Latest 22 Cases This Week: Federal Republic of Germany v. Philipp (U.S.), Salinas v. Railroad Retirement Board (U.S.), Mendez v. Trustmark ...

No Good Men?

SHERRY F. COLB

Cornell law professor Sherry F. Colb comments on a film called “Promising Young Women,” which purports to be a feminist movie about date rape. While Professor Colb describes the movie as interesting, thought-provoking, and “definitely” worth seeing, she argues that it suggests a view of men and sexual assault that is erroneous and potentially even anti-feminist.

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Last Call at the Bar: Grading the Briefs in Trump Impeachment 2.0

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, offers thoughts on the legal tactics and briefs filed by each side in former President Trump’s second impeachment trial. Mr. Falvy argues that if Trump can survive a second impeachment vote, it will show that he is still operating where he has always believed himself to be: well beyond the reach of the law.

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Federal Republic of Germany v. Philipp

Court: US Supreme Court

Docket: 19-351

Opinion Date: February 3, 2021

Judge: John G. Roberts, Jr.

Areas of Law: Civil Procedure, International Law

German Jewish art dealers owned a collection of medieval relics. Their heirs allege that the Nazi government unlawfully coerced the consortium into selling the collection to Prussia for a third of its value. The relics are currently maintained by an instrumentality of the Federal Republic of Germany and displayed at a Berlin museum. After unsuccessfully seeking compensation in Germany, the heirs brought claims in the U.S. Germany argued that the claims did not fall under an exception to the Foreign Sovereign Immunities Act for “property taken in violation of international law,” 28 U.S.C. 1605(a)(3) because a sovereign’s taking of its own nationals’ property is not unlawful under the international law of expropriation. The heirs countered that the purchase was an act of genocide, a violation of international human rights law. The D. C. Circuit affirmed the denial of a motion to dismiss. The Supreme Court vacated. Under the expropriation exception, a foreign sovereign’s taking of its own nationals’ property remains a domestic affair. Historically, a sovereign’s taking of a foreign national’s property implicated international law because it constituted an injury to the state of the alien’s nationality. A domestic taking did not interfere with relations among states. The FSIA’s expropriation exception emphasizes property and property-related rights, while human rights violations are not mentioned. Germany’s interpretation of the exception is more consistent with the FSIA’s goal of codifying the restrictive theory of sovereign immunity, under which immunity extends to a sovereign’s public, but not private, acts. Other FSIA exceptions confirm Germany’s position; those exceptions would be of little consequence if human rights abuses could be packaged as violations of property rights and brought within the expropriation exception.

Salinas v. Railroad Retirement Board

Court: US Supreme Court

Docket: 19-199

Opinion Date: February 3, 2021

Judge: Sonia Sotomayor

Areas of Law: Civil Procedure, Government & Administrative Law

In 1992, Salinas began seeking disability benefits under the Railroad Retirement Act (RRA) based on serious injuries he suffered during his 15-year railroad career. He was granted benefits after his fourth application in 2013. He timely sought reconsideration of the amount and start date. After reconsideration was denied, he filed an administrative appeal, arguing that his third application, filed in 2006, should be reopened because the U.S. Railroad Retirement Board had not considered certain medical records. The Board affirmed the denial of the request to reopen because it was not made “[w]ithin four years” of the 2006 decision. The Fifth Circuit dismissed an appeal for lack of jurisdiction. The Supreme Court reversed. The Board’s refusal to reopen a prior benefits determination is subject to judicial review as a "final decision of the Board.” The decision was the “terminal event” in the Board’s administrative review process. Salinas’ only remaining recourse was to seek judicial review. A reopening decision is one “by which rights or obligations have been determined, or from which legal consequences will flow.” Any ambiguity in the meaning of “any final decision” must be resolved in Salinas’ favor under the “strong presumption favoring judicial review of administrative action.” The Board could decline to offer reopening but, having chosen to provide it, the Board may not avoid the plain text of 45 U.S.C. 355(f ).

