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, 2015, the transcript of a hearing held by the civil service board. Graham never produced the requested transcript.
On January 4, 2016, Graham filed an amended complaint without seeking leave of court to amend her pleadings. Because the case had been set for trial in September 2015, which time had already passed when she filed her amended complaint, Alabama Rule of Civil Procedure 15(a) requires that Graham seek leave of court prior to filing an amended complaint.
On January 11, 2016, the trial court entered an order dismissing Graham’s original complaint due to her failure to comply with the court’s order by not producing the records requested by the court. In that order, the trial court mentioned the amended complaint and ordered the City to respond to it. The City responded, asking the trial court to disallow the amendment. A hearing was held, and the trial court entered an order dismissing the amended complaint on May 16, 2016. In June 2016, Graham appealed the dismissal of her claims to the Alabama Court of Civil Appeals. Maria Graham v. City of Talladega [Ms. 2150803], — So.3d — (Ala.Civ.App. Oct. 26, 2016).
- Applicable caselaw: Image Marketing, Inc. v. Florence Television, L.L.C.
The Supreme Court of Alabama has held in Image Marketing, Inc. v. Florence Television, L.L.C., 884 So.2d 822 (Ala. 2003) that a party’s failure to seek leave of court before filing an amended complaint results in the amended complaint being a nullity. Id. at 826-27. If, however, the record indicates that the trial court would have been inclined to grant leave to amend had leave been sought, the failure to seek leave may be overlooked, causing the amended pleading to be operative. Id. at 826. On the other hand, if the record reflects that the trial court would not have been granted, the amendment remains a nullity. Id. at 826.
The Alabama Supreme Court in Image Marketing further determined that because the amended pleading is a nullity, once the original claims are dismissed, the party has 42 days from the date the dismissal order is entered to file her appeal, pursuant to Alabama Rule of Civil Procedure 4.
Whether the trial court in the present case would have granted Graham leave to amend her complaint, had leave been requested.
The trial court acknowledged Graham’s amended complaint in its order dismissing her original complaint and directing the City of Talladega to respond to amended pleading that Graham filed. The appellate court found that mere acknowledgment of the filing of the amended pleading was not sufficient to determine who the trial court would have responded had Graham sought leave to file it. In fact, the trial court ultimately granted the City’s motion to disallow the amended complaint, allowing the appellate court to infer that the trial court would not have granted leave to amend her complaint. Therefore, at the time it was filed, Graham’s amended complaint was a nullity.
The order dismissing Graham’s original complaint was entered on January 11, 2016. Graham then had 42 days from that date to appeal. Graham did not file her appeal until June 2016, which was well beyond the 42-day period. Under the Alabama Supreme Court’s reasoning in Image Marketing, the untimely appeal was due to be dismissed. As such, Graham’s appeal was dismissed.
Artwork by Sean MacEntee.
I hate proofreading. Whether it’s an email, a pleading, or a journal article. Proofing is tedious and tiresome, and I have no patience for it. I understand the necessity of it, and firmly believe that good writing is in the editing and re-writing. Nevertheless, I find no joy in it.
I received a stark reminder today of the importance of proofreading before sending something out into the wide world. Upon reviewing a motion in preparation for a hearing, I had informed the judge that “the burden then shits to the plaintiff.” (Insert rosy cheeks emoji).
Consider this a public service announcement that proofreading saves arguments … and embarrassment.
Ex parte Tidra Corporation – A trial court may only require a party to submit to a mental examination under Alabama Rule of Civil Procedure 35, if one of parties requests such relief and demonstrates good cause.
Dwayne Johnson has alleged that he was injured in 2012 while working for Tidra Corporation, as a result of an accident that occurred while he was driving a forklift. After the accident, Johnson complained to Dr. Nick Vlachos of neck pain, and Dr. Vlachos diagnosed Johnson with a cervical strain, for which he prescribed a narcotic pain reliever and muscle relaxer. He also referred Johnson to physical therapy. Johnson did not comply with the physical therapy recommendation, and Dr. Vlachos discharged him from care on July 10, 2012.
In September 2012, Johnson brought suit against Tidra in September 2012, seeking workers’ compensation benefits and medical treatment for his alleged work-related injury. In February 2016, Johnson filed a motion seeking a hearing on the question of whether Tidra should be required to provide eight sessions of physical therapy that had been recommended by Johnson’s doctor, Dr. Martin Jones. In response to a query, Dr. Jones indicated that his physical therapy recommendation was not related to Johnson’s 2012 injury.
