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March 2019

 

 

Joint Dine Around with the Healthcare Practice Section at The Driskill Grill

Attending the Winter Meeting in Austin? If so, please come to the Section dine around with the Healthcare Practice Section Tuesday, March 26 at 7:00pm at the Driskill Grill in the historic Driskill Hotel, 600 Brazos Street. https://driskillhotel.com/dining/driskill-grill/ If you want to step back into Texas history for a superb meal, this is the place! Per the website: “A Zagat-named Must-Visit Old-School Steakhouse [it has plenty of non-meat options] and also the iconic date spot of LBJ and Lady Bird, The Driskill Grill is a blend of rustic and refined. Savor signature dishes, including dry-aged steak, and sip a selection from our Wine Spectator-awarded list.”

The restaurant is within walking distance from the hotel. We Please RSVP to me if you wish to come. For more information about the restaurant and menu

The Driskill Hotel is a Romanesque-style building that was completed in 1886. It is the oldest operating hotel in Austin, and one of the best-known hotels in Texas. https://driskillhotel.com/about/

 

Recent wins by Section members!

Stephen Feldman of Ellis & Winters LLP in Raleigh, N.C., won a unanimous decision from the Supreme Court of North Carolina in a significant health-care dispute. Stephen represented the North Carolina Board of Physical Therapy Examiners, which had been sued by a sister licensing board, the North Carolina Acupuncture Licensing Board. The lawsuit concerned a physica-therapy treatment called dry needling. The Acupuncture Board challenged the Physical Therapy Board’s conclusion that dry needling falls within the scope of physical therapy practice in North Carolina. The Supreme Court rejected that challenge. North Carolina physical therapists provide hundreds of thousands of dry needling treatments to North Carolina patients annually. This victory ensures that these patients can continue to receive this effective and safe treatment. A copy of the opinion can be found here.

Angela Flowers of Kubicki Draper in Ocala, Florida, obtained reversal of a final judgment on damages following a jury trial in an automobile-negligence case. The appellate court agreed with defendant that the trial court improperly granted summary judgment on liability, thereby depriving defendant of his comparative-negligence defense. The decision clarifies the limitations on Florida’s existing common-law rebuttable presumption of sole negligence that attaches to the driver of a rear-following vehicle involved in a rear-end collision. The court made clear that the presumption does not completely insulate a negligent lead driver from liability for comparative negligence as a matter of law. Where issues of disputed fact exist regarding the lead driver’s fault, negligence and causation must be decided by the fact-finder. On remand, the case will be retried on the issues of both comparative negligence and damages. The case is Restal v. Nocera, 2019 WL 1086585 (Fla. 5th DCA 2019) https://edca.5dca.org/eOrder.aspx?id=62430-181490-1377425-5610

Bob Olson of Greines, Martin, Stein & Richland in Los Angeles represented one of the insurers in Yu v. Liberty Surplus Ins. Corp. (2018) 30 Cal.App.5th 1024. That case involves California’s statutory scheme governing default judgments, which a default judgment may not exceed the amount pleaded in the complaint. Plaintiff filed a construction defect suit against a contractor seeking not less than $10 million. The contractor cross-complained against several subs. The cross-complaint did not specify any amount sought but “incorporated by reference” the underlying complaint “for identification and information purpose only” (and thereby not admitting the truth of its allegations). Elsewhere the cross-complaint alleged a damages “amount precisely unknown” or “in an amount presently unknown” but to be established at trial. The trial court entered a default judgment against the sub for just over $1.25 million, the contractor assigned its rights to the insured, and the insured then sued the sub’s insurers to collect on the default judgment. The Court of Appeal held the default judgment void because no amount was stated in the cross-complaint and the “incorporate by reference” of the underlying complaint did not suffice to allege an amount in the complaint as required by California’s default judgment scheme.  A petition for review is pending. 

 

Important decision from the U.S. Supreme Court

One of the worst—if not the worst—nightmare for an appellate attorney is missing a jurisdictional deadline, such as the date by which a notice of appeal is due. Unfortunately, that happened recently. Most missed deadlines fly under the radar in terms of national news. This one didn’t.

Nutraceutical Corp. v. Lambert: Rule 23(f) deadline cannot be equitably tolled

On February 26, the Supreme Court ruled Nutraceutical Corp. v. Lambert that the 14-day deadline under Federal Rule of Civil Procedure 23(f) for petitioning a court of appeals to hear a discretionary appeal from a class-certification order cannot be equitably tolled. The district court had decertified the class. The plaintiff’s counsel expressed an intent to file a motion for reconsideration of that decision, and a deadline was set for filing that motion. The motion for reconsideration was filed in accordance with that deadline. The petition for permission to appeal was filed within 14 days after the motion for reconsideration was denied. The Ninth Circuit found the petition timely. But the Supreme Court said no.