Mendez v. Trustmark National Bank

Court: US Court of Appeals for the Fifth Circuit

Docket: 19-11131

Opinion Date: February 3, 2021

Judge: Leslie Southwick

Areas of Law: Civil Procedure

In a case arising out of the Ponzi scheme perpetrated by R. Allen Stanford and others, Stanford investors filed suit against defendants who provided banking services to Stanford. Appellants, who moved to intervene, are also Stanford investors and investment funds that purchased assignments of claims from Stanford investors. The Fifth Circuit affirmed the district court's denial of intervention as of right, concluding that the district court did not abuse its discretion by balancing the Stallworth factors in determining that the motion to intervene was untimely. In this case, the district court did not abuse its discretion in determining that a delay of 18 months weighed against timeliness; the existing parties would be prejudiced in the form of costly and inefficient discovery, as well as delay of final distribution; and the denial of intervention will not exclude appellants from recovery even if it were to prejudice them in some way. Finally, there are no unusual circumstances militating for or against timeliness. The court dismissed the appeal of the denial of permissive intervention for lack of jurisdiction where the district court did not abuse its discretion by determining that the request for permissive intervention was untimely. The court rejected the motion to strike the personal jurisdiction argument.

Reed Migraine Centers of Texas, PLLC v. Ticer

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-10156

Opinion Date: February 2, 2021

Judge: James Earl Graves, Jr.

Areas of Law: Civil Procedure

The Fifth Circuit dismissed, based on lack of jurisdiction, plaintiffs' appeal of the district court's grant of a Federal Rule of Civil Procedure 60(b)(5) motion in a dispute over attorney's fees stemming from an underlying action regarding the promotion and sale of a medical procedure. The court explained that this case does not yet involve a final determination of the status of the interpleaded funds. Rather, it involves Rule 60(b)(5) relief from a prior order to disburse funds.

Sullivan v. Texas A&M University System

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-20248

Opinion Date: February 2, 2021

Judge: Andrew S. Oldham

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

The Fifth Circuit affirmed the district court's dismissal of plaintiff's claims against the University as barred by sovereign immunity. Plaintiff's action involved employment discrimination and retaliation claims, and he sought compensatory damages, punitive damages, and attorney's fees. The court held that Texas A&M is an agency of the State of Texas, so a suit against the former is a suit against the latter. Furthermore, neither of the two exceptions to sovereign immunity apply in these circumstances. In this case, Congress did not abrogate the State's sovereign immunity, and the State did not knowingly and plainly waive its sovereign immunity and consent to suit.

In re Murray Energy Holdings Co.

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-8017

Opinion Date: February 1, 2021

Judge: Wise

Areas of Law: Bankruptcy, Civil Procedure

Coal companies (last signatory operators) must provide health and retiree benefits through individual employer plans (IEPs), 26 U.S.C. 9711(a), (b); the 1992 Plan provides benefits for retirees who do not receive benefits through a company’s IEP, section. Last signatory operators fund and provide security for the 1992 Plan. If the 1992 Plan assumes responsibility for IEP benefits, the Plan may assert that a prior employer must pay the benefits. A CONSOL entity sold mining operations to Debtors in 2013. Debtors provided healthcare and retiree benefits to about 2,200 Beneficiaries under an IEP. Debtors filed chapter 11 petitions in 2019, having negotiated agreements that compelled Debtors to minimize their liabilities to the Beneficiaries. To address the Coal Act obligations, the Trustee appointed a committee to represent Debtors’ retirees. Debtors and the Retiree Committee ultimately agreed that the parties would cooperate to transition the Beneficiaries from the IEP to the 1992 Plan to assure no coverage gap. The 1992 Plan would receive $12.5 million from the posted security. Debtors would cooperate in the Plan’s efforts to hold CONSOL responsible as the last signatory operator for those Beneficiaries who transferred to Debtors in 2013. The bankruptcy court approved the Settlement over CONSOL’s objection and confirmed Debtors’ Chapter 11 Plan. The order reserved CONSOL’s right to dispute its potential Coal Act liability for the Benefits, stating that its approval of the Settlement "in no way constitutes a finding that CONSOL is the last signatory operator.” The Sixth Circuit Bankruptcy Appellate Panel dismissed an appeal, finding that CONSOL lacks standing. Whether an order directly and adversely affects an appellant’s pecuniary interests is interpreted narrowly; “person aggrieved” standing does not arise from concerns about separate litigation unrelated to an interest protected by the Bankruptcy Code.

