The Upside-Down Treatment of Religious Exceptions Cases in the Supreme Court

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week to reject an emergency application from the State of Alabama to lift a stay on the execution of Willie B. Smith III. Professor Dorf observes the Court’s unusual alignment of votes in the decision and argues that, particularly as reflected by the recent COVID-19 decisions, the liberal and conservative Justices have essentially swapped places from the seminal 1990 case Employment Division v. Smith, which established that the First Amendment does not guarantee a right to exceptions from neutral laws of general applicability.

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Woo v. Spackman

Court: US Court of Appeals for the First Circuit

Docket: 20-1527

Opinion Date: February 12, 2021

Judge: Selya

Areas of Law: Business Law, Civil Procedure

In this appeal concerning the scope and reach of 28 U.S.C. 1963 - a statute permitting the registration of certain judgment in a federal district court - the First Circuit affirmed the district court's judgment concluding that the New York state court judgment proffered by Plaintiff did not come within the statutory sweep and that no other cognizable basis for federal subject-matter jurisdiction had been shown, holding that the district court did not err. Plaintiff sought recognition of a Korean judgment in New York. A New York court recognized the Korean judgment and entered a judgment in Plaintiff's favor for more than $13 million. When the New York judgment went unpaid, Plaintiff filed the judgment in the United States District Court for the District of Massachusetts. Defendants moved to quash, arguing that the district court lacked subject-matter jurisdiction because 28 U.S.C. 1963 only authorized district courts to register judgments of other federal courts and not state court judgments. The district court agreed and dismissed the matter for want of subject-matter jurisdiction. The First Circuit affirmed, holding (1) section 1963 does not authorize federal courts to register state-court judgments; and (2) there were no independent grounds for federal jurisdiction here.

DM Arbor Court, Ltd. v. City of Houston

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-20194

Opinion Date: February 12, 2021

Judge: Gregg Costa

Areas of Law: Civil Procedure, Constitutional Law

Arbor Court filed suit challenging the City's refusal to grant permits to repair the damage caused by Hurricane Harvey to its apartment units. The district court dismissed, holding that the action was not ripe because Arbor Court had not yet obtained a decision from the final arbiter of Houston permit requests, the City Council. Since the filing of this appeal, the City Council has ruled and denied the permits. The Fifth Circuit held that the district court correctly concluded that this case was not ripe because the City Council had not yet denied the permits. The court explained that this conclusion warranted dismissal of the pending claims and the denial of Arbor Court's attempt to add yet another unripe claim. However, now that the Council has acted, the court held that the claims are ripe. Accordingly, the court vacated the district court's dismissal and remanded for further proceedings. The court also vacated the district court's denial of Arbor Court's motion for leave to file a third amended complaint.

Turaani v. Wray

Court: US Court of Appeals for the Sixth Circuit

Docket: 20-1343

Opinion Date: February 18, 2021

Judge: Jeffrey S. Sutton

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

At a Michigan gun show, Turaani attempted to buy a gun. When the dealer ran Turaani’s name through the National Instant Criminal Background Check System, he received a “delay” response, requiring the dealer to wait three days before completing the sale. The next day, FBI agent Chambers visited the dealer to see what information Turaani had provided and explained that “we have a problem with the company” Turaani “keeps.”. He showed photographs of Turaani with another person of apparent Middle Eastern descent, whom the dealer did not recognize. Days later, Turaani contacted the dealer, who reported the visit from the FBI. While he “technically could sell the gun,” the dealer stated that he was “no longer comfortable doing so.” Turaani sued the FBI's Director, Chambers, and the director of the Terrorist Screening Database, citing the Privacy Act, the Administrative Procedure Act, the stigma-plus doctrine, and 42 U.S.C. 1981. The Sixth Circuit affirmed the dismissal of the case for lack of standing. Turaani focused on his “right to obtain a weapon” and the direct and indirect injuries that flowed from the dealer’s decision not to sell him one but the dealer’s decision not to sell the gun was an independent choice that the government did not require. Turaani failed to show that his injury was traceable to the FBI’s actions. There was no coercion; making an inquiry, and passing along ambiguous information, “is a distant cry from forcing action.”

