Civil Procedure

April 21, 2015

Email Blasts and Personal Jurisdiction

At what point do email blasts from one state into another allow a defendant to be sued in the state where the emails were sent (and where the plaintiff resides)?

Plaintiff lived in Illinois and was injured at a ski resort in Wisconsin. He sued the resort in Illinois and the resort moved to dismiss for lack of personal jurisdiction.

The evidence indicated that 65 – 70% of the guests at the ski resort were from Illinois and that representatives of the resort attended a trade show in Chicago each year. The resort did no print or other ads in Illinois. It did collect email addresses from people, including those from Illinois, and did email blasts in an effort to solicit customers. It also had a website where people from Illinois and elsewhere could reserve rooms (but not purchase lift tickets. Finally, it offered tour packages from Chicago to the resort.

April 15, 2015

Expert Affidavit Does Not Satisfy Certificate of Good Faith Requirement

by The Law Offices of John Day, P.C.

While some parts of the Health Care Liability Act (HCLA) are making their way towards substantial compliance, the Court of Appeals recently reiterated that the requirement to file a certificate of good faith under Tenn. Code Ann. § 29-26-122 is mandatory. In Dennis v. Smith, No. E2014-00636-COA-R3-CV (Tenn. Ct. App. March 31, 2015), plaintiffs filed an HCLA claim against defendant. Defendant filed a motion to dismiss on the grounds (1) that plaintiffs did not comply with the pre-suit notice requirements because plaintiffs did not attach a HIPAA compliant authorization form to the notice letter, did not attach a list of all heath care providers receiving notice, and did not list the address of the claimant, and (2) that plaintiffs failed to file a certificate of good faith and failed to disclose the number of prior disclosure violations under § 29-26-122(d)(4). The trial court granted defendant’s motion to dismiss, and the Court of Appeals affirmed.

On appeal, the Court focused solely on the certificate of good faith issue, as failure to comply with the certificate of good faith requirements leads to dismissal with prejudice and would therefore be dispositive of the case. Plaintiffs here “concede[d] in their brief on appeal that instead of filing a certificate of good faith in compliance with the statute, plaintiffs filed a statement signed by their expert.” According to plaintiffs, this filing “over-complied by providing more information than the statute requires.” Essentially, plaintiffs argued that they provided the required information plus some and thus should be excused for not technically complying with the statute. The Court firmly disagreed.

April 7, 2015

Personal Injury Plaintiff Wins Summary Judgment

by The Law Offices of John Day, P.C.

Although summary judgment is often thought of as a tool for defendants, plaintiffs in personal injury cases should remember that motions for summary judgment can be beneficial and successful for them as well. In Bloomfield v. Metro. Govt. of Nashville and Davidson Co., No. M2014-00438-COA-R3-CV (Tenn. Ct. App. March 26, 2015), plaintiff was a firefighter employed by Metro. He responded to a call regarding an elderly patient who was in a wheelchair. When a paramedic arrived to assist in moving the patient, the plaintiff and the paramedic moved the patient in the wheelchair towards the door of the home, where they realized that the patient would have to be lifted to clear a door threshold and step down. Plaintiff was at the head of the chair while the paramedic was at the foot. Plaintiff told the paramedic to hold on a second and turned to get information from family members, but the paramedic lifted the foot of the wheelchair without communicating to plaintiff first. When plaintiff saw that the chair was about to tip backwards he grabbed it, injuring himself.

Because the paramedic was also employed by Metro, plaintiff sued Metro for the injuries he alleged to have sustained due to the paramedic’s negligence. Plaintiff used the deposition testimony of several Metro employees to show that there was a standard for lifting a patient in a wheelchair and that the person at the head of the wheelchair was responsible for initiating the lift. Further, plaintiff used the paramedic’s own deposition testimony, wherein he admitted that he violated procedure by lifting at the foot before everyone was ready. Relying on these facts, plaintiff successfully moved for summary judgment as to liability for the paramedic’s negligence, and a trial was conducted on damages only, wherein plaintiff was awarded the maximum amount allowed under the Governmental Tort Liability Act.

April 5, 2015

Removal of Cases to Federal Court Before In-State Defendants Are Served

by The Law Offices of John Day, P.C.

