Monthly Releases

The Court of Appeals for the Tenth Circuit reversed judgment for plaintiff and remanded for a new trial on the basis of an improper closing argument. In Whittenburg v. Werner Enterprises, 561 F.3d 1122 (10th Cir. 2009), plaintiff's counsel continually referred to facts not in evidence and made personal attacks on the defendant and its counsel. Objections were made during the course of the closing argument and overruled. The only instruction given by the Court was the standard instruction at the close of trial reminding the jury that counsels' arguments are not evidence. In its opinion, the...

The Court of Appeals for the First Circuit held that despite the fact one defendant failed to consent to removal that this was a procedural defect which could be cured prior to the entry of a judgment. In Esposito v. Home Dept., 590 F.3d 72 (1st Cir. 2009) plaintiff was injured while operating a power saw. Two of the three defendants removed the matter to the United States District Court. The third defendant, Home Depot, merely filed an answer. Plaintiff moved to remand on the basis that Home Depot had not consented to removal within the 30-day period required by Statute. The District Court...

The Court of Appeals for the Ninth Circuit set forth a five prong test to determine whether an employee can establish personal attorney-client privilege jointly held with his employer. In Us v. Graf F3d (9th Circ. 2010) 20110 WL 2671813 (2010) the defendant in a criminal trial sought to prevent the testimony of attorneys employed the company for which he was determined to have been a "functional employee." The company had waived the attorney-client privilege and defendant sought to establish a personal privilege for himself. The District Court's ruling that he could not establish a personal...

The Eleventh Circuit Court of Appeals held that while the removing defendant must prove by preponderance of the evidence that the amount of controversy is adequate, this burden may be met by establishing that it is apparent from the face of the Complaint that the claims probably exceed $75,000.   In Donald Roe v. Michelin North America Inc. __F3d __, 2020 WL 3033802 C.A. 11 (Ala.), 2010. The plaintiff represented the estate of a decedent who was a passenger in a Ford Explorer when the tread on a Michelin tire separated and caused the Explorer to lose control. Plaintiff sought to recover...

The Court of Appeals for the Eleventh Circuit reaffirmed the rule that an unincorporated Indian tribe cannot sue or be sued in Federal Court on the basis of diversity jurisdiction. In Miccosukee Tribe v. Krus-Anderson Const., 2010 WL 2138957, the tribe entered into contracts with Krus-Anderson who construct several buildings on the tribe's reservation with respect to contract disputes the contact provided that the tribe would waive its sovereign immunity only if Krus-Anderson agreed to use the Tribal Court as the forum for resolving contract disputes. Disputes did arise including contentions...

The Supreme Court of the United States held that relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known and not on the amending party's knowledge or timeliness in seeking to amend the pleadings. In Krupski v. Cociere, 2010 WL 2243705 (U.S.), Plaintiff sued for injuries she suffered on a cruise ship. She originally sued "Costa Cruises." Pursuant to the ticket she notified Costa Cruise of her claims but was unable to reach a settlement. She filed a diversity negligence action against Costa Cruise. After the limitations period expired Costa Cruise...

The United States Supreme Court has ruled that where a statue provides for the payment of reasonable attorney's fees that the trial judge may increase the fee awards for exceptional performances, but only in rare instances. In Sonny Perdue vs. Kenny, S.Ct. 2010 WL 1558980 (U.S.), the question before the Supreme Court was whether the calculation of an attorney's fee, under federal fee/shifting statutes, based on the "lodestar", i.e. the number of hours worked multiplied by the prevailing hourly rates, may be increased due to superior performance and results. The District Court, based on a...

The Court of Appeals for the Sixth Circuit reversed the vacation of summary judgment in favor of the defendant and the entry of judgment against that defendant following a trial against a co-defendant. In Dillon v. Cobra Power Corp., 560 F.3d 591 (5th cir. 2009), suit was brought against Cobra Power Corp. for a breach of warranty and against a co-defendant for breach of contract and warranty. In October 2003 the court granted Cobra's Motion for Summary Judgment thereby dismissing it as a party. The Court also granted summary judgment on the warranty claim against the co-defendant and then...