Justice Sotomayor’s opinion for a unanimous Court explained that “[w]hether a rule precludes equitable tolling turns not on its jurisdictional character but rather on whether the text of the rule leaves room for such flexibility.” Slip op. at 4. “Where the pertinent rule or rules invoked show a clear intent to preclude tolling, courts are without authority to make exceptions merely because a litigant appears to have been diligent, reasonably mistaken, or otherwise deserving.” Id. The Court focused on Federal Rule of Appellate Procedure 26(b)(1), which provides that “the court may not extend the time to file: . . .a petition for permission to appeal . . . .” Id. at 5. The Court found no way around the “clear intent” of this rule.

This case is a good reminder for lawyers that not all deadlines can be extended, even if the trial court wants to grant an extension. The Supreme Court noted that some courts of appeals have concluded that a motion for reconsideration filed within the 14-day period extends the deadline for a petition for permission to appeal on the theory that the class-certification order is not “final.” But the Court did not address that issue, so the safest approach would be to file the petition within the 14 days. (And such petitions are limited to approximately 20 pages of large font text.) The Court also noted that a different result might be reached if the district court had misled the plaintiff’s lawyer, but that did not happen in this case.

For the opinion, go to https://www.supremecourt.gov/opinions/18pdf/17-1094_bq7d.pdf

[Thanks to Wystan Ackerman for this case summary.]

 

Section Project – Providing a list of “hot topics” addressed in recent decisions of the highest courts of each State

As mentioned in the prior Newsletter, the Section is developing a repository of “hot topics” addressed in recent decisions of the highest courts of each State, to be provide by Section members. We are still working on the best way to convey this information to the entire FDCC membership.

Ideally, we like to provide the information twice a year. Therefore, after providing the first summary of “hot topics,” it would be helpful to update it approximately every six months. We have a draft of topics recently addressed in the California Supreme Court and from Texas. Those of you who have volunteered, please provide a list of topics and brief summaries of the cases by April 15.

          If you haven’t volunteered, but would like to, please let me know the jurisdiction(s) you wish to cover. Below are the jurisdictions currently covered by Section members.

Charlie Frazier, Chair

cfrazier@adjtlaw.com

 

 

Jurisdictions

Section member volunteers

California

Laurie Hepler, Bob Olson

Connecticut

Wystan Ackerman

Florida

Angela Flowers

Illinois, Missouri, Indiana

Beth Bauer

Texas

Charlie Frazier

 

August 2018

 

Recent win!

Section Member Angela Flowers of Kubicki Draper, Florida, recently secured a reversal on certiorari review in favor of her client/Defendant of a trial-court order granting Plaintiff leave to amend her complaint to add a claim for punitive damages. Plaintiff alleged that Defendant, a facility providing services to developmentally disabled adults, acted with gross negligence in supervising clients attending its programs. As a preliminary matter, Plaintiff was required to proffer punitive-damages evidence demonstrating a reasonable basis for such recovery, which Defendant argued she had failed to do. Florida’s Fifth District Court of Appeal reversed, agreeing with Defendant that the trial court applied the wrong legal standard when it evaluated the proffer.

Congratulations, Angela!


The Section Presentation at the Annual Meeting in Maui

On Friday morning at the Annual Meeting in Maui, the Section presented, jointly with the Trial Tactics section: “Strategic Litigation: How an appellate perspective can assist in the trial court.”  Panel members were Tim Pratt (former general counsel for Boston Scientific), Clark Hudson from the Neill, Dymott firm in San Diego and the trial tactics section, and Angela Flowers from Kubicki Draper in Florida and the appellate section.  Bob Olson from Greines, Martin in Los Angeles and the appellate section moderated. Charlie Frazier authored the accompanying paper. 

The presentation was well attended (especially for a Friday morning after a Luau), with an audience of about 30. The discussion focused on how appellate counsel can contribute (and what they should stay out of) in the trial court. Tim Pratt expressed some initial hesitancy about the idea of having appellate counsel involved, pointing out that as a client he expected his lawyers to be fully capable of handling the case. But he came around, saying that he appreciated the idea of having a lawyer at trial, or during the run-up to trial, who was focused upon and devoted to addressing the legal issues in the case, a “legal specialist” (rather than appellate specialist) in his terminology. 

Clark and Angela pointed out the areas where such an appellate or legal specialist are likely to be most helpful: e.g., jurisdiction, standing, novel/unsettled law, and class-action/multi-district litigation. It was discussed how it is not appellate counsel’s role to nudge trial counsel to make objections or the like, but that appellate counsel can be a double-check to ensure that everything gets into the record (e.g., transcripts of played videotaped evidence, off-the-record jury instruction arguments). 

After the session, there was meditation, yoga, and mai tai.

[Many thanks to Vice Chair Bob Olson for this report.]


Section Project – Providing a list of “hot topics” addressed in recent decisions of the highest courts of each State

In both the Section officers’ and Section members’ calls before the Annual Meeting, we discussed ideas on how the Section can be of assistance to Section members as well as members of other FDCC substantive-law sections. We voted on having a repository of “hot topics” addressed in recent decisions of the highest courts of each State, to be provide by Section members. We are still working on the content, form, and best way to convey this information, whether through the monthly Newsletter, our blog, or another method.