Radiance Capital v. Crow

Court: US Court of Appeals for the Tenth Circuit

Docket: 19-8082

Opinion Date: February 12, 2021

Judge: Timothy M. Tymkovich

Areas of Law: Bankruptcy, Civil Procedure

This case arose from a bankruptcy filing by Thomas Crow, who owned substantial property and investment accounts in Wyoming. His bankruptcy petition sought an exemption for approximately $2 million contained in a Fidelity account, which he claimed was jointly held with his wife (who did not file for bankruptcy) and therefore was shielded from creditors under Wyoming law. The Trustee and a creditor, Radiance Capital Receivables Nineteen, L.L.C., objected to the claimed exemption. After a hearing, the bankruptcy court upheld the exemption, and a Bankruptcy Appellate Panel (BAP) affirmed. On appeal, Radiance appealed the BAP’s affirmance. Crow argued the Tenth Circuit lacked jurisdiction over this appeal because the BAP’s affirmance of the bankruptcy court’s ruling on the claimed exemption was not “final” within the meaning of 28 U.S.C. 158(d)(1). Radiance also challenged the BAP’s affirmance of the bankruptcy court’s ruling that an adversary proceeding was required to determine the amount of joint debt held by the Crows before any portion of the Fidelity account must be turned over to the Trustee. Finding it had jurisdiction, and deciding on the merits, the Tenth Circuit Court of Appeals affirmed. Applying Wyoming law, Court concluded the Crows jointly held the Fidelity account with a right of survivorship (“tenancy by the entirety” at common law) and was therefore exempt from the bankrupt estate. Furthermore, the tenancy by the entirety was not severed by the Crows’ subsequent conduct. The Court determined Radiance lacked standing to challenge that portion of the BAP’s ruling with regard to the adversary proceeding, and therefore dismissed that aspect of its appeal.

Rohe v. Wells Fargo Bank, N.A.

Court: US Court of Appeals for the Eleventh Circuit

Docket: 19-13947

Opinion Date: February 18, 2021

Judge: Tjoflat

Areas of Law: Bankruptcy, Civil Procedure

Petitioner filed suit alleging that, after she filed for bankruptcy, Wells Fargo violated the automatic bankruptcy stay by continuing with foreclosure proceedings against her in the Florida state courts. Furthermore, Wells Fargo and the state courts acted contrary to federal law governing removal by continuing with the same state court proceedings after petitioner sought to remove the state case to the bankruptcy court. Petitioner filed a petition for a writ under the All Writs Act in the district court, seeking an order declaring that certain actions of the state courts were void and granting her damages against Wells Fargo and its counsel. The Eleventh Circuit affirmed the district court's dismissal of plaintiff's complaint, finding that this case is not the kind of case in which an order under the Act could properly be issued because there is no underlying proceeding over which the district court has jurisdiction and the integrity of which the district court would be in an appropriate position to protect by making such an order. In this case, dismissal was proper because the Act does not empower the district court to issue the order sought by the petition.

Community Oncology Alliance, Inc. v. Office of Management and Budget

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

Docket: 19-5116

Opinion Date: February 16, 2021

Judge: Katsas

Areas of Law: Civil Procedure, Government & Administrative Law

The DC Circuit held that the district court lacked subject matter jurisdiction over plaintiff's challenge to a reduction in Medicare drug reimbursement rates caused by a sequestration order under the Balanced Budget Act. The court explained that the Balanced Budget Act creates neither subject matter jurisdiction nor a cause of action that covers the claims. Therefore, the district court properly declined to convene a three-judge court. In any event, the claims also arise under the Medicare Act, which is enough to strip away federal question jurisdiction. Finally, because Community Oncology did not identify any concrete reimbursement claim that its members presented to the agency, 42 U.S.C. 405(g) does not confer subject-matter jurisdiction.

United States v. Greer

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

Docket: 19-5070

Opinion Date: February 16, 2021

Judge: Walker

Areas of Law: Civil Procedure, Contracts

The DC Circuit reversed the district court's grant of summary judgment for the government in an action brought by the government seeking to collect a settlement against defendant. The court first rejected defendant's claim that the settlement contract is unenforceable because the parties omitted essential terms. In regard to defendant's claim that the district court should have granted him summary judgment because the government brought its suit too late, the court concluded that there is a material and disputed question of fact regarding performance that the district court should resolve after a bench trial. In this case, the government had six years to sue for breach of contract; the government filed suit in April 2016; and, if defendant breached the contract before April 2010, then the government's suit was untimely. Accordingly, the court remanded for further proceedings.

Ex parte Boone Newspapers, Inc., et al.