Pierce v. Ocwen Loan Servicing, LLC

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-6057

Opinion Date: February 4, 2021

Judge: Jeffrey S. Sutton

Areas of Law: Civil Procedure

After plaintiffs filed suit against Ocwen Loan Servicing and Deutsche Bank to prevent the lenders from foreclosing on their home, the district court granted summary judgment to Ocwen and Deutsche Bank. The lenders filed a motion to dismiss the appeal based on lack of jurisdiction. Plaintiffs then sought an injunction to prevent Deutsche Bank and Ocwen from taking possession of their home. The district court granted summary judgment in favor of the lenders. Plaintiffs, through their counsel, appealed by placing a paper notice of appeal and a cashier's check for the filing fee into the drop box provided by the district court. The Sixth Circuit held that plaintiffs met the 30-day filing deadline to file a notice of appeal and denied the lenders' motion to dismiss. In this case, the lenders do not dispute that counsel for plaintiffs placed the notice of appeal into the district court's drop box on September 11, and the lenders cannot dispute that the drop box served as an acceptable way to deliver documents to the court. The court explained that a court's drop box serves as an invitation to file court documents, precluding a court from treating its use by a party as a trespass or a non-event. Furthermore, the lenders' contention that plaintiffs missed the September 11 filing deadline because they did not file electronically until September 14 is foreclosed by precedent.

Gracia v. SigmaTron International, Inc.

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-1526

Opinion Date: February 3, 2021

Judge: Scudder

Areas of Law: Civil Procedure, Labor & Employment Law

Gracia’s former employer, SigmaTron, fired her 13 years ago after she filed sexual harassment and hostile work environment claims with the Equal Employment Opportunity Commission. Gracia prevailed in a 2014 trial on a Title VII retaliation claim. She found new work at a different company. In 2015, SigmaTron described Gracia’s lawsuit in public filings with the Securities and Exchange Commission. Gracia filed another Title VII retaliation claim, plus claims for retaliation under the Illinois Human Rights Act, defamation, and invasion of privacy. The district court dismissed Gracia’s defamation and false light invasion of privacy claims and later granted SigmaTron summary judgment on the Title VII and Illinois Human Rights Act claims. The Seventh Circuit affirmed. Gracia failed to present specific facts to show any injury in fact and expressly acknowledged that SigmaTron’s disclosures did not affect her current employment, with which she is content. That admission left the district court without subject matter jurisdiction to consider the Title VII claim on the merits. As for Gracia’s state law claims, the district court was right to conclude that the allegations failed to state a claim on which relief could be granted.

Barmapov v. Amuial

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-12256

Opinion Date: February 3, 2021

Judge: William Holcombe Pryor, Jr.

Areas of Law: Civil Procedure

The Eleventh Circuit held that the district court did not abuse its discretion by dismissing plaintiff's second amended complaint with prejudice because it was a shotgun pleading. After reviewing the second amended complaint, the court agreed with the district court that it was "a rambling, dizzying array of nearly incomprehensible pleading." Therefore, plaintiff, who was represented by counsel throughout the proceedings, repeatedly failed to file a proper pleading.

I Tan Tsao v. Captiva MVP Restaurant Partners, LLC

Court: US Court of Appeals for the Eleventh Circuit

Docket: 18-14959

Opinion Date: February 4, 2021

Judge: Tjoflat

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

Plaintiff filed suit against PDQ, a restaurant he patroned, after a data breach that exposed PDQ customers' personal financial information. The Eleventh Circuit affirmed the district court's dismissal without prejudice and held that plaintiff did not have standing to sue based on the theory that he and a proposed class of PDQ customers are now exposed to a substantial risk of future identity theft. The court explained that plaintiff failed to allege either that the data breach placed him in a "substantial risk" of future identity theft or that identity theft was "certainly impending." The court stated that evidence of a mere data breach does not, standing alone, satisfy the requirements of Article III standing, and thus plaintiff does not have standing here based on an "increased risk" of identity theft. In the alternative, the court held that plaintiff has not suffered actual, present injuries in his efforts to mitigate the risk of identity theft caused by the data breach.

