September 08, 2012
Arizona: Tattoo Artists Enjoy Free Speech Protections
In an important free speech case yesterday, the Arizona Supreme Court held that tattooing is protected free speech under the First Amendment and Arizona's state constitution. The case is Coleman v. City of Mesa, No. CV-11-0351 (September 7, 2012).
Plaintiffs in the case sued the City after being denied a permit to open a tattoo parlor. The city's controlling ordinance effectively bans certain specified uses, including tattoo parlors, unless the city council grants a permit for the use. The Supreme Court, after finding tattooing to be constitutionally protected expression, held the city's permitting scheme vested unbridled discretion in city officials and failed the First Amendment's time, place and manner test. The Court reversed the trial court's dismissal for failure to state a claim and returned the case to that court for further proceedings.
The Arizona Court considered three approaches to the issue: (1) tattooing is purely expressive activity fully protected by the First Amendment; (2) tattooing is non-expressive activity not First Amendment protected; and (3) categorization on a case-by-case basis. Notably, the Court cited a student comment, Ryan J. Walsh, Comment, Painting on a Canvass of Skin: Tattooing and the First Amendment, 78 U. Chi. L. Rev. 1063 (2011), for the third approach.
June 25, 2012
Georgia Supreme Court Affirms Right to Be Present at Civil Trial
Last week, the Supreme Court of Georgia issued an important decision affirming a civil litigant's right to be present at trial.
The case is Kesterson v. Jarrett, No. S11G0590 (Ga. June 18, 2012), wherein the parents of a child suffering from severe cerebral palsy allegedly resulting from medial malpractice challenged a jury's take-nothing decision favoring the obstretricdian and hospital after the trial court excluded the child from the courtroom. The intermediate court affirmed, but the high court reversed, sending the case back to the trial court for a new trial.
Prior to trial in this case, the defendants moved to have the child excluded on grounds that her presence would result in an "undue prejudicial impact on the jury as to the liability issue." and because the child could not "meaningfully participate in and comprehend the proceedings." A key precedent for both the trial and intermediate court was Helminski v. Ayerst Labs., 766 F.2d 208, 218 (6th Cir. 1985).
The Georgia Supreme Court reversed in 6-1 decision, affirming the child's right to be present, despite her severe impairment and despite that her parents, as next friends, were allowed to be present. The takeaway:
There is, in other words, a personal element to the right to be present. The right is based not only on what the party can do to the case, but on what the case will do to the party. It is the party's interests that are being determined by the jury and the judge, and it is the party's life that will be directly affected by the outcome of the case.Thus, even if a person is deemed incompetent as a matter of law (for example, a young child like Kyla) or as a matter of fact (as Kyla may be), and must therefore be represented by a parent, guardian, or custodian, the person is still considered to be the "real party in interest." Even if she is unable, or the law does not allow her, to make the decisions about her case, she remains a person directly affected by the verdict. The individuals whose legal disputes are brought to our courts for decision cannot be treated merely "as an exhibit, as a piece of evidence," regardless of their legal competence.
The Court stated that concerns about prejudice arising from a party's presence should be addressed through jury instructions or other procedures without infringing on a party’s right to be present.
August 14, 2011
New Type Of Civil Procedure Textbook
Prof Ben Madison's (Regent University School of Law) rearch assistant, Melissa Yatsko writes to inform us of a new type of Civil Procedure textbook. Civil Procedure For All States. The book has a Facebook page and a blog which I cannot access because you need an invitation.
Professor Madison is interested in reaching out to all prof who teach Civil Procedure type classes and I applaud him for including adjuncts. If you would like to be involved you can send him an email at email@example.com.
This professor also runs a listserv designed for he book which is described as follows:
If you are a Pretrial Practice or State Civil Procedure professor and interested in becoming a member of the Pretrial Practice/State Civ Pro Listserv, where all can benefit from open discussions on teaching and share ideas, please email STATECIVPRO@LISTS.REGENT.EDU
I also applaud him for reaching out to others and forming a listserv.
I have not seen the book so I cannot comment on it. Frankly, I am not sure if I support this type of text for civil procedure. One of my problems with legal education today (and of yesterday) is that the materials utilized in textbooks are often useless. What good is a casebook if it utilizes a case in Nebraska on one page and another from California on another-particularly in subjects such as employment law that vary widely from state to state?
Where the issue of law is largely a product of federal law, a text book on federal law is useful. Civil Procedure is one of those classes where an entire text can be devoted to FRCP. But to expand that concept to state law and to lump all the states together no less- is something that does not seem educationally sound. Now, I recognize that Civil Procedure is one of those classes where the law is similar in each of the states so if a textbook like this is to be written, then Civ Pro may be one of those classes where it can work.