Court: Supreme Court of Alabama

Docket: 1190995

Opinion Date: February 12, 2021

Judge: Tom Parker

Areas of Law: Civil Procedure, Constitutional Law

Boone Newspapers, Inc., the Selma Times-Journal, Blake Deshazo, and Will Whaley (collectively termed "the Newspaper defendants") sought mandamus review of a trial court's order denying their motion requesting that Judge Collins Pettaway, Jr., recuse himself from their case. Faya Rose Toure sued the Newspaper defendants, alleging that they defamed her by falsely "indicat[ing] that [Toure] was illegally removing [C]onfederate flags from a public cemetery" and by "falsely report[ing] ... that [Toure] illegally removed a [political] campaign sign from private property." Toure requested compensatory damages and $1 million in punitive damages. The Newspaper defendants filed a summary-judgment motion, which Judge Pettaway denied; he later denied their motion for reconsideration, without a hearing. The Newspaper defendants filed a motion for recusal. The Alabama Supreme Court determined the Newspaper defendants failed to demonstrate that they had a clear legal right to Judge Pettaway's recusal. Accordingly, the Newspaper defendants' petition was denied.

Punches v. McCarrey Glenn Apartments LLC

Court: Alaska Supreme Court

Docket: S-17465

Opinion Date: February 12, 2021

Judge: Carney

Areas of Law: Civil Procedure, Landlord - Tenant, Personal Injury

In March 2014, Evvie Punches rented a one-bedroom apartment in the Conifer Groves complex in Anchorage; she renewed the lease in April 2015. The complex was owned by McCarrey Glen Apartments, LLC and managed by Weidner Property Management, LCC. Punches complained to the property manager since moving in regarding air quality in the apartment, and mold around the toilet. These issues continued despite a number of attempts by Weidner’s maintenance staff to fix them. Punches nonetheless renewed her lease in April 2015. When the property manager tried to arrange an inspection, Punches refused to allow maintenance staff into her apartment because she would not be home. Punches moved out of her apartment on March 2016 after delivering Weidner a “Notice of Defects in Essential Services.” Her notice listed issues with the front door, mold on the ceiling, mold on the carpet, damage from a previous fire, water damage, and “insufficient windows” that permitted “free flowing air throughout” the apartment. Punches moved to Minneapolis some time after she left her Alaska apartment, and sought care in Minnesota for various skin infections and reported that she had been exposed to mold for two years. She continued to pursue a connection between mold exposure and her recurring skin infections and other ailments. In 2017, she sued her former landlord and the property management company, claiming the companies negligently failed to eradicate mold in her apartment, thereby breaching the habitability provisions of the lease and causing her to suffer personal injury and property damage. After considerable delay involving discovery disputes, the superior court granted summary judgment dismissing Punches' personal injury claim. The parties went to trial on the tenant’s property damage and contract claims after the superior court precluded the tenant from introducing evidence relating to her personal injury claim. The jury rejected Punches' claims, and judgment was entered in favor of the companies. Punches appealed, contending that the court erred by ruling against her in discovery disputes, by denying her a further extension of time to oppose summary judgment, and by limiting the evidence she could present at trial. The Alaska Supreme Court concluded the court did not abuse its discretion when making the challenged rulings, and therefore affirmed the judgment against the tenant.

Collins v. County of San Diego

Court: California Courts of Appeal

Docket: D077063(Fourth Appellate District)

Opinion Date: February 17, 2021

Judge: Judith McConnell

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

Plaintiff-Respondent David Collins suffered serious injuries following his arrest by San Diego County Sheriff's Deputies for public intoxication. After a three-week trial, a jury found in favor of Collins on his negligence claims against the two deputies involved in the arrest and two nurses employed by the County of San Diego (County) who attended to Collins while in jail. On appeal from the subsequent judgment and the denial of its motion for judgment notwithstanding the verdict (JNOV), the County raised five claims of error: (1) the jury’s finding that the deputies had a reasonable basis to arrest Collins foreclosed his claim of negligence against the deputies; (2) the court erred by instructing the jury it could find the deputies liable for injuries caused by private physicians who treated Collins after he was released from custody; (3) the court erred by failing to instruct the jury it could not hold defendants liable for an injury Collins sustained while in jail; (4) governmental immunity requires reversal of the judgment against one of the nurse defendants; and (5) the court erred in its calculation of the amount of setoff the defendants were entitled to based on Collins’s prior settlement with the private physicians and their employer. The Court of Appeal rejected these arguments and affirmed the judgment.

