Thursday, April 8, 2021
Wednesday, April 7, 2021
Evidence fabrication claim is revived on appeal as Court of Appeals says trial court misled the jury
Tuesday, April 6, 2021
Every dispute must end one way or another. One unhappy ending for the plaintiff is collateral estoppel, which means that a state court says something happened between the parties, the losing party in that case cannot bring another lawsuit in a different court that would challenge that initial adverse finding. So that plaintiff loses twice. This case shows us how it all works.
The case is Watley v. Department of Children and Families, issued on March 22. Plaintiffs are the parents of a child who was the subject of child neglect proceedings in Connecticut. The mother has significant disabilities, including narcolepsy, schizotypal personality disorder, antisocial personality disorder, etc. The state claimed the mother was not capable of raising the child, and sought to terminate her parental rights. The mother ultimately lost that battle. The plaintiffs then had two boys, and the state sought to terminate those parental rights under a "predictive neglect" theory, which I have never heard of but is self-explanatory. The plaintiffs lost their rights over the boys under state-law proceedings, as well. While the plaintiffs' defense to these proceedings invoked their disabilities, the state proceedings rejected those arguments on the basis that the Americans with Disabilities Act does not create special obligations in either termination or neglect proceedings.
After the parents lost their cases in Connecticut court, they sued in federal court under the ADA and the Rehabilitation Act, claiming their rights under these statutes were violated, and they wanted a TRO to get the children back. They lost in the district court and appealed to the Second Circuit, which holds the factual findings in the state proceedings are binding on the federal court and cannot be challenged in the federal forum.
That brings us to collateral estoppel. Under that rule, you cannot challenge state court findings in federal court when the state court resolved the same or a similar issue as the federal claim. The key to collateral estoppel is the identity of the issues in the state and federal cases. This is why the plaintiffs lose on that theory. While the state court proceedings did not consider the ADA or Rehabilitation Act defenses, they did consider the parent's mental condition in resolving this dispute. In other words, the arguments that plaintiffs advance in federal court were, for all intents and purposes, already resolved in the state court proceedings. So the plaintiffs lose.
A sad case all around, as the Court of Appeals (Pooler, Parker and Lynch) recognizes at the end of the opinion. But the Court notes that the Full Faith and Credit Clause under the Constitution compels this result and implicitly recognizes the collateral estoppel principle.
Monday, April 5, 2021
I would say the most confusing rule in the Federal Rules of Civil Procedure is Rule 68. What makes the confusion even worse is that misunderstanding the rule can have huge financial consequences. Rule 68 says the defendant can serve an Offer of Judgment on the plaintiff for a sum of money that the plaintiff has 14 days to accept or reject. If the plaintiff rejects the offer and then goes to trial but recovers less money than the defendant had offered under Rule 68, then the plaintiff suffers a penalty. The rule does not make this clear, but the Supreme Court 25 years ago interpreted Rule 68 to mean the punishment requires the plaintiff to cover the defendant's costs, but not attorneys' fees, and that if the case involves fee shifting (such as an in a civil rights case), the plaintiff cannot recover any fees that accrued after the Rule 68 offer was served. It's all very complicated, and lawyers have to ensure that the Rule 68 offer is clear and unambiguous for these penalties to kick in. The offer in this case was not clear.
The case is Electra v. 59 Murray Enterprises, issued on February 9. Plaintiffs are eleven professional models and actresses whose images were used to promote what we call "Gentlemen's Clubs" in New York City. They brought eight causes of action. Plaintiffs says they did not consent to have their photos used for this purpose. As the case proceeded, the defendants served a Rule 68 offer on the plaintiffs. The offer read, that Defendants were offering "Plaintiffs collectively to take a judgment against Defendants in the amount of $82,500.00 . . . on each of the Causes of Action contained in the Complaint," inclusive of interest, attorneys fees, etc. Plaintiffs accepted the offer, claiming in their response that they were expecting $660,000.000 in the settlement checks.
You can imagine the confusion and rage among defendants' attorneys when they learned that plaintiffs had accepted the Rule 68 offer but were now demanding more than $600,000.00. Its moments like that that cause lawyers to drink. "Where the hell do they get off demanding $660,000!" Or something like that. Plaintiffs said they $82,500 referred to each of the eight claims asserted in the lawsuit. Defendants probably responded that they never interpreted the offer to be interpreted that way. So the courts had to deal with this problem. The trial court rejected the plaintiffs' interpretation and said the were not entitled to the $660,000. The Court of Appeals (Pooler, Kearse and Calabresi) agrees and finds against the plaintiffs.
The problem with the Rule 68 offer is that it was ambiguous. The Rule 68 process requires that the parties have a meeting of the minds, as the offer is would create a contract between the parties. Here is the ambiguity: while the Rule 68 offer said the plaintiffs "collectively" would take judgment in the amount of $82,500.00 . . . on each of the Causes of Action," the offer was unclear as to the amount of the settlement. The offer was "reasonably susceptible to more than one interpretation because the word 'collectively' contradicts the use of the word 'each.'" The Court concludes, "An offer that states a dollar amount to be specified in the judgment but does so using language that would permit the defendant to argue later that the offer was for a different amount has no Rule 68 validity."
The Court then adds another gloss to this case: that even if a Rule 68 contract had somehow been formed calling for a judgment in the amount of $660,000, the Court would find that defendants would have been able to avoid the contract on the basis that the offer had a unilateral mistake. Under settled contract law principles, "where a mistake of one part at the time of a contact was made as to a basic assumption on which he made the contract has a material effect . . . that is adverse to him, and the other party had reason to know of the mistake, the contract is . . . voidable by him." That principle works to defendants' advantage because, during settlement negotiations that predated the Rule 68 offer, it was clear the parties were not going to settlement in the high six-figures, and defendants then told plaintiffs they were going to serve a Rule 68 offer in the amount they had previously offered in settlement negotiations, which was $82,500. So plaintiffs knew the Rule 68 offer couldn't have been for $660,000.
