Civil Procedure

Aug 20, 2018

WDVA: Jury should decide all three of worker’s FMLA claims

On reconsideration, an auto worker’s FMLA retaliation claim can go to trial after all. Having already found fact issues material to his other claims, the court concluded it would be inconsistent not to send the retaliation claim to the jury as well. Background Plaintiff Cameron Felts claims that Volvo interfered with his substantive rights under […]

Aug 17, 2018

4th Cir.: Coin collectors’ quest to ease import restrictions fails

A numismatics lobbying group that intentionally imported ancient coins under international trade restrictions was unsuccessful in challenging forfeiture of the coins. Abuse of discretion is the appropriate standard for reviewing lower-court decisions to strike pleadings. Background In 1970, the U.S. signed a treaty designed to address the clandestine excavation of nations’ “cultural property,[...]

Aug 10, 2018

4th Cir.: Substitute judge erred in granting reconsideration

After the initial trial judge’s retirement, the re-assignment judge erred in reconsidering and effectively reversing a highly fact-dependent decision to recognize the defendants’ immunity from suit. The reconsideration exceeded the bounds of Rule 54. Background Defendants Jason Carpenter, Christopher Small, Big South Wholesale LLC, and Big South Wholesale of Virginia LLC appeal the district ju[...]

Aug 7, 2018

WDVA: Court strikes “faux counterclaims” against non-parties

In trade-secret litigation concerning a disputed international patent for a sugar substitute, a defendant’s attempt to “join” related counter-defendants was procedurally improper under Federal Rule of Civil Procedure 13(h). Background Sugar tastes good. But it’s unhealthy. So companies and scientists explore ways to efficiently change its structure. The idea is to make a sugar [...]

Aug 7, 2018

WDVA: Buffet worker’s theft accusations could be defamatory

A woman and her mother sufficiently alleged defamation by a Golden Corral server, who publicly accused them of hiding food in their purses. But the court dismissed their claim for contract interference on account of their race and also struck as “immaterial and scandalous” several paragraphs of the complaint asserting the defendant’s reputation for racism. […]

Aug 3, 2018

SCV: Court could not assert limitations defense

Appellant Gary Pisner filed a complaint against Appellee Mark Conley, asserting breach of a written contract to perform demolition and clean-up work at his property. Pisner sought compensatory damages of $76,000. After the complaint was served and Conley failed to respond, Pisner moved for a default judgment. The circuit court denied the motion and ordered […]

Aug 3, 2018

Bankr: Award reduced for excessive billing, duplicative suits

A bankruptcy court awarded some fees incurred to recover the debtor’s wrongly garnished wages, but said that counsel should have resolved the issue in the bankruptcy proceeding rather than filing two additional adversary suits. Further, especially in light of quarter-hour billing, paralegal fees were excessive in both rate and time spent. Background In this adversary […]

Jul 31, 2018

EDVA: Court rejects amended complaint as prolix, imprecise

In a multi-plaintiff race discrimination suit against a state agency, the court said an attempt to “streamline” the original complaint did just the opposite, finding that plaintiff-by-plaintiff presentation of allegations was repetitive and too many claims relied on “information and belief.” Background The Plaintiffs commenced this action with a 34-page, 172-paragraph complaint aga[...]

Jul 30, 2018

SCV: Expert necessary to support legal malpractice claim

A plaintiff needed to produce an expert to prove her former attorneys failed to exercise reasonable care, skill, and dispatch. She said counsel had caused her personal injury claim to become time-barred by suing the wrong entity. Background Plaintiff Gigi Sere alleges that, on January 1, 2006, she suffered an injury in 2006 in an […]

Jul 29, 2018

SCV: Challenge to trial, not appellate, ruling bars high court review

On January 27, 2016, Defendant Clinton Arthur was tried by a jury for being a felon in possession of a firearm. At trial, Arthur offered to “stipulate to the fact that he is a convicted felon” and objected to the Commonwealth’s use of his conviction order to establish his predicate felony, asserting that its probative […]

Jul 29, 2018

WDVA: Exhibits filed publicly won’t be sealed

A detective seeking to clear his name in connection with several criminal cases presented no countervailing interest to the public right of access to exhibits he had attached to an earlier public filing. The exhibits contained his personal employment records, including information he claimed was prejudicial and inaccurate. Background In April 2018, the government moved […]

Jul 29, 2018

4th Cir.: Plaintiffs exhausted chances to cure deficient complaints

Protracted litigation repeatedly put consumer-plaintiffs on notice that their complaints failed to meet Rule 8 pleading standards, but they never amended their complaints during this time despite having leave to do so. Thus, the district court did not err in denying leave to amend post-judgment. Background The underlying Virginia state-law actions focus on a series […]

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