My idea of textbooks would be to make the practical to the practice of law. Students should be learning to practice law. So, a Civil Procedure textbook that concentrates on a particular state or FRCP seems more appropriate. Outside classes involving the FRCP, I recognize that most law schools do not follow this concept because they like to think of themselves as "national law schools" and because they do not really no where there students will practice.
I do not buy this for a minute. I believe that most law school texts are written the way they are because the professors themselves are not competent to practice law. Many of them, perhaps almost all of the newer ones who just got that minted P.hd degree never practiced law or practiced only for a few years as an associate doing library research. I had occassion to review some CV's of professor candidates at a major law school. I was shocked to see they put their summer associate experience on their CV. To me that just demonstrates how thin their legal experience is.
Prof. Madison's research assistant stated that he embrasses the 2007 Carnegie report and Best Practices for Educating Lawyers and therefore, he must be concerned with writing something useful and practical. He very well may be on to something and if you teach in this area his work is certainly worth a look.
I do not teach Civ Pro and I do not claim to be an expert in this, but if others have any ideas feel free to comment.
Mitchell H. Rubinstein
August 04, 2011
NYS Court of Appeals Defines Substantial Evidence
Often times cases are determined by the standard of review employed by courts. Matter of Ridge Road Fire Co. Schiano, ___N.Y.3d____(April 5, 2011), demonstrates this principal. A firefigher was injured and a hearing was held to determine his eligibilty for benefits. The court held that a review court should apply the substanial evidence test which it described as follows:
Under the Collective Bargaining Agreement, the hearing officer was required to "conduct the hearing in accordance with the established rules of evidence, consistent with the [New York State] Administrative Procedure Act." That Act provides, in relevant part, that "[n]o decision, determination or order shall be made except upon consideration of the record as a whole or such portion thereof as may be cited by any party to the proceeding and as supported by and in accordance with substantial evidence" (State Administrative Procedure Act § 306  [emphasis supplied]). The parties here agree, and we therefore assume, that, as applied to this case, the statute requires the District's denial of benefits to be upheld if substantial evidence supports it. Therefore, in accordance with this standard and in light of the CBA's terms, the independent hearing officer was required to give deference to the District's decision and Nowack bore the burden of establishing that the District's denial determination had not been supported by substantial evidence.
This Court has defined "substantial evidence" as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, and "is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt" (300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180-181 ). The standard "demands only that 'a given inference is reasonable and plausible, not necessarily the most probable'" (Matter of Miller v DeBuono, 90 NY2d 783, 793  quoting Borchers and Markell, New York State Administrative Procedure and Practice § 3.12, at 51 ).
Mitchell H. Rubinstein
March 16, 2010
Dodson: Justice Souter and the Civil Rules
Justice Souter’s recent retirement from the Court after nearly twenty years presents a unique opportunity to comment on his legacy. No doubt others will eulogize or castigate him for his membership in the Planned Parenthood v. Casey troika, but there is much more to the man and his jurisprudence. Indeed, the danger is that Justice Souter will be pigeonholed into one opinion, an opinion that he wrote early in his Supreme Court career, to the detriment of understanding the complex justice that he was. This short essay therefore analyzes a unique set of opinions--those that he authored on the federal civil rules. And what it finds is a justice deeply committed to the fair treatment of the litigants that come before him. That trait says much about David Souter, both the justice and the man.
This is a short, very thoughtful and very well written essay. Essays that examine a Supreme Court Justice's work in a particular legal area often make for interesting reading to me - Dodson's work here is no exception. Dodson's work is forthcoming in the Washington Univ. Law Review.
November 26, 2009
Litigating Amicus Status
I recently came across a case concerning the partial grant of amicus status to the City of New York. Disability Advocates v. Patterson, ____F.Supp.2d____(E.D.N.Y. Nov. 24, 2009). The City sought to be a "litigating amicus" which would enable it to particpate in meetings, settlements and to be copied on correspondence. While the court rejected this application as unnecessary, the court did cite to some authority which supported this type of elevated amicus status. The court noted that if the City wanted to participate in the litigation it should seek to intervene as a party.
I have a big problem with the concept of a "litigating amicus" because if granted, such a litigant is treated as a party without having to intervene. Law review commentary on this novel idea would be welcome.
