Wake Forest Law Review

By Elliott Beale and Cassidy Webb

Samuel James Ervin III was born on March 2, 1926 in Morganton, North Carolina.[1] Judge Ervin joined the U.S. Army and served as a lieutenant from 1944 to 1946.[2] After Judge Ervin earned his Bachelor of Science from Davidson College in 1948, he received his LL.B. from Harvard Law School in 1951.[3] Following another two year stint in the U.S. Army, Judge Ervin returned to Morganton to work in private practice.[4] Judge Ervin worked at Patton, Ervin, and Starnes, where he became associated in 1957.[5] While working in private practice, Judge Ervin served as a solicitor for the Burke County Board of Commissioners from 1954 to 1956 and North Carolina State Representative from 1965 to 1967.[6] Governor Dan K. Moore named Judge Ervin to fill a vacancy on the North Carolina Superior Court for the 25th Judicial District in July 1967.[7] Judge Ervin served on the North Carolina Superior Court until 1980.[8]

On April 2, 1980, President Jimmy Carter nominated Judge Ervin to a new seat on the U.S. Court of Appeals for the Fourth Circuit.[9] He was confirmed by the Senate on May 21, 1980 and received his commission on May 23, 1980.[10] He served as Chief Judge of the Fourth Circuit from 1989 to 1996.  While serving as Chief Judge, Judge Ervin was also a member of the Judicial Conference of the United States from 1989 to 1995.[11] His service terminated on September 18, 1999 upon his death.[12]

One of the most interesting cases Judge Ervin said he presided over as a North Carolina judge was when the court effectively rewrote James B. Duke’s, founder of Duke Power, will.[13] Judge Ervin had to determine what Duke would have done with the dispositional investment his foundation had in Duke Power Company had Duke known about the Tax Reform Act at the time he made his will.[14] Judge Ervin also presided over one of the first inverse condemnation cases in Charlotte.[15] He had to determine whether airplanes could inversely condemn the property by flying at low altitudes regularly over people’s houses and if this enabled the individuals to recover damages for their property’s loss of value.[16]

Following his death, Judge James Dickson Phillips, Jr. fondly remembered Judge Ervin as the “very model of prudence and temperance, of fortitude and fairness.”[17] Judge Phillips described Judge Ervin as a man who wore no masks and acted with integrity, courtesy, and civility in all circumstances.[18]

Judge Ervin was survived by his wife, two daughters, and two sons.[19] His sons, Samuel “Jimmy” Ervin IV and Robert C. Ervin, both followed in their father’s footsteps and became judges.[20] Judge Ervin IV currently serves as an Associate Justice of North Carolina Supreme Court, and Judge R. Ervin currently serves as a North Carolina Superior Court judge.[21] Judge Ervin IV says one of the biggest lessons his father taught him “was to remember that behind any case that comes before the court there are real people with real problems whose lives will be substantially affected by what the members of the court do.”[22]

 

 

[1]Ervin, Samuel James III, Fed. Jud. Ctr., https://www.fjc.gov/node/1380526 (last visited Oct. 23, 2018).

[2]Id.

[3]Id.

[4]Id.

[5]Jimmy Rhyne, 50 Years Ago, News Herald (Jul. 10, 2017), https://www.morganton.com/townnews/law/years-ago/article_30f8f7a0-6586-11e7-8b89-b33a295af7d6.html.

[6]Fed. Jud. Ctr., supra note 1.

[7]Rhyne, supra note 5.

[8]Fed. Jud. Ctr., supra note 1.

[9]Id.

[10]Id.

[11]Id.

[12]Id.

[13]Interview by Hilary L. Arnold with Judge Sam J. Ervin III, Chief Judge of the Fourth Circuit, in Morganton, NC, (Feb. 24, 1993 & Apr. 8, 1993), https://dc.lib.unc.edu/cdm/ref/collection/sohp/id/12622.

[14]Id.

[15]Id.

[16]Id.

[17]James D. Phillips, Jr., Sam J. Ervin III: A Tribute, 78 N.C. L. Rev. 1705, 1706 (2000).

[18]Id.

[19]Samuel James Ervin 3d, 73 Federal Judge, N.Y. Times (Sept. 21, 1999), https://www.nytimes.com/1999/09/21/us/samuel-james-ervin-3d-73-federal-judge.html.

[20]Sharon McBrayer, Taking the Bench: Sam Ervin Sworn in as NC Supreme Court Judge, News Herald (Jan. 8, 2015), https://www.morganton.com/news/taking-the-bench-sam-ervin-sworn-in-as-nc-supreme/article_44c98846-9796-11e4-a117-f7ef4aff205c.html.

[21]Id.

[22]Id.

By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

By: Matthew Hooker

De Reyes v. Waples Mobile Home Park Limited Partnership

In this case, the Plaintiffs (four Latino couples) had sued the landlord of a mobile home park under the Fair Housing Act (“FHA”). The landlord required all individuals who lived in the park to provide proof of legal status in the United States. The Plaintiffs contended that this policy violated the FHA because it disproportionately impacted Latinos as compared to non-Latinos. In granting the landlord’s motion for summary judgment, the District Court ruled that the Plaintiffs had failed to establish a prima facie case to properly connect the disparate impact to the landlord’s policy. The Fourth Circuit disagreed, noting that the Plaintiffs had provided statistical evidence to demonstrate the disparate impact of the policy on Latinos. The Court also pointed out that while the Plaintiffs’ legal status might cause them to be unable to satisfy the policy, their claim was premised on disparate impact based on race. Thus, the Court clarified that the Plaintiffs’ legal status was essentially irrelevant, although the District Court had suggested otherwise. The Court therefore vacated the District Court’s grant of summary judgment and remanded the case for the District Court to properly consider the burden-shifting analysis under an FHA disparate impact claim.

Sierra Club v. Virginia Electric & Power Company

Here, the Sierra Club had sued Virginia Electric & Power Company d/b/a Dominion Energy Virginia (“Dominion”) under the Clean Water Act. Dominion had stored coal ash in a landfill and in settling ponds. It later detected arsenic leaching from the coal ash and seeping into the surrounding groundwater. Sierra Club alleged that Dominion had unlawfully discharged pollutants into navigable waters (violating 33 U.S.C. § 1311(a)) and violated certain conditions of its coal ash storage permit. After a bench trial, the District Court found Dominion violated § 1311(a) but ruled that Dominion did not violate the permit conditions. Both parties appealed. The Fourth Circuit held that the landfill and settling ponds were not “point sources” under the Clean Water Act, so they were not subject to § 1311(a)’s prohibitions. The Fourth Circuit agreed, though, with the District Court giving deference to the Virginia Department of Environmental Quality’s (VDEQ) interpretation of the permit conditions, since VDEQ issued the permit. Consequently, the Fourth Circuit reversed the District Court regarding the violation of § 1311(a) and affirmed with respect to the District Court’s ruling on the permit conditions.

By: Lanie Summerlin

Henderson v. Bluefield Hosp. Co.