Pruitt v. Oliver

Court: Supreme Court of Alabama

Docket: 1190297

Opinion Date: January 29, 2021

Judge: Mendheim

Areas of Law: Civil Procedure, Personal Injury

Randall Pruitt appealed the grant of summary judgment against him and in favor of James Oliver with respect to Pruitt’s claims of negligence and wantonness stemming from a collision between Oliver’s car and Pruitt’s wheelchair. At the time of the accident, Pruitt’s wheelchair was equipped with a seat belt, two six-beam flashlights on the footrest, two flashing red bicycle lights on the back of his arm rests, some red reflectors on the back, and an orange vest with reflective yellow tape draped over the back. The maximum speed of the motorized wheelchair was five miles per hour. On a “pretty” night in April 2013, Pruitt was dropped off from the bus; his apartment was located across a four-lane road across from the bus stop. According to a witness, Oliver appeared to be trying to “beat a yellow light. He made the turn at a high rate of speed and hit the electric wheelchair from behind. The man in the chair was launched out of his seat and landed in the roadway. I could tell the chair had significant damage.” Oliver contended at trial Pruitt’s wheelchair was a “motor vehicle” under Alabama’s motor-vehicle and traffic code, and because the chair lacked certain safety equipment, Pruitt was “contributorily negligent per se” and should have been barred from recovering on his negligence claim. In the alternative, Oliver contended Pruitt, as a pedestrian, violated the rules for crossing a street where there was no crosswalk because he failed to yield the right-of-way to Oliver’s car, and failed to walk “as near as practicable to the outside edge of the roadway.” The Alabama Supreme Court concluded motorized wheelchairs were indeed “motor vehicles” under the pertinent provision of Alabama’s motor-vehicle and traffic code, but an issue of fact existed as to whether Pruitt’s violation of safety-feature-requirements for motor vehicles was the proximate cause of the accident. Furthermore, the Court concluded the trial court erred in finding there was not substantial evidence of Oliver’s alleged subsequent negligence, and therefore, that issue had to be submitted to a jury. Summary judgment in favor of Oliver with respect to Pruitt’s wantonness claim was affirmed.

Medipro Medical Staffing, LLC v. Certified Nursing Registry, Inc.

Court: California Courts of Appeal

Docket: B305910(Second Appellate District)

Opinion Date: February 4, 2021

Judge: Brian M. Hoffstadt

Areas of Law: Business Law, Civil Procedure

By statute, a trial court has the discretion to appoint a receiver to aid in the collection of a judgment if doing so "is a reasonable method to obtain the fair and orderly satisfaction of the judgment." The Court of Appeal held that a trial court abuses that discretion if it appoints a receiver to aid in the collection of a money judgment where the record contains no evidence that the judgment debtors had obfuscated or frustrated the creditor's collection efforts and no evidence that less intrusive collection methods were inadequate or ineffective. The court reversed the trial court's order order appointing a receiver and its subsidiary injunction obligating the judgment debtors to cooperate with the receiver. In this case, the trial court abused its discretion in appointing a receiver to enforce Medipro's money judgment because there was no evidence—let alone the substantial evidence necessary to sustain a proper exercise of discretion—that Certified or Defendant Sy had engaged in obfuscation or other obstreperous conduct to the degree that the other collection mechanisms available under the Enforcement of Judgments Law were ineffective.

Schaden v. DIA Brewing Co.

Court: Colorado Supreme Court

Citation: 2021 CO 4M

Opinion Date: February 1, 2021

Judge: Gabriel

Areas of Law: Civil Procedure

Plaintiff DIA Brewing Co., LLC contended that after the district court entered an order dismissing this action pursuant to C.R.C.P.12(b)(1), C.R.C.P. 15(a) gave DIA Brewing the right to amend its complaint as a matter of course and without leave of the court or the consent of defendants because no responsive pleading had been filed. Defendants MCE-DIA, LLC, Midfield Concessions Enterprises, Inc., Andrea Hachem, Noureddine “Dean” Hachem, Samir Mashni, Simrae Solutions LLC, Sudan I. Muhammad, Pangea Concessions Group LLC, Niven Patel, Rohit Patel, and Richard Schaden (collectively, “MCE-DIA”), contended that the C.R.C.P. 12(b)(1) dismissal resulted in a final judgment that cut off DIA Brewing’s right to amend as a matter of course under C.R.C.P. 15(a). Thus, MCE-DIA contended that if DIA Brewing wanted to amend, it was required to seek leave of the court or to obtain MCE-DIA’s written consent. The Colorado Supreme Court granted certiorari to resolve this dispute. Reading C.R.C.P. 15(a) harmoniously with C.R.C.P. 59 and C.R.C.P. 60, the Court concluded a final judgment cuts off a plaintiff’s right to file an amended complaint as a matter of course under C.R.C.P. 15(a). Under the facts of this case, the Court concluded, contrary to the district court, that the amended pleading was not futile but rather stated viable claims for relief. The case was remanded to the district court with instructions to accept DIA Brewing's amended complaint for filing, after which MCE-DIA could respond in the ordinary course.

