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    Civil Procedure

    COVID-19 Venue Issues and Relevant Practical Problems

    Posted by Anne B. Hemenway on March 16, 2021 at 10:09 AM

    Anne B. Hemenway—Senior Attorney, National Legal Research Group

                The COVID-19 pandemic has caused many state courts around the country to either have closed down during parts of 2020 and 2021 or dramatically curtailed operations. In many jurisdictions, jury trials have been canceled or postponed for months. The pandemic has resulted in a plethora of federal court cases regarding requests by federal inmates to be released from federal custody and other court-related issues. See Fern L. Kletter, COVID-19 Related Litigation: Effect of Pandemic on Release from Federal Custody, 54 A.L.R. Fed. 3d art. 1 (2020 & Westlaw updated weekly).

                In a case of first impression in the Commonwealth of Virginia, Clarke v. Medical Facilities of America, Inc. , No. CL20-4379, 2020 Va. Cir. LEXIS 493 (Va. Cir. Ct. City of Norfolk Dec. 30, 2020), the court reviewed whether pandemic-related issues were material to a venue dispute. In that case, defendants in a wrongful death action sought to transfer venue from the circuit court in the City of Norfolk, one of the largest cities in Virginia, to a small rural circuit court closer to the rehabilitation center where the plaintiff decedent had been treated.

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    Topics: Anne B. Hemenway, COVID-19, court venue issues, too speculative, pandemic's disparate impact, relevant practical problems

    Maritime Law—Could COVID-19 Cruise Ship Passenger Litigation Sink the Cruise Line Industry?

    Posted by Charlene J. Hicks on February 17, 2021 at 10:51 AM

    Charlene Hicks—Senior Attorney, National Legal Research Group

                The COVID-19 pandemic has proven disastrous for cruise lines and passengers alike, with multiple coronavirus outbreaks and lengthy quarantine periods imposed. The resulting lawsuits have met with mixed results.

                In Weissberger v. Princess Cruise Lines, Ltd., No. 2:20-CV-02328-RGK-SK, 2020 WL 3977938 (C.D. Cal. July 14, 2020), plaintiffs claimed that Princess Cruise Lines was negligent and/or grossly negligent because it had knowledge that a disembarking passenger had symptoms of COVID-19 but it made the conscious decision to continue sailing with 3,000 passengers aboard. The Weissbergers claimed emotional distress damages arising from the ship's quarantine and the associated trauma from fear of developing the virus.

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    Topics: Charlene Hicks, emotional distress, recovery for emotional distress, maritime law, COVID-19, liability of cruise line

    Bid to Recover Picasso Painting Foiled in Rare Case Where Laches Defense Overcomes Express Statute of Limitations

    Posted by Paul A. Ferrer on December 21, 2020 at 10:23 AM

    Paul FerrerSenior Attorney, National Legal Research Group

                Laches is "a defense developed by courts of equity to protect defendants against unreasonable, prejudicial delay in commencing suit." SCA Hygiene Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S. Ct. 954, 960 (2017) (internal quotation marks omitted). It is frequently said, however, that laches cannot be invoked to bar legal relief in the face of an express statute of limitations enacted by Congress. Id. at 959. But that is exactly what happened in Zuckerman v. Metropolitan Museum of Art, 928 F.3d 186 (2d Cir. 2019), cert. denied, 140 S. Ct. 1269 (2020).

                In Zuckerman, the plaintiff, Laurel Zuckerman, brought suit to recover a painting—"The Actor" by Pablo Picasso—that had been owned by her great-granduncle and aunt, the Leffmanns. The Leffmanns were German Jews who were forced to flee the country in 1937. They arranged for the painting to be held by a Swiss acquaintance, who sold the painting in 1938 to raise funds for the Leffmanns to relocate to Brazil. The painting was eventually donated to the Metropolitan Museum of Art (the "Met") in New York in 1952, where it still resides.

