Archive for the 'Civil Procedure' Category

Today the California Supreme Court is hearing arguments about the contitutionality of the controversial Proposition 8 that was passed in November, amending the California constitution to prohibit homosexual marriage. Based on the things I have read and heard, it seems that many people are having a hard time understanding that the actual issue before the court is not the merits of such an amendment, but whether an amendment of this kind can be made by a simple majority vote. In other words, the California Supreme Court will not (I should say “should not”) be deciding whether or not homosexual marriage is a good thing, but whether the state constitution allows such amendments to be made the way Proposition 8 was. In short, this is a civil procedure case.

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The Clarion-Ledger ran a very interesting article today regarding a former Jackson Police Department officer who plead guilty to vehicular manslaughter and whose record was expunged two years later. The article presents several interesting topics of conversation, not the least of which being the practice of deferred sentencing which appears to aid the “good old boy” reputation of Jackson law enforcement.

However, I want to focus on the issue of governmental immunity. Here is a relevant excerpt from the article:

On June 11, 2005, Middleton, who had been a Jackson police officer since 2003, was working a 2-10 p.m. shift. After dropping a prisoner off at the Hinds County Detention Center in Raymond, he headed north on Mississippi 18 near Siwell Road, according to police statements.

At the same time, around 10:44 p.m., Harris was heading in the opposite direction. Harris, driving a 2000 Pontiac Grand Am, tried to turn left onto Siwell.

Witnesses told police investigators that Middleton was driving at a high speed without his emergency lights or siren on. They said he ran the traffic light and crashed into Harris’ vehicle.

Middleton was indicted in October 2005. After a Jackson Police Department Internal Affairs investigation, he left the department.

Harris’ family has a wrongful death lawsuit pending in Hinds County Circuit Court against Middleton and the city of Jackson. No trial date has been set.

Assistant City Attorney Pieter Teeuwissen said the city’s position is that it is prohibited by law from paying the Harris family’s claim.

Teeuwissen said the state code says “an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense.”

Although the offense has been wiped from Middleton’s record, he pleaded guilty to a criminal offense, Teeuwissen said.

Sounds reasonable, right? You may not agree with the law, but there it is, black and white. A government employee is not acting within the scope of his employment if he is engaging in a criminal act. Middleton plead guilty to a criminal charge, therefore he was not acting within the scope of his employment, right? Not quite.

Whether the reporter considered it unimportant, or whether Mr. Teeuwissen omitted it from his interview, the actual statute reads a bit differently from the quote in the article. Here is Miss. Code Ann. § 11-46-5(2) in its entirety:

For the purposes of this chapter an employee shall not be considered as acting within the course and scope of his employment and a governmental entity shall not be liable or be considered to have waived immunity for any conduct of its employee if the employee’s conduct constituted fraud, malice, libel, slander, defamation or any criminal offense other than traffic violations. (emphasis added)

That changes the landscape a little, does it not? Respondeat superior and governmental immunity may be complicated issues, but there is a huge difference between a government employee knocking over a 7-11 and a police officer on duty, in uniform, in a marked government police cruiser returning from a duty of his employment driving recklessly, running a red light, resulting in the death of a motorist. One falls under the statute and the other doesn’t.

As I noted a couple of months ago, the dust kicked up by last year’s Supreme Court decision Bell Atlantic Corp. v. Twombly will take quite a while to settle. In a recent (and ongoing) case in which post-9/11 detainees are suing the federal government, the feds tried to get the case dismissed on the grounds that the facts alleged in the pleadings were unsupported by sufficient evidence. The Court of Appeals for the Second Circuit ruled that the pleadings were “plausible,” borrowing language from Bell Atlantic. According to the New York Times:

The standard for allowing the case to go forward should be higher than mere plausibility, the government said, pointing to recent Supreme Court decisions, including one in an antitrust case last year, that raised the standard for the evidence that plaintiffs must provide at the initial stage in order to withstand a motion to dismiss their lawsuit.

The unnamed antitrust case is a reference to Bell Atlantic and while the NYT article implies that the Government is getting greedy and arguing that even plausibility is insufficient, the text of the appeal makes it look more as if the Government is arguing that even though the Second Circuit couched its opinion in terms of plausibility, the evidence at this early stage is nonetheless insufficient under Bell Atlantic.

The case is styled Ashcroft v. Iqbal and the Supreme Court granted certiorari, meaning that we could soon have a firmer understanding of the impact of Bell Atlantic on the notice pleading system. Stay tuned…

Our federal court system operates under a “notice pleading” scheme, which simply means that a complaint filed to begin a lawsuit serves the purpose of putting the defendant on notice of the subject matter of the suit. It has been well-settled that detailed factual allegations are not required at the pleading stage; the plaintiff only need give enough information to make the defendant reasonably aware of the suit and able to begin preparing a defense.

So it was somewhat of a shock when, not even a year ago, the Supreme Court dismissed a RICO claim under a Fed. R. Civ. P. 12(b)(6) motion for failure to state a claim, based on the fact that the plaintiff’s pleadings failed to allege facts that crossed the line from “possible” to “plausible.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (U.S. 2007). The effect of such a ruling is still unknown, and some have gone as far as to suggest that Bell Atlantic may have ushered in a “post-notice pleading” era in federal civil practice.

Seventh Circuit Judge Richard Posner (the famed law and economics proponent and one of the most oft-quoted judges in casebooks of all colors) recently weighed in on the effect of Bell Atlantic. Judge Posner suggested that the holding of Bell Atlantic ought to be considered peculiar to complicated RICO cases and others like them, and suggested that the requirement for additional facts in the complaint which show a “plausible” claim is appropriate where discovery would be more costly than usual. Limestone Dev. Corp. v. Village of Lemont, Ill., No. 07-1438, 2008 WL 852586, at *5 (7th Cir. Apr. 1, 2008).

Judge Posner echoed the Supreme Court, stating that Bell Atlantic does not impose a heightened pleading standard. Nonetheless, it is hard to read it any other way. At the very least, Judge Posner’s explanation seems to indicate that those who will be most aversely affected by this line of cases will be those who are the most interested in obtaining relief, and it seems to protect those who are in the best position to handle the costs of the potential lawsuit. Large corporations typically have all the evidence, especially in RICO cases. The purpose of discovery is to unearth that evidence. By effectively holding that plaintiffs must have enough evidence to even get to the procedural phase in which they are empowered to obtain it places an additional hedge of protection around large corporations who now merely have to claim that the plaintiff’s complaint (while “possible”) is not “plausible,” and contend that discovery would be more costly than usual.

HT: Fight the Hypo