In this civil appeal, the National Labor Relations Board (“NLRB”) appealed the District Court’s refusal to grant preliminary injunctive relief under section 10(j) of the National Labor Relations Act. The NLRB sought preliminary injunctions against two hospitals until NLRB agency adjudication of a complaint filed against the hospitals by the National Nurses Organization Committee (“Union”) was complete. The injunctions would have required the hospitals to bargain with the Union in good faith, and NLRB argued the injunctions were necessary to protect the nurses’ fundamental right to be represented through collective bargaining. The District Court denied these injunctions because it ruled the NLRB failed to prove this type of relief was necessary to preserve the remedial power of the NLRB. The Fourth Circuit affirmed the District Court’s decision and emphasized that the NLRB has the burden of proving irreparable harm absent the injunction. Ultimately, the Fourth Circuit held the NLRB failed to meet this burden because its theories of harm were speculative; the NLRB failed to explain why its own forms of relief available after completion of the agency process would be insufficient.

U.S. v. Bell

In this criminal appeal, Quintin Bell (“Bell”) challenged his convictions of four counts of drug trafficking and one count of illegal possession of a firearm. Bell argued the District Court erred in (1) denying his motion to suppress statements he made to police officers who were executing a search warrant on his residence; (2) admitting evidence of another arrest of Bell under Federal Rules of Evidence Rule 404(b); (3) denying Bell’s motion to disclose the identity of a confidential informant; and (4) enhancing Bell’s sentence to 480 months’ imprisonment due to his prior convictions. The Fourth Circuit held the District Court did not err in denying Bell’s motion to suppress his statements because Bell was not being interrogated at the time the statements were made; the officer’s question was directed to Bell’s wife and Bell voluntarily answered. The Fourth Circuit also held the District Court did not abuse its discretion by admitting evidence of Bell’s other arrest because this evidence’s relevance to Bell’s motive and intent was not substantially outweighed by the risk of unfair prejudice to Bell. In regards to the confidential informant, the Fourth Circuit held the District Court did not err in refusing to disclose the informant’s identity because Bell failed to prove the informant’s identity was necessary to establish his own guilt or innocence. The Fourth Circuit also reviewed Bell’s criminal record and held that his 480 month sentence was appropriate due to the nature of the crimes on his record. Overall, the Fourth Circuit affirmed Bell’s convictions. Judge Wynn dissented; he argued the Fourth Circuit should have remanded the issue of Bell’s statements to police officers to the District Court for a determination of whether Bell perceived himself as being interrogated. Judge Wynn also argued that Bell’s prior convictions do not qualify as predicate convictions to enhance his sentence.

VanDevender v. Blue Ridge of Raleigh

This civil appeal focuses on the District Court’s decisions as to two judgment as a matter of law (“JMOL”) motions filed by Blue Ridge of Raleigh (“Blue Ridge”). Blue Ridge operated a long-term skilled nursing facility in Raleigh, North Carolina, but consistently failed to meet state-mandated staffing levels and supplies requirements. The estates of three deceased ventilator-dependent patients at Blue Ridge brought claims of wrongful death nursing home malpractice against Blue Ridge. The jury awarded compensative and punitive damages to each Plaintiff. However, the District Court granted Blue Ridge’s motion for JMOL as to all three Plaintiffs’ punitive damages awards because it ruled the Plaintiffs had not produced sufficient evidence. The District Court denied Blue Ridge’s motion for JMOL as to Plaintiff Jones’s compensatory damages. Plaintiffs appealed the JMOL as to their punitive damages, and Blue Ridge cross-appealed the denial of JMOL as to Plaintiff Jones’s compensatory damages. The Fourth Circuit held the District Court erred in granting JMOL as to the Plaintiffs’ punitive damages. Based on the record, the Fourth Circuit held that a jury could determine Blue Ridge’s staffing policies and managerial decisions constituted willful or wanton conduct. It held that the District Court erred by requiring the Plaintiffs to prove malice, which is not required for willful or wanton conduct. The Fourth Circuit emphasized that Blue Ridge failed to follow state and federal laws on staffing and intentionally failed to follow its own patient safety policies. Additionally, the Fourth Circuit affirmed the District Court’s denial of Blue Ridge’s JMOL motion as to Plaintiff Jones’s compensatory damages. There was sufficient evidence that Blue Ridge breached the standard of care it owed to Plaintiff Jones by being understaffed without proper supplies. The Fourth Circuit remanded with instructions for the District Court to enter punitive damages for all three Plaintiffs consistent with North Carolina’s statutory limits.

By: Adam McCoy and Shawn Namet

Kenny v. Wilson

In this civil case, plaintiff-appellants, Kenny, argued the district court incorrectly dismissed their 42 U.S.C. § 1983 claim for lack of standing for failure to state an injury in fact.  The plaintiff-appellants challenge two South Carolina statutes as unconstitutionally vague that criminalize any person, including students, from disturbing any school or college.  The district court found fear of future arrest and prosecution under the vague statutes was not an injury sufficient to provide standing.  The Fourth Circuit overturned the district court decision and found the plaintiffs did have standing to challenge vagueness where they had been previously charged under the statute and did not know what future actions would be interpreted as violations.  The Fourth Circuit also found standing for claims that the statutes chill First Amendment speech because they were too vague to constitute what may be considered a violation.

Hodgin v. UTC Fire & Security Americas Corp., Inc.

In this civil case, the plaintiff-appellants, Hodgin, sued UTC Fire & Security Americas Corp., Inc., and Honeywell International, Inc., claiming they were vicariously liable for illegal calls made by telemarketers in violation of the Telephone Consumer Protection Act.  The district court granted summary judgment to UTC and Honeywell after denying plaintiffs’ motion to postpone the ruling on summary judgment until after the close of discovery.  The Fourth Circuit affirmed the district court’s denial of the motion to postpone because the plaintiffs failed to show the discovery allowed was not sufficient to allow them to find evidence to oppose summary judgment.  The plaintiffs had sufficient opportunity to depose the defendants and failed to identify what information they could have discovered to defeat summary judgment.

Sims v. Labowitz

In this civil case, the plaintiff-appellants, Sims, sued under 42 U.S.C. § 1983 alleging police detective Abbot’s search of his person violated the Fourth and Fourteenth Amendments by trying to force seventeen-year-old Sims to recreate a sexual explicit image he had sent a fifteen-year-old girl.  The district court dismissed the complaint based on Abbot’s qualified immunity.  The Fourth Circuit overturned the district court because a reasonable officer would have known that attempting to force a minor to recreate the sexually explicit image would invade the minor’s right to privacy.  Abbot would not be entitled to qualified immunity because a reasonable officer should have known the that action violated the constitution.

Sky Angel U.S., LLC v. Discovery Communications, LLC

This case involved a contract dispute between television distributor Sky Angel U.S. and media company Discovery Communications.  Discovery terminated its contract granting distribution rights to Sky Angel upon discovering that Sky Angel’s IPTV distribution system delivered content to consumers over the “public internet” without using a closed dedicated pathway.  The Fourth Circuit affirmed the District Court of Maryland’s finding that the contract was ambiguous on this point, and found that the District Court therefore properly considered extrinsic evidence.  The Fourth Circuit further agreed with the District Court that the extrinsic evidence established that Sky Angel had no reasonable expectation that it could distribute Discovery programming over the public internet because Discovery made its internal policy disallowing the distribution model clear to Sky Angel.

