matter under submission and denied the motion 17 days later during a conference on jury instructions. The jury submitted a question shortly after beginning its deliberations asking about a particular term in the jury verdict forms. The court answered it was unable to answer the questions as phrased. Eventually the jury returned a special verdict. The court polled and then excused the jury. Plaintiff filed a notice of intention to move for a new trial alleging misconduct of the court, failure of the jury to apply an objective standard, misconduct of the jury, misconduct of defense counsel, and the evidence was insufficient among others. The trial court ultimately granted a new trial based on inadmissible statements in juror declarations. The Court of Appeals held that no prejudice resulted from the brief mention of insurance and that jurors would ordinarily assume that a driver has a means to pay for insurance even if there is no mention of insurance during trial. Additionally, the Court held that questions of the court can have a potential to misguide the jury and result in a miscarriage of justice as an erroneous or misleading jury instruction. A trial court must consider the special verdict form and jury instructions as a whole, and the particular circumstances of the case, and decide whether the question was erroneous or misleading, if so, whether the defect materially affected the substantial rights of the party moving for a new trial. The Court further held that evidence of jurors’ internal thought processes is inadmissible to impeach a verdict.

Plaintiff Lukather leased a new Cadillac that was brought to the dealer where it was purchased for service for the same malfunction on more than four occasions. Plaintiff later brought suit under California’s lemon laws. GM claimed the evidence was insufficient to support the finding that it violated the lemon laws, maintaining that the trial court erred in imposing the duty on it to make restitution to Plaintiff on the very same day it determined the vehicle was a lemon or in the very first call offering Plaintiff options. The Court held that GM’s arguments were based on mischaracterizations of the trial court’s findings and determinations. It found that the evidence supported the implied finding that GM had ample time to comply with the Act. GM further contended that the trial court erred in rejecting its mitigation of damages defense. The Court held the Act addresses replacement and restitution; specified predelivery offset; sales and use taxes; license, registration or other fees; repair, towing, and rental costs; and other incidental damages. It found the Act did not contain any language authorizing an offset in any situation other than what the Act specified. The omission of other offsets from a set of provisions that thoroughly cover other relevant costs indicates legislative intent to exclude such offsets. The Court rejected GM’s contention that the trial court abused its discretion in awarding prejudgment interest. It held that the trial court could have reasonably concluded the evidence did not establish that Plaintiff prevented GM from paying the debt, notwithstanding the pendency of the lawsuit. GM failed to show that the trial court abused its discretion in awarding prejudgment interest. Additionally, the Court found no basis to reverse the award of attorney fees and costs.

The issue before the Court was the interpretation of the tolling provision in 28 U.S.C. § 1367(d) and the meaning of the words “shall be tolled.” Goodman brought an action against Best Buy in state court asserting claims under the Family Medical Leave Act ( FMLA) and the Minnesota Human Rights Act ( MHRA) for wrongful employment termination. Best Buy removed the case to federal court; the court granted summary judgment for Best Buy on the FMLA claim and dismissed the MHRA claim without prejudice. Goodman refiled his MHRA claim in state court. The state court dismissed the case after interpreting the tolling provision of 28 U.S.C. § 1367(d), concluding the claim was time-barred by the one year limitations period under the MHRA. The court of appeals reversed and remanded, holding that 28 U.S.C. § 1367(d) suspended the running of the limitations period on the claim while it was pending in federal court and for 30 days after it was dismissed. The Supreme Court held that section 1367(d) suspends the running of a limitations period during the time a state-law claim is pending in federal court and for 30 days after the claim is dismissed, and does not merely suspend the expiration of the limitations period. The Court reasoned that the federal supplemental jurisdiction statute provides a tolling provision for supplemental jurisdiction claims that are in federal court and that are later dismissed. It found that the language of the statute indicates an ongoing occurrence, such a suspension, and not an annulment accompanied by a new 30 day filing period. An annulment interpretation of the statute is unreasonable given the wording of the statute, and specifically the use of the word “while” coupled with “and.” The Court further held that the grace-period interpretation is not reasonable given the complete text of section 1367(d). If Congress had intended the grace-period interpretation to mean only, it would not have used the unconditional word “shall.” The Court found that the suspension of the clock interpretation is the only reasonable meaning; the running of the limitations period, not merely the expiration of the limitations period, is suspended while the claim is pending in federal court and for 30 days after dismissal by the federal court. Once the 30 days after dismissal have passed, the limitations period clock starts to run again, and the claimant has the same amount of days to file as the claimant did on the first day that the tolling began

Spartan Graphics offers high quality sheet fed web offset printing and screen-printing primarily for use in advertising. It employs fifty to seventy employees. Schoonmaker began working for Spartan Graphics in October 1995 as a bindery worker. She worked the third shift, along with four others. In October 2006, Spartan eliminated Schoonmaker, then 58, and another aged 65, as part of a reduction in work force. Schoonmaker’s supervisor explained that in early fall 2006 work was slow and the managers decided at a weekly production meeting that they needed to cut costs. Each manager evaluated his department for cost savings. The decision to cut costs was a general consensus and nothing official. The supervisor testified that he decided to lay off two people from the third shift because the first and second shifts were more productive. He chose the 65 year old first because she had been given the job as a favor after she was let go from another department and she was retiring at the end of the year. He chose to retain a younger employee over Schoonmaker because Schoonmaker was sometimes hard to work with and he thought the younger employee would get along better with the other employees. The younger was no more qualified than Schoonmaker, but based upon his observations she was more productive than Schoonmaker. No records to support this conclusion were kept. The supervisor did not consider that Schoonmaker had a greater length of service or that the younger employee had been written up in January 2005 for excessive absenteeism. He admitted he was unaware of the company’s written policy on staff reductions. The company’s employee handbook provided that temporary or permanent reductions could occur and that decisions would be based on several factors including relative length of service. The supervisor also admitted that he did not review the personnel files of the three third shift bindery workers when he made his decision. He thought it was better to have people who got along. Schoonmaker brought suit alleging age discrimination under the ADEA and the Michigan Elliot-Larsen Civil Rights Act, claiming she was let go instead of the younger employee because of her age. Spartan moved inter alia for summary judgment which was granted by the district court concluding that Schoonmaker had failed to establish a prima facie case of age discrimination in a work force reduction setting. The ADEA prohibits an employer from discharging an employee because of age. The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination. To state a prima facie case on a disparate treatment theory using circumstantial evidence a plaintiff must establish the four elements of the McDonnell Douglas test: 1) she was a member of a protected class; 2) she was discharged; 3) she was qualified for the position held; and 4) she was replaced by someone outside of the protected class. Once a plaintiff satisfies this burden, the burden of production shifts to the employer to articulate a legitimate nondiscriminatory reason for the adverse employment action. If the employer meets this burden, the burden of production shifts back to the plaintiff to show that the employer’s explanation was a mere pretext for intentional age discrimination. The burden of persuasion remains on the ADEA plaintiff at all times to demonstrate that age was the but-for cause of their employer’s adverse action. The Court held that a court may not consider the employer’s alleged discriminatory reason for taking an adverse employment action when it is analyzing the plaintiff’s prima facie case and that this principle applies equally in a work force reduction setting. The Court found that Schoonmaker had not shown that she was replaced because she was not shown that another employee was hired or reassigned to perform her duties. She had shown nothing more than the fact of an age differential. Under the Circuit laws, Schoonmaker would have to show that she possessed superior qualities to the younger employee in order to meet her burden of establishing a prima facie showing in the context of a reduction in work force. Additionally, Schoonmaker showing that the two oldest employees were selected for termination is such a small statistical sample as to not be probative of discrimination. The Court further held that the supervisor’s ignorance of the handbook provision, as opposed to a decision to ignore the handbook provision, does not give rise to an inference that his decision had anything to do with Schoonmaker’s age. His undisputed testimony established that he considered the employees’ qualifications, and their ability to work together as a team. He testified he considered the latter factor to be more important than attendance. The Court found that he had followed the provision. Considering Schoonmaker’s argument of pretext evidence to establish additional evidence, the Court decided the question is not whether the proffered evidence gets the label “pretext” but whether the evidence, in the context of a reduction in force, shows age discrimination. The Court determined that Schoonmaker’s evidence of pretext did not show age discrimination and accordingly it does not establish the kind of additional evidence of discrimination needed in a reduction in force setting. Finally, the Court held that Schoonmaker could not show Spartan’s proffered reason for terminating her was pretext for age discrimination. It found she could not prove that Spartan’s proffered reason, namely low productivity and inability to get along with others, had no basis in fact, did not actually motivate the defendant’s challenged conduct, or was insufficient to motivate the defendant’s challenged conduct. It also determined she had not shown that Spartan’s decision to terminate her employment was so unreasonable as to give rise to an inference of pretext. Additionally, the Court held that Schoonmaker failed to offer any evidence to support her subjective belief that she was more qualified or productive than the younger employee. Her subjective views in relation to other coworkers, without more, are insufficient to establish discrimination. The Court also found that she failed to show that Spartan’s proffered reasons did not actually motivate its decision to terminate her. In conclusion, the Court affirmed the district court’s ruling because none of Schoonmaker’s evidence gave rise to an inference that Spartan’s decision to terminate her was so unreasonable as to create an inference of pretext. She had not created a triable issues as to pretext.