Crestwood Behavioral Health, Inc. v. Superior Court

Court: California Courts of Appeal

Docket: A160523(First Appellate District)

Opinion Date: February 17, 2021

Judge: Burns

Areas of Law: Civil Procedure

Fragoza filed suit under the Private Attorneys General Act (Lab. Code 2698) in Alameda County Superior Court, alleging that she formerly worked for Crestwood in Solano County and that Crestwood systematically violates the Labor Code at its treatment centers located throughout California by neglecting to properly compensate non-exempt employees for all hours worked; failing to provide accurate and itemized wage statements; failing to allow non-exempt employees to take rest/meal breaks or to pay premiums for missed breaks; and failing to timely pay wages owed on termination. She sought civil penalties (Lab. Code 2699(a), (f)) on behalf of the state and aggrieved Crestwood employees. Crestwood moved to transfer venue to Sacramento County (where its principal place of business is located), arguing that venue is not proper in Alameda County because Fragoza worked only in Solano County. The trial court denied the motion, concluding that Alameda County is a proper venue under either Code of Civil Procedure section 3931 or section 395.5 because Crestwood is a corporation and operated two facilities in Alameda County, which “is a county 'where the obligation or liability arises.” The court of appeal denied Crestwood mandamus relief. The allegations regarding Fragoza’s employment with Crestwood are necessary to establish standing, not venue.

Ryser v. Shelter Mutual Insurance

Court: Colorado Supreme Court

Citation: 2021 CO 11

Opinion Date: February 16, 2021

Judge: Gabriel

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

The issue this case presented for the Colorado Supreme Court's review centered on whether an injured passenger riding in a vehicle negligently driven by one co-worker and owned by another co-worker, when all three were acting within the course and scope of their employment, could recover UM/UIM benefits under the vehicle owner’s insurance policy. Although the parties disputed the meaning of the phrases “legally entitled to recover” and “legally entitled to collect” under section 10-4-609, C.R.S. (2020) the Court did not resolve that dispute here because, assuming without deciding that plaintiff Kent Ryser’s interpretation was correct, the Court concluded that he still could not prevail. Specifically, the Court found an injured co-worker was barred by operation of the Workers’ Compensation Act's (“WCA”) exclusivity and co-employee immunity principles from recovering UM/UIM benefits from a co-employee vehicle owner’s insurer for damages stemming from a work-related accident in which another co-employee negligently drove the owner’s vehicle and the injured party was an authorized passenger. Though the Court's reasoning differed from the appellate court's judgment, it affirmed the outcome: summary judgment was properly entered in favor of the insurance company.

GI Associates of Delaware v. Anderson

Court: Delaware Supreme Court

Docket: 182, 2020

Opinion Date: February 15, 2021

Judge: Vaughn

Areas of Law: Civil Procedure, Medical Malpractice

In 2011, Dr. Natwarlal Ramani, M.D. performed a colonoscopy on William King. At a follow up visit on April 26, 2011, Dr. Ramani recommended that King return for his next colonoscopy in three to five years. King followed that advice and returned to Dr. Ramani for another colonoscopy five years later, in 2016. The March 2016 colonoscopy could not be completed because a cancerous growth had formed in King’s colon. He died a few months later. In April 2018, the Plaintiffs, Monica King Anderson, the Estate of William King, Stephanie King, Heather Guerke, and Amber Withrow, filed this wrongful death action, claiming that Dr. Ramani was negligent in advising King that he did not need a follow-up colonoscopy until as long as five years after the one done in April 2011. Given King’s medical history, they alleged, the standard of care required Dr. Ramani to advise King to return for his next colonoscopy in three years. The negligent advice, they further alleged, resulted in a delay in the diagnosis and treatment of colon cancer which ultimately led to King’s death. Defendants-appellants, Dr. Ramani, GI Associates of Delaware, P.A., and Advance Endoscopy Center, LLC, moved for summary judgment, arguing Plaintiffs' action was barred by the statute of limitations. The Superior Court found that the continuous negligent medical treatment doctrine applied to the facts of this case, and held that under that doctrine the statute did not begin to run until March 26, 2016, thus making Plaintiffs' suit timely filed. The Delaware Supreme Court granted certiorari review of the Superior Court's ruling. After review, the Supreme Court the continuous negligent medical treatment doctrine did not apply. The Court rejected Plaintiffs' contention the Court should have adopted a limited time-of-discovery rule in cancer cases. Plaintiffs' constitutional arguments were not ripe unless and until it was determined this case was, in fact, barred by the statute of limitations. "On remand, the Defendants are free to pursue their statute of limitations defense. If they do, the Superior Court should make a factual determination as to when the date of injury occurred and apply § 6856 to that finding accordingly. If the Superior Court determines that the action is barred by [18 Del. C. section 6856], the Plaintiffs may present their constitutional arguments there."

