Civil Procedure

July 25, 2011

Twombly and Iqbal Do Not Apply in Tennessee State Courts

The Tennessee Supreme Court has ruled that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009) do not apply to cases filed in Tennessee state courts. The extremely well-written opinion marshals the arguments against the application of the federal standard in state court proceedings and will be of benefit to lawyers around the nation who attempt to keep the federal standard out of state courts.

In Webb v. Nashville Area Habitat for Humanity, Inc., No. M2009-01552-SC-R11-CV (Tenn. July 21, 2011), plaintiff filed a retaliatory discharge case against a Nashville not-for -profit organization. Defendant filed a Rule 12.02(6) motion to dismiss for failure to state a claim upon which relief can be granted. Habitat and amici curiae Tennessee Defense Lawyers Association and The Center for Individual Freedom asked the court to adopt the Twombly/Iqbal standard, which “retired” the notice pleading regime recognized in Conley v. Gibson, 355 U.S. 41 (1957), and followed for fifty years, in favor of a new “plausibility” standard.

Plaintiff argued that Tennessee should preserve its historic standard, which provides that a Rule 12.02(6) motion challenges only the legal sufficiency of the complaint, not the strength of the plaintiff’s proof or evidence. Highwoods Props., Inc. v. City of Memphis, 297 S.W.3d 695, 700 (Tenn. 2009). Plaintiff asked the Court to re-affirm Tennessee law which provided that "a complaint in a tort action need not contain in minute detail the facts that give rise to the claim, it must contain direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested . . . by the pleader, or contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial.” Leach v. Taylor, 124 S.W.3d 87, 92 (Tenn. 2004).

July 14, 2011

Defense Lawyers Call for Changes to the Federal Rules of Civil Procedure

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

The authors of this article have called for substantial changes in the Federal Rules of Civil Procedure.

Included in their proposals is this call for shifting the cost of discovery:

In General. A party submitting a request for discovery is required to pay the

July 7, 2011

Nevada Supreme Court Affirms Sanction of Striking Liability Defense Because of Discovery Abuse

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

The Nevada Supreme Court has affirmed a trial judge order that struck a defendant’s ability to argue liability, limiting it to contesting compensatory damages.

In Bahena v. Goodyear, the trial judge struck the defendant’s answer as to liability after it failed to follow prior court orders concerning several discovery matters, including the failure to produce a witness for a deposition. The court agreed with the trial judge that "repeated discovery delays attributed to Goodyear were such that continuing the trial date to allow discovery was not the appropriate remedy for Bahena since the prejudice was extreme and inappropriate." The Supreme Court explained that the trial judge "noted that the Bahena plaintiffs included a 14-year old who had been in a persistent vegetative state for the past two years together will the estates of three dead plaintiffs" and that "since the trial was scheduled to commence [shortly after the discovery deadline] Goodyear knew full well that not responding to discovery in good faith would require the trial date to be vacated" because "there could have been open questions as to the authenticity of approximately 74,000 documents that were the subject" of a prior court order.

In affirming the trial judge’s decision, the Nevada Supreme Court noted that the trial judge had prepared nine pages of carefully written findings of fact an conclusions of law analyzing the relevant factors, concluding that the degree of willfulness by Goodyear was "extreme" and "totally untenable and unjustified" and that the "responses to [p]laintiff’s’ interrogatories are nothing short of appalling."

July 6, 2011

Kentucky Supreme Court Holds That Personal Injury Plaintiff Lost Privilege By Claiming Mental Injury

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

The Kentucky Supreme Court has ruled that a plaintiff who asserted a claim of mental injury waived her right to assert that the psychotherapist-patient privilege protected her prior mental health records.

In Dudley v. Jefferson Circuit Court, 2010-SC-000458-M (Ken. S.C. 6/10/2011) plaintiff brought a medical malpractice claim alleging, inter alia, mental and emotional pain and suffering. Defendants sought her prior mental health records, and plaintiff sought a protective order, claiming that they were protected by the statutory privilege protecting psychotherapy records.