On April 27, 2004, the Dowlings arrived at the Clinic to consult with a physician. Mrs. Dowling slipped and fell in a puddle of water in a hallway between the lobby and the cafeteria. She testified the activity in the hallway was busy and that people were rushing back and forth from the cafeteria carrying soda, water, and other items. She stated she fell because of water in the hallway, “a fairly small puddle.” The hallway was wide and tiled with nothing concealing her view of the hallway. She did not know where the water had come from, how long it had been in the hallway, whether anyone else had fallen in the spill, or whether anyone else was aware of the water in the hallway. The facility manager testified she was not aware of any prior reports of falls in the area in which Dowling was alleged to have fallen. She also testified that the area was subject to constant monitoring by employees dedicated to that area. She acknowledged the chances of a spill would be greater near the cafeteria around mealtimes because of increased activity and stated that a spill in the area at some point would be inevitable. Suit was brought by the Dowlings several months later that alleged she suffered serious injuries as a result of the negligence and carelessness of the defendants. They claimed that Mrs. Dowling’s injuries resulted from the Clinic’s negligence in allowing water to accumulate and/or remain on the floor of its premises, thereby creating an unreasonably dangerous condition. The Clinic issued interrogatories and requests for production and noticed the depositions of the plaintiffs. After the completion of the Clinic’s discovery requests, the Clinic filed for summary judgment. The district court found that, while the Clinic failed to prove that the condition causing Mrs. Dowling’s fall was open and obvious, the Dowlings presented no evidence that the Clinic created, was aware of, or had constructive knowledge of the hazardous condition. Following a later status conference, the district court found that the Dowlings did not have adequate time for discovery before it granted the Clinic’s motion for summary judgment and it granted the Dowling’s motion to alter, amend, and/or vacate the grant of summary judgment. They were given sixty days to depose the facility manager before the next status conference. Eventually the deposition, due to scheduling conflicts, was set for nine days before the status conference. It was at this deposition that the Dowlings discovered the facility manager worked for a third-party subcontractor and not the Clinic itself and no required documents per the subpoena duces tecum were brought by counsel. The next status conference was held and a second motion for an extension was filed by the Dowlings which was eventually denied. The Court of Appeals held that under Ohio law, a plaintiff may prevail in a slip-and-fall negligence claim in three ways. Under the constructive knowledge theory of liability, Ohio courts have consistently held that evidence of how long the hazard existed is mandatory in establishing a duty to exercise ordinary care. Additionally, the Court found that Dowling presented no evidence from which to infer that the area was not monitored constantly and that the water had been present for long enough for the Clinic to have had constructive knowledge of its existence.

Kitchen International and Evans entered into a contract in 2004. Evans agreed to supply Kitchen International with manufactured cabinetry for several residential construction sites on the East Coast of the U.S. Kitchen International placed these orders from its headquarters in Montreal with the Georgia offices of Evans. The materials were shipped directly to the construction sites. In 2004, the two parties agreed they would create a products showroom at Kitchen International’s office in Montreal. Kitchen claims that Paul Gatti of Evans approved the design and layout of the showroom. Later that year, Evans manufactured and shipped cabinetry, related products and sales and promotional materials to Quebec for use in the showroom. Evans denies the existence of such an agreement; it claims that it never authorized Kitchen to build a showroom and that it did not supply products to Kitchen for that purpose. Various issues arose out of the quality and conformity of the products that Evans had shipped to the East Coast projects. In May 2006, Kitchen engaged a Canadian attorney to file suit against Evans in the Superior Court of Quebec for breach of contract arising from the materials supplied by Evans. Evans was served with process and given notice of the proceeding. Evans did not answer or respond to the action, and, on May 31, 2007, the Superior Court entered a default judgment against Evans. On April 23, 2007, Evans brought an action for breach of contract and quantum meruit in the U.S. District Court for the District of Massachusetts. Kitchen filed a motion to dismiss on the ground the action was barred by res judicata by virtue of the Canadian judgment against Evans. Evans opposed the motion on the ground that the Superior Court of Quebec had lacked jurisdiction over it, and therefore the Quebec judgment could not be recognized by the district court. During a hearing on Kitchen’s motion to dismiss, the district court realized that the issues being argued went beyond the pleadings. It stated the motion should be converted to one for summary judgment and allowed the parties ninety days to conduct limited discovery on the issueof the Quebec court’s jurisdiction over Evans. On March 4, 2008, the hearing was resumed. The only additional documents supplied by either party were affidavits from their principals. On November 4, 2008, the district court converted Kitchen’s motion to a motion for summary judgment and dismissed the case. The court reasoned that because it was sitting in diversity, it should apply Massachusetts’ version of the Uniform Foreign Money-Judgments Recognition Act to determine whether it should enforce the Quebec judgment. In order to enforce a judgment under that act, the Quebec court must have been able to exercise personal jurisdiction over Evans. The Court of Appeals held that when sitting in diversity and asked to recognize and enforce a foreign country judgment, federal courts tend to apply the law of recognition and enforcement of the state in which they sit, as required by Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). Some courts and commentators have suggested that recognition and enforcement of foreign country judgments deserves application of a uniform federal body of law because suits of this nature necessarily implicate the foreign relations of the U.S. The Court determined that since the question had not been decided in this district it did not need to determine the matter. It reasoned that neither party had suggested that the district court ought to have followed a rule other than that of Massachusetts. Even if the reciprocity rule were applicable under the facts of the case, the Massachusetts rule of recognition and enforcement also contains a reciprocity requirement. As to the law of Quebec, the Court found that the Quebec provision relied upon by Kitchen was clearly a provision that permits Quebec courts to assume personal jurisdiction over parties in exceptional cases when there is no other available jurisdiction to which the parties may litigate their dispute which is not the case here. The litigants are American corporations which are amenable to suit the state of their corporate domicile and with respect to particular transactions, in the states where they have the requisite minimum contacts with the other party and with the transaction at issue in the lawsuit. The Court concluded that Kitchen had not carried its burden of establishing that the provision can serve as an adequate basis for jurisdiction over Evans in the courts of that province. However, the Court determined that there were several considerations which make a determination of waiver inappropriate under the circumstances. Although relying on the wrong section of the Code, the district court indicated to the parties that it believed Quebec’s Code authorized jurisdiction of the contract had been made in Quebec or if the cause of action had arisen there. Evans, far from relying on a waiver on the part of Kitchen, explicitly admits in its brief that the Quebec court could have had jurisdiction if the contract had been concluded in Quebec or if the cause of action arose in Quebec. The Court held that under those circumstances it had to conclude that Kitchen may be able to demonstrate that the Quebec court was authorized to exercise jurisdiction if it can demonstrate that a contractual relationship was established with Evans in Quebec or that there was a breach of that agreement in Quebec or that one of the obligations arising from the contract was to be performed in Quebec.