Int’l Brotherhood Local 639 v. Airgas, Inc.

In this labor dispute, the Fourth Circuit affirmed the District Court of Maryland’s issuance of a preliminary injunction preventing Airgas, Inc. from relocating some operations to nonunion facilities until the arbitrator in the case had issued a final decision regarding whether the relocation violated the collective bargaining agreement.  On appeal, however, the Fourth Circuit found the case to be moot because the arbitrator made a final decision in favor of the Union while Airgas’s appeal was pending.  The Fourth Circuit rejected Airgas’s argument that the case was still “live” because it would be entitled to damages in the event that the Fourth Circuit held the District Court had no jurisdiction to issue the injunction. Instead, the Fourth Circuit held that Airgas would not be entitled to damages because it had only been prevented from taking action it had no legal right to take under the collective bargaining agreement.  The Fourth Circuit added that while federal courts generally lack jurisdiction to issue injunctions in labor disputes, the case fell within the exception for cases in which the arbitrator would otherwise be unable to restore the status quo ante.

The dissent argued that the district court’s exercise of jurisdiction dangerously broadened a narrow exception.  According to the dissent, the case would set a precedent allowing courts to unduly interfere with labor disputes, noting that the extensive litigation surrounding the injunctive relief in this case was contrary to the purpose of the parties submitting to mandatory arbitration in the first place.  Further, the dissent argued that the case was not moot, as the district court’s lack of jurisdiction should have at least entitled Airgas to the $5,000 injunction bond paid by the Union.

U.S. v. Savage

In this criminal case, Defendant Savage appealed his convictions for banking fraud and identity theft on the basis that the district court did not conduct an in camera review of the prosecutor’s notes to determine whether information was being withheld that could impeach his accomplice’s testimony against him.  Savage enlisted an accomplice employed by the targeted bank to provide him with identifying information in customer’s accounts.  The accomplice agreed to testify against Savage.  Before the court is required to conduct in camera inspection under the Jencks Act, a defendant must establish a foundation for the request by stating with reasonable particularity a basis for his belief that material subject to required disclosure under the act exists.  Under the rule set forth in Brady v. Maryland, a defendant must show that “the non-disclosed evidence was favorable to the defendant, material, and that the prosecution had the evidence and failed to disclose it.”  373 U.S. 83 (1963).  The Fourth Circuit rejected Savage’s argument that the existence of some inconsistent statements properly disclosed by the prosecution required the district court to conduct in camera review of the prosecutor’s personal notes to determine if additional inconsistent statements were made.  Similarly, the existence of the disclosed inconsistent statements was insufficient to establish that the prosecution had additional material information it failed to disclose.

The Fourth Circuit rejected Savage’s argument that the district court erred in denying his requested jury instruction that would have instructed the jury to closely scrutinize accomplice testimony.  The jury found no error in refusing to distinguish accomplice witnesses from all witnesses and that the district court properly instructed the jury to closely scrutinize all witness testimony when determining credibility.

Savage also argued that the district court erred in permitting the jury to receive written jury instructions regarding aiding and abetting after declining to provide written copies of all jury instructions.  The Fourth Circuit rejected Savage’s argument, citing the strong deference afforded to trial courts in the use of jury instructions, finding no abuse of discretion.

U.S. v. Bell

This appeal arose from the district court’s order finding Respondent Kaylan Bell to be a “sexually dangerous person” under the Adam Walsh Child Protection and Safety Act of 2006, thereby civilly committing him to the custody of the Attorney General upon his release from prison.  Bell had a long history of numerous sexual offenses involving children, beginning in 1999, which were predominantly for repeatedly exposing himself to minors.  He challenged the district court’s finding that he would have serious difficulty refraining from child molestation upon release because it had been eighteen years since his last “hands-on” child molestation offense.  The Fourth Circuit affirmed the district court’s findings that, despite the time lapse, Bell’s repeated offenses established an inability to control his impulses.  The Fourth Circuit also found that the district court properly credited an expert who had twice prior declined to reach the conclusion that Bell was a sexually dangerous person as defined by the act because she had changed her position only after Bell reoffended just two weeks after his last release.

By Kelsey Hyde

On March 17, 2017, the Fourth Circuit published an opinion in the civil matter of Sharma v. USA International, vacating the district court’s grant of summary judgment and remanding for further proceedings. In departing from the lower court’s ruling, the Court found the U.S. District Court for the Eastern District of Virginia improperly granted the defendant’s motion for summary judgment based solely on the contested issue of plaintiff’s purported damages.

Factual & Procedural Background

The plaintiffs in this case, Jatinder Sharma & his corporation Haymarket Fast Foods, Inc., were involved in a business transaction with defendants Khalil Ahmad and Mahrah Butt, partners at USA International, LLC. Sharma became interested in purchasing two restaurants– a Checkers and an Auntie Anne’s– from defendants upon learning how these restaurants were generating high sales. Throughout negotiations for the purchase of these restaurants, Sharma reviewed USA International’s tax returns and financial statements, which indicated the combined sales of the restaurants for the most recent months were about $75,000 per month.

The parties’ first purchase agreement specified a price of $720,000, and made the sale contingent on the stores collectively acquiring $90,000 in monthly sales in the two months prior to a settlement. Subsequent financial statements revealed lower monthly sales, thus the price was later reduced to $600,000 and the conditional-sale provision was eliminated from the final agreement. Sharma formed the entity Haymarket Fast Foods, Inc. in relation to the transaction, and also applied for a loan at his bank to secure part of the purchase price. His application represented that the restaurants’ average monthly sales based on the figures presented in the financial statements provided by defendants.

Shortly after the closing, Sharma noticed sales well below the figures that had been conveyed by defendants. Sharma looked further at other elements of the business– namely the supply orders, employee’s personal observations, and bank records– in an attempt to uncover the discrepancy. This investigation made Sharma realize that, based on the supplies available, the amount of sales defendants had purported to make were simply not possible; he then suspected that defendants had inflated their sales on the income statements provided to him before closing. Further, employees who had been working for defendants revealed to Sharma that defendant Butt had, on numerous occasions, rung up high sales for food not ordered by customers, and then directed employees not to prepare the food that coincided with these orders. Moreover, Bank of America accounts revealed that deposits attributable to the restaurant were substantially lower than those represented in the statements given to Sharma.

In response to these findings, Sharma filed on action for fraud against the defendants, alleging they had inflated sales figures and lied during negotiations, resulting in fraudulent inducement to pay a higher price for the business than it was truly worth. He proposed that damages be calculated by either (1) multiplying weekly sales by 36, or (2) multiplying monthly earnings by 48, either of which meant to provide the proper valuation of the business.

Defendants filed a motion for summary judgment, claiming plaintiffs had failed to sufficiently establish the materiality of the alleged misrepresentations, their reliance on the misrepresentations, and their damages (i.e. three of the particular elements necessary to succeed on a fraud claim). The district court found that plaintiffs had adequately shown the materiality of and reliance on defendants’ misrepresentation, but had indeed failed to provide enough evidence for a factfinder to estimate with reasonable certainty the amount of damages they sustained. Namely, the court rejected the two methods proposed by plaintiff for finding the actual value of the two restaurants, concluding that neither method conformed to any generally accepted methods for valuing a business, nor sufficiently proved they were independently reliable. Thus, because damages are a necessary element of a fraud claim under controlling state law, the court granted summary judgment. On appeal, the sole issue presented regarded the district court’s finding of insufficient evidence of damages.

