Articles Posted in Federal Law

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Currently under Federal Rules of Civil Procedure Rule 34, a document request cannot be served on an opposing party until the attorneys have met and “conferred as required by Rule 26(f)” with only a few exceptions. When the lawyers meet, “the parties must consider the nature and basis of their claims and defenses and the possibilities of promptly settling or resolving the case; make or arrange for disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan.”

Under the new rules approved by the U.S. Supreme Court on April 29, 2015 as amended and referred to Congress, the rules will become effective on Dec. 1, 2015, parties will be permitted to deliver Rule 34 document request 21 days after service of summons and complaint. Specifically, Rule 26(d)(2) will be added, which provides as follows:

(d) TIMING AND SEQUENCE OF DISCOVERY

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(2) Early Rule 34 Requests.

(A) Time to deliver. More than 21 days after the summons and complaint are served on a party, a request under Rule 34 may be delivered:

(i) To that party by any other party, and
(ii) By that party to any plaintiff or to any other party that has been served.

(B) When Considered Served. The request is considered to have been served at the first Rule 26(f) conference.

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The U.S. Court of Appeals for the 7th Circuit in Chicago has affirmed a decision by the U.S. district judge who refused to reopen a default judgment. Kyler Moje, a hockey player on the Danville Dashers of the Federal Hockey League, lost an eye to high-sticking during a game against the Akwesasne Warriors. Moje sued Oakley Inc., which made the visor that Moje blamed for offering inadequate protection to his face and eyes. But Moje also sued the Federal Hockey League itself.

Rather than notifying its liability insurer, the Federal Hockey League hired a lawyer based in Syracuse, New York, John LoFaro. A month after the lawsuit started in the U.S. District Court, Oakley’s attorney called Dan Kirnan, the Federal Hockey League president, to ask why it did not file an answer to the complaint filed against it. Kirnan in turn contacted LoFaro, the League attorney. LoFaro told Kirnan that he had filed an answer to the complaint. LoFaro sent the league what he claimed to be a copy of that answer.

However, the court’s docket did not reflect any such court filing made on behalf of the defendants. Moje asked the court to enter a default judgment. LoFaro did not respond to the default motion nor the court entry of the default judgment. The court permitted Moje to claim damages. Four months after the lawsuit was begun, the U.S. District Court entered a final judgment of $800,000 for the damages suffered by Moje against the Federal Hockey League.

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In a civil rights lawsuit under 42 U.S.C. §1983, Danny Farley hired an attorney who began the process of filing the complaint in the Southern District of Illinois in East St. Louis, Ill. The local rules in the district require that documents be filed electronically through the CM/ECF system. Attorneys must use this system to file documents unless they have received a special exemption.

Under the rules in place at the time, e-filers could not open a new case in CM/ECF on their own. Rather, they had to submit civil cases by e-mail in PDF form to the proper divisional mailbox. Upon receipt, the division clerk would open a new case in the CM/ECF system and inform the attorney that they could proceed in filing further documents.

On March 8, 2011 at 4:15 p.m., an assistant to Farley’s attorney e-mailed the complaint and civil cover sheet to the proper e-mail address. The clerk’s office responded at 5:11 p.m. with a notice stating that a new civil case had been opened, but the complaint was not being filed with the clerk until it was transmitted to the CM/ECF system.

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In the aftermath of the recent Philadelphia Amtrak derailment, which cost the lives of eight individuals and severely injured more than 200, it came to light that the U.S. Congress had passed an act in 1997 to limit or cap Amtrak’s total payouts to train crash victims to $200 million. In an Associated Press report by writer Eileen Sullivan, it was reported that the cap may be too low for the injured and killed in the Philadelphia Amtrak crash.

The $200 million payout cap was for a single passenger rail incident was part of a late effort in 1997 to pass legislation that would help Amtrak financially, which was on the brink of bankruptcy at that time.

The 1997 legislation did not adjust the payout cap for inflation. If that were considered today, the payout cap might reach somewhere in the area of $300 million in 2015 dollars.

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The U.S. Court of Appeals for the 7th Circuit in Chicago has found an Illinois resident did not establish the minimum state contacts for a case to be heard in the U.S. District Court for the Northern District of Illinois in Chicago.

William Kipp purchased a ski ticket at Devil’s Head Ski Resort in Merrimac, Wis., on Jan. 6, 2012. As Kipp was attempting to board the ski lift, the speed of the lift caused him to be thrown from the chair. He suffered a left clavicle, collar bone fracture.

Kipp sued Ski Enterprise, the lift operator, claiming that the lift’s operating speed was the too fast and that the operator was negligent, causing his injuries.

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The United States Constitution and the Illinois Constitution have to credit many key provisions and the foundation of American laws and freedoms to the June 15, 1215 signing of the Magna Carta at Runnymede, England, by then King John of England.