An attorney filed Social Security appeals on behalf of two clients under Title II of the Social Security Act. Both clients were denied benefits by the Administrative law judge and were denied review by the Appeals Counsel. Both sought review in the District Court for the Western District of Pennsylvania. Both were remanded. In connection with the remands, the attorney sought and received a partial award of attorney fees under the Equal Access to Justice Act. On administrative remand, both clients were successful in demonstrating that they were disabled within the meaning of the Social Security Act and therefore entitled to disability benefits. The Commissioner issued her Notice of Award for both clients. The Notices of Award contained both the valuation of past-due benefits to the plaintiff as well as notification of the twenty-five percent of past-due benefits to be withheld pending approval of any attorney fees. The Social Security Administration claims it sent the attorney a copy of the Notice of Award for both cases, but the attorney claims he never was notified of the award until a phone call received much later than the Notice. He filed a motion for attorney fees under section 406(b) of the Act on both cases. The District Court sua sponte dismissed both motions as untimely. He then appealed. The Court of Appeals found that the district court had subject matter jurisdiction over the underlying actions pursuant to section 405(g) and jurisdiction over the attorney fees motions pursuant to section 406(b). The Court held that section 406(b) did not contain any explicit time limit for requesting fees. The Court analyzed several approaches by different Circuits and determined that after being left with only the application of Rule 54(d)(2) it had to reconcile its requirements with the demands of section 406(b) so as to prevent an absurd outcome inherent in applying the deadline that cannot be met. It found the solution lied in the doctrine of equitable tolling. Although the procedural requirements established by Congress should not be lightly disregarded, it held that the tolling of filing deadlines is appropriate where principles of equity would make the rigid application of a limitation period unfair. It reasoned that where the valuation of benefits necessary to award attorney fees is not completed until after the deadline for requesting those fees has expired, a strict application of that deadline works a patent injustice and undermines Congress’ purpose in providing for fees in the first place. The Court further held that Rule 54(d)(2) is the appropriate avenue through which counsel can seek attorney fees following a section 406(b) administrative remand. It also held that the application of the filing deadline is tolled until the notice of award is issued by the Commissioner and counsel is notified of that award. Counsel with have fourteen days from notification of the notice of award to file a fee petition in the district court. This holding does not alter the authority of the district court to expand that filing deadline at the request of the parties.

Ronald and Margaret Clark are the grandparents and legal guardians of F. Manning. On his behalf, the Clarks filed a diversity action in the district court against Quorum and several other defendants, seeking damages for physical and neurological injuries Manning allegedly sustained during his birth at the Saline County Medical Center in Benton, Arkansas. Quorum, a hospital management company that provided a hospital administrator for SCMC, moved for summary judgment which was granted. In lieu of proceeding with their claims against the other defendants, the Clarks filed a motion to amend the summary judgment order and enter final judgment under Rule 54(b). In support of this motion, the Clarks argued that the order effectively disposed of all claims against Quorum and that they ought to have the right to appeal and Quorum should have finality should there be no successful appeal. Quorum did not oppose the motion. In an order, the district court concluded that judicial economy would be served by granting the Clarks’ motion and certified that there is no just reason for delay under Rule 54(b). The district court entered final judgment on its summary judgment order dismissing the Clarks’ claims against Quorum with prejudice. The Court found that in determining that there is no just reason for delay, the district court must consider both the equities of the situation and judicial administrative interests, particularly the interest in preventing piecemeal appeals. The Court found in must give substantial deference to the district court’s certification decision because the district court is most likely to be familiar with the case and with any justifiable reasons for delay. It held that such deference rests on the assumption that the district court undertook to weigh and examine the competing interests involved in a certification decision. It reasoned that it is not the role of the appellate courts to reweigh the equities or reassess the district court’s factual findings. If the district court’s order does not reflect an evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals, or show a familiarity with the case and with any justifiable reasons for delay, the Court of Appeals will scrutinize its decision carefully. The Court held that it will not assume jurisdiction over an appeal certified under Rule 54(b) unless there is some danger of hardship or injustice which an immediate appeal would alleviate. In the present case, the district court found that judicial economy would be served by an immediate appeal and that there is no just reason for delay but it provided no explanation to support those conclusions. Based on the district court’s conclusory order, which fails to discuss the interrelationship of the claims so as to prevent piecemeal appeals, the Court found it was unable to discern how or why the Clarks will face hardship or injustice by waiting to appeal until their claims against all the defendants are fully resolved by the district court. In the absence of a reasoned analysis by the district court, the Court found it could assume that the district court relied on the reasons set out in the motion for certification. The Clarks did not argue that they would suffer hardship or injustice if the district court denied their Rule 54(b) motion. They simply asserted that the summary judgment order effectively disposed of all claims against Quorum and that they ought to have the right to appeal and Quorum ought to have finality should there be no successful appeal. In making these assertions, Quorum fails to distinguish this case from any civil action where some, but not all, of the defendants are dismissed before trial. The Court held that the district court abused its discretion in certifying, without adequate explanation, that there is no just reason for delay, and in entering final judgment under Rule 54(b). It found it lacked jurisdiction to reach the merits of the appeal.

Smith was employed by McNeill Pediatrics, a Johnson & Johnson wholly-owned subsidiary, as a Senior Professional Sales Representative. Her position required her to travel to various doctors’ offices and hospitals where she extolled the benefit of the drug Concerta to the prescribing doctors. J&J hoped that the doctors would choose to prescribe this drug for their patients. J&J gave Smith a list of target doctors that it created and told her to complete an average of ten visits per day, visiting each doctor on the list at least once per quarter. To schedule visits with reluctant doctors, Smith had to be inventive and cultivate relationships with the doctor’s staff, an endeavor in which she found that coffee and donuts were useful tools. J&J left the itinerary and order of Smith’s visits to her discretion. She was given a budget for these visits and she could use the money in the budget to take the doctors to lunch or to sponsor seminars. At the meetings, Smith worked off a prepared message that J&J provided her, although she had some discretion when deciding how to approach the conversation. J&J gave her pre-approved visual aides and did not permit her to use other aides. J&J trained its representatives to gauge a doctor’s interest and knowledge about the product, building to a commitment to prescribe the drug. Before her visits, Smith completed pre-visit reports to help her select the correct strategy for that day’s visits. At the end of her day, she completed post-visit reports summarizing the events of the visits. She would refer back to this information before the next visit to the same doctors. After adding up the time she spent writing pre-visit reports, driving, conducting visits, writing post-visit reports, and completing other tasks, Smith worked more than eight hours per day. Smith earned a base salary but was not paid overtime, though J&J, at its discretion, could award her a bonus. J&J considered the number of Concerta prescriptions issued in her territory in determining her bonus. The collection of this data and its direct relationship to Smith’s efforts was subject to error as purchasers might fill their prescriptions in another territory or with a pharmacy that would not release the pertinent information to J&J. Smith filed suit seeking overtime pay under the FLSA. After discovery J&J moved for summary judgment arguing that she was not entitled to overtime pay under the FLSA because she was exempt from that statute under either the outside salesman exemption or the administrative employee exemption. The district court found the outside salesman exemption did not apply but that the administrative employee exemption did. The Court held that under the FLSA, employees who work more than 40 hours per week are entitled to overtime pay unless they fall within one of the exemptions. The FLSA is remedial and is construed broadly, but exemptions to it are construed narrowly against the employer. The Court reasoned that Congress has empowered the Secretary of Labor to define and delimit the terms of the FLSA’s exemptions by regulation. These regulations have controlling weight unless found to be arbitrary, capricious, or manifestly contrary to the statute. The Court reasoned that under the administrative employee exemption, anyone employed in a bona fide administrative capacity is exempt from the FLSA’s overtime requirements. It was agreed that Smith’s salary qualified her for the administrative employee exemption. The Court therefore held that the administrative employee exemption applied to Smith. At her deposition she testified to the independent and managerial qualities that her position required. Her non-manual position required her to form a strategic plan designed to maximize sales in her territory. The Court believed this requirement satisfied the directly related to the management or general business operations of the employer provision of the administrative employee exemption because it involved a high level of planning and foresight, and the strategic plan she developed guided the execution of her remaining duties.