Mitchell H. Rubinstein
August 14, 2009
Sanctions For Canceling Deposition
Blackberry's Speed Can't Outpace Sanctions is an excellent July 21, 2009 article from the New York Law Journal. It is about FRCP 30(g) which it describes as the no fault of divorce of sanctions rule and highlights a case where a lawyer canceled a deposition the night before via a blackberry email. As the article states:
OK, raise your hands if you've ever seen, much less brought, a Rule 30(g) sanctions motion. There haven't been a whole lot of them. We all know that, if we don't show up for a deposition noticed against us, we face all sorts of potential grief under Rule 37. But sanctions for deciding to withdraw discovery that we noticed ourselves? You betcha. Rule 30(g) is there and in your face. If you don't show for a deposition you noticed, you may be sanctioned.
Rule 30(g) is the no-fault divorce of sanctions rules. It doesn't measure animus or offense and doesn't turn on the quality of the reason for not showing up; it simply says that, if you don't show up, you may be sanctioned. The rule as written has no escape clause for giving reasonable notice of cancellation, but it does say that sanctions "may" be awarded under Rule 30(g), so the court has broad discretion whether to do so, and the amount of notice and the circumstances of the failure to attend come into play. "Courts allow the award of attorney's fees and expenses where the party noticing the deposition fails to attend and does not deliver sufficient notice of cancellation to the other." Donini Intern. S.P.A. v. Satec (U.S.A.) LLC, 2006 U.S. Dist. Lexis 11416 (S.D.N.Y. Mar. 16, 2006) (emphasis added).
Mitchell H. Rubinstein
October 28, 2008
Attorney Sanctioned In Employment Discrimination Case For Failing To Conduct Reasonable Investigation
Worrell v.Houston Can! Academy, ____F.3d____(5th Cir. 2008), serves to remind us that attorneys cannot file pleadings in federal court without first conducting a reasonable investigation. Here, the plaintiff's attorney was sanction $6,000 for failing to conduct an investigation with respect to who plaintiffs correct employer was. The plaintiff's lawyer, an associate in a lawfirm, named the company's parent as the employer even though the web site, which the attorney checked, specifically stated that it did not manage or operate plaintiffs true employer.
Mitchell H. Rubinstein
June 25, 2008
IDEA Case Dismissed For Failure to Serve Summons
Pierre v. NYC Dep't. of Education, ___F.Supp. 2d ___, N.Y.L.J. June 16, 2008(S.D.N.Y. June 10, 2008), Download pierre_v.doc reminds us of the importance of following the FRCP. In this IDEA case, the student prevailed before the Hearing Officer and the N.Y.C. Department of Education was ordered to pay for the student's private school placement. On administrative appeal, the State Review Officer reversed because Pierre's due process complaint notice failed to meet the informational requirements of the IDEA and New York State law. The SRO further found that the IHO erred in allowing Pierre to raise issues at the due process hearing that were not raised in the notice. Pierre, who had been represented by counsel throughout the litigation, appealed the dismissal to federal court; however the summons was never served on the NYC Dep't. of Education. Why? Because a cashier told him that the summons had to be filed in court. The court that this was not a vaild excuse for an extension, reasoning:
Counsel's only explanation in opposition to this motion to dismiss is that he "personally appeared at the cashier's window at the United States District Court for the Southern District of New York and inquired whether a Petition or a Summons would be required to commence this type of action. The clerks conferred and advised [him] to file a Petition." To the extent that the alleged response he received even speaks to the issue of proper service, counsel's reliance on cashier clerks for legal advice is not justified.
Second, a discretionary extension also is not warranted here. Although the statute of limitations would bar the refiling of this action,5 plaintiff has not advanced even a colorable excuse for her neglect. That plaintiff's counsel was - and may still be - unaware that proper service must include a summons does not qualify as a "colorable excuse." In addition, plaintiff has not alleged that the defendants concealed the defects in service. Quite the opposite, the defendants informed plaintiff's counsel on November 30, 2007 that they believed service was defective. Yet plaintiff failed to exercise diligence in requesting an extension of the time for service and, indeed, asks for the first time in opposition to this motion to dismiss only that the Court offer her "the opportunity to cure any defects it may find."
Further, plaintiff - represented by counsel - has repeatedly failed to follow basic procedural rules. For example, to date she has not filed proof of service. See Fed. R. Civ. P. 4(l)(1). In contravention of this Court's Local Rules, she has not submitted a legal memorandum of law, and she cites to no legal authorities in her "Response to Defendants' Motion to Dismiss." See S.D.N.Y. Local Civ. R. 7.1. Instead, in a three page "Response" to the motion to dismiss, plaintiff's counsel merely recites the steps he took to commence this action.