Meso Scale Diagnostics, LLC v. Roche Diagnostics GMBH

Court: Delaware Supreme Court

Docket: 200, 2020

Opinion Date: February 15, 2021

Judge: Per Curiam

Areas of Law: Business Law, Civil Procedure, Contracts, Legal Ethics

In 2010, Appellants Meso Scale Diagnostics, LLC and Meso Scale Technologies, LLC (collectively “Meso”) filed suit in Delaware against Appellee entities Roche Diagnostics GmbH, Roche Diagnostics Corp., Roche Holding Ltd., IGEN LS LLC, Lilli Acquisition Corp., IGEN International, Inc., and Bioveris Corp. (collectively “Roche”), all of which were affiliates or subsidiaries of the F. Hoffmann -- La Roche, Ltd. family of pharmaceutical and diagnostics companies. Meso alleged two counts of breach of contract. Roche prevailed at trial, and the Delaware Supreme Court affirmed the judgment in 2014. Then in 2019, Meso brought a new action asking the court to reopen the case, vacate the judgment entered after trial, and order a new trial. Meso alleged that the Vice Chancellor who decided its case four years earlier had an undisclosed disabling conflict, namely, that Roche’s counsel had been simultaneously representing him in an unrelated federal suit challenging the constitutionality of Delaware’s law providing for confidential business arbitration in the Court of Chancery (“Section 349”). In that federal litigation, which ended in 2014, the Chancellor and Vice Chancellors of the Court of Chancery, as the parties responsible for implementing the challenged statute, were nominal defendants. The Court of Chancery denied relief and dismissed the action. Meso appealed. Finding no reversible error, the Delaware Supreme Court affirmed dismissal.

Polo Golf & County Club Homeowners Assn., Inc. v. Cunard et al.

Court: Supreme Court of Georgia

Docket: S20A1205

Opinion Date: February 15, 2021

Judge: Warren

Areas of Law: Civil Procedure, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

At the center of this appeal was a dispute between the Polo Golf and Country Club Homeowners’ Association (the “HOA”) and Forsyth County 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 that 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 were litigated and appealed multiple times before the Georgia Supreme Court and other Georgia courts, including a 2019 appeal to 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. Finding no reversible error, the Supreme Court affirmed.

Stanley v. Idaho Industrial Special Indemnity Fund

Court: Idaho Supreme Court - Civil

Docket: 47924

Opinion Date: February 17, 2021

Judge: Bevan

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

At issue in this appeal was whether claimant Curtis Stanley filed a timely complaint against the Industrial Special Indemnity Fund ("ISIF") when Stanley filed his complaint more than five years after his industrial accident and more than one year after receiving his last payment of income benefits. The Idaho Industrial Commission (“Commission”) held it did not have continuing jurisdiction to entertain Stanley’s complaint against ISIF for non-medical benefits. The Commission found Idaho Code section 72-706 barred Stanley’s complaint and dismissed it. Stanley appealed, arguing continuing jurisdiction over medical benefits alone was sufficient to confer jurisdiction over complaints against ISIF and that the Commission erred in determining section 72-706 barred his complaint. Finding the Commission erred in determining section 72-706 barred Stanley's complaint, the Idaho Supreme Court reversed the Commission’s decision.

Webster v. Fannings

Court: Supreme Court of Mississippi

Citation: 2020-IA-00390-SCT

Opinion Date: February 18, 2021

Judge: Ishee

Areas of Law: Civil Procedure

James Fannings had his former attorney served with a handwritten summons that deviated from requirements set out in the Mississippi Rules of Civil Procedure. At issue was whether the summons substantially complied with Rule 4(b). The Mississippi Supreme Court was satisfied that the circuit court should have dismissed the complaint because the summons failed to substantially comply with the form required by Rule 4(b) of the Mississippi Rules of Civil Procedure. Thus, the Court reversed the circuit court’s denial of the motion to dismiss and remanded the case for the trial court to enter an order dismissing the complaint.

Genworth Life Ins. Co. v. New Hampshire Dep't of Ins.

Court: New Hampshire Supreme Court

Docket: 2019-0727

Opinion Date: February 17, 2021

Judge: Donovan

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

Plaintiff Genworth Life Insurance Company challenged amended regulations promulgated by the New Hampshire Department of Insurance (Department) retroactively limiting rate increases for long-term care insurance (LTCI) policies. Plaintiff provided LTCI to over 6,000 New Hampshire residents. It appealed superior court orders dismissing its claim that the regulations violate the contract clauses of the State and Federal Constitutions, and entering summary judgment for the Department with respect to plaintiff’s claims that the regulations were ultra vires and violated the takings clauses of the State and Federal Constitutions. Because the New Hampshire Supreme Court concluded that the regulations were ultra vires, and, therefore, invalid, the Court reversed and remanded.

AE2S Construction v. Hellervik Oilfield Technologies, et al.

Court: North Dakota Supreme Court

Citation: 2021 ND 35

Opinion Date: February 18, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure

Hellervik Oilfield Technologies LLC (“Hellervik”) appealed an order denying its motion to vacate a default judgment. AE2S Construction, LLC (“AE2S”) sued Hellervik and Whiting Oil and Gas, Corporation, for nonpayment of its labor, materials, and services in the construction of a mobile gas capture plant in western North Dakota. Hellervik’s registered agent, Gary Minard, received the summons and complaint on September 9, 2019. Hellervik conceded it was properly served. Hellervik did not answer or otherwise respond to the complaint within twenty- one days, as required by N.D.R.Civ.P. 12(a)(1)(A). AE2S applied for default judgment against Hellervik, without serving notice of the application on Hellervik. The district court granted the application, and judgment was entered in favor of AE2S against Hellervik. In November 2019, Hellervik moved to vacate the judgment, arguing, in part, AE2S was required to serve notice of the application for default judgment on it because it made an appearance through counsel. Prior to suit, in June and July 2019, AE2S’s attorney corresponded with Hellervik’s attorney via email. Hellervik argued this correspondence constituted an appearance. Hellervik argued the district court erred by concluding it did not make an appearance for purposes of N.D.R.Civ.P. 55(a), and abused its discretion by denying it relief under N.D.R.Civ.P. 60(b)(1) and 60(b)(6). Finding no reversible error, the North Dakota Supreme Court affirmed.

Burr v. N.D. State Board of Dental Examiners

Court: North Dakota Supreme Court

Citation: 2021 ND 31

Opinion Date: February 18, 2021

Judge: Jerod E. Tufte

Areas of Law: Civil Procedure, Government & Administrative Law, Professional Malpractice & Ethics

Rebecca Burr appealed a district court judgment dismissing her complaint against the North Dakota Board of Dental Examiners. In mid-2019, Burr filed a complaint with the North Dakota Board of Dental Examiners alleging a dentist previously licensed by the Board committed aggravated assault and permanently maimed her in 1989. Her original complaint to the Board stated she had reached out to the Board in 1996 by sending a letter outlining some of the same complaints that were in the 2019 formal complaint. The Board responded to Burr’s complaint with a formal letter stating that it had determined “there is not a reasonable basis to believe that a violation of NDCC 43-28-18 or the rules promulgated by the Board occurred” and that the matter was dismissed without any action having been taken. In January 2020, Burr served the Office of Management and Budget (“OMB”) a notice of claim in the amount of $250,000, alleging that the Board failed to satisfy its legal obligation to investigate her claim “and that the failure to do so caused Ms. Burr further harm, pain and suffering.” In February 2020, OMB notified Burr by letter that her claim had been denied. Burr did not pursue an administrative appeal of that decision. She then commenced this action by serving the Board and OMB with a summons and complaint in May 2020. The district court granted the Board’s motion to dismiss, finding it lacked jurisdiction, and concluding that the Board was entitled to both quasi-judicial immunity and discretionary immunity. On appeal, Burr argued the district court erred in concluding that the Board was entitled to discretionary immunity and in dismissing her complaint for failure to state a claim upon which relief can be granted. Finding no reversible error, the North Dakota Supreme Court affirmed.

Davis v. Davis, et al.

Court: North Dakota Supreme Court

Citation: 2021 ND 24

Opinion Date: February 18, 2021

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Family Law

Cory Davis appealed a district court order denying his motion for Rule 60(b), N.D.R.Civ.P., relief from a judgment. In September of 2019 Tracy Davis served Cory with a summons and complaint for divorce. Cory did not prepare or serve a formal answer. On October 14, 2019, the district court issued an order for mediation. The parties attended mediation without final resolution of their case. After a mediation closing form was filed the court issued a scheduling order and notice of bench trial for January 23, 2020. On December 13, 2019, Tracy filed a motion for default judgment. That same day she served Cory with the motion by mail. On December 23, 2019, the district court issued an order granting default judgment, along with judgment by default. On January 8, 2020, Cory filed an answer and counterclaim, notice of motion for relief from judgment, and brief in support of motion for Rule 60 relief, arguing he did not receive the time required under N.D.R.Ct. 3.2 to respond to Tracy's motion for default. On appeal of the denial of relief, Cory argued the court erred in denying his motion because the judgment was entered prior to the expiration of his time to respond under N.D.R.Ct. 3.2(a). After review, the North Dakota Supreme Court reversed and remanded with instructions to vacate the default judgment and provide Cory an opportunity to respond consistent with N.D.R.Ct. 3.2(a)(2).

Johnson v. Menard, Inc.