On November 3, 2005, Blakely crashed his vehicle into Peter Slingerland’s car in Kingston, New York. Blakely was driving the truck in the course of his work for Blakely Pumping. Slingerland and his wife brought a personal injury lawsuit against Blakely and Blakely Pumping. In a letter dated March 18, 2006, Blakely Pumping requested that NGM defend the action pursuant to an insurance policy for “Businessowners Liability Coverage” that Blakely Pumping had purchased from NGM. The policy generally covered liability for personal injuries but contained a section entitled “Exclusions” that expressly disclaimed coverage for damages arising out of the ownership, maintenance, use or entrustment to others of any auto owned or operated by or rented or loaned to any insured. Blakley Pumping had also purchased an endorsement from NGM that modified the policy; the endorsement extended coverage to bodily injury arising from the use of a :Hired Auto” or a “Non-Owned Auto” by the company or one of its employees. On March 23, 2006, NGM disclaimed coverage, based on the exclusions for autos. In a letter dated July 24, 2006, counsel for the Slingerlands called NGM’s attention to the endorsement’s extension of coverage for bodily injuries arising out of the use of a “Hired Auto” or “Non-Owned Auto.” Two weeks later, NGM again disclaimed coverage, this time on the ground that Blakely was an executive officer of Blakely Pumping and therefore his truck was neither a “Hired Auto” nor “Non-Owned Auto” as defined in the endorsement. On July 19, 2007, NGM sued Blakely Pumping, Blakely and the Slingerlands seeking a declaratory judgment that it was under no obligation to defend or indemnify Blakely Pumping. After the parties cross-moved for summary judgment, the district court entered a judgment declaring that NGM was obligated to defend and indemnify Blakely Pumping. Although the court concluded that Blakely Pumping had borrowed the auto of one of its officers and that the accident was therefore not covered under the terms of the policy as modified by the endorsement, this did not end the analysis. Since the endorsement generally covered auto accidents, the definitions of “Hired Auto” and “Non-Owned Auto” constituted exclusions of that general coverage. NGM was therefore required to provide written notice that it was disclaiming coverage on the ground that Blakely’s truck was neither a “Hired Auto” nor “Non-Owned Auto”; but because NGM originally disclaimed coverage pursuant to the policy’s exclusion for autos, it had waived its right to disclaim coverage on other grounds. The Court of Appeals found that the endorsement did not generally cover auto accidents; it covered only accidents arising from the use of a “Hired Auto” or “Non-Owned Auto.” Those terms were defined in such a way that an employee’s or officer’s vehicle, like Blakely’s truck, could never be covered. The Court reasoned that this is not the case then where the happening of a subsequent event implicated a definitional term that uncovered a formerly covered car. It is a case in which the policy as written could not have covered the liability in question under any circumstances. The Court found there was no coverage by reason of lack of inclusion and thus no notice of disclaimer was required. In conclusion, the Court of Appeals found that the district court erred in finding that the endorsement’s definitions of “Hired Auto” and “Non-Owned Auto” were exclusions triggering the notice of requirement of New York’s Insurance laws.

Dorothy and John Kolozetski owned real property in Newport, New Hampshire as joint tenants with rights of survivorship. They mortgaged their homestead to Sugar River Bank. In 2005, Dorothy Kolozetski filed for divorce, whereupon the Newport Family Division issued a non-hypothecation order. Such an order, with limited exceptions, enjoins any party from transferring, encumbering, hypothecating, concealing or in any way disposing of any property until the divorce decree has been executed. During the proceedings, Mr. Kolozetski forged his wife’s signature on a notarized power of attorney. With this fraudulent document, he obtain a $150,000 loan from Lake Sunapee Bank secured by a mortgage on the property. Lake Sunapee Bank paid Sugar River to satisfy the first mortgage and advanced the remaining balance to Mr. Kolozetski. With these funds he purchased various high dollar items. Based upon these actions, the family division found him to be in contempt of the court’s non-hypothecation order. Lake Sunapee Bank intervened in the divorce proceedings and Mr. Kolozetski has not repaid the Lake Sunapee mortgage. In 2007, the couple divorced. In the final decree, the family division noted that the property would be sold by agreement between Mrs. Kolozetski and Lake Sunapee Bank. The final decree also stated the superior court would resolve the debtor-creditor issues between her and Lake Sunapee Bank. Lake Sunapee Bank filed suit in superior court to recover the money it loaned. It also filed a motion to liquidate the real estate. In lieu of a forced sale, Dorothy Kolozetski and Lake Sunapee Bank agreed that she would convey the real property to a third party and release her homestead rights. The property sold and the superior court ordered that after taxes, fees, and other liens, the remaining money would be distributed to Lake Sunapee Bank to offset its satisfaction of the Sugar River loan and the remaining money would be given to Dorothy Kolozetski. During these proceedings, Land America, a title insurance company that provided coverage to Lake Sunapee, substituted itself for Lake Sunapee Bank. The trial court found that Land America should receive the money in the escrow account. It reasoned that John Kolozetski had effected a conveyance to Lake Sunapee by mortgaging the property. While he could not legally convey the entire property without his wife’s participation as joint tenant, the court ruled that the law acted to save the conveyance to the extent of Mr. Kolozetski’s interest in the property at the time he executed the mortgage. The trial court found he had a one-half interest in the property to which Land America was entitled. The Supreme Court held that RSA 477:22, by plain reading, indicated that the statute provides protection to the grantee when a person purports to convey a greater interest than he possessed or could lawfully convey. The Court found Mr. Kolozetski did this when he presented the forged notarized power of attorney to acquire the mortgage. By applying for the Lake Sunapee Bank mortgage without his wife’s consent, John Kolozetski unilaterally severed the joint tenancy, resulting in a tenancy in common. His actions expressed a clear intent to terminate the joint tenancy’s right of survivorship. The severance occurs because a mortgage in theory is a conditional conveyance that passes legal title to the property in fee to the mortgagee; the mortgagor retains equitable title. The Court found that under the law the grantee receives all of the estate that the grantor could lawfully convey. Kolozetski could lawfully convey only his undivided one-half interest in the property. This one-half interest equals one-half of the proceeds from the sale of the house after satisfaction of the underlying loan. The Court reason that a violation of a non-hypothecation order constitutes contempt of court punishable by imprisonment, a fine, and/or attorney’s fees. Just because Kolozetski violated the order does not mean that he did not possess a lawful interest or a lawfully conveyable interest. Finally, the Court held that Dorothy Kolozetski was not divested of her one-half interest in the property. Mr. Kolozetski encumbered and passed only title to his one-half interest in the marital property when he obtained the mortgage loan. He could not convey her interest.

Keach was lead counsel in a class action lawsuit which eventually settled against the County of Schenectady and a number of its officials. Following the settlement, the district court awarded an attorney’s fee that was significantly less than what Keach had requested. His appeal of the fee decision set off a series of events that led to the district court to consider whether Keach should be sanctioned for his behavior. During the settlement negotiations, defendants’ attorney had requested that the implementation of the settlement be delayed until after the re-election campaign of the county sheriff, a co-defendant. This request, while copied to opposing counsel, was meant to be kept secret and the letters discussing this were properly noted to be confidential. The letters were treated as sealed and to remain confidential. Keach declined the proposal and the settlement was announced before the election. It was at this time after the settlement that the court granted a smaller attorney’s fee than what Keach had requested, a decision which Keach appealed. After filing his notice of appeal, Keach wrote to the district court asking that the documents relating to the request to postpone the settlement be unsealed. The stated reason for the request to unseal was that “ Class counsel plans to include these documents in their Joint Appendix regarding the pending appeal on attorneys’ fees. Class counsel does not believe there is any present basis to have these items filed with the Court under seal, nor should they have to be filed under seal with the Second Circuit.” The district court denied the request, reasoning that the Second Circuit has full access to the sealed documents. The request and denial published on the district court’s docket sheet had the effect of publicly disclosing the contents of the previously sealed letters. The same day he received the denial, Keach gave the order and request to The Albany Times Union newspaper which reported the sealed documents contained the defendants’ request to postpone the settlement until after the election. Soon after Defendants’ attorney filed an affidavit asking the court to bar Keach from practicing law in the Northern District of New York for willfully disregarding Court Orders regarding confidential matters thus impairing the power of the Court, the rights of the litigants, and the confidence of the litigants in the judicial process. Keach later moved for the district court judge to recuse himself based upon some alleged exparte communications between Defense counsel and Judge Sharpe. The district court denied both the motion to recuse and the motion for sanctions. As to the recusal, the court found no basis or prejudice on its part. As to sanctions, the court first found that Keach’s disclosure of the settlement correspondence did not justify sanctions, because it was not clear whether disclosure of the documents violated a court order. The alleged exparte communications was found to be more troubling. Keach appealed to the Court of Appeals from a decision of the district court denying a motion for recusal and declining to impose sanctions. Keach argued that Judge Sharpe should have recused himself from further proceedings on his sua sponte order to show cause as to why Keach should not be sanctioned, and in any event erred in making several erroneous findings that Keach engaged in professional misconduct. The Court of Appeals held that because the district court’s decision was limited to routine judicial commentary and criticism, without any specific findings of professional misconduct, they lacked jurisdiction over the appeal.