The court held that the records were discoverable, saying " Appellant’s claim for mental pain caused by the alleged negligence, put into question her mental state at the time the medical treatment occurred . It would be fundamentally unfair to permit Appellant to allege and prove mental anguish caused by the negligence while denying the [defendants] from reviewing her mental health records for the possibility of pre-existing mental conditions."

March 7, 2011

Personal Injury Claims and Bankruptcy Petitions

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

What happens when a personal injury plaintiff files a bankruptcy petition? What happens if that plaintiff fails to disclose in the bankruptcy petition that he has a personal injury claim that has not yet been filed? How does a bankruptcy court discharge affect the plaintiff’s rights to later file his personal injury claim?

The Tennessee Court of Appeals recently addressed these issues in the case of Reynolds v. Tognetti, No. W2010-00320-COA-R3-CV (Tenn. Ct. App. Mar.4, 2011). When the defendants learned that the now debt-discharged plaintiff was pursuing a tort claim for injuries received before he filed the bankruptcy petition, they filed a motion for summary judgment seeking dismissal of the claim on the theory of judicial estoppel.

Plaintiff responded to this motion by (1) petitioning the bankruptcy court to re-open the bankruptcy and (2) filing a motion to amend the complaint to add the bankruptcy trustee as a party plaintiff. The trustee then moved to intervene or be substituted as a party plaintiff.

January 6, 2011

Important Decision on Removal of Tort Cases to Federal Court

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

The U.S. Court of Appeals for the Second Circuit has ruled that the 30-day period for removing a case to federal court does not begin to run until "the plaintiff serves the defendant with a paper that explicitly identified the amount of damages sought."

Moltner sued Starbucks in state court in New York but did not state the amount of damages he sought. Moltner’s lawyer later sent a three million dollar demand letter to Starbucks. Starbucks filed a petition to remove the case to federal court more than 30 days after it received the complaint but less than 30 days after receiving the $3 million demand. The Second Circuit permitted the removal, rejecting the argument that Starbucks should have deduced from reading the complaint that the case sought damages in excess of the jurisdictional amount of the federal courts.

Here is the opinion in Moltner v. Starbucks Coffee Company, No. 09-4943 (2nd Cir. Nov. 2, 2010).

November 4, 2010

Iqual and Twombly Impact Pleading Standards Under FRCP Rule 8

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

FDCC Quarterly, a publication of the Federation of Defense and Corporate Counsel, has published an article on the impact of the relatively recent decisions of United States Supreme Court in Iqual and Twombly.

This is how the authors summarize the holdings of the two decisions:

Together, Iqbal and Twombly held that, to comply with the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must allege well-pleaded factual allegations (and not legal conclusions or bare recitations of the elements of a cause of action) that if presumed true ‘plausibly give rise to an entitlement to relief.’ Iqbal made clear this test should apply to all civil complaints. [Footnotes omitted.]

September 7, 2010

Private Investigator Privilege

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

A lawyer called me the other day and asked me if a lawyer’s communications with his or her private investigator are privileged under Tennessee law. The answer is "yes," as provided in T.C.A. § 24-1-209:

Communication between an attorney and a private detective or investigator hired by such attorney, while acting in their respective professional capacities shall be privileged communications.

March 22, 2010

Rule Change in State Court – Service of Pleadings and Papers By Electronic Mail

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

Effective July 1, 2010 a party to a litigation may serve papers in Adobe PDF format via electronic mail to the attorney’s email address. The process is a little more cumbersome than it need be, but it is a step-forward toward increasing the efficiency of law practice and reducing cost.

The rule change is a modification to Rule 5.02 of the Tennessee Rules of Civil Procedure. View this rule change (and the other changes to the Tennessee Rules of Civil Procedure) here.

Note: the amendments proposed to Rules 3, 4 and 26 have not been adopted.

January 1, 2010

New Local Rules in Memphis

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

The judges in Shelby County have adopted new local rules of court. Here is a copy.