I’m pretty sure that written discovery is the worst part of being a trial lawyer. I know for a fact that jurisdictional deadlines are the worst part of being an appellate lawyer.
But just in case you needed further convincing, the Fourth Circuit–as reasonable and user-friendly an appellate court as you will find–just dropped an
As promised, here is a write up on the Fourth Circuit’s recent opinion in Barbour v. International Union. I can’t take credit for this one. It’s a guest post submitted a reader, who would prefer to remain anonymous. Can’t say I blame him/her–heck, I wouldn’t want to be associated with this blog, either:
For Civ Pro enthusiasts, last month saw the Fourth Circuit issue a rare en banc opinion controlling how cases are removed from state to federal court when multiple defendants are served at different times. The decision reversed a prior panel’s decision last year that rejected the McKinney Intermediate Rule in favor of the last-served defendant rule, discussed below.
You might think such a procedure would be controlled by statute. After all, 28 U.S.C. 1441(a) provides that “the defendant or the defendants” can remove a case.
But Congress, in its infinite wisdom, wrote 28 U.S.C. 1446(b), which sets forth the procedure for doing so, to address removal only when there is one defendant, not more. That section reads:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
You can see the problem here. With one defendant, it’s straightforward. But what if there are two, three or more defendants?Continue Reading Barbour Redux: Fourth Circuit Resolves Removal in Multiple-Defendant Cases (Again)
The Supreme Court of Virginia handed down 19 opinions in November. 17 were unanimous, one was split 4-3 (Cordon v. Commonwealth) and the other was split 5-2 (Town of Leesburg v. Giordano).
For those who are interested–namely, me–here is a quick breakdown of the November opinions by justice:
Chief Justice Hassell
The Supreme Court of Virginia dropped a pair of decisions on us last month that highlight the wisdom of Mr. Baldwin’s* worldview–although, oddly enough, neither came up in the context of contracts. Read together, the holdings in Aguilera v. Christian and Shipe v. Hunter make it clear that when the Code or the Rules require a lawyer to sign a pleading, they mean that the lawyer has to physically sign the pleading.
In Aguilera, the Court held that a pro se litigant could not authorize a person who wasn’t authorized to practice law in Virginia to sign a pleading on his behalf.
Aguilera asked his neighbor, who was licensed to practice in DC but not Virginia, to sign a complaint. It appears that he did so on the day before the two-year statute of limitations on his claim ran.
The trial court dismissed the case, and the Supreme Court affirmed. It held that Aguilera’s complaint was a nullity because it was not signed by the party or a lawyer licensed to practice in Virginia.
Shipe is marginally more interesting. It addressed the related question of whether a lawyer who’s licensed in Virginia may authorize a lawyer who is licensed elsewhere, but not in Virginia, to sign a pleading on the Virginia lawyer’s behalf.
The answer, as you’ve surely guessed, is no. The trial court held that the complaint was a nullity, entered summary judgment in favor of the defendant, and dismissed the case with prejudice.Continue Reading Only One Thing Counts in This World: Get Them to Sign on the Line Which is Dotted
Ever wonder what would happen if you named the wrong party in your notice of appeal? Thanks to the Supreme Court of Virginia’s February decision in Ghameshlouy v. Commonwealth, we now have the definitive answer:
It depends.
Our story begins when the Virginia Beach police respond to a call about a domestic altercation at a hotel. They question our hero, Eric Amir Ghameshlouy (spellings vary throughout the record), who gives “evasive and conflicting answers” about his name and age. [Note to self: when lying to police, give consistent and responsive answers.]
The police arrest Ghameshlouy and charge him with violating a local ordinance that makes it a misdemeanor to provide false identifying information.
The police also conduct a search incident to the arrest, and find a bag of white powder.
I know what you’re thinking: iocaine powder–odorless, tasteless, dissolves instantly in liquid and among the more deadly poisons known to man?
No, turns out it was just run-of-the-mill yayo. That earned Ghameshlouy a felony indictment under state law, in addition to his misdemeanor charge under local law.Continue Reading Ghameshlouy v. Commonwealth: What Happens if You Name the Wrong Party in Your Notice of Appeal?
While I was off running silly contests and generally doing my best to single-handedly drive up our insurance rates, the Supreme Court of Virginia handed down a new batch of opinions last week.
Of particular note is Walton v. Mid-Atlantic Spine Specialists, P.C., which 
addresses the attorney-client privilege, and specifically the issue of inadvertent waiver.
Walton is a med mal case. The defendant doctor wrote a letter to his lawyer in which he suggested that he may have reviewed the wrong x-ray before assessing the plaintiff. That letter was produced in a workers’ comp proceeding, and it eventually made its way into the plaintiff’s hands.
Walton advised the defendants that she had this letter in her interrogatory answers. About a year and a half later, the defendants moved for a protective order against the use or distribution of the letter. The circuit court granted that order. It found that the letter was privileged and had been involuntarily disclosed, so the privilege had not been waived. The plaintiff went to trial without the letter, and the jury found in favor of the defendants.
On appeal, the Supreme Court reversed. The dispositive issue before it was whether the doctor’s inadvertent disclosure of the letter waived the attorney-client privilege. The Court ruled that it had.Continue Reading Walton v. Mid-Atlantic Spine Specialists, P.C: Supreme Court of Virginia Defines Test for Inadvertent Waiver of Privilege
Don’t look now, but the Supreme Court of Virginia may have just redefined clarified the way you argue a motion to strike at the close of all of the evidence. Trial types may want to take some time to read over one of last session’s most important opinions, United Leasing Corporation v. Lehner Family Business Trust.