Sprint Nextel petitioned the Court of Appeals for leave to appeal the district court’s remand to state court for a class action against it. The complaint alleged violations of the Kansas Unfair Trade and Consumer Protection Act. The district court declined to exercise jurisdiction on the ground that the suit fell within the home-state exception to the Class Action Fairness Act. The complaint, filed in Kansas state court, alleged that Sprint Nextel, a Kansas corporation, conspired with other cell phone providers to impose artificially high prices for text-messaging services. The suit was brought on behalf of the plaintiffs and “all Kansas residents” who purchased text messaging from Sprint Nextel or one of its alleged co-conspirators between January 2005 and October 2008. They specified that their class was limited only to those who 1) had a Kansas cell phone number, 2) received their cell phone bill at a Kansas mailing address, and 3) paid a Kansas “USF fee”, which is applied to all long-distance calls within Kansas. The plaintiffs asserted that these factors showed that all the class members were Kansas citizens. Sprint Nextel had the case removed to the federal court system pursuant to CAFA, 28 USC § 1332(d)(2), (d)(5), contending that over $5 million was in controversy, the class contained more than 100 members, and at least one member of the putative class was not a citizen of Kansas. The requirements of the home-state exception are as follows: if 2/3 or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants are citizens of the State in which the action was originally filed, then the district court should decline jurisdiction. In resisting remand, Sprint Nextel argued first that the plaintiffs had presented no evidence that 2/3 of the proposed class members were Kansas citizens. Second, Sprint Nextel argued that even if the plaintiffs had documented the Kansas citizenship of the members of the proposed class, CAFA required more. It contended that when the statutory exception specifies 2/3 or more of the members must be from the home state, it means 2/3 of the members of the proposed classes in all lawsuits alleging similar conduct, not just the proposed class in this suit. Sprint Nextel contended there was no way that Kansas citizens constituted at least 2/3 of the members across the proposed plaintiff classes in all text-messaging antitrust cases. The district court ruled that even though the plaintiffs presented no evidence to counter Sprint Nextel’s arguments on the composition of the class, they had defined the putative class in such a way as to leave little doubt that at least 2/3 of the class members are Kansas citizens. The court rejected the second argument on the ground that while the local-controversy exception requires district courts to inquire whether there have been other class actions with similar allegations in the past three years, the home-state exception does not. The Court of Appeals held that there can be more than one class in a single class action, and the plural language of CAFA is meant to address that scenario. It further found that for purposes of the local-controversy exception of CAFA, the composition of proposed plaintiff classes in other similar suits can never matter. The Court reasoned that the home-state exception is framed entirely in terms of the parties’ citizenship.

Michael Penzer filed a class action suit in a Florida state court against Nextel South Corporation alleging that Nextel or one of its agents sent him an unsolicited fax advertisement in violation of the TCPA. Nextel filed a third-party complaint against Sunbelt, a blast-fax advertiser, and Southeast Wireless, an authorized agent of Nextel, seeking indemnity and contributions for any liability Nextel may have in the class action. Nextel also alleged that Southeast Wireless hired Sunbelt to create the advertisement and that Nextel did not authorize fax transmissions. Penzer filed a third-party complaint against Southeast Wireless, and Southeast Wireless requested that Transportation Insurance Company, its commercial liability insurer, defend it in the class action. Transportation refused to provide a defense for the class action suit or the Nextel complaint, and also disclaimed any coverage on various grounds. In April 2004, Penzer entered into a settlement agreement with Southeast Wireless in which Penzer agreed to release Southeast Wireless from any liability, and Southeast Wireless consented to a judgement and assigned its right to seek insurance coverage from Transportation to Penzer. The settlement was approved and certified a settlement class. Penzer then pursued a declaratory judgment against Transportation in federal court wherein Transportation defended that based upon the language of the policy, Transportation had no obligation to defend or indemnify Southeast Wireless. The insurance policy provided coverage for advertising injuries. The federal district court found that Transportation did not have a duty to indemnify the plaintiffs for Southeast’s violations of the TCPA. It ruled that the policy language was not ambiguous and that advertising injury coverage under the provision existed only when the content of the material published violated a person’s right to privacy. Penzer appealed the federal district court’s decision to the Eleventh Circuit which concluded that neither the policy exclusions nor Florida public policy lead to denial of coverage. The Eleventh Circuit also found that the disposition of the case rested on an unsettled issue of Florida law and that a pure legal question of the interpretation of widely used language in commercial liability insurance was at issue. The Eleventh Circuit certified the question to the Florida Supreme Court. The Eleventh Circuit stated that none of the policy exclusions prevented coverage and concluded that Transportation had not met its burden to prove that coverage was inapplicable under any of the policy exclusions or other defenses. The Supreme Court of Florida held that in interpreting insurance contracts, they are construed according to their plain meaning, with any ambiguities construed against the insurer and in favor of coverage. The Court found that the policy provision provided coverage for a written publication of material that violated a person’s right of privacy. There was a written dissemination of 24,000 faxes that violated the TCPA. Comparing the policy’s language to the facts of the case, the Court found that there was a written publication [dissemination] of material [24,000 faxes] that violated a person’s right of privacy [that violated the TCPA]. Applying the plain meaning analysis, the Court held that Transportation’s insurance policy provided coverage for sending unsolicited fax advertisements in violation of the TCPA. Essentially, the Court found that an advertising injury provision in a commercial liability policy that provides coverage for an “oral or written publication of material that violates a person’s right of privacy” provides coverage for fax-blasting in violation of the TCPA. The certified question was answered in the affirmative.

Addressing a question of “first impression” in the Second Circuit, the Court concluded that the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), required the dismissal of a public school teacher’s First Amendment claim concerning the school board’s alleged retaliation against him for statements made during grievance proceedings. During his first year teaching fifth grade at a Brooklyn, New York public school, appellant filed a union grievance to challenge the administration’s refusal to discipline a student who threw books at him during class. Weintraub alleged that school officials retaliated against him in violation of the First Amendment by subjecting him to negative performance evaluations and disciplinary reports that eventually lead to his termination, wrongfully accusing him of sexually abusing a student, and having him arrested for the attempted assault of another teacher. The district court dismissed Weintraub’s claim upon concluding that Garcetti and other circuit court decisions applying Garcetti in similar situations precluded his First Amendment claim because his statements during the grievance proceedings and other discussions with school officials were made “pursuant to [his] official duties” and not as a “citizen for purposes of the First Amendment.” Affirming the dismissal, the Second Circuit agreed with the Third Circuit that Garcetti “’narrowed the Court’s jurisprudence in the area of employee speech’ by further restricting the speech activity that is protected.” (Citations omitted). Under Garcetti, non-protected speech made pursuant to a public official’s duties is “speech that owes its existence to a public employee’s professional responsibilities.” It is not necessary under this test to establish that the speech was a required part of the public employee’s duties. The Second Circuit contrasted appellant’s non-protected speech during his grievance proceedings with situations in which a public employee is speaking to matters of public concern as a private citizen, such as writing a letter to a newspaper. Dissenting, Judge Calabresi disagreed with the majority’s conclusion that Garcetti narrowed the areas in which a public official’s speech is protected under the First Amendment, and also criticized the majority’s conclusion that the First Amendment does not protect speech whenever it is “in furtherance” of a public employee’s core duties as “too broad.”

