That last two years have brought extensive changes to the Federal Rules of Civil Procedure. In 2015, the discovery rules underwent broad revisions, and I have recently discuss some of the practical effects of those changes. The amendments in 2016 were less comprehensive and only entailed Federal Rules of Civil Procedure 4, 6, and 82. Unfortunately, the 2016 amendment to Federal Rule of Civil Procedure 4 had an unintended consequence that www.federalrulesofcivilprocedure.org has succinctly identified: Civil Rule 4(m) addresses the time limit for service of a summons and was amended in two consecutive years, 2015 and 2016. In addition to...
Sometimes people die. Well, to be more accurate, everyone dies … every single time. But sometimes people die after they’ve filed a lawsuit or after they’ve been sued. If that person happens to be your client, you had better know what to do next. Alabama Rule of Civil Procedure 25(a)(1) addresses what needs to be done when a party dies while a case is pending: If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or...
Ex parte Austal USA, LLC considers the narrow exception to the exclusivity provision of the Workers’ Compensation Act and the standard for a plaintiff to survive a Rule 12(b)(6) motion to dismiss. Allegations of Intent-to-Injure Austal USA operates a shipyard in Mobile, Alabama that builds naval vessels. The plaintiffs are employees of Austal, each of whom was injured during his employment with Austal when using a Miller saw. In their third amended complaint, the plaintiffs alleged intentional misconduct against Austal, alleging Austal had provided the plaintiffs with a “dangerous and defective Miller saw with the specific intent that it would...
“I don’t know what the rules say, but … that’s just dumb.” I recently had the rare displeasure of being completely dumbfounded by statements made by opposing counsel in a letter. Two months prior to receiving the letter, we had filed a notice of service of discovery requests that we were propounding to the Plaintiff. We then emailed the notice and the discovery requests to opposing counsel. Two months later, opposing counsel sent us a letter advising us that he had received our notice of discovery but had not received our discovery requests because his office does not accept service of...
Following the running of the statute of limitations, when can claims against fictitious parties relate back to the original claims made against the named parties, for the purposes of replacing fictitious parties with real defendants? Scenario: Abigail Adams has a car that’s titled in her name. But she’s getting up in age, so she let’s John Quincy Adams use the car and keep it at his house. John Quincy has a friend Andrew Jackson who was in need of some wheels, because his ride was in the shop. While Andrew had the car, he let his mistress Hannah drive it. Hannah...
Under Rule 36 of both the Federal Rules of Civil Procedure and the Alabama Rules of Civil Procedure, a party to a lawsuit is entitled to make Requests for Admission to the opposing party. Recently, I have seen a growing trend in personal injury cases in which plaintiffs are making Requests for Admission beyond the scope of Rule 36 in an effort to prove liability, medical causation, reasonableness and necessity of medical treatment, and damages through these requests. Not only is this an abuse of Rule 36, but it can be a problem for defense lawyers who aren’t on top...
Ex parte LERETA, LLC: Under Alabama Rule of Civil Procedure 4, service on a corporation or business entity cannot be perfected by certified mail addressed merely to the entity itself, and ineffective service will result in a void default judgment for lack of personal jurisdiction. The Facts of the Matter In September 2012, Fronia Warhurst’s house flooded during a rainstorm. In July 2014, Warhurst sued the City of Tuscumbia, JP Morgan Chase Bank, N.A. (“Chase”), and LERETA, LLC. She alleged (1) that Tuscumbia negligently or wantonly maintained a storm drain, which resulted in the flooding; (2) that Chase wrongfully terminated her...
Privilege Underwriters Reciprocal Exchange v. Peter Grayson: When a bona fide justiciable controversy exists in a declaratory judgment action, the trial court has jurisdiction to adjudicate the coverage questions without first finding the damages issues. Facts of the Matter While riding his motorcycle, Peter Grayson was involved in an accident with a vehicle being driven by an uninsured motorist on October 1, 2012. Rather than suing the uninsured motorist, he made a claim with his personal uninsured motorist (“UM”) carrier, which tendered the policy limits of $50,000.00. Grayson then made a claim with Privilege Underwriters Reciprocal Exchange (“PURE”), on a UM policy...
The courts have been busy in 2016 addressing issues of discovery, and interpreting and rewriting the rules of civil procedure. Each of the below links will take you to either a case brief or memoranda analyzing these developments. Maria Graham v. City of Talladega: An amended pleading is a nullity if it does not comply with ARCP 15, and once the original claims are dismissed, a party has 42 days from the date of dismissal to file an appeal, pursuant to ARCP 4. Ex parte Tidra Corporation: A trial court may only require a party to submit to a mental...
Maria Graham v. City of Talladega: Amended pleadings are a nullity if they do not comply with ARCP 15, and once the original claims are dismissed, a party has 42 days from the date of dismissal to file an appeal, pursuant to ARCP 4. On June 3, 2015, Maria Graham sued the City of Talladega, alleging that she was wrongfully terminated. The matter was set for its first trial setting on September 8, 2015. A status conference was held on that date at which time the trial court ordered Graham to pay for and produce to the court by November 16,...