The Center for Constitutional Litigation has an interesting post about efforts by out-of-state defendants to remove cases from state court to federal court before in-state defendants are served.

April 4, 2015

Tennessee Requires Formal Notice Before Each Medical Malpractice Filing

by The Law Offices of John Day, P.C.

The issue of whether a Tennessee plaintiff who nonsuits his or her first medical malpractice (now heatlh care liability) complaint must give a second notice before re-filing is a closed matter given the recent ruling in Foster v. Chiles. In the recent case of Potter v. Perrigan, No. E2013-01442-COA-R3-CV (Tenn. Ct. App. March 26, 2015), just such a scenario played out.

Plaintiffs gave pre-suit notice on January 8, 2009; they filed their initial suit on April 8, 2009; then on September 8, 2009, they voluntarily dismissed the action. One year later, pursuant to the savings statute, plaintiffs filed a second complaint on September 8, 2010. Attached to this complaint was a certificate of good faith and copy of the previously filed pre-suit notice. Plaintiffs did not send defendants a second pre-suit notice before re-filing their claims. Upon motion of the defendant, the trial court dismissed for failure to comply with Tenn. Code Ann. § 29-26-121. The Court of Appeals initially reversed this decision, holding that “Plaintiffs fulfilled the notice requirement[.]” Defendant then appealed to the Tennessee Supreme Court, which remanded the case for reconsideration in light of an opinion it issued in January, 2015.

March 31, 2015

New Local Rules in Tennessee’s 23rd Judicial District

by The Law Offices of John Day, P.C.

The judge’s in Tennessee’s 23rd Judicial District – Cheatham, Dickson, Houston, Humphreys and Stewart Counties – have adopted new rules of court for the circuit and chancery courts.

Among the new rules is a requirement that all civil cases except appeals from the general sessions court be mediated before they can be set for trial. Rule 3.04.

February 28, 2015

Upcoming Civil Case Arguments at the Tennessee Supreme Court

by The Law Offices of John Day, P.C.

The Tennessee Supreme Court will hear two health care liability disputes among four cases scheduled for oral arguments March 4, 2015 in Jackson, Tennessee, one of which will address an interesting civil procedure question.

The first case concerns the procedures required when filing a health care liability lawsuit. At the time the suit was filed, state law required a plaintiff to file a certificate within 90 days of the initiation of a lawsuit, confirming that the plaintiff has consulted with medical experts before filing the suit and stating whether the plaintiff’s lawyer has ever been in violation of the law requiring the certificate. In this case from Dyer County, the attorney, who had never violated the statute, filed the required certificate but did not state that he had zero prior violations of the statute. The defendants sought dismissal of the case based on that omission. The plaintiffs sought to dismiss the case with the option to refile it.

The trial court allowed the dismissal and the defendants appealed. The Supreme Court will consider whether the failure to indicate zero prior violations of the law constitutes a failure to comply with the law requiring the good faith certificate. The case is Timothy Davis v. Michael Ibach, M.D. and Martinson Ansah, M.D.

January 11, 2015

Local Rule Changes in the 21st Judicial District

by The Law Offices of John Day, P.C.

The Judges in the Chancery and Circuit Courts for Williamson, Hickman, Perry and Lewis Counties have announced substantial changes to the local rules of court. The changes were effective December 1, 2014.

Among other significant changes, the local rules now require that one who objects to a motion filed by an opponent file written opposition to the motion. Rule 5.03(c). Regular motions must be filed at least fourteen days before a hearing, and opposition to the motion filed and served at least 4 days before the hearing.

December 29, 2014

A Website and a Unilateral Phone Call – No Personal Jurisdiction

by The Law Offices of John Day, P.C.

The Court of Appeals recently addressed the requirements of personal jurisdiction within the context of a misrepresentation case. In Wall Transportation, LLC v. Damiron Corp., No. M2014-00487-COA-R3-CV (Tenn. Ct. App. Dec. 19, 2014), plaintiff was a Tennessee limited liability company and defendant was an Indiana corporation. Defendant had a website where it listed heavy-duty trucks for sale, and plaintiff located a truck on said website that it was interested in purchasing. Plaintiff called defendant’s Indiana location from Tennessee to inquire about the truck and was allegedly told certain things about its condition and mileage. Thereafter, plaintiff traveled to Indiana where he inspected the truck, negotiated a price, entered into a contract for sale, and took delivery of the truck.