At a hearing on July 13, 2016, the trial court advised the parties that the matter was set for trial as to whether Johnson’s injury was a compensable injury, as well as whether any recommended medical treatment was medically necessary. The trial court stated at the hearing that it intended to deny Johnson’s motion to compel treatment. However, two days later, the trial court granted Johnson’s motion, requiring Tidra to provide for Johnson’s recommended physical therapy and requiring Johnson to submit to a mental evaluation, pursuant to Alabama Rule of Civil Procedure 35.
Thereafter, Tidra filed a petition for a writ of mandamus seeking an order from the Alabama Court of Civil Appeals to compel the Circuit Court of Lee County to set aside the July 2016 order granting Johnson’s motion to compel medical treatment and ordering that Johnson undergo mental examination. Ex parte Tidra Corporation [Ms. 2150940], — So.3d — (Ala.Civ.App. Oct. 7, 2016).
1. Whether the trial court erred by ordering Johnson to undergo a mental evaluation under Alabama Rule of Civil Procedure 35(a).
Tidra argued that the trial court had erred by ordering Johnson to undergo a mental examination under Alabama Rule of Civil Procedure 35(a) when neither party had requested such relief and the record did not demonstrate good cause for such an order. Under the pertinent parts of Rule 35(a), such an order “may be only on motion for good cause shown….” Employing the requisite statutory construction, the Alabama Court of Civil Appeals found that because Rule 35(a) reads “only on motion”, the trial court may enter and order requiring a party to undergo a mental evaluation pursuant to Rule 35(a) solely or exclusively by way of a motion before the court. Accordingly, because there was no such motion before the trial court in this case, the trial court erred in ordering Johnson to undergo a mental examination.
2. Whether the trial court erred by ordering Tidra to provide medical treatment to Johnson before there had been a compensability determination.
Tidra contends that the July 2016 trial court order requiring Tidra to provide medical treatment to Johnson is in error because there had not been a trial on the issue of compensability prior to Tidra being required to provide Johnson with physical therapy. Tidra relied on Ex parte Publix Super Markets, 963 So.2d 654 (Ala.Civ.App. 2007), wherein the Alabama Court of Civil Appeals has previously explained that a trial court may not compel an employer to pay for medical treatment for an employee without first holding an evidentiary hearing (commonly known as a Publix hearing) on the issue of compensability, applying either Alabama Rules of Civil Procedure 12(c) or 56, to determine the issue of compensability without a trial.
In reviewing the record, the appellate court found that the trial court had not conducted an evidentiary hearing. However, Ex parte Publix Super Markets does not prohibit a trial court from granting a pretrial motion seeking judgment on the issue of compensability, but a motion seeking to compel an employer to provide to an employee medical treatment can only be granted only if it is a properly support motion for judgment on the pleadings (Rule 12) or for summary judgment (Rule 56). The appellate court found that the trial court did not employ the procedures for either Rule 12 or 56 in entering its order to compel medical treatment. Therefore, Tidra was entitled to have mandamus entered in its favor.
Artwork by Zeh Fernando.
In written discovery, you’ve propounded discovery requesting your opponent to identify their social media accounts. You’ve likely also asked them to produce copies of any posts, photographs, tweets, etc. relevant to the litigation. But your opponent has objected to it. Maybe he gave a reason for the objection, and maybe he just objected because that’s his natural impulse. But now you need to support your contention that the social media information you’ve requested is due to be produced.
What caselaw, rules of evidence, or rules of civil procedure exist to support the discoverability of social media content in Alabama?
Social media content is subject to discovery under the broad definitions provided in the discovery rules Alabama Rules of Civil Procedure and is not privileged or protected by privacy rights. Alabama courts have properly admitted into evidence social media content, including relevant statements and photographs from social media accounts. See e.g., Morgan v. Morgan, 183 So.3d 945 (Ala.Civ.App. 2014) (wherein the court admitted evidence, included statements and photographs, from social media site); Davis v. Blackstock, 160 So.3d 310 (Ala.Civ.App. 2014) (wherein photographs from a social media page were admitted into evidence and testimony elicited regarding the contents of the social media page); Grimes v. Saban, 173 So.3d 919 (Ala. 2014) (wherein the contents of the parties’ Facebook pages were admitted and testimony elicited regarding the contents of the social media pages).
The requested information must be reasonably calculated to lead to the discovery of admissible evidence. In a personal injury cases where a plaintiff has alleged injuries resulting from some incident, one can expect that in her deposition, the plaintiff will testify regarding the subject incident and her claimed injuries. Any statements made by the plaintiff, whether on social media or in any other discoverable form, that bear on the subject incident or the plaintiff’s alleged injuries or damages, or abilities either prior or subsequent to the accident are discoverable under the Alabama Rules of Civil Procedure, whether or not the evidence is admissible.