Faced with “coverage exposure of nearly $100 million” dollars, Underwriters argued that a Money Laundering Exclusion in the primary and follow form excess D&O policies defeated coverage for all of SEC, civil and criminal claims and charges accusing the defendants of misappropriating investor funds for their own economic benefit via a ponzi scheme. The policies’ Fraud Exclusion did not defeat defense cost coverage because it required a “final adjudication” that the insureds had committed a “fraudulent or criminal act.” In contrast to the Fraud Exclusion, the Money Laundering Exclusion called for Underwriters to pay defense costs “until such time that it is determined that the alleged act or alleged acts did in fact occur.” Contending that the exclusionary language permits the insurer to make the “in fact” determination, Underwriters argued that information developed in the SEC and criminal action supported its determination that the claims against the officers constitute “money laundering” within the scope of the Exclusion. Rejecting this argument, the court concluded that strict adherence to the “eight corners” rule under Texas law confined the duty to defend and duty to reimburse defense cost determination to the comparison of the policy against the operative complaint(s). Agreeing with the insureds that the evidence developed in the pending SEC and criminal proceedings was irrelevant under the governing “eight corners” test, the court also observed that “[i]f a contemporaneous duty to advance or reimburse defense costs were judged on an ‘actual facts’ basis, an insurer’s contractual obligation to pay defense costs could change on a daily basis as additional ‘facts’ are developed. Allowing insurers to withdraw coverage at their sole discretion would “leave directors and officers in an extremely vulnerable position, as any allegations of dishonesty, no matter how groundless could bring financial ruin on a director or officer.” After concluding that the insureds had demonstrated the requisite likelihood of success, the court examined the irreparable harm they would sustain if deprived of funds for a vigorous defense. Concluding that the balance of harms weighed heavily in favor of the insureds, the court pointed to the insurers’ right to seek defense cost recoupment if they could establish that the officers were not entitled to defense cost coverage. In response to the insurers’ argument that they were unlikely to able to recoup “defense costs that may reach as high as $100 million,” the court held that “hollow or not, [recoupment] is the right for which they contracted and cannot be ignored merely because it may be unenforceable.” The court also relied on the insurers’ potential defense cost recoupment remedy in relieving the insureds of any obligation to post a bond. On the public interest determination, the court concluded that granting the requested injunctive relief would protect the public interest because “the United States taxpayers [would otherwise] ultimately bear the financial costs associated with defending the Criminal Action.”

Affirming the U.S. District Court for the Central District of California, the Ninth Circuit held that student borrowers’ claims challenging loan servicer methods of calculating interest, assessing late fees, and setting repayment start dates were preempted by the Federal Family Education Loan Program (FFELP) of the Higher Education Act (HEA). The Federal Family Education Program is a system of loan guarantees “to encourage lenders to loan money to students and their parents on favorable terms.” The test for federal preemption is as follows: “(1) Congress enacts a statute that explicitly pre-empts state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in that field.” The Ninth Circuit previously held that field preemption did not apply to the HEA. The Congress enacted several express preemption provisions applicable to FFELP participants, one of which applied to, and therefore precluded, plaintiffs’ state law claims for deceptive billing practices. In considering whether conflict preemption barred plaintiffs’ remaining claims for breach of contract, unjust enrichment, and fraudulent practices unrelated to billing statements, the Ninth Circuit discussed the Congressional intent to promote the uniform application of core FFELP procedures to encourage private lenders to help fund higher education. The Court recognized the need to exercise caution in applying conflict preemption to claims within the traditional scope of state police powers, but concluded that permitting the state law claims to proceed would undermine the uniform application of the FFELP and “threaten the efficacy of the federal lending effort for students.” In applying conflict preemption, the Ninth Circuit distinguished a 2005 Fourth Circuit decision that reversed a preemption determination in a suit between lenders upon concluding that it was “unable to confirm the creation of ‘uniformity’ . . . was actually an important goal of the HEA.” In upholding the preemption determination, the Court held that it was also appropriate to defer to the Department of Education’s own determination that permitting challenges under state law would create an obstacle to the intended uniform implementation of the FFELP.

The Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”), creates an exception to the American rule by authorizing federal courts to award attorneys’ fees, court costs, and other expenses when a party prevails against the United States unless the “court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” Fee-shifting under the EAJA is not mandatory, however, and the Ninth Circuit concludes that the statute does not permit the award of attorneys’ fees “with respect to positions of the United States challenged by the claimant but unaddressed by the reviewing court.” The dispute arose when the Social Security Administration denied plaintiff’s claim for supplemental security income in 2003. An administrative law judge upheld the denial of benefits after a hearing. The plaintiff sought judicial review on numerous grounds. In 2008, the district court reversed the denial of benefits based on its determination that the ALJ’s credibility determination was not supported by substantial evidence. Following the entry of judgment in his favor, the plaintiff filed a request for attorneys' fees under the EAJA. In confining the award of attorneys’ fees to the single issue adjudicated by the trial court (the ALJ’s credibility determination), the Ninth Circuit stated that it will not serve as a “roving authority” for fee-shifting without clear statutory authority. In declining to award attorneys’ fees in situations on which the EAJA is silent, the Ninth Circuit explained that the Supreme Court has “repeatedly interpreted attorneys’ fees statutes narrowly” when they render the United States liable for attorneys’ fees “for which it would not otherwise be liable” because doing so “amounts to a partial waiver of sovereign immunity.” The Ninth Circuit also expressed concern that permitting the award of attorneys’ fees for non-adjudicated issues would promote extensive collateral litigation. The Court rejected the plaintiff’s policy argument that confining attorneys’ fee awards to adjudicated issues would allow the district court to “ignore egregious ALJ errors, reveres on a trial matter, and thus deny attorneys’ fees.”

This patent infringement case involves the effectiveness of a terminal disclaimer to overcome obviousness-type double patenting and the safe-harbor provision of 35 U.S.C. § 121. Plaintiff/Appellant (“Boehringer”) successfully appealed from a final judgment declaring its patent for certain tetrahydrobenzthiazole compounds used to treat Parkinson’s disease invalid under the doctrine of obviousness-type double patenting. This doctrine is used to shield third parties from having to defend related patents against patent assignees in certain circumstances. Concluding that the district court incorrectly held that the safe-harbor provision of 35 U.S.C. § 121 was inapplicable in this case, the Federal Circuit (Judge Dyk dissenting in part) awarded costs to Boehringer and reversed and remanded the matter for further proceedings consistent with its opinion.

Joining the First and Eleventh Circuit Courts of Appeal, the Seventh Circuit held that the court retains diversity jurisdiction under an action removed to federal court under the Class Action Fairness Act of 2005, 28 U.S.C. §1332(d), following issuance of an order denying class certification. The Class Action Fairness Act creates federal court diversity jurisdiction over certain class actions in which at least one member of the class is a citizen of a different state from any other (incomplete diversity) to permit the removal to federal court of state court actions seeking class certification. After denying plaintiffs’ class certification motion, the Illinois Federal District Court remanded the action to state court based on the loss of subject matter jurisdiction. Reversing the trial court, the Seventh Circuit held that subject matter jurisdiction attaches when an action if filed as a class action and does not depend on issuance of a class certification order. Consistent with the general proposition that once jurisdiction properly attaches, it is not lost by subsequent litigation developments, the Seventh Circuit agreed with the First and Eleventh Circuits that the denial of class certification does not defeat jurisdiction under the Act. In reaching this decision the Court explained that the purpose of the Class Action Fairness Act “would be thwarted if because of a remand a suit that was within the scope of the Act by virtue of having been filed as a class action ended up being litigated as a class action in state court” because the state court applied more liberal class certification requirements.

Joining the Second, Fifth, Sixth, Seventh, Eighth and D.C. Circuit Courts of Appeal, the Ninth Circuit held that district courts have discretion to entertain successive motions for summary judgment, independent of whether the motions involve qualified immunity. (Supreme Court precedent already permits the filing of successive motions for summary judgment on qualified immunity grounds). In Hoffman, plaintiff sued defendant medical center under the Emergency Medical Treatment an Active Labor Act, 42 U.S.C. § 1395dd(a), after an emergency room physician failed to diagnose her bacterial infection. The U.S. District Court for the Eastern District of California granted in part and denied in part defendant’s pretrial motion for summary judgment. At trial, the district court denied defendant’s motion for judgment as a matter of law at the close of evidence. The jury deadlocked and the district court declared a mistrial. The district court then allowed defendant to file another summary judgment motion, which the court granted. The Ninth Circuit reversed the entry of summary judgment on other grounds in a separate memorandum disposition but upheld the trial court’s discretionary right to permit successive motions for summary judgment. In so holding, the Ninth Circuit noted that Federal Rule of Civil Procedure 56 does not limit the number of motions that may be filed and also permits reconsideration at any time. Adopting the view expressed by several other circuits, the Ninth Circuit concluded that a successive motion for summary judgment is “particularly appropriate on an expanded factual record.” The expanded factual record before the trial court included the trial testimony, expert witness reports, and an expert witness deposition. The Ninth Circuit also held that the post trial entry of summary judgment, although erroneous in this case, was not legally incompatible with the district court’s denial of defendant’s motion for judgment as a matter of law.

