Appellate Law & Practice

CA1: SDO declines to extend 1985 to political affiliation

Perez-Sanchez v. Public Building Authority, No. 07-1869 (6/30/08).  Justice O’Connor gets to write on political discrimination.  This plaintiff claims that he was generally harassed and made miserable in the wake of a shift in Puerto Rican politics.

He served the director of legal services of the PBA.  Alas, she was only authorized to accept service for the defendants in their official – but not personal – capacities.  The First points out that there was no effort made to cure this.

The rest of the claims fail on statute of limitations grounds.  1983 claims get their statutes of limitations from state law, which, in this case, is one year.  The argument that this is a continuing violation fails, because all of the later events “were either effects of that initial wrongful conduct, or isolated incidents that did not amount to separate and actionable violations.” 

A 1985(3) claim fails, because the First decides not to extend 1985(3) to political affiliation. 

CA1: lessees lack standing to sue manufacturers

In Re: New Motor Vehicles Canadian Export Antitrust Litigation, No. 07-1990 (6/30/08) affirms the dismissal of suit under Section 4 of the Clayton Act brought by lessees of new cars, who argued that the defendants “conspired to restrict the flow of cheaper Canadian cars into the U.S. market...resulting in artificially high rental payments under plaintiffs' lease agreements in the United States.”  Applying Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), and Kansas v. UtiliCorp United, Inc., 497 U.S. 199 (1990) the First says that they are indirect purchasers, because in car leasers “ The lessee does not deal directly with the leasing company until after the lease is executed and the leasing company has paid the purchase price to the dealer.”  In this case, unlike In re Mercedes-Benz Antitrust Litigation, 364 F. Supp. 2d 468 (D.N.J. 2005), the plaintiffs did not join the dealers or argue that the dealers were in on the conspiracy.  The First also notes that this failure could result in a double recovery (even though the statute of limitations has run.) 

Strangely, the First invokes Lewis Carol like the DC Circuit just did.

CA1: ERISA preemption and removal – a very sexy dance

Negron-Fuentes v. UPS SCS, No. 07-2463.  This is a sad, but fun case.  The plaintiff took short term disability leave from UPS to be treated for a brain tumor.  When he visited UPS, as he was recovering, the folks there were not that nice to him, and made him depressed.  His benefits plan then told him that he could either apply for long term disability or seek reinstatement.  Then, “psyche!” the plan told him that his benefits had not vested.  This was to be the first of many “Psyches!”  However, the First eventually figures out that the District Court overdid claim preclusion on claims that might be ERISA claims.  (By the way, I had a very similar problem as a Civ. Pro. final.  Since most of you went to law schools that teach “local law” you wouldn’t understand.)

So, he sued in Puerto Rico Superior Court asserting state claims.  UPS removed, arguing that his actions were completely preempted by ERISA.  In Federal Court, he added on a bunch of federal claims.  The District Court dismissed the state-law claims without prejudice.  He then went back to state court and asked to “reopen” them (to avoid a statute of limitations problem).  UPS opposed this in the state court, but lost at the state trial and appellate courts.

CA1: false start on law of bankruptcy intervention in professional malpractice cases

Costa v. Notinger, No. 07-1898 (unpublished).  This is a great bankruptcy procedure case that seems to be buried.  This case began as a Chapter 11 bankruptcy case.  The debtors hired Marotta Gund Budd & Dzera, LLC (a “crisis management firm”). Then the case was converted to a Chapter 7 petition.  The crisis management firm submitted a fee application.  Costa wasn’t happy about this, and he claimed that the crisis management firm had malpracticed upon him.  But, since he was a creditor, he couldn’t really prosecute the malpractice action (only the trustee could).  The best he could do was argue for denial or disgorgement of their fees. The bankruptcy court figured that because the disposition of the fee application would “bar a future malpractice action on res judicata grounds” the Bankruptcy Judge converted the matter into an adversary proceeding, and designed the trustee as the plaintiff.

Costa (the debtor) wasn’t happy.  Although he had a “limited” right of participation, he claimed that since he started the malpractice action, he should get to follow through on it.  He tried to intervene.  That motion was denied, and the denial was affirmed by the District Court.

Just as this case was getting interesting, we find out that Costa filed a pro se brief that incorporated by reference the arguments made by counsel below.  So, rather than find out about this kind of intervention, the First says that they are forfeit.  The First sort of lays out the law on intervention, and conducts a forfeiture analysis and concluded that because the trustee and the debtor are essentially aligned in interest, the Bankruptcy Court probably made the right decision as there is a rebuttable presumption that existing parties will represent the interests of an intervenor under In re Thompson, 965 F.2d 1136, 1142 (1st Cir. 1992).

