Saturday, March 25, 2006

On the difference between federal res judicata and Virginia res judicata

In Q International Courier v. Smoak, the Fourth Circuit in an opinion by Judge Shedd, joined by Judges Niemeyer and Williams, concluded that the trial court erred in applying the federal law of res judicata to determine the preclusive effects of the judgment in an earlier federal court case for which the court's subject matter jurisdiction was based on diversity.

Concluding that the Virginia law of res judicata applies, the Court noted in remanding the case that "neither party has argued that Virginia also has a specific res judicata rule for cases — like the instant one — in which the first action was litigated in federal district court. In such a circumstance, the initial question under Virginia law is whether the claims filed in the second action would have been considered compulsory counterclaims in the first action under Federal Rule of Civil Procedure 13(a)."

The Court cited Nottingham v. Weld, 377 S.E.2d 621 (Va. 1989), which the Virginia Supreme Court also cited, when it observed that: "The prior federal court judgment is accorded the preclusive effect in subsequent state litigation that the federal courts would have attached thereto." Glasco v. Ballard, 249 Va. 61, 64, 452 S.E.2d 854, 856 (1995). So, what exactly is the difference between the federal law of res judicata and the Virginia law of res judicata, if Virginia law would give the federal judgment the same effect as the federal courts would?

No joy for would-be plaintiffs in Maryland racial profiling case

In Bridges v. Department of Maryland State Police, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Chief Judge Wilkins and Judge Williams, held in a purported class action against a number of police officials that: (1) there was no final order on a motion to amend, (2) non-party "would-be plaintiffs" lacked standing to appeal, since they had never file a motion to intervene, and (3) even if the would-be plaintiffs were considered to have sought intervention, their claims were barred by the statute of limitations.

Statute of limitations cannot be raised sua sponte in ordinary civil case

In Eriline Company S.A. v. Johnson, the Fourth Circuit held in an opinion by Judge King, joined by Judges Williams and Gregory, that the District Court erred by raising sua sponte the bar of the statute of limitations as a basis for dismissal. The Court distinguished the rare circumstance of a habeas petition untimely on its face, as the exceptional case in which the district court can act on a limitations defense not raised by the parties. The Court also concluded that the limitations defense in the case did not go the court's subject matter jurisdiction.

Unrelated to the limitations issue, there was some interesting discussion about whether there was subject matter jurisdiction because as the case had developed, by the end there were non-diverse parties on both sides of the case. The Court concluded that it did not matter, the trial court had supplemental jurisdiction over the state law claims.

Crohn's patient turned painter

The Harrisonburg paper has this interesting profile of a woman with Crohn's disease who became a painter.

On Daubert in Tennessee

Blog 702 wrote here about a recent Tennessee Bar Journal article I forwarded to them, written by Brian Jackson of Miller & Martin, whose website also has this link to this interesting article.

Commentary on the new Westlaw interface

The old Westlaw tricks are still better than the new ones, from what I've seen so far.

Tuesday, March 21, 2006

The bad AG in West Virginia

The Bluefield paper opines here:

"West Virginia’s Attorney General, Darrell McGraw, continues to evade the issue of why his office decided not to structure a consumer action settlement agreement so that the bulk of $10 million in lawsuit funds would go back to the state agencies for whom he served as legal counsel."

The paper also says:

"Two other key issues are at the heart of this battle – whether or not the Attorney General should follow state bidding procedures for outside attorneys and whether the Legislature has the constitutional authority to direct the use of settlement dollars from consumer protection actions."

Norfolk paper says AG is getting things done

The Virginian-Pilot has this mostly favorable evaluation of the performance to date of Attorney General Bob McDonnell.

It says he sometimes breaks bad and eats at Padow's there on Main Street or whatever street that is. I still have never eaten there, only walked by it.

Sunday, March 19, 2006

On the patentability of human thoughts

Slashdot has this chain about how the Supreme Court is going to decide whether thoughts are patentable.

Somehow, it reminds me of this famous story of Jim Valvano and a basketball referee:

"I asked a ref if he could give me a technical foul for thinking bad things about him. He said, of course not. I said, well, I think you stink. And he gave me a technical. You can't trust em."

The long-running Brentwood Academy case

In Brentwood Academy v. TSSAA, the Sixth Circuit took on for the third time the case about the private school that sued and got the U.S. Supreme COurt to rule that the high school sports association in Tennessee is a state actor for purposes of section 1983.

The latest opinion deals with the District Court's disposition.

The dissent begins:

"High school football is a game. Games have rules.

To have federal courts, under the guise of applying the enduring principles of the First Amendment, reverse the ordinary application of high school football recruiting rules—where the core values of the Amendment are not even remotely involved—unduly trivializes these constitutional principles. This is no more a case involving our nation’s ideal of freedom of expression than a case involving a coach who is thrown out of a game for talking back to a referee. This is instead a case involving game participants who challenge the discretionary administration of participation rules. Of course, good lawyers can characterize almost any perceived injustice as a constitutional case (and maybe even an antitrust case to boot), but courts should be hesitant to go along."

Trial courts 19, appellants 1

Blog702 has the score on this year's expert testimony rulings from the federal courts of appeals.

The Sixth Circuit ruling on Tennessee's "Choose Life" license plate

In ACLU v. Bredesen, the Sixth Circuit by a 2-1 vote upheld the constitutionality of the Tennessee law which allows for a "Choose Life" license plate but does not as yet offer a like plate for abortion rights advocates.

The majority distinguished Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786 (4th Cir. 2004), setting the stage for a possible Supreme Court resolution of this inter-circuit conflict.