National Waste purchased an employment liability insurance policy with dates of coverage from 2/15/2007-2//15/2009. A former employee brought suit on 5/12/2007. Travelers denied coverage based on exclusion which excluded any claim brought during policy period which arose out of prior administrative action commenced prior to the policy period. This employee had brought a claim for unemployment which contained claims for wrongful termination in August 2005. The Court upheld the position of Travelers is denying coverage.

Reversing the Georgia Supreme Court, the United Supreme Court held that the Sixth Amendment right to a “speedy and public trial” in all criminal proceedings extends to pre-trial proceedings, including jury empanelment. The public’s right to access is also protected by the First Amendment, as the Court previously held in Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501 (1984). In deciding the “open question” of whether the “First and Sixth Amendment public trial rights are coextensive,” the Court observed that “there is no legitimate reason, at least in the context of juror selection proceedings, to give one who asserts a First Amendment privilege greater rights to insist on public proceedings than the accused has.” In rare circumstances, the right to an open trial may be limited by other overriding interests, such as “the defendant’s right to a fair trial or the government’s interest in inhibiting the disclosure of sensitive information.” Before restricting rights of public access, the trial court must consider and make findings regarding reasonable alternatives to closing the proceedings. In this matter, the trial court barred the defendant’s relative from the voir dire on the grounds that the courtroom seating would be fully occupied by the jury panel. Reversing the conviction and remaining for further proceedings, the trial court was directed to consider other alternatives, such as setting aside a portion of the courtroom for the public and dividing the venire panel into segments to reduce congestion.

The Court of Appeals reversed the Circuit Court for Montgomery County and determined that the cap on noneconomic damages is applicable to health care malpractice cases in which arbitration was waived. The trial judge found that the “plain meaning” of the language in the Health Care Malpractice Claims Act precluded the application of the cap in cases in which one or both of the parties had waived arbitration prior to suit. Judge Harrell, writing for a unanimous Court, read the same statute and concluded that the “plain meaning” of the language provides that the cap on noneconomic damages applies in all health care malpractice cases. The Court also reversed the trial judge with respect to his application of a joint tortfeasor release. Prior to trial, a Co-Defendant settled with the Plaintiffs, and the Plaintiffs executed a non-Swigert Joint Tortfeasor release. The trial judge had held that the pro rata reduction required under such a release should be performed prior to the application of the noneconomic damages cap reduction, rather than after. That resulted in an additional $406,250 windfall to the Plaintiffs. The Court of Appeals concluded, however, that the cap should be applied first to reduce the verdict then the pro rata reduction under the Joint Tortfeasor release.

Dr. Bruce Strnad (Strnad) was a named insured under a professional liability policy issued by American Home (Home). The complaint alleged that Strnad learned of the sexual abuse of the plaintiff in 1988 and did not report it to Child Services. Home refused to defend or indemnity based upon an exclusion for knowingly wrongful acts. At an arbitration an award of 27 million was made against Strnad. The Court found that this exclusion was ambigious and did not bar the duty to defend and indemnify under the facts of this case.

Under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (2006), employers and unions may agree through collective bargaining to exclude "any time spent in changing clothes. . . at the beginning or end of each workday" from compensable work time. See, § 203(o). In Allen v. McWane, the Fifth Circuit examined whether the pre-shift donning and doffing of protective gear constituted "changing clothes" within the meaning of Section 203(o). The controlling issue was whether a § 203(o) “custom or practice” of non-compensation for such time existed. In addition, the parties disputed who had the burden of proof under § 203(o). The Fifth Circuit joined the Third and Eleventh Circuits in concluding that the donning of protective gear constituted “changing clothes” under Section 203 that the employer and union could agree to exclude from compensable work time. The Court held that plaintiffs have the burden of proof as to whether a custom or practice existed under Section 203(o). The appeal involved workers from ten different McWane plants that operated under collective bargaining agreements (“CBAs”). CBAs for three of the plants expressly excluded compensation for pre- and post-shift protective gear changes while the CBAs at the other seven plants were silent on the issue. In attempting to challenge the existence of a “custom or practice” of non-compensation under the CBAs, plaintiffs testified that they did not know that changing time was potentially compensable under the FLSA. Plaintiffs argued that compensation for the pre- and post-shift changing time is a pre-existing right under the FLSA, and can only be excluded if it has been actually compromised in CBA negotiations. The Fifth Circuit joined the Third and Eleventh Circuits [Anderson v. Cagle’s, Inc., 488 F.3d 945 (11th Cir. 2007) and Turner v. City of Philadelphia, 262 F.3d 222 (3d Cir. 2001)] in holding that even when the CBA is silent on the question, a policy of non-compensation that has existed for a significant period of time fulfills the §203(o) requirement of “a custom or practice under a bona fide” CBA.

Trinity Universal Insurance Company (Trinity) and Employers Mutual Casualty Company (EMC) each issued CGL policies which covered Lacy Masonry while doing masonry work for McKenna Hospital (McKenna). McKenna sued Lacy Masonry. Trinity agreed to defend. EMC denied that it had a duty to defend and refused to participate in the defense. The Court applying Texas law found that EMC had a duty to defend. The Court found not withstanding the Texas law on contribution the duty to defend was an independant obligation and Trinity was entitled to recover a porportionate share of the cost of defense.

De Bouse brought claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (“the Act”), alleging Bayer deceived medical community and public by concealing information about negative side effects of cholesterol-lowering drug Baycol. De Bouse purchased Baycol three times (after it was prescribed by her physician). Six months after it was first prescribed to De Bouse, Baycol was withdrawn from the market after its use was associated with rhabdomyolysis, a serious medical condition affecting a patient’s muscles (De Bouse did not develop this condition). Bayer filed motion for summary judgment, arguing that in order to maintain action under the Act, she must demonstrate she was actually deceived. The district court denied the Motion, but did certify three questions for interlocutory review: I. Whether an Illinois consumer who purchases a pharmaceutical product, later withdrawn from the market because it was deemed unsafe, can maintain an action under the act, even thought the pharmaceutical company did not engage in direct communication or advertising to the consumer. II. Whether Bayer offering for sale a product in Illinois is a representation to prospective customers that the product is reasonably safe for its intended purpose such that proof of a defendant’s failure to disclose safety risks associated with the product to consumers is a violation of the Act. III. Whether fraudulent statement or omissions made by a defendant to third parties, other that the consumer, with the intent that they (1) reach the plaintiff and (2) influence plaintiff’s action and (3) plaintiff relies upon the statements to his detriment, can support and action under the Act. The appellate court entered a judgment answering the first and third questions in the affirmative, and declined to address the second questions. The Supreme Court of Illinois disagreed in part, answering the first and second questions in the negative, and the third question in the affirmative.

Hopper brought qui tam False Claims Act against Solvay, alleging company had engaged in marketing campaign for physicians to prescribe its drug Marinol for off-label uses, contrary to FDA regulations, resulting in submissions of ineligible, fraudulent reimbursement claims to the government. Solvay filed a motion to dismiss on the basis that Hopper failed to plead his allegations of fraud with particularity, as required by Fed. R. Civ. P. 9 (b). The district court dismissed Hopper’s suit, as he failed to plead with particularity his allegations that Solvay’s marketing scheme caused the submission of actual false or fraudulent claims to the government. The Eleventh Circuit agreed with the district court, finding (1) the complaint failed to reliably indicate that false claims were submitted to the government, as required to state with particularity the circumstances constituting fraud, (2) addressing an issue of first impression, although the Act does not contain a “presentment clause,” a person seeking to prove a violation of the Act must show that the government in fact paid a false claim, and (3) Hopper’s complaint, under the subsection of the Act proscribing false statements made to get a false or fraudulent claim paid or approved by the government, failed to allege that Solvay intended its false statements to influence the government’s decision to pay a false claims.