The real loser in this case is, of course, the student.
Mitchell H. Rubinstein
June 20, 2008
In Responding To Summary Judgement Motion Specific Facts Must Be Alleged
ARROYO-AUDIFRED v. VERIZON WIRELESS, INC, ___F.3d___ (1st Cir. June 4, 2008), is an important summary judgement procedural case. Ultimately, the court granted the employer summary judgement on the plaintiffs claims of age discrimination. Significantly, the First also commented on how a response to a summary judgement should be made. A party can not simply assert a denial and instead must assert specific facts. As the court stated:
Next, we note that while Arroyo complied with Fed. R. Civ. P. 56 and Local Rule 56(c) by submitting an opposing statement of material facts in support of his objection to Verizon's summary judgment motion, his denials of many of Verizon's asserted facts consisted of the following statement: "Denied, as it is a matter of veracity for the jury to assess, together with all the circumstances in the case." The district court deemed such denials as ineffective for the purpose of opposing summary judgment, and we do as well. It is simply not enough to say, in effect, that the testimony of a Verizon employee might be disbelieved by a jury. Instead, Arroyo must offer specific facts to counter those set out by Verizon. See, e.g., Vega, 3 F.3d at 479 (nonmovant's facts must demonstrate the existence of definite competent evidence fortifying plaintiff's version of the truth). This is the case even where motive and intent are at issue. Santiago v. Cannon, 138 F.3d 1, 5 (1st Cir. 1998). Arroyo may not meet his burden by citing "an inequity and tacking on the self-serving conclusion that the defendant was motivated by a discriminatory animus." Id. (quoting Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir. 1992)).
Mitchell H. Rubinstein
June 16, 2008
8th Reinstates Dismissed Pro Se Case For Failing To Comply With Discovery
Smith v. Gold Dust Casino, ___F.3d___ (8th Cir. 2008), demonstrates just how difficult it is to get a case dismissed against a pro se litigant on a procedural ground. A pro se litigant was given several adjournments due to poor health and to find an attorney. 8 months after his last adjournment he found counsel on condition that he get another extension which he was unable to get. The District Court granted the employer's motion to dismiss. The 8th reversed a dismissal reasoning:
The record does not show that Smith intended to delay the proceedings by
failing to comply with discovery. Nor, does the record support the district court’s
characterization that Smith contentiously refused to comply with court orders. To
justify the extreme sanction of dismissal with prejudice, this court has required far
more egregious and willful conduct than presented here. See, e.g., Good Stewardship
Christian Ctr., 341 F.3d at 797-98 (holding dismissal with prejudice warranted when
the record showed that plaintiff’s conduct which included making several ex parte
statements in violation of a district court order, making numerous baseless motions
for sanctions against opposing counsel, failing to properly answer requests for
admissions, and obstructing discovery during depositions, was designed to delay
proceedings); Hunt, 203 F.3d at 527-28 (holding dismissal with prejudice warranted
when between the issuance of the pretrial order and the date trial was set to
commence, the litigant “engaged in at least six distinct violations of the court’s orders
or of the Federal Rules”); Rodgers, 135 F.3d at 1218 (holding dismissal with prejudice
warranted when the litigant failed to appear at two court ordered depositions,
disregarded the district court’s order to produce certain material documents, and
violated a court order prohibiting him from firing his fourth set of counsel).
In this case, Smith was simply incapable of complying with the discovery
deadlines because of, among other things, a serious health problem which required
surgery. Furthermore, the record shows that throughout the discovery period Smith
made sincere efforts to complete discovery, inform the court of his progress, and give
explanations for any delays.
This is not a case where a litigant flagrantly disregarded or ignored any advance
warning from the district court that failure to comply with discovery deadlines would
result in dismissal with prejudice. The district court did not give any such warning
here. While the failure to give warning that a litigant is “skating on thin ice,” does
not, alone, compel reversal, we certainly encourage it as it would put a litigant,
especially a pro se litigant such as Smith, on notice that he risks irreversibly losing the
right to bring suit. See Rodgers, 135 F.3d at 1221. The district court’s failure to give
Smith any advance warning weighs against imposing the extreme sanction of
dismissal with prejudice. This is especially so in light of the fact that in the eight
months that passed between the district court’s April 7, 2006 order extending the
discovery and motions deadlines and Gold Dust’s motion to dismiss Smith’s
complaint, Gold Dust made no effort to inform the district court of Smith’s
Mitchell H. Rubinstein