Ideally, we like to provide the information twice a year. Therefore, after providing the first summary of “hot topics,” it would be helpful to update it approximately every six months.

We already have some volunteers, as provided below. Of course, more than one Section member can volunteer for any jurisdiction, so the work can be spread out among two or more members. Please email me if you would like to provide this information from the highest court in your jurisdiction or others. cfrazier@adjtlaw.com

Charlie Frazier, Chair

Jurisdictions

Section member volunteers

California

Laurie Hepler, Bob Olson

Connecticut

Wystan Ackerman

Florida

Angela Flowers

Illinois, Missouri, Indiana

Beth Bauer

Texas

Charlie Frazier

 


 

July 2018

 

Annual Meeting in Maui

Dine around.  As is our custom, there will be Section Dine Around Wednesday evening, August 1. If you are interested in attending, please email Bob Olson, who will be organizing the dinner: rolson@gmsr.com. Bob will provide details on the restaurant and time in a few days.

Joint Presentation with the Trial Tactics Section.  Please plan to attend the Section’s joint presentation with Trial Tactics on Friday, August 3 @ 7:00am. Check the Meeting Schedule pamphlet provided in your meeting packet for the location of the meeting room at the resort.

The presentation topic is Strategic Litigation: How Trial, Appellate, and In-House Counsel Can Together Develop Effective Strategies for Trial and Appeal. Our distinguished panel members are Angela Flowers (appellate perspective); Clark Hudson (trial-attorney perspective); and Tim Pratt (in-house counsel perspective). Bob Olson will serve as moderator. The panel will discuss how an effective integration of the facts and law perspectives of a case can lead to success at trial and on appeal.

Section Project – Providing a list of “hot topics” addressed in recent decisions of the highest courts of each State

In both the Section officers’ and Section members’ calls in the last several weeks, we discussed ideas on how the Section can be of assistance to Section members as well as members of other FDCC substantive-law sections. We voted on having a repository of “hot topics” addressed in recent decisions of the highest courts of each State, to be provide by Section members. We are still working on the content, form, and best way to convey this information, whether through the monthly Newsletter, our blog, or another method. Our next Newsletter will provide these and other details.

In the meantime, please email me if you would like to provide this information from the highest court in your jurisdiction. cfrazier@adjtlaw.com

Charlie Frazier, Chair



JUNE 2018

 

 Annual Meeting in Maui – Joint Presentation with the Trial Tactics Section

The Annual Meeting in Maui is just under six weeks away! There is still time to register and book your flights for the Meeting, hel, July 29-August 3. The Theme is “Strive for the Summit,” meaning to aim to achieve our best in all aspects of life.

Our Section is teaming with the Trial Tactics Section for the presentation:   Strategic Litigation: How Trial, Appellate, and In-House Counsel Can Together Develop Effective Strategies for Trial and Appeal. Our distinguished panel members are Angela Flowers (appellate perspective); Clark Hudson (trial-attorney perspective); and Tim Pratt (in-house counsel perspective). The panel will discuss how an effective integration of the facts and law perspectives of a case can lead to success at trial and on appeal.

The presentation will occur on Friday, August 3, 2018, @7:00am. If you will be at the Maui meeting, we hope you can attend the presentation!

Recent win!

Representing a major financial-services company, Appellate Law Section member Laurie Hepler recently secured reversal of a $1.2 million judgment based on a jury verdict, with the appellate court directing entry of judgment for her client.  The company terminated one of its in-house lawyers, who then sued claiming discrimination and retaliation. The jury rejected all the plaintiff’s claims except for Intentional Infliction of Emotional Distress (IIED), awarding her the seven-figure damages for that tort alone. The California Court of Appeal agreed that, in light of the entire verdict, workers compensation was the exclusive remedy for workplace IIED, and the trial judge should have granted the company’s motion for notwithstanding the verdict.

Congratulations, Laurie!

U.S. Supreme Court Update: Arbitration provisions in employment agreements precluding class-action arbitrations are enforceable.

Wystan Ackerman—immediate past chair of the Section, and currently a vice chair of the FDCC Class Action Section, wrote the following summary of Epic Systems Corp. v. Lewis, issued by the Court on May 21, 2018, for this newsletter.

In Epic Systems Corp. v. Lewis, No. 16-285, the Supreme Court held, in a 5-4 decision authored by Justice Gorsuch, that arbitration provisions in employment agreements which preclude class-action arbitrations are enforceable. The Court held that “[i]n the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.” Slip op. at 2.

The Court rejected the plaintiffs’ argument that the FAA’s savings clause applied, explaining that the savings clause applies only to generally-applicable contract defenses, and that “by attacking (only) the individualized nature of the arbitration proceedings, the employees’ argument seeks to interfere with one of arbitration's fundamental attributes.” Id. at 7. The Court also rejected the plaintiffs’ argument that the arbitration clauses were unenforceable under Section 7 of the National Labor Relations Act, explaining that Section 7 “focuses on the right to organize unions and bargain collectively,” and “may permit unions to bargain to prohibit arbitration,” but “does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand.” Id. at 11. The Court also noted that modern class and collective action proceedings were not created until 1966, long after the NLRA was enacted in 1935. Id.

Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor and Kagan. The dissent would have held that Section 7 of the NLRA governed and precluded enforcement of the arbitration clauses at issue. The dissent characterized arbitration provisions with class-action waivers in employment contracts as similar to the “yellow-dog contracts” that the NLRA was intended to address. Justice Ginsburg wrote that “[e]mployees’ rights to band together to meet their employers’ superior strength would be worth precious little if employers could condition employment on workers signing away those rights." Slip op., dissent at 17. With respect to the FAA, the dissent stressed that the FAA was intended “to enable merchants of roughly equal bargaining power to enter into binding agreements to arbitrate commercial disputes.” Id. at 19. The dissent would have found the savings clause in the FAA applicable because “[i]llegality is a traditional, generally applicable contract defense,” and the dissent found the arbitration clauses illegal under the NLRA. Id. at 24. The dissent noted that, in its view, the majority’s decision should not apply to Title VII of the Civil Rights Act of 1964 and other employment-discrimination laws. Id. at 29.

You can review other Supreme Court decisions related to class actions on Wystan’s blog:  www.classactionsinsider.com   - Charlie Frazier, Chair



 

May 2018

Submitted by: Charles T. Frazier, Jr.

 

Recent win!

 

Section member Stephen Feldman of Ellis & Winters in Raleigh, NC, recently won a dismissal of antitrust case for his healthcare client.  The plaintiffs were North Carolina chiropractors who alleged that multiple payors of health-care services (including large insurers) unlawfully colluded with an independent practice association to depress the supply of chiropractic care in North Carolina.  The North Carolina Business Court concluded that the plaintiffs had not adequately defined a relevant market in which to measure any anticompetitive effect.  The plaintiffs have appealed the case to the North Carolina Supreme Court.

Congratulations, Stephen!

 

Annual Meeting in Maui – Joint Presentation with the Trial Tactics Section

 

Registration has opened for the Annual Meeting will be in Maui, July 29-August 3. The Theme is “Strive for the Summit,” meaning to aim to achieve our best in all aspects of life.

 

Our Section is teaming with the Trial Tactics Section for the presentation:   Strategic Litigation: How Trial, Appellate, and In-House Counsel Can Together Develop Effective Strategies for Trial and Appeal. Our distinguished panel members are Angela Flowers (appellate perspective); Clark Hudson (trial-attorney perspective); and Tim Pratt (in-house counsel perspective). The panel will discuss how an effective integration of the facts and law perspectives of a case can lead to success at trial and on appeal.

 

The presentation will occur on Friday, August 3, 2018, @7:00am. If you will be at the Maui meeting, we hope you can attend the presentation!

 


 

March 2018

Submitted by: Charles T. Frazier, Jr.

 

(Click here to download a .pdf of this section update)

 

Section Meeting Conference Call.

On February 19, 2018, we had a Section Meeting by conference call. Here are the issues we discussed and decisions made:

 

  • Section goals. One of the primary goals, and purpose, of the Section is to be even more involved and have higher visibility with the other substantive law sections, at least 22 are litigation related. Trial attorneys often seek appellate lawyers to assist them with legal issues, briefing, and pre-trial, trial, and post-trial strategy. All members are encouraged to join and engage in the other sections.

We discussed several ideas to foster this goal:

o   Prepare a nationwide survey of unique appellate practices from state to state

--  E.g., what interlocutory orders are appealable in each state?

--  How state trial and appellate procedures differ from the national baseline.

o   Offer to assist with presentations of other sections.

 

  • Insights articles. Members are encouraged to contact the Section officers with ideas for Insights articles, or even better volunteer to draft an article. Insights articles present in-depth legal analysis on topics that can be exclusively appellate-procedure related or on the law regarding substantive topics. The articles are generally 3000-5000-words long. We will know soon the months that our Section is assigned. One member has already presented an article for the next assigned month, so we need only one more in the future!

 

  • Section Newsletters. Section Newsletters present a tremendous opportunity for Section members to share information about a recent win or an interesting legal issue with which they recently dealt with. So PLEASE send you information each month for the Newsletter. I need to have the information by the 10th of the month. Also, we will make sure each member has the link to the FDCC monthly Newsletter, including our Section Newsletter.

 

  • Bi-month Section meetings.  We agreed to have bi-monthly meetings. The meetings will be held on the third Monday of the month around noon Central Time. Each member will soon receive a calendar invite with all the necessary information. A reminder will be sent about a week before each meeting that will provide an agenda that will include a member sharing a little about themselves, their practice, etc., as well as a story about a recent case with tantalizing facts and issues. We will also highlight new members and discuss any amicus requests.

 

 

Amelia Island Meeting a great success.

 

 Those who attended the Winter Meeting at Amelia Island will attest that the entire event was tremendous in every way: wonderful opportunities to catch up with friends and meet new ones; superb speakers and programs; delicious food; beautiful setting; and fun and diverse activities.