United Leasing is a breach of contract case. The plaintiff, the Lehner Family Business Trust, was not actually a party to the contract; one of the parties attempted to assign its claims to the Trust, and the validity of that assignment would play a major role in the litigation.
The parties went to trial before a jury. At the close of the Trust’s case in chief, United Leasing moved to strike on two grounds:
The trial court overruled United Leasing’s motion to strike. United Leasing put on its own evidence, and the Trust presented evidence in rebuttal. After the jury retired at the close of all of the evidence, counsel for United Leasing stated:
Renew my motion to strike. For the record, I wanted to renew my motion to strike.
Instead of addressing the motion to strike, the trial court spoke to counsel for a while about exhibits and jury instructions. After closing argument and after the jury began its deliberations, the trial court asked United Leasing about its renewed motion. At that point, United Leasing argued only that the Trust had failed to prove damages. It did not reargue the assignment issue.
The jury returned a $1.1 million verdict for the Trust. United Leasing appealed, arguing that the Trust had failed to prove an assignment.Continue Reading United Leasing Corp. v. Lehner Family Business Trust: When Renewing Your Motion to Strike, Do Not Renew Your Motion to Strike
One of the themes that we harp on here at De Novo is the importance of answering the Court”s questions. That usually comes up in oral argument, but sometimes, the Court is so kind as to direct the parties to brief certain issues.
That was the case in Roberson v. Commonwealth, handed down last session. Roberson and its companion case, Ghameshlouy v. Commonwealth, address some interesting but fairly esoteric questions of appellate jurisdiction, procedural defects, and waiver.
And in Roberson, it sounds like the Court really wanted to talk about waiver. At issue in the case was who was the proper appellee, the Commonwealth or the City of Virginia Beach. In its order granting the appeal, the Court directed both entities to appear, and specifically directed the City to address the question of whether it had made an appearance before the Court of Appeals. That could bear on whether it had waived its objection to the any procedural defect in the notice of appeal.Continue Reading Roberson v. Commonwealth, or Will Somebody Please Answer Justice Koontz’s Question?
Civil procedure nerds and defense counsel, rejoice! (I am looking at you, Travis.) In Barbour v. International Union, a fun–if dense–opinion handed down on Thursday, the Fourth Circuit adopts the “last-served defendant” rule for removal. Or in geekspeak, it takes a district court up on its invitation “to clarify whether the ‘first-filed’ ‘dictum’ in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992), means what it actually seems to say.”
Short answer: it doesn’t. But before we get there, the Fourth Circuit walks us through some removal case law, considers the extent to which earlier panel decisions are binding, and honors the nerdly virtues of close reading and careful research.
A quick refresher, for those of us who slept through civ pro: under 28 U.S.C. 1446, a defendant has 30 days in which to file a notice of removal. But what if there are multiple defendants, and they are served more than 30 days apart? That’s what happened to the defendant unions in Barbour. All three defendants filed a joint notice of removal. They filed it more than 30 days after the first defendant was served, but less than thirty days after the second defendant was served, and before the third defendant was even brought into the case. Was the notice of removal timely?
Turns out there’s a Circuit split on that point. The Fifth Circuit applies a “first-served defendant” rule: in cases involving more than one defendant, the thirty days starts running when the first defendant is served. The Fifth Circuit reasons that, since all served defendants must join in the removal petition, the failure of the first defendant to remove within 30 days defeats removal altogether.
The Sixth, Eighth, and Eleventh Circuits, by contrast, apply a “last-served defendant” rule. Those jurisdictions give each defendant 30 days in which to file a notice of removal.
By all appearances, the Fourth Circuit had found a middle ground. Footnote 3 in the McKinney opinion states that, if the first-served defendant does not petition for removal within 30 days of service, the case may not be removed. But if the first-served defendant does petition for removal within 30 days, a later-served defendant may join in the petition or move for remand.Continue Reading Fourth Circuit Adopts Last-Served Defendant Rule; Plaintiffs Despair
Last Friday, the Supreme Court of Virginia handed down a batch of eighteen opinions and two published orders. One of them, Shapiro v. Younkin, provides a lucid, well-reasoned treatment of the rules regarding transcripts and written statements of fact.
Please ignore it in its entirety. To paraphrase one of Caroline’s favorite writers, there is a monster at the end of this opinion.
Background
At issue in Shapiro was whether the circuit court erred by dismissing a plaintiff’s appeal from the general district court because the plaintiff had failed to secure a court reporter, in violation of the circuit court’s rule requiring that a court reporter be present at the trial of all civil cases.
Shapiro brought a landlord-tenant suit against Younkin in general district court, proceeding pro se. He lost and appealed to the circuit court, where he also appeared pro se. The court’s local rules required that a court reporter be present at all civil trials, and that a party appealing a GDC case arrange to have a court reporter present at the circuit court trial.
Shapiro failed to arrange for a court reporter, so the circuit court dismissed his appeal with prejudice. Later that day, Shapiro submitted a written statement of facts. The trial court declined to enter the statement. Instead, it wrote on the face of the document that the statement did not accurately reflect the events at trial, which were noted in the court’s order.
[Are you still reading? Because there is a monster at the end of this opinion.]
Shapiro–still proceeding pro se–appealed to the Supreme Court. He argued that the dismissal of his case violated Code Section 17.1-128, which provides that the failure to secure a court reporter will not affect the proceeding or trial. He also claimed that the court violated Rule 5:11 by failing to certify his written statement of facts.
Holding
The Supreme Court agreed. It reversed the trial court’s judgment and remanded the case, holding that the trial judge had violated both Code Section 17.1-128 and Rule 5:11.Continue Reading Please Ignore Shapiro v. Younkin. There Is a Monster at the End of This Opinion.