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    Topics: Paul A. Ferrer, statute of limitations, laches defense, Picasso painting, Zuckerman v. Metropolitan Museum of Art

    Effect of COVID-19 Pandemic on Discovery Deadlines

    Posted by Paul A. Ferrer on May 12, 2020 at 12:20 PM

    Paul Ferrer—Senior Attorney, National Legal Research Group

         Based on the exceptional circumstances presented by the COVID-19 pandemic, many state and federal courts have entered general orders altering deadlines for a wide variety of matters, including deadlines for filing appeals, the most notable example being the U.S. Supreme Court's extending the period to seek review of a lower court decision by writ of certiorari from 90 to 150 days. Counsel should be aware, however, that in the absence of an order of general applicability, deadlines will not be extended without a specific order from the court in a particular case. To the contrary, judges are loath to allow "all litigation to grind to a halt in many cases," as "allowing that to happen will only exacerbate, in many cases, the detrimental effects of this crisis." Horning v. Resolve Marine Group, No. 19-60899-CIV, 2020 WL 1540326, at *1 (S.D. Fla. Mar. 30, 2020) (Scola, J.).

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    Topics: Paul A. Ferrer, discovery deadlines, specific order requirement, extension of time, COVID-19

    Is Virginia Inching Toward The Federal Twiqbal Pleading Standards?

    Posted by Paul A. Ferrer on February 21, 2020 at 12:11 PM

    Paul Ferrer—Senior Attorney, National Legal Research Group

                Practitioners in federal court are by now aware of the revolution in federal pleading fashioned by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which are often referred to jointly using the portmanteau "Twiqbal." Under the Twiqbal analysis, a district court considering the legal sufficiency of a complaint on a motion to dismiss for failure to state a claim initially separates factual allegations, which are still entitled to the presumption of truth, from legal conclusions (such as "[t]hreadbare recitals of the elements of a cause of action"), which are not. Iqbal, 556 U.S. at 678. The court then examines just the factual allegations to determine whether they state a claim to relief that is plausible on its face. Id. Determining whether a claim is plausible is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

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    Topics: majority follows Twombly/Iqbal standard, sufficient factual allegations, civil procedure, federal pleading standard, legal sufficiency of complaint

    CIVIL PROCEDURE: Contractual Waivers of Statute of Limitations Held Unenforceable in Virginia

    Posted by Paul A. Ferrer on December 20, 2019 at 9:30 AM

    Paul Ferrer—Senior Attorney, National Legal Research Group

                In a decision with far-reaching implications in the commercial world, the Virginia Supreme Court has decided that contractual waivers of the right to plead the statute of limitations that do not meet specified statutory criteria are unenforceable under Virginia law. See Radiance Capital Receivables Fourteen, LLC v. Foster,  ___ Va. ___, 833 S.E.2d 867 (2019), available at http://www.courts.state.va.us/opinions/opnscvwp/1180678.pdf. The statute in question provides that unless the failure to enforce a promise not to plead the statute of limitations would operate as a fraud on the promisee, a written promise not to plead the statute of limitations is valid and enforceable only "when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period." Va. Code Ann. § 8.01-232(A).

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    Topics: contracts, Paul A. Ferrer, civil procedure, waiver of statute of limitations, waiver unenforceable

    APPELLATE PRACTICE:  Sanctions Including Dismissal and Fines Imposed over Noncompliant Briefs

    Posted by Nicole Prysby on December 20, 2019 at 9:19 AM

    Nicole Prysby—Senior Attorney, National Legal Research Group

                The appellate process is already an expensive and difficult process. Why sink your chances of a win by presenting the court with a brief that is not compelling or, even worse, is noncompliant with court rules?

                In very egregious cases, a noncompliant brief may result in the denial of the appeal. In 2019, a North Carolina court concluded that dismissal was an appropriate sanction. In Ramsey v. Ramsey, 826 S.E.2d 459 (N.C. Ct. App. 2019), the appellant failed to file the record on appeal within 15 days of the date the record was settled and included a discussion of relevant facts in the argument section, instead of in a separate fact statement. He included the standard of review in only one of his three argument sections and had a litany of minor errors, such as a failure to identify the specific names of persons served in the Certificate of Service. And although the brief met word limits, the Certificate of Compliance stated the word count, rather than the required statement that the brief contains no more than the permitted number of words. The court declined to make its own "voyage of discovery through the record" in order to glean the relevant circumstances for the appeal and dismissed the appeal. Id. at 464.