 

Likewise, the joint presentation by our Section and the Extra-Contractual Liability Section was a great success. Over 40 attended the panel discussion on “Establishing Favorable Appellate Precedent for Bad Faith Litigation.” We had a lively and thought-provoking discussion with the audience with lots to chew on and think about in our pending and future bad-faith cases. Many thanks to our panel: Laurie Hepler, Scott Hofer, and particularly to Jennifer Eubanks, who graciously agreed to fill in for Vicki Roberts, who was unable to attend.

 

Several other Section members were involved in other Section-meeting presentations. Wystan Ackerman was a panel member at the Employment and Class Action meeting on: “Employment and Class Action: ‘Hold on, Class, It’s Not Time To Waive Goodbye Just Yet!’” Jennifer Eubanks spoke at the “Masters in Marketing” presentation, and she and Charlie Frazier served on the panel in the Insurance Coverage and Reinsurance, Excess and Surplus Lines meeting on “Intervention, DJ, or Nothing: What’s an Insurer to do to Resolve Coverage Issues?” I am sure there were others who gave presentations or otherwise were greatly involved at the Winter Meeting. Many thanks to all of you!

 

 

Annual Meeting in Maui.

 

 The Annual Meeting will be in Maui, July 29-August 3. The Theme is “Strive for the Summit,” meaning to aim to achieve our best in all aspects of life. Our Section is teaming with the Trial Tactics Section to give a presentation how in-house counsel, trial counsel, and appellate counsel can work together to create the best circumstances for an effective trial and effective appeal. Angela Flowers will represent the appellate-lawyer perspective on the panel. More details will follow.

 

 

2019 Winter Meeting in Austin.

 

 Finally, we discussed the 2019 Winter Meeting that will be held in Austin, Texas on March 24-28, 2019. The Topic is “Creative Ingenuity.”  We have been asked to think about potential presentation ideas for this Meeting. One idea that was discussed:

 

Have a practitioners’ discussion of how to prepare for oral argument—for crucial hearings in trial courts and oral arguments in appellate courts.

 

o   How can ideas and methods of preparation of other practitioners help others to make a

     difference in the success of oral argument.

o   Innovate to give better presentations.

o   Share the experiences of different advocates to help take one’s practice to the next level. 

 

 


 

 

January 2018
Submitted by:  Charls T. Fraizer, Jr.

 

Happy New Year! I hope everyone had a nice Holiday and a good beginning to 2018.

 

Amelia Island Winter Meeting. Registration is open. Please register as soon as possible, as activities are filling up! And please plan to attend the joint presentation by our Section and the Extra-Contractual Liability Section on Monday, February 26, which will address Establishing Favorable Appellate Precedent for Bad-Faith Litigation. Presenters are Vicki Roberts, Laurie Hepler, and Scott Hofer.


Welcome New Member, Tillman Breckenridge.

 

The Appellate Law Section plans to periodically profile of one its members in its monthly Newsletter to help Section members and others in the FDCC better know who we are.

 

This month, we welcome the Section’s newest member, Tillman Breckenridge. Tillman is a Partner in Bailey & Glasser LLP's Washington, D.C. office, and concentrates his practice on appellate litigation at all levels. He has represented individuals, companies, organizations, and foreign, state, and local governments before the United States Supreme Court, every U.S. Court of Appeals, and many state appellate courts. Tillman's practice includes appeals in all substantive practice areas, including high-profile cases in insurance coverage, and work on patent, tax, regulatory, and commercial business appeals. He is the Immediate Past Chair of DRI's Appellate Advocacy Committee and serves on the Board of Directors of the National Foundation for Judicial Excellence.


Additionally, Tillman is an Adjunct Professor of Law at the William & Mary School of Law, where he founded and directs the Appellate and Supreme Court Clinic. The Clinic has filed briefs that have been profiled as the National Law Journal Brief of the Week, relied on by the Supreme Court, and led to critical precedents in civil rights cases.

Tillman has been named to the Washington, DC Super Lawyers and Virginia’s Legal Elite lists for appellate practice, and was named one of the National Bar Association’s 40 Trailblazers Under 40 in 2014. Tillman is AV rated in Martindale-Hubbell. I have had the pleasure of knowing Tillman for many years, and he will be an excellent addition to the FDCC and our Section.

 

Tillman, welcome to the FDCC and the Appellate Law Section! We are happy you have joined us!

 


 

 

December 2017

Submitted by: Charles T. Frazier, Jr.

 

Amelia Island Winter Meeting registration is now open! Please register as soon as possible, as activities are filling up!

 

 

I hope everyone had a nice Thanksgiving and is enjoying the Holiday Season. Periodically, the Appellate Law Section Newsletter will provide a summary of a recent appellate-court decision or a new rule or statute that impacts both trial and appellate practice.

 

To this end, this Newsletter provides an excellent summary of a very recent Supreme Court decision addressing the timeliness of a notice of appeal under the Federal Rules of Appellate Procedure, which provides principles that may also apply to perfecting appeals in state courts. The article was provided by Wystan Ackerman, the immediate past Chair of the Section, and written by Jonathan Small, an associate at Wystan’s firm, Robinson + Cole. The article appears in one of the firm’s blogs: https://www.massappellateblog.com/2017/11/u-s-supreme-court-to-appellant-time-is-on-your-side/.

________________________

 

U.S. Supreme Court to Appellant – Time Is On Your Side

 

We have written previously on this blog about the importance of a timely notice of appeal in the Massachusetts Appeals Court. The issue bears revisiting in the federal courts following the decision by the United States Supreme Court in Hamer v. Neighborhood Housing Services of Chicago, No. 16-659 (November 8, 2017).

Justice Ginsburg, in her characteristic trenchant prose, introduced the issue in Hamer as follows:

 

This case presents a question of time, specifically, time to file a notice of appeal from a district court’s judgment.

 

The decision then distinguished between restrictions on subject-matter jurisdiction, such as the time limitations imposed by 28 U.S.C. § 2107(c), and “mandatory claim-processing” rules, such as the time limitations imposed by Federal Rule of Appellate Procedure 4(a)(5)(C). Ultimately, the Court ruled that, unlike the jurisdictional rules established by Congress, the claim-processing rules that set forth time limitations, such as those found in Rule 4(a)(5)(c), do not implicate a court’s subject-matter jurisdiction, and can be waived or forfeited.

 

Hamer involved an appellant whose employment discrimination suit was dismissed by the district court on summary judgment. After the judgment of dismissal was entered, her counsel filed a motion to withdraw and a motion for an extension of the appeal filing deadline, to give the appellant sufficient time to find new counsel for the appeal. The district court granted both motions, allowing a 60-day extension of the appeal deadline, even though Rule 4(a)(5)(C) confines such extensions to 30 days.

 

Addressing the issue sua sponte, the Seventh Circuit Court of Appeals concluded that the 30-day time limitation in Rule 4(a)(5)(C) is jurisdictional, and the district court’s extension of time beyond that allotment was therefore ineffectual. On that basis, the court dismissed the appeal.

 

The Supreme Court reversed. Acknowledging that earlier opinions by the Court “have sometimes overlooked th[e] distinction” between jurisdictional limitations and claim-processing rules or elements of a cause of action, Justice Ginsburg explained that “a provision governing the time to appeal in a civil action qualifies as jurisdictional only if Congress sets the time.” These provisions cannot be waived or forfeited and may be raised at any time, including sua sponte, by the reviewing court.

 

By contrast, claim-processing rules, which serve to promote the orderly process of litigation by prescribing certain procedural steps at specified times, are not set by Congress and do not invoke the subject-matter jurisdiction of the Court and may be waived or forfeited.

 

Rule 4(a)(5)(C) is a claim-processing rule. It provides:

 

No extension [of time for filing a notice of appeal] under this Rule 4(a)(5) may exceed 30 days after the prescribed time [for filing a notice of appeal] or 14 days after the date when the order granting the motion is entered, whichever is later.

 

Fed. R. App. P. 4(a)(5)(C). Significantly, this time limitation does not appear in 28 U.S.C. § 2107(c), which provides:

 

(c) The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the district court finds—

 

(1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and

 

(2) that no party would be prejudiced,

 

the district court may, upon motion filed within 180 days after entry of the judgment or order or within 14 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal.

 

28 U.S.C. § 2107(c).

 

The statute does not state how long an extension for “excusable neglect or good cause” may run.

 

Because Rule 4(a)(5)(C) is the only source of the 30-day limitation on extensions of the appeal period for “excusable neglect or good cause,” it is not jurisdictional and can be waived or forfeited. Accordingly, the Seventh Circuit erred when it held that the appeal was jurisdictionally barred as untimely.

 

Hamer provides a helpful discussion of the jurisdictional and rules-based authority of federal appellate courts. In this case, the appellant may have avoided the loss of her appeal rights, but the decision also underscores the importance of understanding the appeal process following a judgment entered by the trial court.

________________________

 

Many thanks to Wystan for this fine article!

 

 

 


 

 

 

November 2017

 

Winter Meeting at Amelia Island

 

The Winter Meeting is shaping up. Registration will open November 27. We are encouraged to register early, as activities and rooms fill up quickly. The post-Meeting trip to Cuba is on! Details are forthcoming, but space is limited, so if you are interested please register on or soon after November 27.

 

The joint presentation by our section and the Extra-Contractual Liability Section will occur on Monday, February 26, at 7:45am. The program title is “Reversal of Misfortune: How to Establish Favorable Precedent Affecting Bad Faith Litigation.” The presentation will develop an understanding of the benefits of employing a proactive approach creating favorable precedent, under which emerging insurance bad-faith issues are identified early and an active trial and appeal strategy is pursued in cases with the best facts and in the best jurisdictions.  We have an esteemed panel representing the interests involved in forming this strategy:  Vicki Roberts (insurer in-house counsel), Laurie Hepler (appellate counsel), and Scott Hofer (trial counsel).

 

Please block your calendars for the presentation as well as the entire Meeting—Feb. 25-28, 2018.