Elements of the Claim & Standards to be Met on Motion for Summary Judgment

On a motion for summary judgment, the court takes the record in the light most favorable to the non-movant party. The moving party is entitled to a grant of summary judgement as a matter of law if they show there is no genuine dispute as to any material fact. F.R.C.P. 56(a).

To establish a claim for fraud under Virginia law, a plaintiff must show: (1) false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting in damages to the party so misled. Evaluation Research Corp. v. Alequin, 439 S.E.2d 387, 390 (Va. 1994). Because all such elements are necessary, failure to satisfy any one element is enough to bar relief for a fraud claim, as the district court found in their ruling based on failure to establish damages.

Under Virginia law, when a dispute involves the transfer of goods or property, damages are measured by the difference between the asset’s actual value at the time of contract and the asset’s purported value if the representations made had instead been true. Courts have previously treated sales prices as sufficient evidence of value, especially in arms’ length transactions. Virginia law maintains that plaintiffs need not prove damages with absolute certainty, but a plaintiff still must provide sufficient evidence to allow a factfinder to make an intelligent, probable estimate of the damages or losses allegedly sustained.

Fourth Circuit Finds Plaintiffs’ Evidence Regarding Estimated Damages Sufficient to Survive Motion for Summary Judgement

The Court concluded that plaintiffs had indeed met their burden and had put forth sufficient evidence to allow an estimate of damages by a factfinder. Namely, the Court emphasized that the parties’ arms-length transaction would allow a reasonable factfinder to conclude that the restaurants’ final sales price represented their value, as needed for the calculation of damages. Viewing the record most favorably for the plaintiffs, the Court found that negotiations surrounding the final price of the restaurants evidenced that both parties’ relied on a valuation of the businesses derived from a multiple of weekly and/or monthly sales. Moreover, the entire content of negotiations between the parties clearly revolved around the restaurants’ weekly or monthly sales, from Sharma’s initial interest in purchasing the restaurant to the later financial statements used by defendants to further persuade Sharma to go forward with the purchase. The Court even performed its own calculations to affirm this result, despite the defendants’ refusal to confirm the calculation methods used to arrive at the sales price.

However, the Court also emphasized that the actual multiplier-numbers used or derived are not dispositive in this case, and that defendants could indeed challenge those numbers as a matter of fact later in the case. Instead, the true question was whether plaintiffs provided sufficient evidence, as a matter of law, for a factfinder to estimate a probable calculation of damages. In the Fourth Circuit’s opinion, the plaintiffs did just that by presenting their own estimate with reasonable precision and support for their own calculations, using an accepted approach based on income and computing their results with specific numbers provided by defendants to estimate the purchase price.

Vacated & Remanded

Based on their finding that Plaintiff’s purported estimates of damages were acceptable and sufficient to create a material dispute of fact, the Fourth Circuit vacated the District Court’s grant of summary judgement and remanded for further proceedings to continue plaintiff’s fraud claims.

By Ali Fenno

On February 21, 2017, the Fourth Circuit issued a published opinion in the civil case of vonRosenberg v. Lawrence. In vonRosenberg, the Fourth Circuit addressed whether the district court abused its discretion by staying a federal proceeding until the conclusion of a similar state action involving different parties and claims. After examining the abstention standard from Colorado River Water Conservation District v. United States, the Fourth Circuit vacated the abstention order and remanded the case back to the district court, holding that the district court abused its discretion by abstaining in favor of state court proceedings that were not parallel to the federal court proceedings.

Facts

Both this federal proceeding and the related state proceeding concerned whether the Diocese of South Carolina (the “Diocese”) dissociated itself from the Protestant Episcopal Church in the United States (the “Episcopal Church”). Bishop vonRosenberg, the federal plaintiff-appellant, claims that the Episcopal Church appointed him as Bishop of the Diocese after removing Bishop Lawrence, the federal defendant-appellee, from the position. But Bishop Lawrence contends that the Episcopal Church could not have removed him because the Diocese of South Carolina had dissociated from the Episcopal Church and acted independently of the organization. Thus, each party claimed to be the Bishop of the Episcopal Church in South Carolina.

State Claim

Litigation over the dissociation matter first began when the Diocese filed suit against the Episcopal Church in a South Carolina state court, claiming that the Diocese had dissociated from the Episcopal Church and sought “resolution of their real and personal property rights.” The Episcopal Church then counterclaimed for trademark infringement and dilution under the Lanham Act. It also requested that Bishop Lawrence and others be added as counterclaim defendants, but the state trial court denied the request in September 2013.

The state court issued its final order on February 3, 2015. It held that the Diocese had validly dissociated from the Episcopal Church and owned the property at issue, and permanently enjoined the Episcopal Church from using the Diocese’s marks. The Episcopal Church appealed, and the South Carolina Supreme Court heard oral arguments on September 23, 2013. No opinion from the state supreme court has yet been issued.

Federal Claim

Bishop vonRosenberg filed this federal action on March, 13, 2013, seeking declaratory-injunctive relief against Bishop Lawrence. He claimed that Bishop Lawrence violated the Lanham Act by falsely advertising himself as the Bishop of the Diocese. But the district court abstained the proceeding in favor of the state court proceedings in August 2013. The court reasoned that it had broad authority to decline jurisdiction on cases seeking declaratory relief. On appeal, the Fourth Circuit vacated the abstention order on the grounds that the district court had applied the wrong abstention standard; the district court should have applied the standard for actions involving both declaratory and non-declaratory relief from Colorado River Water Conservation District v. United States. The Fourth Circuit remanded the case so this correct standard could be applied.

On remand, the district court again abstained in favor of the state proceedings, and Bishop vonRosenberg appealed.

Failure to Meet the “Exceptional Circumstances” Abstention Standard

The Fourth Circuit began its analysis by establishing that Colorado River is a narrow standard; it requires that abstention of jurisdiction be justified by “exceptional circumstances.” The Fourth Circuit identified the first step in this “exceptional circumstances” test to be a determination of whether the state and federal cases are parallel. It listed three guiding principles for this determination: (1) the federal and state parties should have more in common than merely the litigation of substantially similar issues; (2) the parties themselves should be nearly identical; and (3) despite overlapping of facts, there must not be serious doubt that the state action would not resolve all the claims. The Fourth Circuit then noted that even if the if the factual circumstances are sufficiently parallel, Colorado River requires that a handful of procedural factors be balanced before abstaining.

In applying these principles to this case, the Court first observed that the parties in the two cases are not the same. Neither Bishop Lawrence nor Bishop vonRosenberg were parties to the state action. Furthermore, the two courts were not litigating the same claims. The state court looked only at the Episcopal Church’s false advertising claim, not that of Bishop vonRosenberg. Thus, because the state and federal cases involved different parties and different claims, the cases were not parallel as required by Colorado River‘s “exceptional circumstances” standard.