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    Topics: noncompliance consequences, Nicole Prysby, appeal, noncompliant brief, rules violations

    Dismissal of Frivolous Prisoner and In Forma Pauperis Actions in Federal Court

    Posted by Paul A. Ferrer on August 2, 2019 at 11:01 AM

    Paul Ferrer—Senior Attorney, National Legal Research Group

                Federal courts may be inundated with frivolous pleadings filed by prisoners or other claimants proceeding in forma pauperis. But the courts have powerful statutory weapons for dealing with such pleadings and dismissing them at the earliest stage of a proceeding, if warranted. In fact, federal courts are specifically required to screen prisoner actions and dismiss them if they fail to pass muster. See 28 U.S.C. § 1915A.

                Section 1915A affirmatively requires the district court to review, before docketing if feasible or as soon as practicable after docketing, every civil complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. Id. § 1915A(a). After reviewing the complaint, the court must either identify any cognizable claims or dismiss all or part of the complaint if it is “frivolous, malicious, or fails to state a claim upon which relief may be granted.” Id. § 1915A(b)(1). Another federal statute similarly requires a district court to dismiss any proceeding brought in forma pauperis if the court determines, “at any time,” that the action is “frivolous or malicious” or “fails to state a claim on which relief may be granted.” Id. § 1915(e)(2)(B)(i), (ii).

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    Topics: Paul A. Ferrer, frivolous claims, civil procedure, federal court, in pauperis actions

    Seeking Appellate Relief Under Mandatory Standard of Review Theory

    Posted by Charlene J. Hicks on March 26, 2019 at 9:32 AM

    Charlene Hicks—Senior Attorney, National Legal Research Group

                One potentially overused legal principle that is often recited in appellate cases is that a party waives any issues or legal theories that he or she fails to assert at the trial court level. In other words, a party generally cannot raise a new issue for the first time on appeal. Any attempt to do so will likely be rejected by the appellate court.

                Even so, an appellate attorney would do well to keep in mind that this oft-repeated principle does not apply to certain situations, including questions pertaining to the standard of review employed by the lower court. The proper standard of review that is applicable to a particular legal issue is a nonwaivable matter. See Winfield v. Dorethy, 871 F.3d 555, 560 (7th Cir. 2017), cert. denied, 138 S. Ct. 2003 (2018); Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009). Accordingly, an appellant does not forfeit a claim that the lower court failed to employ the proper standard of review “by failing to argue it” to the lower court. Sierra Club v. U.S. Dep't of Interior, 899 F.3d 260, 286 (4th Cir. 2018); see also United States v. Freeman, 640 F.3d 180, 186 (6th Cir. 2011). Similarly, the parties to a case cannot agree on or assign an incorrect legal standard of review to an issue. Sierra Club, 899 F.3d at 286.

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    Topics: civil procedure, standard used by lower court, appellate relief, standard of review

    Facebook's Alleged Intrusion on Users' Privacy Confers Standing to Maintain Class Action

    Posted by Paul A. Ferrer on January 24, 2019 at 10:58 AM

    Paul Ferrer—Senior Attorney, National Legal Research Group

             In a putative class action against Facebook, a federal district court in California has determined that "[i]ntrusion on privacy alone can be a concrete injury" for purposes of establishing standing to bring suit in federal court. Patel v. Facebook Inc., 290 F. Supp. 3d 948, 954 (N.D. Cal. 2018). In reaching that conclusion, the court applied the concreteness analysis laid out by Justice Alito in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).

             The judicial power of the United States resides in the federal courts and extends only to "Cases" and "Controversies." U.S. Const. art. III, § 2. Standing to sue is a doctrine "rooted in the traditional understanding of a case or controversy," and limits the category of litigants who can maintain an action in federal court. Spokeo, 136 S. Ct. at 1547. To have standing, a plaintiff must plead and prove three elements: (1) an injury in fact that is (2) fairly traceable to the defendant's conduct and (3) likely to be redressed by a judicial decision in the plaintiff's favor. Id. The first and foremost of these three elements is injury in fact, which requires the plaintiff to show that he or she suffered an invasion of a "concrete" and "particularized" legal interest. Id. at 1548.

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    Topics: Paul A. Ferrer, Facebook, invasion of privacy, putative class action, concrete injury

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