 

 

The U.S. Supreme Court’s new electronic filing system

 

 At the Charleston Winter Meeting in March, our Section presented Writing in the Electronic Age, addressing how we need to modify our legal writing for the screen reader because most courts require electronic filing—most courts except the U. S. Supreme Court, that is.

 

But that has changed! On November 13, 2017, the Supreme Court has joined the electronic age when the Court’s electronic filing system (EFS) became effective. Now, any party or amicus curiae represented by an attorney in the Supreme Court must submit filings through the EFS during both the certiorari and merits stages of an appeal. Further, the list of submissions (e.g., certiorari petitions; briefs) included in the Court’s online docket for each case will be hyperlinked, and thus, just a click away to any attorney or member of the public.

For a summary of the EFS and steps on registering and filing documents, please click here to read.

 

 

 

October 2017

 

The Appellate Law Section plans to periodically profile of one its members in its monthly Newsletter to help Section members and others in the FDCC better know who we are.

 

This month, we welcome the Section’s newest member, Melinda S. Kollross. Melinda is a senior partner and Co-Chair of Clausen Miller's Appellate Practice Group in Chicago, handling trial-monitoring and post-trial and appellate litigation for clients nationwide. Licensed in Illinois and New York, Melinda has handled more than 150 appeals in state and federal appellate courts, including participation in two cases before the United States Supreme Court. Her practice includes commercial litigation, first-party property, liability-insurance coverage and liability defense.

 

Melinda has been actively involved in DRI’s Appellate Advocacy Committee. She wrote a chapter on post-trial motions in A Defense Lawyer’s Guide to Appellate Practice, published by the DRI in 2004. She also has authored two feature articles published in For The Defense, titled: “Oral Argument: What It Really Takes To ‘Please the Court,’” and “Evaluating, Negotiating and Effectuating Settlements on Appeal.” Melinda recently served as the DRI Appellate Advocacy Committee’s 2017 Annual Meeting Chair, and moderated a panel discussion at the Annual Meeting, titled “Perspectives on the Appellate Practitioner’s Role at Trial and on Appeal: A View from the Plaintiff, the Defense, and the Court,” which featured sitting Illinois Supreme Court Justice Rita Garman as a panelist.

 

Melinda enjoys spending time with her two daughters, Alyssa (9) and Kristina (5) (pictured below), and her hobbies include exercising, fine art and fine dining, and exploring the great outdoors.

 

Melinda, welcome to the FDCC and the Appellate Law Section! We are happy you have joined us!

 

 

SEPTEMBER 2017

 

Continuing the theme of the Appellate Law Section’s joint presentation with the International and Commercial Litigation Sections, London-based Section member Stephen Carter has provided an article he helped finalized that was prepared by his colleague, Bernadette Bailey. The article addresses how European courts have addressed English jurisdiction clauses in insurance policies, and whether English courts can or should apply those decisions in cases pending in the UK in light of Brexit and the recently passed Repeal Bill by the British Parliament.

 

English Jurisdiction Clauses in Insurance Policies – The European Court’s View

CLICK HERE to read.

 

 

 

AUGUST 2017

 

Montreux Meeting – July 2017

As advertised, the joint presentation at the Montreux Meeting by the Appellate Law, International, and Commercial Litigation Sections generated robust discussion regarding several issues confronting the European Union Member States, the United Kingdom, and the United States. At least five countries were represented on the panel and in the audience, collectively. Lead by moderator Bill Vita, the most spirited exchange of views concerned the effect of Brexit on commercial litigation and enforcement of judgments. With the ink barely dry from “The Great Repeal Bill” that will be debated in the UK Parliament this Autumn, Stephen Carter gave the UK perspective on whether EU law, including precedent by the European Court of Justice, will apply in disputes filed in the UK after Brexit, among other issues. Jorge Angell provided stimulating counter-perspectives from the EU in general, and Spain in particular. Several audience members from other countries weighed in with insightful comments.

 

As a type of counter to the uncertainties facing future litigation in the EU and UK, Stephen Brake and Charlie Frazier presented a summary of key aspects and differences of the US judicial system at both the trial and appellate level. They focused on the consistent and well-settled aspects of that system and how they differ with the other jurisdictions. These differenced include the fundamental right to a jury trial and appeal as a matter of right in the US, followed by a frank discussion of the relatively higher cost of and greater length of time to resolve suits filed in the US. 

 

Amelia Island Meeting – February 24-28, 2018

 

Planning for the Section’s substantive-law presentation at the Amelia Island Meeting is well underway, with the topic, content, and panel essentially finalized. We will be joining with the Extra Contractual Liability Section to present

“Creating Favorable Precedent in Bad-Faith Litigation.”

 

The ultimate goal of the presentation will be to develop an understanding of the benefits of employing a proactive approach in creating favorable precedent, under which emerging issues are identified early and an ­active trial and appeal strategy is pursued in cases with the best facts and in the best jurisdictions. The discussion will focus on the roles played by in-house, trial, and appellate counsel in coordinating strategy by identify­ing, developing, and preserving the best arguments in the trial courts, issue selection and posturing on appeal and aggressively seeking settlement to avoid establishing bad precedent in prob­lem cases—cases with bad facts, in a problematic jurisdiction, or that did not present or preserve the best arguments.