Wood v. U.S. Bank National Ass'n

Court: Delaware Court of Chancery

Docket: C.A. No. 2017-0034-JTL

Opinion Date: February 4, 2021

Judge: Laster

Areas of Law: Business Law, Civil Procedure

The Court of Chancery granted Plaintiffs' motion to compel the production of documents and denied Defendants' motion for a retroactive extension in the time to respond, holding that Defendants are required to product all documents responsive to the requests for production of documents within fourteen days. Through Heartland Family Group, LLC, Alexander Burns controlled Southport Lane, L.P. and its affiliates (the Southport Entities). Plaintiffs sued Burns and Heartland, arguing that certain transactions rendered two companies acquired by the Southport Entities insolvent. Plaintiffs served requests for production of documents on Defendants. In response, Defendants invoked the Fifth Amendment. Plaintiffs then moved to compel the production of documents and responses to interrogatories. Defendants moved for a retroactive extension. The Court of Chancery granted Plaintiffs' motion to compel and denied the motion for a retroactive extension, holding that Defendants' invocation of the Self-Incrimination Clause is overruled.

Oconee County v. Cannon et al.

Court: Supreme Court of Georgia

Docket: S20G0584

Opinion Date: February 1, 2021

Judge: Peterson

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

Ronald and Christy Cannon sued Oconee County, Georgia after a vehicle chase initiated by an Oconee County sheriff’s deputy ended in their daughter’s death. The trial court granted the County’s motion for summary judgment, holding that: (1) the Sheriff of Oconee County in his official capacity, not the County, was liable for the deputy’s actions; and (2) the Cannons could not substitute the Oconee County Sheriff in his official capacity as the defendant in place of Oconee County because the statute of limitations had expired and the relation-back doctrine embodied in OCGA 9-11-15 (c) did not apply. The Court of Appeals affirmed the trial court’s determination as to the proper defendant but reversed its ruling that relation-back did not apply. The Georgia Supreme Court held that the application of the relation-back doctrine depended on whether the proper defendant knew or should have known that the action would have been brought against him but for the plaintiff’s mistake, not on what the plaintiff knew or should have known and not on whether the plaintiff’s mistake was legal or factual. The Supreme Court vacated the decision of the Court of Appeals and remanded with direction for the trial court for application of the proper standard.

Polo Golf & Country Club Homeowners Association, Inc. v. Cunard et al.

Court: Supreme Court of Georgia

Docket: S20A1205

Opinion Date: February 1, 2021

Judge: Warren

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

At heart of this case was a dispute between the Polo Golf and Country Club Homeowners’ Association (the “HOA”) and Forsyth County, Georgia over the validity of Section 4.2.2 of Forsyth County’s Addendum to the Georgia Stormwater Management Manual, an ordinance that made HOAs “responsible for maintenance of all drainage easements and all stormwater facilities within the entire development.” The HOA argued Section 4.2.2 was unconstitutional and otherwise invalid, and that individual lot owners were responsible for maintaining stormwater infrastructure on their lots. Variants of this case have been litigated and appealed multiple times before other Georgia courts, including a 2019 appeal the Georgia Supreme Court. On remand from the Supreme Court's "Polo Golf II" decision, the trial court evaluated and rejected the HOA’s remaining claims that Section 4.2.2 was invalid because it required the HOA to trespass on the private property of homeowners, constituted involuntary servitude under the United States and Georgia Constitutions, and exceeded the scope of the ordinance that authorized Forsyth County to promulgate the Addendum. The trial court thus denied the HOA’s motion for summary judgment and granted the defendants’ cross-motion for summary judgment. The HOA appealed, and finding no reversible error, the Supreme Court affirmed.

