The Lawletter Vol 39 No 1

Steve Friedman, Senior Attorney, National Legal Research Group

     The doctrine of qualified immunity shields governmental officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For qualified immunity purposes, "clearly established" means that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).

     As recently summarized by the U.S. Court of Appeals for the Eleventh Circuit, there are several ways a plaintiff can prove that a right was clearly established for qualified immunity purposes.

He can, for instance, produce a materially similar case decided by the Supreme Court, this Court, or the highest court of the relevant state. Hoyt [v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012)]. A right can be clearly established, however, even in the absence of precedent. A plaintiff can point to a "broader, clearly established principle [that] should control the novel facts in [his] situation." Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). Finally, a plaintiff may show that an "official's conduct 'was so far beyond the hazy border between excessive and acceptable force that [the official] had to know he was violating the Constitution even without caselaw on point.'" Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (alteration in original) (quoting Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997) (per curiam)).

Morton v. Kirkwood, 707 F.3d 1276, 1282 (11th Cir. 2013).

     Most frequently, however, the parties will attempt to prove whether or not the relevant law was clearly established by citing to factually analogous case law. Typically, this is done by citing to case law that predates the defendant's allegedly unlawful conduct. But can an analogous case that is decided after the events at issue ever be relevant to the clearly established analysis? That question was recently answered in the affirmative as a matter of first impression in the U.S. Court of Appeals for the Sixth Circuit.

     In T.S. ex rel. J.S. v. Doe, No. 12-5724, 2014 WL 443376 (6th Cir. Feb. 5, 2014), the parents of two minor children who had been detained for underage drinking brought a 42 U.S.C. § 1983 suit against the juvenile detention facility and several individuals at the facility, alleging that the suspicionless strip search performed as part of the facility's routine intake process had violated the children's Fourth Amendment rights. On cross-motions for summary judgment, the individual defendants asserted qualified immunity. In support of their motion, the plaintiffs relied on Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989), which had "held that the suspicionless strip search of pretrial detainees held on minor, nonviolent offenses violated the Fourth Amendment." T.S., 2014 WL 443376, at *2 (citing Masters, 872 F.2d at 1250).

Suzanne Bailey, Senior Attorney, National Legal Research Group

The Lawletter Vol 39 No 1

     A recent decision from the Fourth Circuit Court of Appeals illustrates the risk a public employer takes when it attempts to suppress an employee's speech in order to avoid a potential lawsuit from a member of the public. Ironically, in Durham v. Jones, 737 F.3d 291 (4th Cir. 2013), there is no indication that the feared lawsuit by an arrestee was ever filed, but the defendant county sheriff was held liable to a terminated deputy sheriff for $1.1 million.

     The 42 U.S.C. § 1983 suit of the plaintiff, Deputy First Class Durham, against the defendant, Sheriff Jones, had its genesis in Durham's use of force on a suspectCpepper spray, two forearm blows to the ridge area under the suspect's nose, and two knee blows to the left side of the suspect's body—in the course of assisting a state trooper in the arrest of the suspect, who was fleeing from the trooper on a motorcycle. In a string of escalating requests after Durham had submitted a use-of-force report to his immediate supervisors, detailing the use of force, other supervisors from the Sheriff's Department demanded that he file another use-of-force report, suggested that he go to the hospital to document medical attention as a result of the incident,
and ordered him to charge the suspect with assault and resisting arrest or face assault charges himself. Durham, who had about 20 years' experience in law enforcement, did not incorporate the changes in follow-up reports or file charges against the suspect, but he did document these exchanges with superiors in subsequent reports. After being advised in writing that two specially trained criminal investigators would help him correct the "deficiencies" in his report, Durham contacted his union attorney.

     Two days later, Durham was subjected to a two-hour interrogation by the criminal investigators. He was refused permission to contact his attorney and was required to sign a document containing Miranda warnings. The investigators threatened him with both internal and criminal charges of assaulting the suspect if he did not revise his original report and delete the reports describing the requests of superiors to change the original. In spite of his misgivings about swearing a false oath, Durham ultimately made the changes under the investigators' supervision after they took his gun, ID, and badge. The items were subsequently returned to him. Durham suspected that the investigators wanted to create a better record in case the arrestee filed an excessive force complaint.

     Following the interrogation, Durham filed an internal grievance and requested an outside investigation into the matter. On that same day, Sheriff Jones demoted Durham from Deputy First Class to Deputy and suspended him with pay. After learning that the grievance would be
investigated by the very officials against whom the grievance had been made, Durham prepared a cover letter to a set of documents, which included a memorandum summarizing the events arising from his encounter with the suspect, addressed to his immediate supervisor, his original police report, the deleted follow-up reports, the false police report he created during his interrogation, the signed Miranda form, a copy of the grievance he had filed, and his suspension paperwork. He sent this packet of materials to the County State's Attorney, the Governor, the Police Academy where he had been trained, the state Police Training Commission, and the State Police, as well as to a number of media outlets, such as the local newspaper and two local television stations. He later sent the materials to additional political officials and news outlets until Sheriff Jones ordered him to stop.