The Court of Appeals for the Fourth Circuit in a case of first impression for courts of appeal held that 28 U.S.C. ?1447(c) does not permit the imposition of legal fees on an attorney who erroneously removes a case from state to federal court. In Crescent City Estates, 588 F.3d 822 (4th Circ. 2009), the defendants removed a state court action to the United States Bankruptcy Court for the District of Maryland. The plaintiffs filed a motion to remand and sought attorneys' fees from both the defendants and from their attorneys. The Bankruptcy Court held that as a matter of law ?1447(c) applied...

The Court of Appeals for the Seventh Circuit reaffirmed the "suicide rule" as a viable defense. In Johnson vs. Walmart Stores, 588 F.3d 439 (7th Cir. 2009) the defendant sold bullets to plaintiff's wife without asking her to present the identification card required by Illinois law. She subsequently used the bullets to commit suicide. In fact, plaintiff's wife did not have such a card and the sale by defendant was a violation of the Firearm Owners' Identification Card Act.   Plaintiff sued for negligence, wrongful death and two emotional distress claims. Defendant moved to dismiss the...

The Ninth Circuit Court of Appeals affirmed the general rule that in certain circumstances, a dismissal without prejudice is a final, appealable order. In Elliott vs. White Mountain Apache Tribal Court, 566 F.3d 842 (9th Cir. 2009), the Plaintiff brought suit in Federal District Court seeking injunctive and declaratory relief against the Apache Tribe from conducting any further proceedings against her in a tribal court. Plaintiff had become lost on a tribal reservation and set a signal fire which resulted in her being rescued by a helicopter. However, the fire blew into a substantial forest...

The United States Supreme Court has held that a corporation's principal place of business for diversity purposes is the place where the corporation's high level officers direct control and coordinate the corporation's activities. In Hertz Corp. vs. Friend. Case No. 08-1107, S.Ct., 2010 WL 605601 (U.S.), 10 Cal. Daily Op. Serv. 2181 the respondents filed a class action lawsuit in a California state court. Hertz removed the matter to the United States District Court and the respondents moved to remand on the basis that Hertz was a California citizen, like themselves, and therefore diversity...

The Eighth Circuit Court of Appeals held that the district court properly reversed its decision to permit the joinder of two defendants whose presence in the suit would defeat diversity. In Bailey vs. Bayer Cropscience L.P., 563, F.3d 302 (8th Cir. 2009), the lawsuit had been removed to the federal court and Plaintiff subsequently moved to amend the Complaint by adding two additional defendants without notifying the court that such joinder would destroy diversity jurisdiction. The district court permitted the joinder and then Plaintiff moved to remand due to the lack of jurisdiction. When...

The Court of Appeals for the Seventh Circuit set forth the factors which a court should consider in determining whether a post-removal joinder of a non diverse party is appropriate. In Schur vs. L. A. Weightloss Centers, 577 F.3d 752 (7th Cir. 2009) the Defendant removed the suit to the federal court. Over a year after suit was filed, Plaintiff moved for leave to amend the complaint to add claims against additional defendants, two of whom were non diverse. Eleven days after that Plaintiff moved to remand the case to state court because the addition of those defendants destroyed diversity...

The Court of Appeals for the Eleventh Circuit held that despite the fact that defendant did business in the United States, there was not personal jurisdiction because the plaintiff's claim did not relate to the defendant's contacts with the United States. In Oldfield v. Pueblo De Bahia Lora, S.A., ______ F.3d _____, (11th Cir. 2009), WL 330935, February 12, 2009. Defendant was a Costa Rican corporation owned by two citizens of the United States. The corporation owned and operated a fishing village and resort in Costa Rico named "Parrot Bay Village." Plaintiff, a Florida resident, came across...

The Court of Appeals for the Ninth Circuit held that a computer generated summary of data in a computer was admissible in evidence. In U-Haul Int'l. v. Lumbermens Mut. Cas. Co., 576 F.3d 1040 (9th Cir. 2009) the defendant objected on a number of hearsay basis to a computer generated summary of data in the computer being received in evidence. The Court of Appeals affirmed the admission of the summary and held that since it was prepared and used in the regular course of business it was admissible as a business record under Federal Rule of Evidence 803(6). Defendant also argued that the...

