The Lawletter Vol 40 No 8

Mark Rieber—Senior Attorney, National Legal Research Group

     The Fourth Circuit recently held that the Government's warrantless procurement of historical cell site location information ("CSLI"), for an extended period of time, recorded by the defendant's cell phone service provider, was an unreasonable search in violation of the defendant's Fourth Amendment rights, even though the CSLI records were kept by cell phone companies in the ordinary course of business. United States v. Graham, Nos. 12-4659 & 12-4825, 2015 WL 4637931 (4th Cir. Aug. 5, 2015). The court stated that the examination of a person's historical CSLI can enable the Government to trace the movements of the cell phone and its user across public and private spaces and thereby discover the private activities and personal habits of the user. Id. at *8.

The Lawletter Vol 40 No 7

Sandra Thomas, Senior Attorney, National Legal Research Group

     In a recent decision of the Court of Special Appeals of Maryland, Maryland's intermediate appellate court addressed the question of whether a New York resident could be subject to personal jurisdiction in a Maryland paternity and support action based on his filing of an answer to the original complaint for custody, his request for genetic testing, and his request for discovery. Friedetzky v. Hsia, No. 1187 Sept. Term 2014, 2015 WL 4081290 (Md. Ct. Spec. App. July 6, 2015).

     The court of special appeals held that "by affirmatively requesting genetic testing in his answer" to the mother's custody petition and "by initiating discovery relating to matters of paternity and child support," the alleged father "triggered the UIFSA [Uniform Interstate Family Support Act] long-arm statute and waived the limited immunity otherwise afforded in a custody proceeding under the UCCJEA [Uniform Child Custody Jurisdiction and Enforcement Act]." Id. at *1.

The Lawletter Vol 40 No 7

John Stone, Senior Attorney, National Legal Research Group

     It is no easy task for a prisoner to succeed on a claim that he was denied medical care in circumstances that violated his federal constitutional rights. Such a cause of action is not simply a prisoner's version of a medical malpractice case but, rather, requires a more demanding showing by the plaintiff. Mere negligence in diagnosis or treatment will not suffice. To state an Eighth Amendment claim for cruel and unusual punishment based on deficient medical care, a prisoner must allege an objectively serious medical condition and an official's deliberate indifference to that condition. Estelle v. Gamble, 429 U.S. 97 (1976). "Deliberate indifference" to a prisoner's serious medical needs occurs when a defendant realizes that a substantial risk of serious harm to a prisoner exists but then disregards that risk.

The Lawletter Vol 40 No 7

Paul Ferrer, Senior Attorney, National Legal Research Group

     Federal law permits "civil actions involving one or more common questions of fact" that are pending in different districts to be transferred to any district for coordinated or consolidated pretrial proceedings by the judicial panel on multidistrict litigation ("MDL"). 28 U.S.C. § 1407(a). Another federal statute grants an unsuccessful litigant in a federal district court the right to take an appeal, as a matter of right, from a "final decision" of the district court. Id. § 1291. In Gelboim v. Bank of America Corp., 135 S. Ct. 897 (2015), the Supreme Court decided the question of whether the right to appeal secured by § 1291 is affected when a case is consolidated for MDL pretrial proceedings under § 1407.

The Lawletter Vol 40 No 7

Alistair Edwards, Senior Attorney, National Legal Research Group

     Under the stranger-to-the-deed rule, a deed with a reservation or exception by the grantor in favor of a third party, a so-called stranger to the deed, does not create a valid interest in favor of that third party. For example, a reservation in a deed purporting to create a life estate in a third party (a stranger) may very well be ineffective. Many jurisdictions still adhere to some form of the stranger-to-the-deed rule.

     What happens, though, when a grantor gives a deed containing a right of first refusal in favor of a third party or parties? In other words, the grantor did not create a right of first refusal in himself but in favor of a stranger to the transaction. The effect of a right of first refusal, also called a preemptive right, is to bind the selling party to not sell without first giving the person holding the right the opportunity to purchase the real property at the price specified. But does the stranger-to-the-deed rule invalidate a right of first refusal given to the third party/stranger?