The Lawletter Vol 38 No 12

Jim Witt, Senior Attorney, National Legal Research Group

     Over the past decade, a troublesome issue under the Employee Retirement Income Security Act of 1974 ("ERISA") has been resolved in stages. That issue arises when there is a conflict between the identity of the designated beneficiary under an ERISA plan and the named beneficiary's apparent inability under state law to accept the benefits (for instance, due to the beneficiary's waiver of such rights). In 2001, the U.S. Supreme Court in Egelhoff v. Egelhoff, 532 U.S. 141 (2001), held that where the plan participant had neglected to remove his ex-wife as beneficiary under an ERISA-covered insurance plan following the couple's divorce, the designation prevailed over a Washington state law providing that upon a couple's divorce, there is an automatic revocation of the beneficiary designation made by one spouse in favor of the other under a nonprobate asset such as an insurance policy. The Court's ruling also prevented the application of state law with respect to questions of survivorship in the case of simultaneous deaths and with respect to antilapse provisions, slayer's statutes, and the spousal elective share. The basis for the Court's decision was the command of ERISA that the plan administrator's payment of benefits is to be "in accordance with the documents and instruments governing the plan." 29 U.S.C. § 1104(a)(1)(D). The Court noted that allowing the application of state law as to the designation of beneficiaries would result in an undue burden on plan administrators because it would force them to become familiar with the variations among state laws applicable to these different issues.

     In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009), although the waiver executed by the named beneficiary/ex-spouse under the decedent-spouse's ERISA-covered savings and investment plan was classified as a "federal common law" waiver, the Supreme Court held that an ERISA plan administrator was still obligated to distribute the benefits in accordance with the beneficiary designation made under the plan. However, the Kennedy Court explicitly left open the question of whether once the benefits were distributed by the administrator, the decedent's estate could enforce the waiver against the plan beneficiary. As the Kennedy Court stated:

Nor do we express any view as to whether the Estate could have brought an action in state or federal court against [the ex-spouse designated beneficiary] to obtain the benefits after they were distributed.

Id. at 300.

The Lawletter Vol 38 No 12

Tim Snider, Senior Attorney, National Legal Research Group

     Issues involving mechanic's liens are infrequently litigated in federal court, and rarely are the issues resolved on constitutional grounds. Yet that happened recently in a case decided by the Fifth Circuit. The case involved Mississippi's "Stop Notice" statute, Miss. Code Ann. § 85-7-181. In Noatex Corp. v. King Construction of Houston, L.L.C., 864 F. Supp. 2d 478 (N.D. Miss. 2012), aff'd, 732 F.3d 479 (5th Cir. 2013), a payment dispute arose between the owner of the project and the general contractor, on the one hand, and a materials and labor subcontractor, on the other hand, with respect to a construction project in Mississippi. The subcontractor claimed that it was owed about $260,000 by the contractor and had not been paid for the project. Pursuant to the Stop Notice statute, the subcontractor provided written notice to the owner that the contractor owed it $260,000 and stated its intention to file a "Laborer's and Materialman's Lien and Stop Notice" in Mississippi chancery court.

     The effect of this notice was that funds in the amount of $260,410.15 were "bound in the hands" of the owner. See Miss. Code Ann. § 85-7-181 ("[T]he amount that may be due . . . shall be bound in the hands of such owner for the payment in full[.]"). Further, under a related section of the Mississippi Code, id. § 85-7-197, the subcontractor's filing of the Stop Notice in the lis pendens record of the chancery court had the effect of establishing its lien priority with respect to the property that was the subject of the dispute. The owner later deposited the $260,410.15 in the registry of the chancery court.

The Lawletter Vol 38 No 11

Sandra Thomas, Senior Attorney, National Legal Research Group

     With increasing frequency, American courts are being asked to recognize divorces that are obtained by one of the parties in a foreign country and entered according to rules that differ from the rules governing divorce in this country. In Siddiqui v. Siddiqui, 968 N.Y.S.2d 145 (App. Div. 2013), the New York Appellate Division was asked to consider such a case, which had been further complicated by the fact that the wife had waited two years before challenging in a New York court the foreign divorce that the husband had obtained.

     The parties in Siddiqui got married in Pakistan in 1994 and subsequently moved to the United States. In 2005, the husband began divorce proceedings in New York. While those proceedings were pending, the husband obtained a divorce by performing talaq in Pakistan.

Under Pakistan's Muslim Family Laws Ordinance, a man may obtain a divorce by performing talaq, which consists of stating or writing three times that the man is divorcing his wife, and following various other procedures. In particular, written notice of the pronouncement of talaq must be given to a certain Pakistani governmental official, and a copy of such notice must be provided to the wife. The divorce will be given effect by the Pakistani government upon the expiration of 90 days from the day on which such notice was delivered to the governmental official. A woman does not have a right to talaq without her husband's permission.