Conclusion

The Fourth Circuit concluded that the state and federal proceedings failed to meet Colorado River’s “exceptional circumstances” standard because, as they involved different parties and different claims, they could not be considered parallel cases. Accordingly, it vacated the abstention order and remanded the case back to the district court.

By Katie Baiocchi

On January 25, 2017, the Fourth Circuit published Marlon Hall v. DIRECTV, LLC, a civil case. Plaintiffs Marlon Hall, John Wood, Alix Pierre, Kashi Walker and John Albrecht (“Plaintiffs”) appealed the order granting defendants’ DIRECTV, LLC, DIRECTSAT USA, LLC and DIRECTV, INC. (“Defendants”) motion to dismiss under Federal Rules of Civil Procedure 12(b)(6). Plaintiffs alleged that defendants were joint employers and therefore are jointly and severally liable for any violations under the Fair Labor Standards Act (“FLSA”). The Fourth Circuit found the district court relied on out-of-circuit authority that has been rejected in the Fourth Circuit in analyzing the relationship between the parties. The district court also failed to construe plaintiffs’ allegations liberally as required by a motion to dismiss. Accordingly the Fourth Circuit reversed and remanded the case.

Facts and Procedural History

Defendant DIRECTV employs technicians through the DIRECTV “Provider Network.” Each plaintiff alleged that between 2007 to 2014 they worked as a technician for defendant, an intermediary provider, a subcontractor, or a combination of all three. Defendant DIRECTSAT enforced the hiring criteria of DIRECTV for technicians. DIRECTV also provided a centralized work-assignment system, and regulated and audited personnel files. Plaintiffs were required to wear DIRECTV uniforms, carry DIRECTV identification cards, and display the DIRECTV logo on their vehicles. Technicians who did not meet DIRECTV hiring criteria could not install or repair DIRECTV equipment. Plaintiffs claim that they each regularly worked in excess of forty hours per week without receiving overtime pay while working as technicians. Plaintiffs specifically allege that the defendants qualify as joint employers and their failure to provide overtime pay violated FLSA overtime and minimum wage requirements. Defendants each moved to dismiss plaintiffs’ complaint pursuant to F.R.C.P. 12(b)(6). The district court granted this motion in its entirety because they concluded that the Complaint did not allege facts sufficient to establish that defendant DIRECTV jointly employed plaintiffs.

The Fourth Circuit reviewed the district court’s dismissal de novo and accepted as true all the factual allegations contained in the complaint and drew all reasonable inference in favor of plaintiffs.

The District Court Applied an Improper Legal Test for Determining Joint Employment Under the FLSA

Under the FLSA, 29 C.F.R. § 791.2(a), “joint employment” exists when “employment by one employer is not completely disassociated from employment by the other employer(s).” Courts are split on the appropriate test for distinguishing separate employment from joint employment in relation to the FLSA. The district court’s analysis was flawed because it concluded that a worker must be an employee as to each putative joint employer when considered separately for the entities to constitute joint employment under the FLSA. Additionally, the district court relied on the test no longer employed by the Fourth Circuit in determining joint employment of the plaintiffs.

Under the Fourth Circuit two-step framework for determining whether a defendant may be liable for an alleged FLSA violation under the joint employment theory the court must first determine whether the defendant and one or more entities shared, agreed to allocate responsibility for, or otherwise co-determined the key terms and conditions of plaintiffs’ work. The second step relies heavily upon the answer to the first part of the analysis and asks whether a worker was an employee or independent contractor under FLSA. The district court erred in considering the second step before the first.

The Fourth Circuit determined that under the first part of the two-part framework that the allegations sufficiently demonstrate defendants were not completely disassociated. The district court erred by failing to follow the new standard employed by the Fourth Circuit to determine joint employment. The Fourth Circuit has held that the fundamental question is whether the entities are “not completely disassociated” with respect to the worker. The Fourth Circuit identified a non-exhaustive list of six factors to assist lower courts in determining if joint employment exists. The court emphasized that no single factor is determinative.

The Fourth Circuit also found that under the second part of the two-part framework the plaintiffs were employees rather than independent contractors. In focusing on the economic realities of the relationship between the defendants and plaintiffs the Fourth Circuit found that the plaintiffs were economically dependent on the defendants.

The District Court Misapplied the Plausibility Standard by Subjecting Plaintiffs to Evidentiary Burdens Inapplicable at the Pleading Stage

Plaintiffs’ factual allegations establish that defendants jointly determined the key terms of plaintiffs’ conditions of employment. Per the complaint defendant DIRECTV was the principal client of the other defendants. Defendant DIRECTV had the authority to direct, control and supervise the plaintiff’s day-to-day job duties. Defendant DIRECTV had specific installation procedures implemented and controlled the uniforms and identification of technicians. The complaint is also replete with allegations that DIRECTV had control over hiring, firing and compensation. The Fourth Circuit found that at this stage of litigation the allegations are sufficient to make a plausible claim that defendants were not completely disassociated.

Conclusion

The Fourth Circuit reversed and remanded the consolidated cases for further proceedings consistent with the opinion because the district court relied on out-of-circuit authority that had been rejected in the Fourth Circuit. Furthermore, the Fourth Circuit found the district court failed to construe plaintiffs’ allegations liberally as a motion to dismiss requires.

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By Ali Fenno

On November 8, 2016, the Fourth Circuit issued a published opinion in the civil case of Thomas v. Salvation Army.  In Thomas, the Fourth Circuit addressed whether the Western District of North Carolina properly dismissed Sharon Thomas’s (“Thomas”) various claims against three charitable organizations that allegedly refused to admit her to homeless shelters because of her mental disability. The Fourth Circuit held that Thomas did not allege sufficient facts to support her claims and affirmed the lower court’s dismissal of the case.

Facts and Procedural History

On July 22, 2012, Thomas was admitted to defendant Salvation Army’s homeless shelter after being referred there by an organization that provided her with behavioral mental health services. Shortly thereafter, Salvation Army transferred Thomas to defendant Church in the City, a stricter shelter run by the final defendant, Victory Christian Center, because Salvation Army’s shelter had become too crowded.

Thomas disclosed her mental health issues immediately upon arriving at Church in the City. While living there, she returned to Salvation Army for two separate visits, at which she disclosed that she was receiving behavioral mental health services, authorized the release of some of her medical records to Salvation Army, and was referred to a behavioral health center.

On August 12, 2012, Church in the City evicted Thomas. Thomas was given no reason for her eviction and alleged that she had never missed curfew. She tried to be readmitted to the Salvation Army shelter but was turned down because she was evicted from Church in the City. Thomas made numerous other attempts to return over the next few days, but was still denied re-entrance on the grounds that she had violated Church in the City’s curfew and was not a good fit for the shelter. One staff member told her that she would likely be admitted after getting a mental health evaluation, but the shelter later refused Thomas admission when she returned with psychiatric discharge papers.

Thomas did not attempt to return to the shelter after this last attempt, but she continued to try to discover why she was denied admission. In September, a Salvation Army caseworker that had investigated her case informed her that her dismissal had been justified because she had been disrespectful and hostile towards the shelter staff. He offered her admission to the shelter if she submitted a mental health evaluation and received behavioral mental health services. Thomas instead requested records of her stay at the shelter and of the relationship between Salvation Army and Church in the City. This request was denied.