Judge Martin in dissent wrote this fun footnote:

"Moreover, the manner in which the majority presents and answers the question is misleading — are we really to conclude that the Tennessee government has established a program to disseminate all of the individual messages on the various license plates. That is, did the Tennessee government decide to establish a program promoting Penn State Alumni Pride and seek out private volunteers to transmit this message to the public at large? Did the Tennessee government decide to establish a program promoting the University of Florida (the University of Tennessee’s arch-rival in football, see Gator Hater, (last visited March 10, 2006) (a website run by University of Tennessee fans dedicated to their rivalry with the University of Florida, including news, jokes, and recipes for cooking alligator meat)), and does the State seek out private volunteers to promote the University of Florida to its citizens? It is a nice academic exercise to hypothesize that the license plate program is a governmental program to disseminate through private volunteers all of the state’s various messages, but it seems to me to be a conclusion that only judges banished to our ivory towers and shut off from the real world could reach. See also Children First Foundation, 2006 WL 544502 (holding that no reasonable person would believe that the government speech doctrine permits viewpoint discrimination in the specialty license plate context)."

The Sixth Circuit has been on fire lately in these First Amendment cases of various kinds.

History of SW Virginia coal business

This interesting piece in the Bluefield paper notes that March 12, 1883 "was the day the first car of coal was shipped from Pocahontas to Norfolk."

Interim E.D. Va. U.S. attorney named

The Richmond paper reports here that the Attorney General has named Chuck Rosenberg, a U.S. attorney from Texas, as interim U.S. attorney for the Eastern District of Virginia. The article notes: "He will be in charge of the office that is seeking the death penalty against Zacarias Moussaoui and has prosecuted other high-profile terrorism cases."

The numbers on law school applications

The Norfolk paper has this report on the declining trend in the number of law school applications, but the article notes: "A few law schools, including the College of William and Mary and the Appalachian School of Law in western Virginia, have seen increases in applications."

$1.8 million for Wythe County farmers in pipeline case

The Roanoke paper reports here that a federal jury awarded over $1 million to landowners in Wythe County in a pipeline condemnation case.

I noticed that a bunch more of these cases have been filed in recent weeks or months, reaching down into the Abingdon Division.

E.D. Va. upholds Virginia law on viatical settlements

The Richmond paper reports here that Judge Hudson of the E.D. Va. has rejected a constitutional challenge to Virginia's viatical settlement law, concluding that it does not discriminate against out-of-state businesses.

The article says in part:

"In Richmond, U.S. District Judge Henry E. Hudson, however, ruled that the SCC had jurisdiction over the company because it contacted Doe in Virginia. Furthermore, the judge ruled that Virginia law treats in-state and out-of-state companies the same and does not discriminate against interstate commerce. The law appears to be an appropriate use of the state's police powers, Hudson wrote.

Virginia's law has a legitimate purpose, which is to protect dying Virginians who sell their life insurance, Hudson wrote. "It is obvious to the court that a terminally-ill person . . . is in a particularly vulnerable position and could easily fall prey to sharp business practices and fraud."

Hudson ruled that Virginia's law must be upheld because it serves a legitimate Virginia interest and affects interstate commerce in only an incidental way."

On change of venue in criminal cases

The Lynchburg paper has this article on the effort to change the venue of two high-profile local cases, including the federal prosecution of the Lynchburg mayor.

On the difficulty of removing the governing board members of local governments in Virginia

The Roanoke paper has this article which describes the difficulty the citizens of Appalachia face in trying to remove town council members implicated in the recent criminal charges brought in Wise County.

The article notes: "Under Virginia law, a petition to remove an elected official must be signed by a number of registered voters equal to at least 10 percent of the votes cast in the election. It would take just 59 signatures to meet that requirement in Appalachia."

On Judge Brinkema

The Washington Post has this interesting profile of Judge Leonie Brinkema of the E.D. Va., who presides over the Moussaoui case in Alexandria.

The article says in part:

"Brinkema, 61, known to her friends as Dee Dee, was the first female judge named to the U.S. District Court in Alexandria. She was appointed by President Bill Clinton and has tightly controlled her courtroom from her first day on the bench. Friends say she has a wonderful sense of humor and is a superb soprano. She sings in a choir and has been known to break out in a line or two of song in her chambers.

Her commanding presence on the bench belies her diminutive appearance. She is maybe 5-foot-2. With eyeglasses perched halfway down her nose, and her long hair, graying around the temples, always, always pulled back in a tight bun, she looks like a schoolteacher or, more precisely, an old-fashioned librarian, which isn't too far-fetched given that she has a master's degree in library service from Rutgers University."

On William Petty

The Lynchburg paper has this profile of favorite son Bill Petty, just voted in by the General Assembly to become of member of the Virginia Court of Appeals.

The article quotes Petty as saying: "My father once told me, 'Son, the way you argue you’ll have to be a lawyer or you’ll always be fired from every job.'"

Petty also cites the influence of a judge from his early days as an assistant prosecutor: "Judge Cundiff was a wonderful teacher. He didn’t have patience for people who weren’t professional in what they did. He was always teaching you. Never a day went by when I didn’t learn anything. Some of them hurt."

This year's Pro Bono award winner

Today's Richmond paper has this interesting profile of lawyer David Baugh, the winner of the 2006 Lewis F. Powell Jr. Pro Bono Award, to be presented at the Virginia State Bar Pro Bono Conference.

The article says he has "a confrontational, sometimes abrasive, sometimes sarcastic courtroom style that keeps him close to the line and occasionally sends him across it."