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

In Coyote Publishing v. MIller, the Ninth Circuit today overturned Judge Mahan's decision that had ruled Nevada's laws restricting advertising of legal brothels unconstitutional.  It is the second reversal this week for Judge Mahan.

In an opinion that ironically begins by quoting George Bernard Shaw regarding the losing nature of the fight against prosititution, Judge Berzon upholds NRS 201.430, which limits advertisement of brothels within counties where such establishments are legal, and NRS 201.440, which bans advertisement of brothels in counties where they are not permitted.  The Court found that the statutes are constitutional limitations on commercial speech, subject to intermediate scrutiny.  Finding that Nevada has a substantial interest in limiting the commodification of sex, the Court held the limitation is constitutional. 

The Court was careful to assert that it is not the underlying act that is being repressed, but merely the notion that such an act should be performed for money.   Or at least, not in Clark County, "where by far most Nevadans live (and where most outsiders visit)."  The Court refers to the ban of adervertisement of an activity legal in all but six counties in Nevada an "idiiosyncratic balance between various important but competing state interests-- the pro brothel balance being a desire to curb the "negative health and safety impacts of uregulated, illegal prostition."  Although, again, apparently not in Clark County.

I doubt we've heard the last of this..

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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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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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In Narouz v. Charter Comm, LLC, the Ninth Circuit held that a class representative who voluntarily settles his or her individual claims in a putative class action does not necessarily render an appeal from a denial of class certification moot. If the class representative specifically retains an interest in the class litigation in the release agreement, then an appeal of class certification issues is not mooted.

Opinion issued Jan 15, authored by Smith, with concurring opinion by Korman. Rymer dissented on the basis of general language in the release.

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The 9th Circuit took an interesting view of the quantum meruit value of services performed by a firm that referred a case to another firm.

Crockett & Myers v. Napier involved a dispute between the Crockett, the local firm,  and Napier, a New York firm, over the referral fee.  The New York firm referred the client to the local firm, and the two firms, with the client's permission, agreed to split any contingency fee received 50-50. But the client fired the New York firm more than a year before settlement. 

After a settlement apparently worth roughly half a million to the attorneys,  Crockett sought to reduce Napier’s share, as the latter’s participation in actual work on the case had been limited. Judge Pro limited Napier’s share to $33,000. That amount was based on quantum meriut, i.e., the value of the services, which the District Court based on the value to the client of Napier’s selection of competent counsel and its persuasion of Crockett to reduce the customary contingency fee.

The 9^th Circuit upheld the limitation of Napier’s fee to a quantum meriut basis. But it remanded to determine the value of the New York firm’s services, which must include the value of the referral to Crockett, not just to the client. 

What I find interesting about this opinion is that it puts an unexpected twist on Nev. R. Prof. Conduct 1.5(e), unmentioned in the opinion but which, according to Stockmeier v. Nev. Dep’t of Corrections, 135 P. 3d 1130 (2006), prohibits fee splitting unless the fees are proportionate the services performed by each attorney.    Surely the Nevada Supreme Court intended that the services in question be rendered to the client, not to the attorneys?

Opinion by Nelson, with Berzon and Clifton concurring.

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