Nearly two years later, Thomas filed this action in the Western District of North Carolina, moving to proceed in forma pauperis. Although the district court granted the motion, in the very same order it dismissed all of her claims under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim on which relief could be granted. The court also warned Thomas that it would require her to show cause as to why it should not enter a pre-filing injunction against her if she continued to file meritless lawsuits.

Thomas then appealed to the Fourth Circuit, challenging her appeals under 42 U.S.C. § 1983 (“§ 1983”), 42 U.S.C. § 1985 (“§ 1985”), the Americans with Disabilities Act (“ADA”), the Fair Housing Act (“FHA”), and the Rehabilitation Act.

§ 1915(e)(2)(B)(ii) Standard of Review

The Fourth Circuit established that the standard for reviewing a dismissal under § 1915(e)(2)(B)(ii) is the same as that for a dismissal under Federal Rule of Civil Procedure 12(b)(6). It therefore reviewed the district court’s dismissal de novo and accepted Thomas’s pleaded facts as true. Because Thomas was a pro se plaintiff, the court liberally construed the allegations in her complaint, but it maintained that her claims for relief must still be plausible on their face.

Lack of State Action Invalidates § 1983 Claim

The Fourth Circuit first determined that Thomas’s § 1983 claim was correctly dismissed because the defendants were not state actors. It recognized that § 1983’s color of law requirement does not cover private conduct, and private conduct can only be converted to state action when the state dominates the private activity. Here, because all three defendants were private organizations and Thomas did not allege any facts attributing their actions to the state, the Fourth Circuit held that Thomas had not plead a valid § 1983 claim.

Lack of a Conspiracy Invalidates § 1985 Claim

The court next approved the dismissal of Thomas’s § 1985 claim, holding that she did not allege any facts supporting the existence of a conspiracy between Salvation Army and Church in the City. Although Thomas alleged that her Salvation Army badge included a mention of Church in the City and that her inability to return to Salvation Army was due to her ejection from Church in the City, the court concluded that these facts only showed that the charities worked together to help Charlotte’s homeless population. Thomas’s remaining allegation that Salvation Army conspired with Church in the City was merely conclusory, which is not enough to proceed on a § 1985 claim.

No Standing for an ADA Claim

The Fourth Circuit then addressed Thomas’s ADA claim. The district court dismissed the claim on the grounds that Title I of the ADA requires a plaintiff to exhaust her administrative remedies before pursuing civil litigation. But the Fourth Circuit rejected this reasoning, noting that Title I of the ADA only applies to claims concerning employment, and here, Thomas’s claim did not concern employment.

However, the Fourth Circuit still found that that Thomas lacked standing to bring an ADA claim pursuant to both Title II and Title III of the ADA. Title II did not apply because it only applies to actions against public entities, and in this case, none of the defendants were public entities. Title III, though applying to places of public accommodation like the shelters in Thomas, still did not give the plaintiff standing because it only provides a private right of action for injunctive relief. The court noted that injunctive relief is only available to plaintiffs that show they have suffered irreparable injury, which requires a showing of a real or immediate threat that the plaintiff will be harmed again. Here, the court concluded that Thomas did not show a real or immediate threat that she would be harmed again because all the alleged harms occurred over two years before the action was filed. Furthermore, Thomas admitted that she filed the relief not to prevent future discrimination, but because of her “persistent and distressing memories” of the past discrimination. Accordingly, the court concluded that the ADA claim was invalid because the facts alleged in Thomas’s complaint did not establish irreparable harm entitling her to injunctive relief.

 Lack of Discrimination Invalidates FHA Claim

The Fourth Circuit approved the dismissal of Thomas’s FHA claim because her complaint did not contain a plausible allegation of discrimination. The court first noted that the FHA prohibits “mak[ing] unavailable or deny[ing] . . . a dwelling to any buyer or renter because of a handicap,” and that a handicap is “a physical or mental impairment which substantially limits one or more of such person’s major life activities.” Here, Thomas did not adequately identify a mental impairment for the purpose of the FHA: she identified her mental illness as a mood disorder, but then alleged that she was “mentally stable” and that the mental evaluation requested by Salvation Army was not necessary.

Even if Thomas had identified a valid mental illness, the court concluded that she did not allege facts establishing a nexus of causation between that illness and the defendants’ actions. The complaint listed multiple reasons besides Thomas’s mental disability for her eviction from the shelters, and the court further found that Thomas’s behavior with staff members gave Salvation Army valid grounds for requesting mental health examinations and records. Accordingly, the Fourth Circuit held that Thomas’s FHA claim must be dismissed because her factual allegations did not amount to a plausible showing of a mental impairment and causation, which are both essential to proving the discrimination element of a FHA claim.

Failure to Meet the Rehabilitation Act’s Heightened Causation Standard

The Fourth Circuit last concluded that Thomas failed to meet the Rehabilitation Act’s heightened causation standard. Like the ADA and FHA, the Rehabilitation Act forbids discrimination based on a disability. However, the court noted that it is different in two ways: (1) it applies only to programs receiving federal assistance, and (2) the plaintiff must show that the discrimination was solely by reason of her disability. The court first recognized that the Plaintiff only alleged that the Salvation Army received federal funding; there was no mention in the complaint of such funding for Church in the City or Victory Christian Center. It then reasoned that the second causation element must fail for the same reasons the FHA claim failed: (1) the complaint failed to allege a mental illness qualifying as a disability under the Act, and (2) it did not establish a nexus of causation between Salvation Army’s refusal to admit her and that disability. Accordingly, the court affirmed the district court’s dismissal of the claim.

Conclusion

Because the Fourth Circuit approved the dismissal of all five of Thomas’s claims, it also affirmed the district court’s decision to not exercise supplement jurisdiction over Thomas’s state law claims and to dismiss them without prejudice. However, the court noted that Thomas was not given an opportunity to respond before the district court dismissed her complaint sua sponte or to amend her complaint. Thus, the Fourth Circuit affirmed the decision of district court but modified it so that the dismissal would be without prejudice.

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By M. Allie Clayton

On November 1, 2016, in the civil case of Ripley v. Foster Wheeler, LLC, a published opinion, the Fourth Circuit established that the government contractor defense is available in failure to warn cases. The Fourth Circuit reversed and remanded to the Eastern District of Virginia to determine if the government contractor presented sufficient proof to warrant removal under U.S.C. § 1442.

Facts and Procedural History

For over four years in and around the 1970s, Mr. Bernard Ripley worked as a boilermaker at the Norfolk Naval Shipyard. In 2014, when Mr. Ripley was diagnosed with malignant mesothelioma, he and his wife, Deborah Ripley, filed suit in Newport News Circuit Court, a Virginia state court. The Ripleys allege that Mr. Ripley was exposed to asbestos due to products that Foster Wheeler, LLC and Foster Wheeler Energy Corp. (“Appellants”) manufactured for the Navy, and that Appellants are liable for failing to warn Mr. Ripley of the asbestos hazards.