The Lawletter Vol 38 No 11

Paul Ferrer, Senior Attorney, National Legal Research Group

     Florida's two-pronged approach to the so-called "economic loss rule" has engendered much confusion over the years. The Florida Supreme Court attempted to clear up the confusion in Tiara Condominium Ass'n v. Marsh & McLennan Cos., 110 So. 3d 399 (Fla. 2013), but may not yet have succeeded entirely in light of the discussion in the concurring and dissenting opinions concerning the potential reach of the majority decision.

     The economic loss rule was originally a doctrine rooted in products liability law. In that context, the rule "preclud[es] recovery of economic damages in tort where there is no property damage or personal injury." Id. at 404. In such cases, the issue is seen as one involving contract law, specifically, warranty principles, through which the plaintiff can recover the benefit of its bargain for economic losses resulting from the failure of the product itself to perform as promised by the warranty. Id.; see also id. at 408 (Pariente, J., concurring) ("[T]he rule itself acts merely as a specific articulation of the proper approach for those products liability cases in which contract principles, rather than tort principles, are best suited to resolving the claim.").

     The confusion in Florida arose when the supreme court began using the same terminology to refer to the broader concept by which "a tort action is barred where a defendant has not committed a breach of duty apart from a breach of contract." Id. at 402. The problem could have been avoided had the court simply used a different moniker when referring to this long-standing principle, as other jurisdictions have done. See, e.g., Bealer v. Mut. Fire, Marine & Inland Ins. Co., 242 F. App'x 802, 804 (3d Cir. 2007) ("The gist of the action doctrine bars a plaintiff from bringing a tort claim for damages that merely replicates a claim for breach of an underlying contract."), cert. denied, 552 U.S. 1185 (2008). Instead, Florida separated the "economic loss rule" into two branches, one dealing with "contractual privity" and the other with "products liability." See Tiara, 110 So. 3d at 402-03.

     In Tiara, responding to a question certified to the Florida Supreme Court by the Eleventh Circuit, the court rejected the "continued applicability of the economic loss rule in cases involving contractual privity," id. at 400, holding that "the application of the economic loss rule is limited to products liability cases," id. at 400, 407. The problem is that the majority opinion in Tiara did not clearly indicate whether the "contractual privity" branch of the economic loss rule survives under another name (such as the "gist of the action" doctrine referred to by the Bealer court). The dissenting justices apparently felt that the principle did not survive the decision in Tiara, as they both opined that the majority had "greatly expand[ed] the use of tort law at a cost to Florida's contract law." See id. at 410 (Polston, C.J., dissenting), 411 (Canady, J., dissenting) ("I agree with Chief Justice Polston's view that 'Florida's contract law is seriously undermined by this decision.'"). On the other hand, Justice Pariente, in her concurring opinion joined by two other justices, responded that "[t]he majority's conclusion that the economic loss rule is limited to the products liability context does not undermine Florida's contract law or provide for an expansion in viable tort claims." Id. at 408 (Pariente, J., concurring). Instead, the same principle formerly dealt with under the "contractual privity" branch of Florida's economic loss rule will now be applied using "common law principles of contract." Id. at 409.

     It is unfortunate that the majority did not simply deal with this issue explicitly, rather than leaving the matter to be debated between the concurring and dissenting justices, as it appears that the courts are already in disagreement as to whether this salutary principle separating contract and tort law is still the law in Florida. Compare Joyeria Paris, SRL v. Gus & Eric Custom Servs., No. 13-22214-CIV, 2013 WL 6633175, at *3-4 (S.D. Fla. Dec. 17, 2013) (deciding, based on Justice Pariente's concurrence, that the plaintiff had failed to allege a cause of action for fraud independent of its breach-of-contract claim where the fraud claim was based on "the same conduct that makes up the defendants' alleged breach of the parties' oral contract"), with Munoz Hnos, S.A. v. Editorial Televisa Int'l, S.A., 121 So. 3d 100, 103 (Fla. Dist. Ct. App. 2013) (the plaintiff's negligent misrepresentation and fraud claims arising out of a contract with the defendant were not barred, based on the court's holding in Tiara that "application of the economic loss rule is strictly limited to products liability cases"). It will, apparently, now take another decision by the Florida Supreme Court to clean up this issue as well.

The Lawletter Vol 38 No 11

Alistair Edwards, Senior Attorney, National Legal Research Group

     Oil and gas leases often contain an antiassignment clause prohibiting the lessee from assigning the lease to a third party without the written consent of the lessor (or the lessor's heirs, executors, or assigns). For example, in Harding v. Viking International Resources Co., 2013‑Ohio‑5236, 2013 WL 6211985 (Ct. App.), the court examined an antiassignment clause in an oil and gas lease providing in pertinent part that "[t]he rights and responsibilities of the Lessee may not be assigned without the mutual agreement of the parties in writing." Id. at *4, ¶ 14.

     In the above case, the court held that the antiassignment clause was enforceable, and it affirmed the decision of the trial court voiding the assignments of the lease by the original lessee. The court reached this decision despite the uncontradicted fact that the plaintiffs/lessors (who were the successors to the original lessors) had accepted and cashed monthly royalty checks for approximately eight months before even objecting to the purported assignments. The court explained: