Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

In Traxler v. Multnomah County,  the Ninth Circuit determined that under the Family Medical Leave Act, front pay is an equitable remedy, a substitute for reinstatement, and therefore, both the remedy’s availability and the amount to be awarded  must be determined by the court, rather than by a jury.  This decision is consistent with how front pay is treated for other employment rights. While the Ninth Circuit joins the Fourth, Fifth and Tenth Circuits on this issue; the Sixth Circuit holds that while the court determines the propriety of a front pay award, the jury determines the amount.

The Court also determined that a District Court must make specific findings on the record that a violation of the FMLA was made through acts taken in good faith if it does not award the liquidated damages provided by the statute.  

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 In Office Depot v. Zuccarini,  decided February 26, 2010, the Ninth Circuit upheld the appointment of a receiver to sell domain names held by a cybersquatter to satisfy the judgment Office Depot had obtained. 

The Court held that “type two” quasi in rem jurisdiction, aka “attachment jurisdiction”  was appropriate where Verisign, the registry for the “.com” and “.net” domains is located.  In so holding, the Court found that, under California law,  domain names are  intangible property subject to attachment.

The opinion includes an explanation of domain registration. Using the sample domain of example.com, it explains that “registries” hold the “.com” level, while registrars hold the “example” level of the domain name.  In dicta, the Court also noted that quasi in rem jurisdiction would exist where registrars are located.

This ruling makes attachment of domain names easier for creditors, because, while there are registrars all over the world,  Verisign, located in California,  is the only registry for “.com” and “.net” levels.  Now a single lawsuit can lead to the property.

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The U.S. Supreme Court issued two opinions this weak that arguably weaken Miranda.  However, neither seem a radical departure from previous rulings.

In Maryland v. Shatzer, issued February 24, 2010, the U.S. Supreme Court held that where there is a break in custody, police may question a suspect for a second time, eve though the suspect invoked Miranda's right to remain silent during the first period of custody. The ruling weakens the long standing so-called Edwards v. Arizona rule, which had held that once Miranda is invoked , any subsequent waiver of the right resulting from police prompting is deemed involuntary. 

In this case, the suspect, who was in prison,  had invoked his rights while being questioned in 2003, but when questioned again in 2006, waived his rights after being advised again. The Court set a standard for a 14 day break in custody. 

Scalia authored the opinion. Thomas concurred in part, and Stevens concurred in the judgment.

Meanwhile, one day earlier, in Florida v. Powell,  a 7-2 majority upheld  Florida's alternative wording of the Miranda warning, even though it does not explicitly state that a suspect has a right to have an attorney present during questioning. The Florida warning states, as relevant here:

You have the right to talk to a lawyer before answering any of our questions” and “[y]ou have the right to use any of these rights at any time you want during this interview.  

Ginsberg authored the 7-2 decision; Stevens dissented on both jurisdictional grounds and on the merits;  Breyer joining in the majority decision on the jurisdictional issue, and in the dissent on the merits.

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In Wilkins v. Gaddy, the U.S. Supreme Court held that whether force is “excessive” depends on the level of force applied, not on the level of injury suffered. The District Court had dismissed the prisoner complaint sua sponte, due to the de minimus nature of the alleged injuries, and the Fourth Circuit affirmed.

In a per curiam decision, the Court stated that “[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury

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Reversing the Ninth Circuit, the U.S. Supreme Court handed down another opinion favoring corporations. In Hertz Corp. v. Friend, issued February 23, 2010, the Court held that for purposes of diversity jurisdiction, the “nerve center” of a corporation, i.e., where the high level executives direct, control, and coordinate the company’s operations, is the “principal place of business.”   

The Court recognized that the nerve center approach is imperfect, but considers its simplicity and certainty superior to other methods, including the 9^th Circuit’s “plurality of business activity” approach. 

Breyer authored the unanimous opinion.

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In Fernandez v. Fernandez, the Nevada Supreme Court held that a stipulation between the parties that a child support order will not be modified cannot supersede statutory provisions allowing modification, up or down, upon a material change in circumstances.  

The Court stated “The formula and guideline statutes are not designed to produce the highest award possible but rather a child support order that is adequate to the child’s needs, fair to both parents, and set at levels that can be met without impoverishing the obligor parent or requiring that enforcement machinery be deployed.” Absent legislative approval of parents’ ability to waive the right to modify on the basis of changed circumstances, the parties cannot stipulate around those statutory provisions.

3-0 decision authored by Pickering, with Parraguirre and Douglas concurring.

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Successive dispositive motions weren’t exactly the issue in Dictor v. Creative Management Services, but the Court did cite the two week old 9^th Circuit decision in Hoffman v. Tonnemacher, [discussed here] with approval.  Therefore, it looks like the Court will follow the federal court lead on this issue.

In Dictor, the Nevada Supreme Court clarified the law of the case doctrine and choice of law decisions. 

In this case, involving an insurance subrogation claim, the Court had previously determined in an unpublished decision that because the neither the insured nor the claimant were Nevada residents, NRS 687A.095, which bars suit against an insured of an insolvent insurer, did not apply. 

On remand, the District court determined that a similar Missouri statute barred the suit, and granted summary judgment again.

Dictor appealed again, claiming that the Missouri law should not have applied, because the Supreme Court had decided that statutory defenses did not apply. It seems an amicus brief filed days before the oral argument in the first appeal had raised the Missouri statute. However, the Court had not considered or ruled on the applicability of that statute.  

The Court stated the rule of the case doctrine bars reconsideration only of issues actually decided by the appellate court, and does not apply if the issue  presented in a subsequent appeal differ from those previously presented.   Application of the Missouri statute had not been addressed in the previous appeal, and the Court’s remand order had not prevent consideration of other statutory defenses.

The Court also addressed choice of law considerations for subrogation, adopting the comment d to Restatement of Conflicts, § 145, which states “the local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability to the other.”  This is consistent with the Court’s previous adoption of the Restatement analysis for choice of law decisions in General Motors Corp. v. District Court, 122 Nev. 466, 134 P.3d 111 (2006), and emphasizes that whichever Restatement section is most specific to the facts should apply.

3-0 decision authored by Hardesty, with Parraguirre and Pickering concurring.

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In Cunningham Charter Corp. v. Learjet, Inc., the 7th Circuit Court of Appeals joins the 11^th circuit in resolving a jurisdictional question posed by the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453, and 1711-1715. That Act creates federal diversity jurisdiction over certain class actions in which at least one member of the class is a citizen of a different state from any defendant (that is, in which diversity may not be complete). 

The Court held that where a class action has been transferred to federal court under the Act, but class certification is denied, the federal court retains jurisdiction. While the Act applies “to any class action [within the Act’s scope] before or after the entry of a class certification order,” the use of the term “a class certification order” rather than “the class certification order ” indicates the provisions refers only to timing, and does not create a requirement that the class be certified to retain federal jurisdiction.

Authored by Judge Richard Posner, the opinion ends what he called the potential for "ping-pong" between the federal and state courts.   The Court “vindicate[d] the general principle that jurisdiction once properly invoked is not lost by developments after a suit is filed, such as a change in

the state of which a party is a citizen that destroys diversity.”

 The 9^th Circuit has not yet ruled on the issue. In unpublished decisions, the Southern and Central Districts of California have ruled that jurisdiction under CAFA never existed if class certification is denied.  

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Joining 5 other circuits, the Ninth Circuit ruled in Hoffman v. Tonnemacher  that FRCP 56 gives the district court the discretion to consider successive motions for summary judgment. 

Here, in a medical malpractice case, the district court had partially denied a pre-trial motion for summary judgment and denied a motion for judgment as a matter of law on the remaining issues following presentation of evidence at trial. The jury deadlocked. After receiving permission to designate a new expert witness, the defendant filed another motion for summary judgment, which the court granted. The plaintiff challenged both the ruling and the consideration of the motion. While the Court found consideration of the motion was not an abuse of discretion, the grant of summary judgment was reversed in a separate memorandum disposition.

While the ruling makes clear that consideration of successive summary judgment motions is within the district court’s discretion, the decision is not exactly ground breaking. The Court had previously ruled such motions were permissible on the issue of qualified immunity, and had previously noted that  summary judgment decisions are subject to reconsideration at any time.  The language of FRCP 56 itself expressly grants a court discretion to alter the default timing limits on summary judgment motions.

The Court did note that district courts “retain discretion to weed out frivolous or simply repetitive motions."

The Court joined the 2d, 5^th, 6^th, 7^th, and 8^th Circuits on this issue. 

Opinion issued January 21, 2010, authored by Graber, joined by Tashima and Bybee.

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