Court: North Dakota Supreme Court

Citation: 2021 ND 19

Opinion Date: February 18, 2021

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Personal Injury

Menard, Inc. (“Menards”) appealed an order denying a motion for summary judgment, an order denying a motion for judgment as a matter of law, an order granting attorney’s fees, an order as to the amount of attorney’s fees recoverable and entry of judgment, and a judgment. In 2013, Darlene Johnson visited a Menards store in Minot to exchange an item. A Menards employee directed Johnson to find the exchange in the store and return to the service counter. Johnson turned toward her right and started walking away. Almost immediately, Johnson tripped over a flatbed cart. The cart was one Menards offers its customers to use while in the store. As a result of the trip and fall, Johnson cracked seven teeth. 2017, Johnson filed a negligence action against Menards in small claims court seeking damages in the amount of $14,818.00. Menards removed the case to district court. Johnson then amended her claim with the consent of Menards. In the amended complaint, Johnson sought a jury trial and “a reasonable amount but not less than $50,000” in damages. Before trial, Menards moved for summary judgment contesting whether sufficient facts created a duty of care it owed to Johnson. The court denied the motion. At trial, Menards moved for judgment as a matter of law at the close of Johnson’s case. Menards again claimed insufficient evidence existed to require a duty of care Menards owed Johnson. Alternatively, Menards argued it had met any duty it owed Johnson. The court denied the motion. Menards did not renew its motion for judgment as a matter of law at the close of its case or after the jury returned the verdict. After review, the North Dakota Supreme Court affirmed the trial court, but remanded for consideration of Johnson's attorney's fees for this appeal.

Oden v. Minot Builders Supply, et al.

Court: North Dakota Supreme Court

Citation: 2021 ND 30

Opinion Date: February 18, 2021

Judge: Jon J. Jensen

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

Chris Oden appealed a district court order vacating a transcribed Missouri foreign judgment. Oden argued: (1) vacating the transcribed Missouri judgment violated the Full Faith and Credit Clause of the United States Constitution; (2) the court erred in relying on a decision issued between the parties in prior litigation because that decision was barred by administrative res judicata as the result of Oden’s Missouri workers compensation claim; and (3) the court erred by affording a prior judgment res judicata effect while that case was pending on appeal. In May 2010, Oden was injured in Missouri while employed by Minot Builders Supply. North Dakota Workforce Safety and Insurance (“WSI”) accepted the claim and awarded benefits for Oden’s injuries. In May 2013, Oden filed a claim for compensation in Missouri for the same work-related injury. In October 2013, WSI suspended payment of further benefits on Oden’s claim after Oden claimed benefits Missouri. Subsequent to Oden settling his Missouri workers compensation claim, WSI sent Oden notice that the prior North Dakota workers compensation award was being reversed because Oden’s receipt of benefits in Missouri. WSI provided notice to Oden his workers compensation benefits were being denied, informed Oden he would need to reimburse WSI, and informed Oden he had thirty days to request reconsideration. Oden did not request reconsideration of WSI’s decision. In July 2018, WSI commenced an action in North Dakota against Oden seeking reimbursement for previous payments made to Oden. The district court in the Burleigh County case granted summary judgment in favor of WSI and awarded WSI the full amount paid to Oden, plus accruing interest, costs, and disbursements. Oden argued in the North Dakota case that WSI was bound by the Missouri workers compensation settlement because the settlement agreement included a signature of an attorney purportedly acting on behalf of WSI. The court determined WSI could not be bound by the Missouri agreement because WSI was not a party to the settlement, and there was no evidence to support a finding that the attorney who purportedly signed on behalf of WSI had any authority to represent WSI or act as WSI’s agent. Finding no reversible error, the North Dakota Supreme Court affirmed the district court.

WSI v. Cherokee Services Group, et al.