Wilbourn v. Wilbourn

Court: Supreme Court of Mississippi

Citation: 2019-IA-00954-SCT

Opinion Date: February 4, 2021

Judge: Josiah D. Coleman

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

This interlocutory appeal stemmed from a trial judge granting partial summary judgment, dismissing a claim of malicious prosecution. Richard and Victoria Wilbourn were in a longstanding domestic matter. Victoria accused Richard of misconduct towards their children, but the chancellor determined that the accusations were unfounded. Victoria went to the Ridgeland Police Department for help and filed an eight-page report against Richard, restating his alleged misconduct. The Ridgeland Police Department followed protocol, investigated, and referred the case to the district attorney’s office. The case was presented to a grand jury; the grand jury returned no bill. Notably, Richard was never charged, indicted, or arrested in connection with the investigation, and Victoria did not swear an affidavit against him. In the summer of 2016, Richard discovered the investigation and grand jury presentment and responded by filing suit, claiming malicious prosecution, intentional infliction of emotional distress, and negligent infliction of emotional distress. In response, Victoria moved for summary judgment. And after a hearing, the trial judge granted partial summary judgment, dismissing Richard’s claim of malicious prosecution but retaining the others. Definitively, the trial judge found that “no criminal proceedings were instituted and therefore [Richard] cannot satisfy the first element of his claim.” With no arrest or indictment, or Richard otherwise being subjected to oppressive litigation of criminal charges for the report that Victoria gave to the Ridgeland Police Department, the Mississippi Supreme Court concluded the trial court did not err in dismissing Richard's malicious-prosecution claim. The matter was remanded for further proceedings.

Appeal of Conservation Law Foundation

Court: New Hampshire Supreme Court

Docket: 2020-0049

Opinion Date: February 2, 2021

Judge: Donovan

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

Petitioner Conservation Law Foundation (CLF) appealed an order of the New Hampshire Waste Management Council (Council) denying CLF’s appeal of a permit, issued by the New Hampshire Department of Environmental Services (DES), which authorized the expansion of a landfill owned by respondent Waste Management of New Hampshire, Inc. (WMNH). CLF argued the Council erred in: (1) determining DES acted reasonably in granting the permit despite finding that a condition therein was ambiguous; and (2) premising its decision on the occurrence of future negotiations between DES and WMNH to resolve the ambiguity. After review, the New Hampshire Supreme Court affirmed, finding the permit’s ambiguities did not render the Council’s decision unlawful.

Delaney v. Dickey

Court: Supreme Court of New Jersey

Docket: a-30-19

Opinion Date: December 21, 2020

Judge: Barry T. Albin

Areas of Law: Arbitration & Mediation, Civil Procedure, Contracts, Legal Ethics

At issue in this appeal was whether the arbitration provision in the retainer agreement plaintiff Brian Delaney signed when he engaged the representation of Sills Cummis & Gross P.C. was enforceable in light of the fiduciary responsibility that lawyers owe their clients and the professional obligations imposed on attorneys by the Rules of Professional Conduct (RPCs). In 2015, Delaney, a sophisticated businessman, retained Sills to represent him in a lawsuit. He met with a Sills attorney who presented him with a four-page retainer agreement. It was understood that Trent Dickey was slated to be the attorney primarily responsible for representing Delaney reviewed and signed the retainer agreement in the presence of the Sills attorney without asking any questions. After the representation was terminated, a fee dispute arose and, in August 2016, Sills invoked the JAMS arbitration provision in the retainer agreement. While the arbitration was ongoing, Delaney filed a legal malpractice action against Dickey and the Sills firm. The complaint alleged that Dickey and Sills negligently represented him. The complaint also alleged that the mandatory arbitration provision in the retainer agreement violated the Rules of Professional Conduct and wrongly deprived him of his constitutional right to have a jury decide his legal malpractice action. The trial court held that the retainer agreement’s arbitration provision was valid and enforceable. Additionally, the court determined that Delaney waived his right to trial by jury by agreeing to the unambiguously stated arbitration provision. The Appellate Division disagreed, stressing that Sills should have provided the thirty-three pages of JAMS arbitration rules incorporated into the agreement, that Sills did not explain the costs associated with arbitration, and that the retainer included a fee-shifting provision not permissible under New Jersey law. The New Jersey Supreme Court held that, for an arbitration provision in a retainer agreement to be enforceable, an attorney must generally explain to a client the benefits and disadvantages of arbitrating a prospective dispute between the attorney and client. "Delaney must be allowed to proceed with his malpractice action in the Law Division. We affirm and modify the judgment of the Appellate Division and remand to the Law Division" for further proceedings.