Appellants filed a Notice of Removal and removed the case to the United States District Court for the Eastern District of Virginia. Appellants asserted a government contractor defense, arguing that the suit stemmed from Appellant’s contract with the Navy, thus allowing removal pursuant to the federal officer removal statute 28 U.S.C. § 1442(a)(1). The government contractor defense allows a company that contracts with the military to avoid liability under state-law tort claims for design defects. When the Ripleys moved for remand, the district court granted the motion due to a decades-old practice in the district that denies the government contractor defense in failure to warn cases. Because the federal defense did not apply, according to the District Court, the federal courts had no subject matter jurisdiction. Appellants appealed the grant of the motion for remand.

The Issue

Does the government contractor defense apply to failure to warn cases? If it does, can Appellants, under the federal officer removal statute, remove to the federal district court in order to establish the defense?

The Federal Officer Removal Statute

The federal officer removal statute is an exception to the well-pleaded complaint rule. It allows a defendant to remove a case if the defendant establishes:

  • (1) it is a federal officer or a “person acting under that officer,” 28 U.S.C. §1442(a)(1);
  • (2) a “colorable federal defense”; and
  • (3) the suit is “for a[n] act under color of office,” which requires a causal nexus “between the charged conduct and asserted official authority.” Jefferson Cty., Ala. v. Acker. (alteration and emphasis in original).

The Federal Officer Removal Statute—As Applied

Appellants sought removal based on the government contractor defense as explained under Boyle v. United Technologies Corp.. In Boyle, the Supreme Court held that the government contractor defense applied to design defect cases. The reasons for applying the defense to defect cases were two-fold: (1) separation of powers suggested that the judiciary should be hesitant to intervene in matters of military procurement contracts; and (2) a higher risk of liability for contractors would increase costs to the government and decrease the supply of contractors.

The Eastern District of Virginia in McCormick v. C.E. Thurston & Sons, Inc. had previously held that the government contractor defense was “not available in failure to warn cases.” However, the Fourth Circuit found that most other jurisdictions, including the Second, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits, that have considered this issue held that the defense does apply to failure to warn cases. The Fourth Circuit further found that the reasons for applying the defense to defect cases were equally applicable in the failure to warn cases. The separation of powers consideration was still relevant due to the fact that it was a military contract. Also, the increased costs to the governments due to the increase risk of liability and the decreased supply of contractors was equally relevant in the general failure to warn context, beyond asbestos. Due to the overwhelming amount of opposing precedent and the valid rationales supporting the application of the defense, the Fourth Circuit “join[ed] the chorus and h[e]ld that the government contractor defense is available in failure to warn cases.”

Disposition

The Fourth Circuit went against precedent that the District Court relied on in remanding the case back to the state court. Because of this shift in doctrine, the Fourth Circuit reversed and remanded the case to the District Court to determine if the Appellants have presented enough proof to warrant removal pursuant to 28 U.S.C. § 1442.

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By Daniel Stratton

Today, March 21, 2016, the Fourth Circuit issued a published opinion in the civil case Jane Doe #1 v. Matt Blair, vacating the district court’s decision. The Fourth Circuit held that the lower court incorrectly determined that there was no federal diversity jurisdiction because the defendant corporation failed to allege its principal place of business. The Fourth Circuit overturned the decision because it was a procedural determination rather than a jurisdictional one.

The Case Bounces Between State and Federal Courts

On March 27, 2014, Ben and Kelly Houdersheldt filed a complaint in West Virginia state court as the next friends and guardians of Jane Doe #1, against Matt Blair and Res-Care, Inc. On July 14 of that same year, Res-Care removed the case to federal court, claiming subject matter jurisdiction based on diversity. Res-Care alleged that Jane Doe #1 was a resident of West Virginia and that Blair was a resident of Virginia. The company alleged that it was incorporated in Kentucky, but did not allege the state in which it had its principal place of business. The Houdersheldts, acting as next friends and guardians of Jane Doe #2, amended the complaint to include the second plaintiff. Jane Doe #2 and the Houdersheldts were residents of West Virginia.

On January 20, 2015, the district court sua sponte remanded the case back to state court, asserting that diversity subject matter jurisdiction had not been established. The court asserted that because neither party had asserted where Res-Care had its principal place of business, the court did not have jurisdiction based on diversity. Defendant Blair filed a motion to amend under Federal Rule of Civil Procedure 59(e) and for reconsideration under Federal Rule of Civil Procedure 60. Res-Care joined the motion. In the motion, the defendants argued that no party had challenged the diversity jurisdiction and that the parties had determined that Res-Care’s principal place of business was Louisville, Kentucky. The plaintiffs did not oppose Blair and Res-Care’s motion, but the district court denied it. Res-Care and Blair appealed.

Procedural or Jurisdictional: The Threshold Question for Reviewing Removal Orders

Federal circuit courts are restricted in reviewing district court orders remanding removed cases to state court. Under 28 U.S.C. § 1447(d), remand orders are generally “not reviewable on appeal or otherwise.” Supreme Court precedent, however, limits 28 U.S.C. § 1447(d) to cases where (1) a district court lacks subject matter jurisdiction, or (2) there is a defect in removal (other than a lack of subject matter jurisdiction) that was raised by a motion filed by a party within thirty days after the notice of removal was filed.

Under this system, a court can remand a case sua sponte for lack of subject matter jurisdiction at any time. Such an order is not reviewable by a federal appellate court. However, if the remand is based on another defect, a motion must be timely filed. If no motion is filed, 28 U.S.C. § 1447(d) does not bar a court’s review. Essentially, whether an appellate court has jurisdiction to review a district court’s remand order turns on whether the order was jurisdictional or procedural in nature.

How Have Other Circuits Tackled This Question?

In deciding how to resolve this case, the Fourth Circuit took notice of how other circuits have dealt with the the precise issue of “whether a failure to establish a party’s citizenship at the time of removal is a procedural or jurisdictional defect.” Three other circuits – the Fifth, Seventh, and Eleventh Circuits – had previously determined that this type of failure was “procedural, rather than jurisdictional.” Those circuits determined that a procedural defect was any defect that did not go to the question of whether the case could have been brought in federal court in the first place.

The Fourth Circuit, in the 2008 case Ellenberg v. Spartan Motors Chassis, reached a similar decision in regards to the amount in controversy component of diversity jurisdiction. In that case, the complaint did not state a dollar amount for damages claimed. The notice of removal to federal court there stated that the amount in controversy exceeded $75,000. Once the case was in federal court, the district court sua sponte considered whether the case should be remanded to state court. There, the district court found that the defendants’ allegations of diversity jurisdiction failed because they had failed to establish that the amount in controversy exceeded the required jurisdictional amount. Soon after, the defendants filed a motion with facts supporting their allegations regarding the amount in controversy, which the district court denied. On appeal, the Fourth Circuit determined that it was not barred from reviewing the lower court’s decision because the remand order was based on a procedural insufficiency rather than on finding a lack of subject matter jurisdiction.

The Fourth Circuit Applies Ellenberg; Adopts Approach of the Other Circuits

Turning to the present case, the Fourth Circuit noted that the district court had proceeded in a manner similar to the district court in Ellenberg. Like that court, the court in the current case had “recited the well-established principles of subject matter jurisdiction” then determined that diversity jurisdiction had not been established. Then, after Blair attempted to correct this failure with his Rule 59(e) motion, the court here denied that motion, much as the court in Ellenberg.