CA1: No minimum contacts in eye doctor case

Phillips v. Prairie Eye Center, No. 07-2469 holds that the defendant didn’t have minimum contacts with Massachusetts to support specific jurisdiction.  The First rejects the idea that because the plaintiff (a person claiming breach of an employment contract) received some communications in Massachusetts) that is minimum contacts.  Whatever the case, none of the witnesses are in Massachusetts, and none of the parties are now located there, anyway.

CA1: Oprah wins

Tracy v. Winfrey, No. 07-1630 (unpublished).  Okay, someone sued Oprah for copyright infringement.  I don’t really know the facts, but there seems to be a claim that Oprah didn’t return some material.  The court dismissed on a 12(b)(6).  Then Tracy appealed.  Strangely, Tracy then argued in a motion that the First lacked jurisdiction and that the District Court had really dismissed for lack of subject matter jurisdiction.  The First says “Upon our de novo review, neither copyright nor misappropriation of trade secret are apt legal theories for the facts as pled by Tracy, which, even construed in her favor, reveal that Tracy voluntarily and without reservation submitted her material to the defendants. Nor would the defendants' refusal to return her material constitute a claim of fraud.”  The First also says that was no reason to give the plaintiff leave to amend, because she was on notice of the possible defects as they were mentioned in the defendant’s motion. 

And finally, the First concludes that “assuming without deciding that a request for enforcement of a statutory attorney's lien, pursuant to Mass. Gen. L. c.221, § 50, is properly initiated by motion filed in this court, we deny the motion filed by Tracy's counsel, as the statute requires that a judgment have entered in the client's favor and no such judgment has entered in this case.”

This seems very strange.

CA1: First tries to fix procedural problems in post-verdict political discrimination issues

Negron-Almeda, et al v. PR Trade and Export. Nos. 07-2013, 07-2140.  This was a Puerto Rican political discrimination suit.  The plaintiff won.  The District Court granted reinstatement and backpay and didn’t let the agency intervene (as of right) because it was filed late in the proceedings.  More later.

This was a Puerto Rican political discrimination suit under 1983.  From what I can tell, the Puerto Rican culture revolves around political discrimination.  I don’t think they do anything else down there.

Anyway, he plaintiff won.  The District Court granted reinstatement and backpay and didn’t let a successor defendant agency intervene (as of right) because it was filed late in the proceedings.

Earlier on, the official capacity claims were dismissed on summary judgment, which is strange, because it looked like the plaintiffs were seeking injunctive relief.  Then, at trial, the District Court granted judgment as a matter of law the individual capacity claims against some of the defendants.  In an earlier appeal, the First reversed, and they retried the case.

After the second trial, the District Court issued a decree providing for reinstatement anc back pay, and nothing that “it was never its intention to bar Plaintiffs from seeking and obtaining equitable relief at the time of the [2004] dismissal of their monetary claims against Defendants in their official capacities.”  That doesn’t make sense.  The defendants moved for some clarification as it seemed like the court was ordering some kind of retrospective relief.  The District Court said that the defendants were entitled to qualified immunity and therefore the caselaw on whether “backpay could not be awarded against an individual employee but only against an employer.”  The successor agent said it should be able to intervene because any award of back pay would be against it.  The District Court said the motion to intervene was untimely.

The First says that the agency’s motion to intervene should have been granted.  It says that the District Court, got overly hung up on the timing of the motion and didn’t seem to care about the other FRCP 24(a)(2) factors.  The First points out that the 2004 order was confusing and ambiguous and screwed everyone up, because the defendants were under the impression that the claims for reinstatement were no longer moving forward.

More interesting is an argument that they had an implicit cause of action under Ex parte Young, 209 U.S. 123 (1908) .  This was advanced by the plaintiffs at oral argument, but the First says that this wasn’t contained in the pleadings and it was waived anyway.

The First also says that the motion to intervene, made a month after the grant of equitable relief wasn’t too late, given the circumstances.    So, the successor agency should have been able to intervene.

On the merits of the backpay, the First takes it away.  The First reasons that “It is settled law in the federal courts that backpay as such cannot be awarded against a defendant in his or her individual capacity...backpay is an award against an employer and, thus, any demand for backpay from an individual-capacity defendant is a non-sequitur...a suit for backpay, even one brought under a tort-like cause of action such as that supplied by section 1983, necessarily stems from the contract of hire — a contract to which the individual-capacity defendant was never a party.”  The First says this applies to retirement contributions as well.  Then, it tries to rebut the inevitable firestorm of snarky comments from the hundreds of blogs that focus on the First Circuit:

Lest the cynical among us suggest that cold logic has robbed the plaintiffs of their just desserts, we hasten to add that this rule is in no way inequitable. While backpay as such cannot be imposed upon an individual-capacity defendant, a successful plaintiff is nonetheless entitled to receive compensatory damages against such a defendant.  Properly proven, those damages will equal the grand total of the plaintiff's aggregate lost wages and benefits.

