Dismissal for Nondiverse Defendant

Appeals court allows do-over for procedural defaults

By Deborah Elkins
Published: March 27, 2013
Tags: Civil Procedure, Judge Glen A. Huff, Judge Robert J. Humphreys, Judge Robert P. Frank, Judge Stephen R. McCullough, Judge William G. Petty, Virginia Court of Appeals

Some procedural errors that may have meant dismissed appeals will no longer be fatal, a divided Virginia Court of Appeals said today in a trio of en banc cases. Specifically, in two cases, the court allowed amendments to retool assignments of error and to specify page references to show an appellate claim had been preserved. [...]

Default Set Aside After Carrier’s Delayed Response

By Deborah Elkins
Published: March 20, 2013
Tags: Civil Procedure, Judge Michael F. Urbanski, U.S. District Court - Western District

In plaintiff’s suit alleging injuries from defendant’s tractor-trailer crashing into her from behind as she veered into a median in an effort to avoid debris in the roadway, a Harrisonburg U.S. District Court will set aside default entered against defendant box company, who was unaware of foot-dragging by its own insurance carrier. Defendant must present [...]

Counterclaim Comes Too Late, Is Denied

By Deborah Elkins
Published: March 20, 2013
Tags: Civil Procedure, Judge James C. Turk, U.S. District Court - Western District

Although the Roanoke U.S. District Court does not fault new counsel for the delay in proposing a counterclaim, it will deny its request to file a counterclaim seven months after it filed its Answer, as discovery is well underway and the counterclaim would change the character of the litigation. Whether the counterclaim should be allowed [...]

No Amendment of Dismissed Complaint

By Deborah Elkins
Published: March 20, 2013
Tags: 4th U.S. Circuit Court of Appeals, Civil Procedure, Judge Paul V. Niemeyer

A church that filed a lawsuit challenging a city’s denial of a special use permit to allow it to expand its child-care program could not amend its complaint because the complaint already had been dismissed by the district court; the 4th Circuit says there simply was no complaint pending to amend. The church wanted to [...]

Defendant Missed Three Chances to Amend

By Deborah Elkins
Published: March 20, 2013
Tags: 4th U.S. Circuit Court of Appeals, Civil Procedure, Judge Barbara Milano Keenan

In this trademark infringement case, the defendant waived its affirmative defenses of claim preclusion and issue preclusion by waiting three months to ask to amend its answer to include these defenses, and the district court erred in setting aside the jury verdict for plaintiff and entering judgment for defendant, based on these preclusion defenses; the [...]

Court Parses Fees, Costs in Patent Case

By Deborah Elkins
Published: March 20, 2013
Tags: Civil Procedure, Judge Leonie Brinkema, U.S. District Court - Eastern District

An Alexandria U.S. District Court will reduce an award of costs to plaintiffs by deducting excessive pro hac vice fees and video deposition costs, but will allow plaintiff to collect $30,480 for costs of converting information into the agreed-upon format and do electronic Bates stamping. Although pro hac vice fees are not listed in the [...]

No Diversity Jurisdiction in Franchise Suit

By Deborah Elkins
Published: March 20, 2013
Tags: Civil Procedure, Judge Henry E. Hudson, U.S. District Court - Eastern District

In this derivative action concerning a joint venture by two LLCs to franchise NASCAR-themed RV parks through a licensing agreement with NASCAR, a Richmond U.S. District Court remands the action to state court; regardless of how the parties are aligned, diversity jurisdiction does not exist in this case. The dispute between the parties focuses solely [...]

Expert Must Review Reports to Testify

By Deborah Elkins
Published: March 14, 2013
Tags: Civil Procedure, Judge Glen E. Conrad, U.S. District Court - Western District

In this case against a stun gun manufacturer for allegedly failing to provide sufficient warnings about the weapon’s risk for people with heart conditions, a Charlottesville U.S. District Court will limit expert testimony; plaintiff’s human factors expert may only testify about the adequacy of warnings in materials he actually has reviewed. To be admissible under [...]

Prior Suit Bars Borrowers’ Claims

By Deborah Elkins
Published: March 12, 2013
Tags: Civil Procedure, Judge Norman K. Moon, U.S. District Court - Western District

In pro se borrowers’ second action challenging foreclosure of their residence, the Charlottesville U.S. District Court holds the bar of res judicata applies even though the second suit names a trust rather than a trustee as defendant and alleges constitutional civil rights violations that could have stated in the first action: both actions arise from [...]