“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party…. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Ala. R. Civ. Proc. 26(b)(1). Therefore, any requests that seek information pertaining to statements made by the plaintiff are permissible and due to be fully and completely responded to.
Even if social media content is discoverable, is it admissible?
Additionally, social media posts that are not privatized or otherwise protected are functionally no different than any other statement made by a party in a public place, and no less discoverable. Anything posted by a plaintiff on any social media accounts is a “statement” as defined by Alabama Rule of Evidence 801(a). Under Alabama Rule of Evidence 801(d)(2) such statements, if offered against a plaintiff, are not hearsay and may be admissible as evidence.
Artwork by Sean MacEntee.
You’ll likely note right away that this is a deviation from my standard fare, but it’s an experience I wanted to share. Hopefully, you can find it helpful. But I also hope it’s not something you can identify with too closely.
There may be a time in life when a confluence of cataclysmic events conspires against you to result in failure. At the end of it, when you’re surveying the damage, you may be left wondering what you can learn from failure. And the answer may very well be, “I have no idea.”
In 2007 I purchased a small house in Warrior, Alabama (a small town about fifteen miles north of Birmingham). It wasn’t a particularly nice house, but it was the best I could do at the time. And I was tired of paying rent, so it was time to buy. Besides, in 2007, we were all still operating under the supposition that property values only ever appreciate.
I asked the advice of all the right people and received assurances that this purchase was a good decision. My now-wife Anna and I were dating and had been for a couple years, but at least one of us (me) wasn’t quite ready to discuss our forever future. Had I been ready to have that conversation, I expect Anna would have told me this wasn’t a house she could envision herself living in.
So I bought the house, made some improvements, and moved in. About nine months later, Anna and I got engaged. Shortly after that, we started looking at a garden home in another town, which we ended up purchasing. That was the summer of 2008.
I put my house up for sale, where it stayed for more than six months. The market had begun to turn. Unbeknownst to us at the time, we were at the front end of the Great Recession. Month after month, my house sat empty and for sale, with very little traction.
Eventually, I listed it for rent. I found tenants fairly quickly. And just in time too. Anna and I got married in the summer of 2009, and I started law school two months later. The tenancy situation went well…until it didn’t. Several months before their contract was up, the tenants just stopped paying rent. I got promises of good intentions to get caught up, but those never materialized. They left and the house sat empty again. I tried to sell it. Nothing. I sold my motorcycle to pay the mortgage for a few months. Then I found more tenants.
The new tenants ended up staying in the house for more than four years. The bulk of that time went pretty well. But when it went bad, it did so in a hurry. They abandoned the place still owing seven months back rent. They left behind the majority of their possessions (everything from clothes to family photos to baseball cards), including a refrigerator full of food, but with no power to it. I should have known better than to open that refrigerator door, but now I’ll forever have emblazoned in my olfactory sense the odor that assaulted me. Piles of garbage in the back yard, and a garage filled with more of the same.
Once I cleared out the rubbish, I was left with a rundown house that was going to take several thousand dollars to get back into any kind of presentable condition. But I was out of money. By this time, I had gone nine months without any cash generation from the property. We were staring financial ruin in the face. There were innumerable nights that I lay in bed after the house was quiet and prayed that a lightning strike would burn the place to the ground. God has worked his will by fire before – why not now?!
Then I got an offer to sell. But the buyer was only offering about 60% of what I had paid for it. Accepting that offer would mean taking a huge loss. A loss that I couldn’t manage. Yet everyone I sought advice from said it was time to cut my losses. My folks stepped up to help me with the financial loss I was incurring. And I agreed to sell the albatross that had been saddled around my neck for the better part of seven years. I still haven’t calculated the total amount of money I’ve sunk into that house and lost. I don’t think I will.
So here I am at the end of this particular episode of my life – I hesitate to even call it a journey, since my experience has been that journeys are intentional – and I’m wondering, “What can I learn from this?”
I did all the things you’re supposed to do before making a big decision. Prayed over it. Asked the advice of people with more experience and wisdom than me. Yet for years I was burdened with this house that placed a considerable amount of mental, financial, and emotional strain on me and my family. At the end, I’ve gotten rid of the house, but it’ll be years before I can be rid of the financial aftermath. So what have I learned? How can I not make this mistake again? I’m still not quite sure.