Thursday, April 1, 2021
The Court of Appeals holds en banc that the Fair Housing Act of 1968, which aims to eliminate racial discrimination in housing, does not allow a tenant to sue the landlord over his deliberate indifference to racial harassment committed by another tenant. The rare en banc vote was 7-5.
The case is Francis v. Kings Manor, issued on March 25. Francis lived in an apartment complex in Suffolk County. His neighbor targeted Francis for horrible racial harassment that eventually got the neighbor arrested for aggravated harassment. Francis complained on multiple occasions to the landlord about this abuse, but the landlord did nothing, though it did handle other non-race-related disputes among tenants on other occasions.
This case reaches the Court of Appeals on a Rule 12(b)(6) posture, so there is no discovery yet, just the pleading. The majority says the FHA cannot provide a remedy because, unlike racial harassment in the workplace, landlords do not have the "substantial control" over tenants that employers have over employees. Judge Cabranes, writes, "We are hard-pressed to presume that an employer's manner and degree of control over its agent-employees is equivalent to that of a landlord over its tenants." Not only do "most employers have ready access to, effective control over, and the ability to move within, the physical workspace and can freely dismiss at-will employees," and they can monitor and investigate employees to remediate misconduct, the same cannot be said about landlords. In addition,
New York tort law has long been clear that a landlord has no general duty to protect tenants even from “the criminal acts of yet another tenant, since it cannot be said that [a] landlord ha[s] the ability or a reasonable opportunity to control [the offending tenant]” and the “power to evict cannot be said to . . . furnish” such control.Judge Lohier writes the main dissent, having written the majority decision in this case a few years ago that the en banc ruling now reverses. After reviewing the extent of the racial harassment visited upon plaintiff and the landlord's indifference to his complaints, Judge Lohier notes that under the minimal pleading requirements in civil rights cases in the Second Circuit, plaintiff states a case in part because he alleges the landlord had authority to counsel, discipline and evict the harasser and it had intervened in other disputes among tenants. The lease gives the landlord authority to control bad tenants, and in this case we are not talking about a loud stereo but criminal activity that got the harasser arrested. Plus, we have the warranty of habitability that state law imposes on landlords to ensure the tenants have a safe living environment.
En banc rulings in the Second Circuit are rare. The last civil case that the entire court took up was Zarda v. Altitude Express, where the Court held for the first time that sexual orientation discrimination is a form of sex discrimination under Title VII, a ruling that the Supreme Court upheld in Bostock/Zarda in 2020. That en banc case was heard in 2017. If you are keeping score, the lineup in the Francis case is as follows: of the seven judges in the majority, one was appointed by a Democrat (Cabranes), one was appointed by George W. Bush (Livingston) and five were appointed by Trump (Bianco, Nardini, Menashi, Sullivan and Park). All the dissenters (Chin, Lohier, Pooler, Katzmann, and Carney) were appointed by Democratic presidents.
Tuesday, March 30, 2021
Monday, March 29, 2021
In June 2019, the State Legislature revised the vaccination rules for measles following an outbreak in Rockland County. The new law eliminated the religious exception for these vaccinations, sparking protests statewide among parents who do not want this immunization for their children. Since public schools may reject students who are not vaccinated, the new law created an urgency for these parents, who cited their religious objections to the vaccination requirements. Litigation followed. The lower courts have ruled against the parents, and now the Appellate Division has rejected those challenges as well.
The case is F.F. v. State of New York, a Third Department ruling issued on March 18. This constitutional challenge stems from the parents' rights under the Free Exercise Clause, which protects religious freedom. As a preliminary matter, the Third Department determines that since the legislative revisions apply to everyone, and not just parents with religious objections, the standard of review is whether the the law has a rational basis, a legal term of art that means any justification that the legislature could have relied upon in passing the law. Rational basis review is the death knell for constitutional challenges, as courts will always find a reason why a legislative body passed a particular law.
The Third Department says the law was motivated by important health concerns: that under mass immunization, we will have nearly 100% immunity against measles, and that the legislature was entitled to rely on medical and scientific experts for this judgment.
Plaintiffs' primary claim is that the law was not rational because it was motivated by anti-religious hostility. The Supreme Court recognized such an argument in the Masterpiece Cakeshop case from 2018, where they ruled that a state administrative agency ruled against an anti-gay baker because the agency demonstrated hostility toward religious beliefs. But that case does not apply here, the Third Department says, because the 11 floor statements that plaintiffs claim demonstrate religious hostility are simply not enough to win. Not only were the statement made by only five of the more than 200 legislators who voted on the bill, but "many of the statements do not demonstrate religious animus" but instead "display a concern that there were individuals who abused the religious exemption to evade the vaccination requirement based on non-religious beliefs" by, for example, hiring consultants to help evade the vaccination requirement through false applications for the religious exemption.
What about the argument that repealing the religious exemption would actually target religious freedoms under the First Amendment? That is not the case, the Third Department says, because repealing the religious exemption now makes the law a neutral one that applies to everyone. While the religious exemption had favored religious families, its repeal "subjects those in the previously covered class to vaccine rules that are generally applicable to the public." And, given the significant public health concern over stopping any measles outbreak, that repeal was rational under constitutional standards. The Appellate Division also rejects the parents' Equal Protection and free speech arguments, finding on the basis of Supreme Court authority that "there is no equal protection violation where children are not permitted to attend school without a vaccination," and the new rules regulate conduct, to speech, and parents remain free to express their views on vaccinations, even the rule forces parents to make difficult choices about whether to vaccinate their children.