The Court of Appeals for the Eleventh Circuit held that the district court erred in its sua sponte remand on the basis of lack of diversity jurisdiction because the Defendant alleged only the residency of one of the parties rather than his citizenship. In Corporate Management vs. Artjen Complexus, 561 F3d 1294 (11th Circ. 2009) the Defendant filed a notice of removal on the basis of diversity jurisdiction. However, the Defendant alleged only the residency of one of the parties rather than his citizenship and since residency is not the equivalent of citizenship for diversity, the District...

The Court of Appeals for the Fifth Circuit denied leave to appeal because the certification order from the District Court did not demonstrate that the governing standards for an interlocutory appeal were met. In Linton vs. Shell Oil Co., 563 F3d 556 (5th Cir. 2009) the district court denied Defendant's Motion for Summary Judgment and in its Certification Order framed the controlling questions of law that the Judge believed was presented by the Order being certified. However, the court simply used the statutory language of Section 1292(b) and said that the issues involved controlling...

The Eighth Circuit excluded an expert's opinion because the testing he relied on did not prove what he claimed that it did. In Presley v. Lakewood Engineering and Mfg. Co. 553 F3d 638 (8th Cir. 2009), Plaintiffs suffered personal injuries and there was property damage as a result of a fire which occurred during the night in their home. Defendant was a manufacturer of an oil fired space heater which plaintiffs' expert Raymond Arms opined was the source of the fire. The expert had metallurgical testing done on evidence collected at the fire scene. Following these tests he had C&A flammability...

The Court of Appeals for the Seventh Circuit held that although a report may be admissible as a party admission, it can be excluded under Rule 403. In Mister v. Northeast Illinois R.R. 571 F3d 696 (7th Cir. 2009), Plaintiff was injured when he slipped and fell on ice. A safety officer employed by Defendant talked with supervisors who did not witness the fall and made a report of his findings which included a statement that another employee had fallen the previous week at the same spot. The information used to make the report had been given to the safety officer by one of the supervisors who...

The Court of Appeals for the Seventh Circuit held that where removal was foreclosed by clearly established law at the time the defendant filed his notice in federal court, the Court can award attorneys' fees under 28 U.S.C. 1447(c) In Wolf vs. Ford Kennelly, 574 F.3d 406 (7th Cir. 2009). The Court considered the circumstances surrounding removal and reviewed the law relative to the award of attorneys' fees for improper removal. Section 1447(c) provides "an order remanding [a] case may require payment of just costs and actual expenses, including attorneys' fees, incurred as a result of the...

The Court of Appeals for the Tenth Circuit held that it was not error for the Court to instruct the jury that the defendant could not be held liable if a product was substantially changed before the accident even though there was no evidence that the change was intentional. In Martinez v. Caterpillar Inc., 572 F.3d 1129 (10th Cir. 2009) a tire on a motor grader manufactured by the defendant deflated due to an impact with a rock. Plaintiff was attempting to inflate the tire when the wheel assembly exploded causing substantial injuries. After the accident a lock ring, part of the wheel...

The Seventh Circuit Court of Appeals held that even if an accident report is admissible as an admission by a party opponent under F.R.E. 801 (d)(2)(b) it may be excluded under Rule 403. In Mister v. Northeast Illinois Commuter R.R., ___ F.3d ___ (7th Cir., 1999) 2009 WL 1956333 plaintiff, a railroad employee, brought suit under FELA against his employer for injuries received on snow or ice in an unpaved parking lot. A railroad safety office prepared a handwritten report based on his discussion with two other railroad employees. According to the report, Metra had a similar incident a week...

The Third Circuit Court of Appeals ruled that the trial court did not abuse its discretion by denying plaintiffs request to amend his complaint under FRCP 15 because of his delay in requesting relief. In Bjorgung v. Whitetail Resort, LP, 550 F3 363 (3rd Cir. 2008) plaintiff, who had been injured in a skiing accident, was advised by defendant shortly after service of summons that he had sued the wrong entities. He took no action and did not request leave to name the proper defendants until a motion for summary judgment was filed three and one half years later. In ruling that the court...