State ex rel. Bohlen v. Halliday

Court: Supreme Court of Ohio

Citation: 2021-Ohio-194

Opinion Date: January 27, 2021

Judge: Per Curiam

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

The Supreme Court granted a writ of prohibition sought by Relators, who owned property over which Ohio Power Company sought to take easements by eminent domain, holding that Relators were entitled to a writ of prohibition to prevent Washington County Court of Common Pleas Judge John Halliday from proceeding with a compensation trial during the pendency of Relators' appeal. After Judge Halliday ruled that Ohio Power's takings were necessary for a public use Relators appealed to the Fourth District Court of Appeals. Notwithstanding the appeal, Judge Halliday scheduled a trial on the issue of compensation. Relators commenced this action seeking a writ of prohibition to prevent Judge Halliday from holding the compensation trial while their appeal was pending. The Supreme Court granted the writ, holding (1) the appropriations in this case did not fall under any of the exceptions to the owner's right to immediate appeal under Ohio Rev. Code 163.09(B)(3); and (2) a compensation trial during the pendency of a section 163.09(B)(3) appeal is inconsistent with the court of appeals' jurisdiction.

Warehouse Market v. Oklahoma ex rel. Ok. Tax Comm.

Court: Oklahoma Supreme Court

Citation: 2021 OK 6

Opinion Date: February 2, 2021

Judge: Yvonne Kauger

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

Plaintiff-appellee Warehouse Market subleased a commercial building from defendant Pinnacle Management, Inc. The building was on federally restricted Indian land. Subsequently, defendant-appellant, Oklahoma Tax Commission (OTC) and the Muscogee (Creek) Nation Office of Tax Commission (Tribe) both sought to collect sales tax from Warehouse Market. Warehouse Market filed an interpleader action in an attempt to have the court determine which entity to pay. However, the trial court dismissed the Tribe because it had no jurisdiction over it because of the Tribe's sovereign immunity. The trial court then determined that the OTC could not be entitled to the sales tax unless and until the dispute between the OTC and the Tribe was resolved in another forum or tribunal. The Oklahoma Supreme Court held that because the substance of Warehouse Market's action/request for relief was a tax protest, exhaustion of administrative remedies was a jurisdictional prerequisite to seeking relief in the trial court.

Washington v. Numrich

Court: Washington Supreme Court

Docket: 96365-7

Opinion Date: February 4, 2021

Judge: Barbara Madsen

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

At issue in this case was whether the general-specific rule applied to a second degree manslaughter charge stemming from a workplace death. The State initially charged Phillip Numrich under the Washington Industrial Safety and Health Act of 1973 (WISHA), RCW 49.17.190(3), the specific statute that punished employer conduct resulting in employee death. The State also charged the employer with second degree manslaughter. The trial court denied the employer’s motion to dismiss the manslaughter charge based on the general-specific rule, and the employer sought and was granted direct review. Specifically, the issue before the Washington Supreme Court was whether the trial court properly denied Numrich’s motion to dismiss a second degree manslaughter charge when one of his employees was killed at the construction site. While consideration of the employer’s motion for direct discretionary review was pending, the State moved to amend the information to add an alternative charge of first degree manslaughter. The trial court granted the motion to amend but sua sponte imposed sanctions against the State based on the timing of the amendment. The employer sought review of the order granting the amendment and the State sought review of the order imposing sanctions. The Washington Supreme Court concluded the trial court did not err in denying the employer’s motion to dismiss the manslaughter charge under the general–specific rule. Furthermore, the Court held the trial court did not err in granting the State’s motion to amend the information to add an alternative first degree manslaughter charge. Finally, the Court held the trial court did not err in imposing sanctions on the State under the circumstances of this case.