The Fourth Circuit was not persuaded that in the present case the lower court had explicitly concluded that there was no subject matter jurisdiction, because such an order required an examination of the underlying substantive reasoning. This, the Fourth Circuit reasoned, was enough to show that the district court had not based its decision on a lack of subject matter jurisdiction, but instead on the procedural insufficiency of the removal notice. As a result, the court explained that the only way the this procedural deficiency could be raised would be by a party filing a timely motion, which did not occur here. Thus the Fourth Circuit adopted the approach used by the Fifth, Seventh, and Eleventh Circuits.

The Fourth Circuit Remands the Case Back to Federal District Court

Because the district court improperly remanded this case sua sponte, the Fourth Circuit reversed the lower court’s decision and remanded the case back for further proceedings. The Fourth Circuit also granted a motion made by Res-Case to amend its removal notice to correct its earlier deficiency.

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By Daniel Stratton

On March 8, 2016, the  Fourth Circuit issued a published opinion in the civil case Peabody Holding Company, LLC v. United Mine Workers of America, vacating the district court’s decision. The Fourth Circuit held that under the complete arbitration rule, an arbitrator handling a labor dispute between Peabody Holding and United Mine Workers of America should have been allowed to finish resolving both the liability and remedial phases of the dispute before the matter was moved to federal court.

United Mine Workers and Peabody Coal Company Enter into Job Opportunity Agreement

In 2007, the United Mine Workers of America and Peabody Coal company entered into a Memorandum of Understanding Regarding  Job Opportunities (“Jobs MOU”). Peabody Coal signed the agreement on behalf of itself and its parent company, Peabody Holding. The purpose of the Jobs MOU was to require non-unionized companies within the Peabody corporation to give preference to coal miners who either worked for or were laid off by Peabody Coal with regards to hiring treatment. The Jobs MOU included an arbitration clause that required all disputes involving the MOU to be submitted to an arbitrator, whose decisions would be final and binding.

That same year, Peabody Energy Corp., the ultimate corporate parent of Peabody Holding,  Peabody Coal, and another company, Black Beauty Coal Company, began a process to spinoff part of its mining operation into a new entity known as Patriot Coal Corporation. Peabody Coal was spun off into Patriot. All of the Peabody subsidiaries that became part of Patriot had been signatories to the Jobs MOU. The only subsidiary that had been a signer to the Jobs MOU that was not spun off into Patriot was Black Beauty. At the completion of the spinoff, Peabody Coal had no corporate relationship with Peabody Holding or Black Beauty.

In 2008, Black Beauty hired United Minerals Company to assist with mining operations on Black Beauty’s property. Both United Minerals Company and Black Beauty were non-unionized. Shortly after United Minerals Company began working with Black Beauty, the United Mine Workers of America sent a letter to Peabody Energy and Peabody Holding explaining that Peabody Holding and Black beauty were still bound by the Jobs MOU. Peabody disagreed, arguing that after Peabody Coal had been spun off, the rest of the Peabody corporate family no longer had any obligation under the Jobs MOU.

Peabody initially argued that this dispute with United Mine Workers was not arbitrable, an argument that the Fourth Circuit rejected in 2012. After being sent back to arbitration, the union and Peabody agreed to bifurcate the dispute into separate liability and remedy phases. The arbitrator ruled that the Jobs MOU remained in effect despite the fact that Peabody Coal had no corporate relationship with Peabody Holding. The arbitrator declined to rule on whether or not Black Beauty was actually exempt from the Jobs MOU, deferring its decision on that question until the remedy stage.

Peabody and United Mine Workers Take Their Dispute to the Courts

Peabody sought to vacate the arbitrator’s decision, filing an declaratory judgment action in the U.S. District Court for the Eastern District of Virginia. At the same time, the United Mine Workers filed a counterclaim to enforce the decision by the arbitrator.  Under Section 301 of the Labor Management Relations Act (“LMRA”), some courts viewed their jurisdiction as being limited to “review of final arbitration awards,” while others believed that Section 301 provided “sweeping jurisdiction.” The district court ultimately declined to weigh in on that debate, instead noting that because the liability portion of the arbitration was finished, it was final and therefore reviewable. The district court found in favor of the union, holding that the arbitrator was right to find the Jobs MOU still valid. Peabody and its subsidiaries appealed the district court’s decision. After the parties briefed the appeal, the Fourth Circuit asked for additional briefing on whether the arbitrator’s decision was even properly before the circuit, because the arbitration was not yet complete.

The Limits and Scope of the Complete Arbitration Rule

Under Section 301 of LMRA, federal district courts have jurisdiction over suits involving contract violations between employers and unions. The Supreme Court has long held that Section 301 can be used to seek enforcement of an arbitration award made under a collective bargaining agreement’s arbitration clause. As a threshold matter however, a court must determine that the award is final and binding. Many courts have held this to mean that an arbitrator must have ruled on both liability and remedies before the decision can be reviewable.

Some judicial decision viewed the complete arbitration rule as a restriction on federal jurisdiction. Other decisions had focused on Section 301’s broad language, and have viewed the complete arbitration rule to be “only a prudential limitation on judicial involvement” in an arbitrated labor dispute.

The Fourth Circuit Finds that the Arbitration Decision was sent to the Courts Too Soon

The Fourth Circuit noted that several courts which view the complete arbitration rule in jurisdictional terms still concede that there are exceptions to the rule in extreme cases. Based on this, the Fourth Circuit noted that this necessarily meant that the complete arbitration rule only constituted a prudential limitation. The Court also noted many policy rationales for the complete arbitration rule were the same as those used for strictly jurisdictional relatives. Like the rules that require a district court to enter a final judgment or order before an appellate court can review the case, the complete arbitration rule promotes the same goals of preventing “piecemeal litigation and repeated appeals.” Applying the complete arbitration rule also helps prevent a party from using courts to delay the arbitration, the Fourth Circuit noted.

In terms of actually applying the complete arbitration rule, the Fourth Circuit noted that the application was straightforward. Generally, when an arbitrator decides liability and “reserves jurisdiction to decide remedial questions” later, a federal court should wait to review until all questions have been resolved.  The Court was unpersuaded by Peabody’s arguments that the liability phase was final and thus reviewable. The Fourth Circuit noted that such a division was sensible and common. Just because the parties decided to split their dispute did not change the fact that they agreed to submit the entire dispute to the arbitrator.

The Fourth Circuit also quickly dismissed Peabody’s arguments that reviewing the liability portion now would promote efficiency. Such efficiency arguments could potentially be applied to virtually any case, the court noted, before explaining that by waiting until after the remedy portion was resolved the court was actually promoting efficiency. This was because the parties could still reach a settlement at some point, making a review of the liability portion moot. The Fourth Circuit concluded by explaining that arbitration is a matter of contract, and as such the parties should be able to design an arbitral process that best suits the needs of the parties.

The Fourth Circuit Remands the Case Back to the Arbitrator

The Fourth Circuit ultimately held that the arbitrator’s decision had been prematurely sent to the courts, and remanded the case back to the district court to remand the case back to the arbitrator to continue the arbitration.