I’m reminded of a scene in Burn after Reading, in which after a series of unforeseeable calamities, two CIA officers are reflecting on the situation. The superior officer asks his subordinate what they learned from the events that had just unfolded. The subordinate replies, “I don’t know, sir.” And the superior responds, “I don’t ——- know either. I guess we learned not to do it again.”
One my takeaways from this experience has been that you can do all the things you ought to do, but sometimes stuff just goes sideways. So I’ll just keep pushing until I get to the other side, and hopefully, learn not to do it again. Because when there’s nothing to learn from failure, you just persevere.
That perseverance is multi-faceted. I will persevere in my faith. I don’t believe in a “prosperity gospel”. I know that not all of my life experiences work together for my immediate good, but as a Christ-follower, I believe they are orchestrated for my ultimate good. I will persevere in my work. This debacle was a setback, and it’s going to take a while to dig out from it, but rather than the failure of it being a defining occasion, I am endeavoring to leverage it into an inflection point. But in order to do that, I’ll have to just persevere.
OOIDA v. U.S. Dept. of Transportation – The ELD Rule adopted by the FMCSA has survived a challenge that it does not comply with Congressional mandates, and is not sufficient to protect drivers from harassment and privacy invasions.
At the direction of Congress, the Federal Motor Carrier Safety Administration (“FMCSA”) has adopted what has become known as the ELD Rule. Beginning on December 16, 2017, most commercial drivers will be required to use electronic logging devices (“ELDs”) to record their duty status. ELDs are required to be installed on all interstate commercial motor vehicles (model year 2000 or newer) within two years of December 16, 2017. The FMCSA has expressed the purpose behind the ELD rule is to increase compliance with hours of service requirements. The new regulation has not been without opposition.
After the U.S. Department of Transportation, via the FMCSA, promulgated the final version of the ELD rule in 2015, the Owner-Operator Independent Drivers Association (“OOIDA”) and others brought suit against the Department of Transportation, seeking judicial review of the final rule. Owner-Operator Independent Drivers Association, Inc., et al. v. United States Dept. of Transportation [Ms. 15-3756], — F.3d — (7th Cir. Oct. 31, 2016). OOIDA argued five reasons to the 7th Circuit Court of Appeals why the ELD rule should be vacated.
1. ELDs will not record enough information automatically
The language in Congress’ mandate directs that electronic logging devices be “capable of recording a driver’s hours of service and duty status accurately and automatically.” 49 U.S.C. § 31137(f)(1)(A). The ELDs approved by the FMCSA must automatically link to vehicle engines when the engine is turned on; must record the date, time, location, engine hours, vehicles miles, driver identification, vehicle information, and motor carrier identification. 49 C.F.R. § 395.26. The ELD only records at specific instances, rather than continuously; namely, it records when the vehicle is turned on, when a change of duty status occurs, and once per hour while driving. 49 C.F.R. § 395.26.
OOIDA contended that because the ELDs do not operate entirely automatically, they do not meet the specifications outlined by Congress. The 7th Circuit disagreed stating, “It is unclear what devices petitioners envision, and they do not say.” The only such devices that the 7th Circuit could envision were video surveillance of or bio-monitors to be worn by commercial drivers, which the court did not interpret Congress to mean within requiring the ELDs to operate “automatically.”
2. The rule fails to protect drivers sufficiently from harassment
The 7th Circuit had struck down a prior version (2011) of the ELD rule because it failed to make sure the devices would not be used to harass commercial drivers. OOIDA contended that the 2015 iteration likewise failed to protect drivers from harassment. Under 49 C.F.R. § 390.36, ELD-related harassment can take two forms: when a motor carrier uses an ELD to encourage a driver to drive (1) when the driver’s ability is somehow impaired, or (2) when the driver is in violation of the hours of service rules.
The 7th Circuit found that the 2015 rule complied with the Congressional mandate to protect drivers from harassment, holding that the FMCSA’s definition of harassment was reasonable.
3. The rule’s benefit will not outweigh its costs
OOIDA argued that the FMCSA’s calculation of benefits was flawed on two grounds: (1) ELDs will not improve hours of service compliance because they are not entirely automatic, and (2) studies with results contrary to OOIDA’s first point are unreliable. The 7th Circuit rejected this ground, finding that the Department of Transportation was under required by Congress to undergo a cost-benefit analysis. “Requiring ELDs was not left to the discretion of the agency; Congress mandated it.”