 

Providing the in-house counsel point of view will be FDCC Past President Vicki Roberts, Vice-President and Counsel of Meadowbrook Insurance Group. Joining Vicki will be a bad-faith-litigation specialist and an appellate specialist, to be named soon.

 

You will not want to miss this one!

 

 

JULY 2017

 

The FDCC Appellate Law Section would like to remind our members of the program that we will present at the upcoming Annual Meeting in Montreaux, Switzerland. On the heels of the surprising general election in the U.K., and commensurate with the international flavor of the Annual Meeting in Montreux, our section and the Commercial Litigation and International Sections will present an international panel of attorneys who will address current issues of importance and interest. The panel- and audience-interactive discussion will address: (1) Brexit, including the procedural aspects of the rights of EU citizens living in Great Britain; (2) enforcement of judgments in the EU and Britain; (3) differences in discovery practice between Europe and the U.S.; and (4) differences in trials and appeals between the U.S. and Europe.


Our program will occur on Thursday, July 27 at 7:45 a.m. in the Salon de Musique. Please check the on-site brochure to locate this meeting room. The moderator will be Bill Vita of Westerman Ball et al. in Uniondale, NY. The panel members are Jorge Angell of L.C. Rodrigo Abogados in Madrid; Stephen Carter of Carter Perry Bailey LLP in London; Stephen Brake of Nutter McClennan & Fish in Boston; and Charlie Frazier of Alexander Dubose Jefferson & Townsend in Dallas.


We would also like to congratulate Charlie Frazier, who has been appointed as chair of our section for the 2017-2018 FDCC year. If you would like to become more involved in our section in the coming year, please reach out to Charlie at cfrazier@adjtlaw.com.

 

 

JUNE 2017

 

On the heels of the surprising general election in the U.K., and commensurate with the international flavor of the Annual Meeting in Montreux, our section and the Commercial Litigation and International Sections will present an international panel of attorneys who will address current issues of importance and interest. Among the topics: (1) the differences in litigating in Continental Europe, the U.K., and the U.S., with emphasis on pre-trial discovery, admission of evidence, and trials by jury vs. trials by the judge; (2) how judgments are enforced in E.U. member states; and (3) where does the U.K. now stand in terms of attempting to retain certain aspects of E.U. membership, including the application of critical E.U. laws and procedural rules pertinent to commercial litigation.


Our program will be on Thursday, July 27 at 7:45 a.m. Check your on-site brochure for location information. The moderator will be William Vita of Westerman Ball et al. in Uniondale, NY. The speakers include Jorge Angell of L.C. Rodrigo Abogados in Madrid, Spain, Stephen Carter of Carter Perry Bailey LLP in London, Stephen Brake of Nutter McClennan & Fish in Boston, and Charlie Frazier of Alexander Dubose et al. in Dallas.

 

 

APRIL 2017

 

At the Winter Meeting in Charleston, our section hosted a “dine around” dinner at which we welcomed new member Laurie Hepler of Greines, Martin, Stein & Richland LLP, an appellate firm in San Francisco. We also had a very strong turnout for our CLE program, “Legal Writing for the Electronic Age.” Charlie Frazier, Bob Olson, Mike Aylward and Justice John Few of the South Carolina Supreme Court presented some great tips on how to make your briefs more persuasive and easier to read for judges and law clerks who are reading them on electronic devices. For those who were unable to make it to Charleston, or those who would like more information on this topic, Charlie put together a great paper, which is available by following this link, starting at page 456. The paper has a number of links to other excellent resources on this topic. Take a look and learn how to make your legal writing easier to skim and navigate on an electronic device, and use more visible structures and visual aids. If you would like a copy of the Powerpoint, please email Charlie at cfrazier@adjtlaw.com.

 

For the upcoming Annual Meeting in Montreaux, Switzerland, the Appellate Law Section will be joining with the Commercial Litigation Section to present a program on “A Comparison of Commercial Litigation in Europe and North America.” The program will discuss how commercial litigation differs on both sides of the pond and will focus on what American attorneys should know when advising their clients regarding business dealings in Europe. Panelists will include William Vita, Jorge Angell, Stephen Brake, Stephen Carter, and Charlie Frazier.

 

If you are interested in writing a FDCC blog post (a short article published online) on an appellate law topic, please email Wystan Ackerman at wackerman@rc.com

 

 

 


more Calendar

3/24/2019 » 3/28/2019
2019 FDCC Winter Meeting - Austin, Texas

4/5/2019 » 4/7/2019
FedTech U

5/7/2019
FDCC in London: Use of Visual Technologies in U.S. Courtrooms

7/29/2019 » 8/4/2019
2019 Annual Meeting

9/22/2019 » 9/24/2019
2019 Corporate Counsel Symposium (CCS)

11/6/2019 » 11/8/2019
2019 Insurance Industry Institute (I-3)

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Charles MeyerO'Hagan Meyer, PLLC, Richmond, VA

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