Finally, the First ends by saying that the plaintiffs can and should try and vacate that earlier confusing summary judgment order.

CA1: ADA case less interesting than thought

R.-Z. v. Commonwealth of PR, No. 07-2025.  While this claim was filed under the ADA, the Rehabilitation Act, and 1983, it comes down to a suit against the state employed a teacher that sexually abused a child with cerebral palsy. The teacher was convicted.  There was an allegation of retaliation by the parents for going to the police. 

The most interesting issue is whether the Court of Appeals has jurisdiction over appeals of denials of sovereign immunity defenses.  It does.  However, while a number of interesting issues were raised, it seems that the defendants changed their theories and the First says that they were waived.

However, because the plaintiffs sued everyone, the qualified immunity issues get a bit complicated.  The First points out that qualified immunity doesn’t apply to the Commonwealth of Puerto Rico or any official capacity claims because those are usually injunctive.  (I wish the popular press would understand this.) 

The First seems to say that the retaliation claim is hopeless (based on related discussions by the magistrate) but also says that it doesn’t really review the weight of such evidence (even under a qualified immunity defense) on an interlocutory appeal. 

CA1: ethics and medical devices and conflicts of prejudment interest

Jasty v. Wright Medical, Nos. 07-1743, 07-1744.  The plaintiff was a doctor and a “consultant” to a medical device manufacturer. He makes more than most lay people that prattle on about tort reform makes.  It seems that he was sort of a glorified spokes-doctor for it, and Wright expected Jasty to demonstrate and “host” surgeons.  Wright thought Jasty wasn’t doing enough and terminated the contract.  Wright sued for the breach and under two state consumer protection statutes.  Summary judgment in favor of the plaintiff was recommended by a magistrate on the breach of contract issue, as well as in favor of the defendant on all the other issues.  Wright filed an objection to the magistrate’s recommendation and submitted lots of new evidence.  The judge adopted the recommendation and struck the new evidence.  A jury awarded Jasty 2.5 million.  The judge, however, found that Tennessee law on prejudgment interest applies rather than Massachusetts law.  The First says that “Tennessee” had the most contacts with the transaction.  Applying Restatement (Second) of Conflict of Laws, §6(2), the First essentially concludes that “where one party has contracted for the services of independent contractors based in different states, there is greater certainty and predictability for all parties if those contracts, negotiated at similar times and on similar terms, are all governed by the same state's laws, rather than by the law of the state where an independent contractor happens to live.”

On appeal Wright didn’t identify the excluded evidence.  The First says that a decision by a District Court judge to accept new evidence is reviewed for abuse of discretion.  The First says it wasn’t such an abuse of discretion, but concludes that it isn’t “vexatious.” 

The most interesting issue is the consumer-protection claims.  Jasty claims under Mass. Gen. Laws ch. 93A and Tenn. Code Ann. § 47-18-01 that Wright was engaged in unfair and deceptive practices by pointing to a letter from Wright’s CEO which says "accept[s] [Jasty's] commitment to use the Advance Knee in the majority of your knee cases (i.e., 120 of 150 or so.).”  Jasty gets a letter from an “expert” in medical ethics which says that this is unethical and provides a "Special Fraud Alerts" from the Department of Health and Human Services' Office of the Inspector General, 59 Fed. Reg. 65372-01 (Dec. 19, 1994)” which seems to intimate that this is a kickback.   But, the First turns this all around and says “There is no evidence on the record that Jasty complained of the terms or refused to comply. In view of Jasty's own conduct in the matter, no reasonable factfinder could conclude that Wright violated Jasty's rights under the consumer protection acts through the alleged kickback activity.”

The second most interesting issue is whether an designated expert can be called by the opposing party.  No.  It was an abuse of discretion and harmless, anyway.

On the breach of contract issue (and whether summary judgment is appropriate), the First concludes that there was no ambiguity in the contract, especially when terms were read together. 

CA1: another age discrimination claim fails

Arroyo-Audifred v. Verizon Wireless, No. 07-1661 affirms a grant of summary judgment in an age discrimination case.  Some claims are resolved on statute of limitations grounds, and some are resolved because the plaintiff messed up the summary judgment procedure.  The grounds for not promoting the plaintiff were a lack of “professional maturity” (ah, nice and vague).  The plaintiff claims that a “yawn” during an interview showed some animus.  But, the First doesn’t buy that.  Strangely, we all know that in real interviews, if someone yawns it means that the entire interview is a sham and that the interviewee’s time is being wasted.  For this reason, I believe that employers should be required to post bonds before interviewing people.  There were a bunch of other small comments, but the First says that they don’t indicate any discriminatory animus.

The First pauses to note that when submitting an “opposing statement of facts” for purposes of R. 56 and the local rules that it is insufficient to say “ "Denied, as it is a matter of veracity for the jury to assess, together with all the circumstances in the case."  In essence, specific facts are required.