4. The rule fails to protect the confidentiality of personal data collected by ELDs
49 U.S.C. § 31137(e) requires the FMCSA to provide safeguards to protect the confidentiality of the data collected by the ELDs. The data recorded by the ELDs is to be retained and stored by the drivers and motor carriers, who are directed “to protect a driver’s privacy in a manner consistent with sound business practices.” 49 C.F.R. § 395.24(d), § 395.22(i). The governance of this data is being incorporated into preexisting regulatory infrastructure. Furthermore, to the extent that confidential ELD-related data is released, personal information will be redacted. Therefore, the 7th Circuit found that the FMCSA’s confidentiality requirements were sufficient under the statute.
5. The rule violates the 4th Amendment’s prohibition against unreasonable search and seizure
The 7th Circuit found that OOIDA’s arguments on this front were wholly unpersuasive. Even if the ELD mandate constituted a search or seizure, the 4th Amendment exception would apply for pervasively regulated industries. In considering the exception, the ELD mandate must (and does) pass a 3-part reasonableness test: (1) the regulatory scheme must be informed by a substantial government interest; (2) the warrantless inspections must be necessary to further the regulatory scheme; and (3) the inspection program must provide a constitutionally adequate substitute for a warrant.
For the foregoing reasons, the 7th Circuit denied OOIDA’s petition and upheld the ELD rule, that is scheduled to become effective in December 2017.
Photo by Rex Hammock.
Oliver Wendell Holmes, Jr.: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought, not free thought for those who agree with us but freedom for the thought that we hate.”
In April 2016, the United States Supreme Court voted to approve three amendments to Federal Rules of Civil Procedure 4, 6, and 82, which will become effective on December 1, 2016.
Rule 4(m) of the Federal Rules of Civil Procedure
FRCP 4(m) holds that if a defendant is not served with the complaint and summons within 90 days after the complaint is filed, the court may dismiss the action without prejudice against that defendant or order that service be made within a specified time. If the plaintiff has good cause for having failed to serve the defendant, the court must extend the time for service for an appropriate time.
Under the prior version of this rule, subdivision (m) did not apply to service in a foreign country under Rule 4(f) or 4(j)(i). The amended added Rule 4(h)(2) to the exclusion.
The Committee Note explains the reasoning for the amendment to Rule 4(m) as follows:
“Rule 4(m) is amended to correct a possible ambiguity that appears to have generated some confusion in practice. Service in a foreign country often is accomplished by means that require more than the time set by Rule 4(m). This problem is recognized by the two clear exceptions for service on an individual in a foreign country under Rule4(f) and for service on a foreign state under Rule 4(j)(1). The potential ambiguity arises from the lack of any explicit reference to service on a corporation, partnership, or other unincorporated association. Rule 4(h)(2) provides for service on such defendants at a place outside any judicial district of the United States “in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).” Invoking service “in the manner prescribed by Rule 4(f)” could easily be read to mean that service under Rule 4(h)(2) is also service “under” Rule 4(f). That interpretation is in keeping with the purpose to recognize the delays that often occur in effecting service in a foreign country. But it also is possible to read the words for what they seem to say— service is under Rule 4a(h)(2), albeit in a manner borrowed from almost all, but not quite all, of Rule 4(f).”
Rule 6(d) of the Federal Rules of Civil Procedure
FRCP 6 addresses computing and extending the time for service. Under the new version of Rule 6(d), three (3) days are added after the period would otherwise expire under Rule 6(a) when a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) mail, (D), leaving with the clerk, or (F) other means consented to. In short the amendment eliminates the 3-day addition to the deadline when service is made electronically.
The Committee Note explains the reasoning for the amendment to Rule 6(d) as being two-fold. In the early 2000s, there was concern that electronic transmissions may be delayed or system incapabilities may cause difficulty in opening attachments. The advancement of technology has alleviated those concerns. Second, “[m]any rules have been changed to ease the task of computing time by adopting 7-, 14-, 21-, and 28-day periods that allow “day- of-the-week” counting. Adding 3 days at the end complicated the counting, and increased the occasions for further complication by invoking the provisions that apply when the last day is a Saturday, Sunday, or legal holiday.”
Rule 82 of the Federal Rules of Civil Procedure
FRCP 82 was amended to reflect the appeal of 28 U.S.C. § 1392, and the enactment of 28 U.S.C. § 1390. As such the new version of Rule 82 reads as follows: “These rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts. An admiralty or maritime claim under Rule 9(h) is governed by 28 U.S.C. § 1390.”
In 2015, the Supreme Court made extensive changes to the discovery rules in the Federal Rules of Civil Procedure, which I have previously outlined, showing side-by-side comparisons.
Photo by WFIU Public Radio.