The origin of the 13th century Magna Carta began as the rebellion by numerous barons who found that King John’s tyrannical rule needed to be curtailed. The Magna Carta was drafted with some 63 individual clauses. When the final draft was finally completed, it was signed at Runnymede because it was located in a place that was far enough away from King John’s castle at Windsor and still far enough away from some who rebelled against the king to make it the ideal location for the sealing of the Great Charter.

Just six weeks after the Magna Carta was sealed, the Pope in Rome ordered that the Magna Carta be revoked calling it antithetical to the right of the kings of Europe and elsewhere. With the Pope’s order revocation, a civil war broke out in England. King John, however, died five months later and his eldest son Henry became the king. When King Henry took over the realm, he reinstated the Magna Carta to restore peace in the land, ending the English civil war.

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The Federal Tort Claim Act (FTCA) provides that a tort claim against the United States “shall be forever barred” unless the claimant meets two deadlines. First, the claim must be presented to the appropriate federal agency for administrative review “within two years after [the] claim accrues.” 28 U.S.C. §2401(b). Second, if the agency denies the claim, the claimant may file a suit in federal court “within six months” of the agency’s denial. Id.

In this United States Supreme Court decision, Kwai Fun Wong and Marlene June, respondents in Nos. 13-1074 and 13-1075, respectively, each missed one of those deadlines. Wong failed to file her FTCA claim in federal court within 6 months, but argued that was only because the District Court had not permitted her to file that claim until after the period expired. June failed to present her FTCA claim to the federal agency within 2 years, but argued that her untimely filing should be excused because the government had, in her view, concealed facts vital to her claim.

In each of these cases, the District Court dismissed the FTCA claim for failure to satisfy §2401(b)’s time bars, holding that, despite any justification for delay, those time bars are jurisdictional and not subject to equitable tolling. The Ninth Circuit reversed in both cases, concluding that §2401(b)’s time bars may be equitably tolled.

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A federal judge has denied Wisconsin Supreme Court Justice Shirley Abrahamson an injunction that would have restored her to the chief justice post she lost after a referendum in April 2015.

U.S. District Judge James Peterson ruled that there was no irreparable harm in keeping Justice Patience Roggensack in the chief justice post while Abrahamson’s legal challenge in federal court continues. He added that he sees no signs of Roggensack making any wholesale changes to the court’s functions as chief justice.

Abrahamson had requested a temporary restraining order that would have blocked a constitutional amendment leading to her demotion.

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In order to obtain class certification under Federal Rule 23(b)(3), the plaintiffs must be able to show that their damages arose from actions attributable to the defendants who create legal liability. Plaintiffs must show at the class certification stage that they can prove, through common evidence, that all proposed class members were injured by the defendant’s alleged wrongful conduct (or if there are a few who were not, it will be possible to easily identify and exclude those individuals).

In the Comcast antitrust case, the federal court had initially granted certification in Comcast to decide whether the Daubert standard applied to class certification. The federal court ended up decertifying the antitrust class based on two flaws in the damages model offered by the plaintiffs’ expert. First, the court found the model failed to show that damages could be determined on a common basis across the class. Second, the court found that the damages model did not track the plaintiffs’ theory of liability because it included three theories of antitrust injuries the plaintiffs were no longer pursuing and did not categorize the alleged harm from each.

The Comcast case, which was handed down in 2013, is no longer an easy shield for defendants in class certification matters. Comcast does not stand for just antitrust cases. The case decision however, does require plaintiffs to produce a workable damages model that excludes plaintiffs who were not injured.

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The beneficiaries of the Barbara B. Kaull Trust included the biological children of Mark James Kaull’s father, Mark Kaull, who died in 2010. Mary Kaull, acting as trustee of the Barbara B. Kaull Trust, petitioned the court for a ruling on whether Mark, the elder, was also the father of Ryan Donald Schrader. Mark James Kaull might be the brother of Ryan Donald Schrader. To determine whether they were in fact brothers, Mary Kaull asked the court for an order compelling Mark James Kaull to submit to a DNA test. Mark James Kaull refused and was held in contempt of court. Mark James Kaull argued that the Illinois Supreme Court Rule 215 as revised and amended in 1996 is unconstitutional under the U.S. and Illinois Constitutions.

Mark James claimed that the revised Rule 215 violated the prohibition on reasonable searches and seizures under the U.S. Constitution’s Fourth Amendment, plus his right under Article 1, Section 6 of the Illinois Constitution to be free from unreasonable searches, seizures and invasions of privacy.

This case, which was set in Winnebago County, Ill., granted Mary’s request for the DNA testing. Mark appealed from that order which fined him $100 and a dollar a day for declining to obey.

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