The Lawletter Vol 40 No 6

Fred Shackelford, Senior Attorney, National Legal Research Group

     Can an innkeeper be held liable when an evicted guest is injured after leaving the premises? Yes, according to the Colorado Supreme Court, in a decision that may apply in other contexts as well. In Westin Operator, LLC v. Groh, 2015 CO 25, 347 P.3d 606, a hotel's security guards required a registered guest (Jillian Groh) and several of her friends to leave the premises because they were intoxicated and boisterous. One of the friends asked if the group could wait in the hotel's lobby while they called a taxi, because it was freezing outside, but the guards refused this request. Rather than calling a taxi, the group drove away in Groh's car, and an accident occurred about 15 miles from the hotel. An action was brought against the hotel for Groh's injuries.

     The court considered whether the hotel owed a duty of care by drawing an analogy to cases involving injury to common-carrier passengers. The court relied on section 314A of the Restatement (Second) of Torts, which recognizes certain special relationships that give rise to a duty of care. That section expressly refers to innkeepers and common carriers, as well as any "possessor of land who holds it open to the public," Restatement § 314A(3), and it imposes a duty "(a) to protect them [invited members of the public] against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others," id.§ 314A(1).

The Lawletter Vol 40 No 6

Doug Plank—Senior Attorney, National Legal Research Group

     In a unanimous decision, the U.S. Supreme Court recently held in Ohio v. Clark, 135 S. Ct. 2173 (2015), that statements that children have made to teachers about possible abuse can be used as evidence at criminal trials arising from the alleged abuse, even if the children are not competent to testify in court.

     The facts in Clark showed that the preschool teacher of a three-year-old boy had noticed bruises on his body, and when she asked him how he had gotten the bruises, he told her that his mother's boyfriend had hit him when his mother was not home. The teacher notified the police, and the boyfriend was ultimately charged with child abuse. At the boyfriend's trial, the State introduced into evidence the statements that the child had made to the teacher, but the child did not testify, because of a statute precluding the testimony of children under 10 years old if they "appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." Id. at 2178 (quoting Ohio R. Evid. 601(A)). The trial judge determined that pursuant to this rule, the child was not competent to testify.

The Lawletter Vol 40 No 6

Matt McDavitt, Senior Attorney, National Legal Research Group

     When distributing a probate estate, it is important to determine whether particular assets are tangible or intangible property where the will's language distributes these classes of property to different beneficiaries. While many assets may be sorted based upon common-sense principles, other assets present analytical difficulties. One such problematic asset is gold formed into bars, bullion, and coins. Some laymen would classify these precious metal assets as money, others as collectibles, and it is not intuitive whether such gold objects constitute tangible assets (such as a chair or a computer) or intangible assets (such as bank account deposits or stocks).

The Lawletter Vol 40 No 6

Tim Snider—Senior Attorney, National Legal Research Group

     In opposed trademark registration proceedings, the administrative adjudicative body is the Trademark Trial and Appeal Board ("TTAB"). It hears the appeals of applicants for registration and of those who oppose registration who are aggrieved by the decision of the Patent and Trademark Office whether to grant or deny registration to an application for registration of a trademark. There is a further level of appeal to the Federal Circuit, and a plaintiff can always seek cancellation of a registered trademark in district court. An issue often involved in registration proceedings is whether there is a likelihood of confusion between the applicant's mark and the opposer's mark. Unlike court proceedings, there is no discovery and no live testimony. The TTAB makes its decision based on the written record that is submitted to it by the parties. If the TTAB makes a determination that there is a risk of confusion between the marks in suit, what weight should be assigned to that determination by a court that is hearing a dispute between two markholders, one of whom claims that the other's mark infringes on its mark?

The Lawletter Vol 40 No 6

Brett Turner, Senior Attorney, National Legal Research Group

     All 50 states have now had child support guidelines for more than a decade. Increasing numbers of states are experimenting with spousal support guidelines, especially for temporary support while a divorce case is pending.

     When applying any set of guidelines for spousal or child support, the first step is always to compute the incomes of the parties. Such computation raises a set of tricky issues when retirement benefits are involved.

     In Milinovich v. Womack, 343 P.3d 924 (Ariz. Ct. App. 2015), the father was a retired professional baseball player. His income dropped materially when his playing years ended, and he filed a motion to reduce his child support. To compute the guideline amount of support, the court had to determine the father's income.