Court: North Dakota Supreme Court

Citation: 2021 ND 36

Opinion Date: February 18, 2021

Judge: Gerald W. VandeWalle

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

Cherokee Services Group, LLC; Cherokee Nation Government Solutions, LLC; Cherokee Medical Services, LLC; Cherokee Nation Technologies, LLC (collectively referred to as the “Cherokee Entities”); Steven Bilby; and Hudson Insurance Company (“Hudson Insurance”) appealed district court orders and a judgment reversing an administrative law judge’s (“ALJ”) order. The ALJ’s order concluded the Cherokee Entities and Bilby were protected by tribal sovereign immunity and Workforce Safety and Insurance (“WSI”) had no authority to issue a cease and desist order to Hudson Insurance. The district court reversed the ALJ’s determination. The Cherokee Entities were wholly owned by the Cherokee Nation; Bilby served as executive general manager of the Cherokee Entities. Hudson Insurance provided worldwide workers’ compensation coverage to Cherokee Nation, and the Cherokee Entities were named insureds on the policy. WSI initiated an administrative proceeding against the Cherokee Entities, Bilby, and Hudson Insurance. WSI determined the Cherokee Entities were employers subject to North Dakota’s workers’ compensation laws and were liable for unpaid workers’ compensation premiums. WSI also ruled that Bilby, as executive general manager, was personally liable for unpaid premiums. WSI ordered the Cherokee Entities to pay the unpaid premiums, and ordered Hudson Insurance to cease and desist from writing workers’ compensation coverage in North Dakota. The Cherokee Nation had no sovereign land in North Dakota, and the Cherokee Entities were operating within the state but not on any tribal lands. The North Dakota Supreme Court reversed the district court judgment, and reinstated and affirmed the ALJ’s order related to the cease and desist power of WSI, but the matter was remanded to the ALJ for further proceedings on the issue of sovereign immunity.

Gregg v. Ameriprise Financial, et al.

Court: Supreme Court of Pennsylvania

Docket: 29 WAP 2019

Opinion Date: February 17, 2021

Judge: Wecht

Areas of Law: Civil Procedure, Consumer Law, Contracts

In 1999, Gary and Mary Gregg sought the expertise of Robert Kovalchik, a financial advisor and insurance salesperson for Ameriprise Financial, Inc. Engaging in what the trial court concluded was deceptive sales practices, Kovalchik made material misrepresentations to the Greggs to induce them to buy certain insurance policies. The Greggs ultimately sued Ameriprise Financial, Inc., Ameriprise Financial Services, Inc., Riversource Life Ins. Co., and Kovalchik (collectively, Ameriprise) under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“CPL”). The Greggs’ complaint also asserted, inter alia, common law claims for negligent misrepresentation and fraudulent misrepresentation. The case proceeded to a jury trial on the common law claims, resulting in a defense verdict. The CPL claim proceeded to a bench trial. After the trial court ruled in favor of the Greggs on that CPL claim, Ameriprise filed a motion for post-trial relief arguing (among other points) that the Greggs failed to establish that Kovalchik’s misrepresentations were, at the very least, negligent, a finding that Ameriprise asserted was required to establish deceptive conduct under the CPL. The trial court denied relief, and the Superior Court affirmed. Like the trial court, the Superior Court concluded that the Greggs were not required to prevail on the common law claims of fraudulent misrepresentation or negligent misrepresentation in order to succeed on their CPL claim. The issue this case presented for the Pennsylvania Supreme Court's review centered on whether, as the Superior Court held, a strict liability standard applied to the Greggs’ CPL claim. The Court determined the relevant statutory provision lead it to conclude deceptive conduct under the CPL was not dependent in any respect upon proof of the actor’s state of mind. "The Superior Court’s holding is consistent not only with the plain language of the CPL, but also with our precedent holding that the CPL is a remedial statute that should be construed broadly in order to comport with the legislative will to eradicate unscrupulous business practices."

Freedom Found. v. Teamsters Local 117

Court: Washington Supreme Court

Docket: 97109-9

Opinion Date: February 18, 2021

Judge: Debra Stephens

Areas of Law: Civil Procedure, Constitutional Law, Election Law, Non-Profit Corporations

The Freedom Foundation was a nonprofit organization that describes itself as committed to “advanc[ing] individual liberty, free enterprise and limited, accountable government in the Evergreen State.” The Foundation brought citizen’s actions against Teamsters Local 117; Service Employees International Union Political Education and Action Fund (SEIU PEAF); and Governor Inslee, the Department of Social and Health Services, and Service Employees International Union 775 for various alleged violations of Washington’s Fair Campaign Practices Act (FCPA). In consolidated appeals, the issue common to all was whether the Freedom Foundation satisfied the FCPA’s prerequisites before filing their citizen’s actions. In each case, the superior courts ruled the Foundation failed to meet a 10-day deadline required by the FCPA and, accordingly, entered judgment for respondents. After review, the Washington Supreme Court agreed and affirmed. With respect to the Foundation's suit against the Teamsters Local 117, the Supreme Court determined that though the superior court erred by granting judgment on the pleadings to the union, the court’s entry of judgment would have been proper as summary judgment, and was thus affirmed. This result precluded the Foundation’s other challenges to the superior court’s rulings, which were therefore not addressed. As to the union's cross-appeal of its counterclaim against the Foundation under 42 U.S.C. 1983, the Foundation was not a state actor, was not wielding powers traditionally and exclusively reserved to the State, and therefore was not subject to suit under section 1983.