Several months later plaintiff filed suit in Robertson County, Tennessee alleging that defendant had made “false and fraudulent representations about the truck concerning its mileage, gear ratio, and the condition of the truck’s body[.]” Defendant made a special appearance for the sole purpose of filing a motion to dismiss for lack of personal jurisdiction under Tennessee Rule of Civil Procedure 12.02(2). The trial court granted this motion, finding specifically that defendant was an Indiana corporation, did not routinely do business in Tennessee, did not own property or have employees in Tennessee, did not direct advertising to Tennessee, did not purchase substantial amounts of materials from Tennessee, and did not routinely sell products to Tennessee customers. Further, the trial court found that all of the events related to the sale of the truck occurred in Indiana except for the initial phone call, which was initiated in Tennessee by plaintiff. Accordingly, the trial court held that defendant did not have the minimum contacts sufficient to establish personal jurisdiction.

Based on the same facts cited by the trial court, the Court of Appeals affirmed the lack of personal jurisdiction finding. The Court explained that personal jurisdiction is based on the existence of minimum contacts, and that it can be established through either specific or general jurisdiction. Specific personal jurisdiction exists where a plaintiff can “show that the nonresident defendant has purposely established significant contact with the forum state and that the plaintiff’s cause of action arises out of or is related to those activities or contacts.” General personal jurisdiction requires a showing that the defendant had “continuous and systematic” contacts in the state. Here, neither requirements were met. The Court called defendant’s contacts with Tennessee “tenuous at best,” noting that it was not registered to do business in Tennessee and had no office, employees, vehicles, contact information, or bank accounts in Tennessee. Although defendant’s website could clearly be accessed from Tennessee, the Court specifically stated that “[t]he mere existence of a website is not a sufficient basis to support a finding that [defendant] could reasonably anticipate being haled into court [here].” (internal quotations omitted).

November 7, 2014

Offer of Judgment Cannot Be Revoked During 10-Day Window

by The Law Offices of John Day, P.C.

The Tennessee Court of Appeals recently took up a civil procedure issue of first impression in the state. In McGinnis v. Cox, No. M2014-00102-COA-R3-CV (Tenn. Ct. App. Oct. 31, 2014), the issue presented was“[w]hether a Rule 68 offer of judgment may be revoked by the offeror within the ten-day time period for acceptance on the basis that the offeror ‘changed his mind.’” Following the weight of authority from federal and other state courts, the Court held that offers of judgment under Rule 68 are generally not revocable prior to the ten-day window expiring.

The McGinnis case arose from a car accident, and though no answer was ever filed, plaintiffs presented defendants with an offer of judgment for a specified amount or the policy limits of the applicable insurance policy. It was undisputed that the offer of judgment was made pursuant to Rule 68. There was some discrepancy between the date on the certificate of service and the date the offer was actually mailed, but defendants’ counsel received it on March 13, 2013. Counsel for both parties spoke two days later and agreed to forgo the deadline due to the postposed mailing. On that same day, however, plaintiff’s counsel faxed defendants’ counsel stating that the offer of judgment was revoked. The basis of this purported revocation was that the plaintiff had changed his mind. Subsequently, but on the same day and well within the ten-day time frame, defendants responded by fax that they accepted the offer of judgment in the amount of the policy limit. As there were no allegations of fraud or other good cause, the trial court found that the offer of judgment could not be revoked and thus granted a motion to enforce the judgment. The Court of Appeals affirmed.

In analyzing the issue, the Court determined that “the failure to include a provision allowing revocation [in Rule 68] is indicative of an intent not to allow revocation within the ten-day time period for acceptance.” The Court stated that adding a revocation provision would “deprive the offeree of the ten days to consider the offer of judgment the offeree was clearly intended to possess pursuant to Rule 68’s plain language.” The Court emphasized that the 10-day window was needed to give the offeree an appropriate amount of time to consider the offer, as rejecting such an offer subjects the offeree to certain risks. Allowing revocation would give the offeror the ability to force the offeree into a hasty decision.