The Honorable Judge Titus for the United States District Court for the District of Maryland held that joinder of a non-diverse Defendant, after a successful removal based on diversity jurisdiction, was not supported by equitable considerations and denied Plaintiffs’ Motion to Amend the Complaint. An action filed in state court can be removed to federal court when no parties share the same state citizenship and the amount in controversy is greater than $75,000.00. Sometimes during the course of litigation, a non-diverse defendant will be added to the federal action. When this happens, 28 U.S.C. § 1447(e) allows the district court to either (1) allow the joinder of the non-diverse party and remand the action to the state court, or (2) deny the joinder and keep the action in federal court. In exercising its discretionary powers, the district court must consider equitable factors. These factors include: the extent to which the purpose of the joinder is to defeat federal jurisdiction, whether the Plaintiff has been dilatory in asking for amendment, whether the Plaintiff will be significantly injured if amendment is not allowed, and any other factors bearing on the equities. In this case, the facts suggested that the predominant purpose behind Plaintiffs’ request to join the non-diverse Defendant was to destroy diversity. Plaintiffs failed to articulate reasons as to why the additional non-diverse Defendants were important or necessary. The Plaintiffs also delayed in requesting to amend their Complaint. Plaintiffs were not prejudiced by denying the amendment. Plaintiffs admitted that they were not introducing any new legal theories; rather, they were merely adding a non-diverse party who might be additionally liable under already alleged claims. Plaintiffs could still obtain complete relief, however, from the real parties in interest who were already named in the suit. Lastly, Defendants would be prejudiced by amending the Complaint to allow the joinder of the non-diverse Defendant. Defendants had already expended time and resources on removal and jurisdictional discovery, including filing numerous motions and briefs and subpoenaing witnesses for depositions scheduled for December 4, 2009. Also, the federal court had invested significant time and resources. Accordingly, the District Court denied Plaintiffs’ Motion to Amend the Complaint and join non-diverse Defendants.

The United States District Court for the District of Columbia declined to find excusable neglect when Plaintiff’s counsel failed to file timely pleadings due to technical computer problems with the electronic-filing system. The case was dismissed after the Plaintiff failed to defend against three dispositive motions. The Plaintiff originally filed the Complaint pro se and subsequently received two dispositive motions from Defendant. The Court directed Plaintiff to respond no later than March 13, 2009. On that date, Plaintiff appeared with counsel and filed a Motion to Extend the Deadline until March 31, 2009. That motion was denied with leave to renew because counsel failed to comply with LOCAL RULE 7(m), requiring that attorneys discuss with opposing counsel the anticipated non-dispositive motion. The motion was never renewed, and when March 31, 2009 passed, Defendant filed a third dispositive motion, and the Court ordered the Plaintiff to respond by May 11, 2009. After May 11, 2009 passed without a response from Plaintiff, the Court dismissed the Complaint. Soon afterwards, the Plaintiff filed a Motion to Reconsider, arguing that she had electronic and internet troubles and was unaware that her filings were not received by the Court. FEDERAL RULE OF CIVIL PROCEDURE 60(b) allows a court to grant a party relief from an adverse judgment on the grounds of “excusable neglect.” Determining what constitutes excusable neglect is an equitable decision and takes into account all relevant circumstances surrounding the party’s omission. One of the most important factors is whether there is fault in the delay. In considering whether the Plaintiff demonstrated excusable neglect, the Court noted an attorney is required to affirm in writing that she is familiar with the local rules of the United States District Court for the District of Columbia in order to be admitted to practice. Counsel is also required to maintain a password for electronic filing purposes, consent to electronic service, to monitor electronic-filings, and promptly retrieve noticed filings. Plaintiff’s counsel had been admitted to practice in the District of Columbia for seven years; yet, counsel consistently violated the LOCAL CIVIL RULES. For example, counsel violated LOCAL CIVIL RULE 7(m) when seeking the extension of time to respond to the first dispositive motion. Also, counsel failed to follow other local rules requiring attorneys to exclude personal identifiers and redact portions of the Complaint. Finally, counsel failed to monitor her email and failed to ensure she could adequately interface with the electronic-filing system. Considering that the attorney was admitted to practice in the District of Columbia for seven years and failed to comply with multiple rules, the Court refused to find excusable neglect, denied the Motion to Reconsider, and dismissed the Complaint.

The District Court of Maryland applied Maryland law and dismissed a Complaint for delay in service. The Plaintiffs, Lisa Sharp and Mathew Barnes, filed a Complaint in the Circuit Court of Maryland for Carroll County on December 19, 2008 alleging Defendant American Honda Motor Company (“Honda”) was liable for injuries stemming from an automobile accident. The case was subsequently removed to the United States District Court for the District of Maryland, where Judge Frederick Motz ruled on Defendant’s Motion to Dismiss. On December 28, 2005, Plaintiff Lisa Sharp was involved in an automobile accident. Just shy of three years later, Plaintiffs filed a Complaint in the Circuit Court, and the Clerk issued a summons on December 22, 2008; but the Plaintiffs never served this summons. Four months later, on April 29, 2009, the Circuit Court issued a notice of contemplated dismissal for failure to prosecute, pursuant to MD. RULE 2-507. The Plaintiffs were given thirty days to show good cause as to why dismissal should be deferred. Twenty-nine days into the thirty day response period, Plaintiffs filed a Motion to Defer Dismissal, and the Circuit Court deferred dismissal for ninety days. Because a summons issued in Maryland becomes dormant after sixty days, pursuant to MD. RULE 2-113, the Court also issued a second summons on July 2, 2009. That summons became dormant on September 5, 2009. Plaintiffs served the dormant and defective summons on September 11, 2009. This case was then removed to Federal court on October 7, 2009. State law governed the sufficiency of service and of process in this case. Honda filed a Motion to Dismiss, pursuant to MD. RULE 2-507, which provided that “an action against any defendant who has not been served . . . is subject to dismissal as to that defendant at the expiration of 120 days from the issuance of original process directed to that defendant.” Judge Motz granted the Motion to Dismiss for three reasons. First, Plaintiffs failed to offer a reasonable justification for the delay in effecting service. The only reason Plaintiffs offered was the need to investigate. Also, they failed to explain how they had been unable to serve process, although they admitted being in communication with Honda while “investigating.” Second, Plaintiffs’ delay in effecting service was significant. The original summons was issued over ten months before service, although defective, was finally effected. Finally, the delay prejudiced Honda. The Court found prejudice simply from the delay in service. A specific showing of prejudice is not required because Plaintiffs offered no explanation for their failure to serve timely. Thus, since the Plaintiffs offered no acceptable explanation for their delay in service with both summons, the Court dismissed the action.

DePriest (and others) filed suit against Astrazeneca Pharmaceuticals (“AZ”) claiming AZ fraudulently marketed its drug Nexium. DePriest alleged AZ marketed Nexium as a superior product to Prilosec (both AZ manufactured drugs used to treat heartburn), and such actions were fraudulent and violted the Arkansas Deceptive Trade Practices Act. DePriest also raised claims for common law fraud, breach of contract, promissory estoppel, unjust enrichment, and violations of the Arkansas Unfair Practices Act and Arkansas Medicaid Fraud False Claims Act. In short, DePriest alleged AZ falsely marketed Nexium as “new” and “better” than Prilosec, when the two drugs were very similar and had similar therapeutic results. DePriest contended AZ positioned Nexium as a “new” drug in order to charge higher prices for it than what patients paid for Prilosec. AZ filed a motion to dismiss for failure to state a cause of action, which the district court granted. DePriest filed suit again and AZ again filed a motion to dismiss for failure to state a cause of action and because DePriest’s claims were preempted by federal law. The district court again dismissed DePriest’s action, finding the complaint failed to state a cause of action, and as an independent ground, that DePriest’s claims were preempted by federal law. The Supreme Court of Arkansas agreed, although it did not address the preemption issues. The Supreme Court found the cause of action for violations of the Deceptive Trade Practices Act was barred by the statutory “safe harbor” provision. The Court also concluded that because AZ’s claims regarding Nexium were in supported and in accordance with the FDA-approved labeling, they were not false or misleading as a matter of law.