Friday, May 11, 2007

Magistrate Judge Sargent recommends denial of motion for leave to amend based on company's own e-mail

In The United Co. v. Keenan, Magistrate Judge Sargent recommended denial of the former employer's motion for leave to amend, based on an e-mail written using the company's e-mail system by the defendant former employee. Magistrate Judge Sargent thought the plaintiff should have discovered an e-mail on its own system years ago.

Magistrate Judge Sargent denies motion for summary judgment in handicapped-access lawsuit against Barter Theater

In Morrell v. Barter Foundation, Magistrate Judge Sargent recommended denial of the defendant's motions in the case challenging handicapped access to the various facilities across the street from the main theater on the Barter Green. The Barter argued, among other things, that they are trying to fix the problem, which is not a valid defense, or so Judge Sargent concluded: "Because the Barter has only plans to cease this alleged violation of the ADA, and given the rigorous procedures that must be followed under the Program, and which failure to follow could result in losing the VDOT grant, it certainly cannot be said that there is no reasonable expectation that the alleged violation will recur, for the violation will certainly continue to occur until the completion of construction of an ADA-compliant sidewalk."

Thursday, May 10, 2007

Fourth Circuit reversed dismissal of Fair Debt Collection Practices Act claim against lawyers

In Sayyed v. Wolpoff & Abramson, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Chief Judge Wilkins and Judge Motz, reversed the order of the district court granting the defendant law firm's motion to dismiss the plaintiff's claims brought under the Fair Debt Collection Practices Act. The Court ruled that the District Court erred in applying common law immunities as a defense to the federal act, holding that instead the Act defines what are the violations and defenses to liability.

The Court concluded:

"Ultimately, W&A's specific arguments are manifestations of the same general claim: that it simply cannot be the case that the FDCPA covers litigation, the entire purpose of which is to arrive at the truth through the clash of the adversarial process. This argument may have some intuitive appeal, but the fact that an interpretation may seem appealing does not mean that it is correct. While the district court stated, 'I cannot see how commercial litigation could proceed' if the statements at issue in this case were subject to the FDCPA, the FDCPA does not apply to commercial litigation: it covers debt collection where 'debt' is defined as an obligation of a 'consumer,' defined as a 'natural person,' for 'personal, family, or household purposes.' 15 U.S.C. § 1692a(3), (5). And, in any event, '[i]n the ordinary case, absent any indication that doing so would frustrate Congress's clear intention or yield patent absurdity, our obligation is to apply the statute as Congress wrote it.' Hubbard v. United States, 514 U.S. 695, 703 (1995) (internal quotation marks omitted). Operating from 'the understanding that Congress says in a statute what it means and means in a statute what it says there,' Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000), we reverse the district court’s dismissal of the action."

Magistrate Judge Urbanski whacks attorneys' fees in interpleader case

In Sun Life Assurance Co. v. Tinsley, an interpleader case where the "boot" was $30,877.40, Magistrate Judge Urbanski cut the plaintiff insurance company's request for $11,000 in attorneys' fees down to $2,000.

Wednesday, May 09, 2007

Closing in on a Fourth Circuit nominee from South Carolina

South Carolina Appellate Law Blog says here that the nominee to fill the vacant seat on the Fourth Circuit left by Chief Judge Wilkins "will likely be either Steve Matthews of Haynsworth Sinkler Boyd, or Judge John Kittredge of the South Carolina Court of Appeals."

The gang at Confirm Them have posted their comments here.

Besides Chief Judge Wilkins, the Fourth Circuit needs replacements for Judge Widener, retired Judge Luttig, the late Judge Murnaghan, and senior Judge Phillips from North Carolina (who took senior status in 1994!). Judge Duncan is still the only member of the Court from North Carolina.

New notarization requirements in Virginia

Virginia Lawyers Weekly has a cover story this week about the new Virginia law with some odd new requirements on how to notarize documents. The new law was HB 2058, includes these provisions:

§ 47.1-11.1. Evidence of authenticity of electronic notarial act.

A. Form of evidence of authority of electronic notarial act. On a notarized electronic document transmitted to another state or country outside of the United States, electronic evidence of the authenticity of the official signature and seal of an electronic notary of the Commonwealth of Virginia, if required, shall be attached to or logically associated with the document and shall be in the form of an electronic certificate of authority signed by the Secretary that is independently verifiable, will be invalidated if the underlying document is improperly modified, and is in conformance with any current and pertinent international treaties, agreements, and conventions subscribed to by the government of the United States.

B. Certificate of authority for electronic notarial act. An electronic certificate of authority evidencing the authenticity of the official signature and seal of an electronic notary of the Commonwealth of Virginia shall contain substantially the following words:

Certificate of Authority for an Electronic Notarial Act

I, ___________(name and title), certify that __________(name of electronic notary), the person named as Electronic Notary Public in the attached or associated electronic document, was commissioned as an Electronic Notary Public for the Commonwealth of Virginia and authorized to act as such at the time of the document's electronic notarization.

To verify this Certificate of Authority for an Electronic Notarial Act, I have included herewith my electronic signature this______day of _______, 20__.

(Electronic signature and seal of commissioning official)

C. For issuing an electronic certificate of authority, the Secretary may charge a fee in an amount set by the Secretary.

§ 47.1-14. Duty of care.

A. A notary shall exercise reasonable care in the performance of his duties generally. He shall exercise a high degree of care in ascertaining the identity of any person whose identity is the subject of a notarial act.

B. Unless such person is personally known by the notary, identity shall be ascertained upon presentation of satisfactory evidence of identity as defined in this title.

C. A notary performing electronic notarial acts shall keep, maintain, protect, and provide for lawful inspection an electronic record of notarial acts that contains at least the following for each notarial act performed: (i) the date and time of day of the notarial act; (ii) the type of notarial act; (iii) the type, title, or a description of the document or proceeding; (iv) the printed name and address of each principal; (v) the evidence of identity of each principal in the form of either a statement that the person is personally known to the notary, a notation of the type of identification document, which may be a copy of the driver's license or other photographic image of the individual's face, or the printed name and address of each credible witness swearing or affirming to the person's identity, and, for credible witnesses who are not personally known to the notary or electronic notary, a description of the type of identification documents relied on by the notary; and (vi) the fee, if any, charged for the notarial act. The electronic notary shall take reasonable steps to (i) ensure the integrity, security, and authenticity of electronic notarizations, (ii) maintain a backup for his electronic record of notarial acts, and (iii) ensure protection of such backup records from unauthorized use.

D. A notary performing electronic notarial acts shall take reasonable steps to ensure that any registered device used to create an electronic signature is current and has not been revoked or terminated by its issuing or registering authority.

E. A notary performing electronic notarial acts shall keep his record, electronic signature, and physical and electronic seals secure under his exclusive control and shall not allow them to be used by any other notary or any other person.

F. A notary performing electronic notarial acts shall use the notary's electronic signature only for the purpose of performing electronic notarial acts.

G. A notary performing electronic notarial acts, immediately upon discovering that the notary's record, electronic signature, or physical or electronic seal has been lost, stolen, or may be otherwise used by a person other than the notary, shall (i) inform the appropriate law-enforcement agency in the case of theft or vandalism and (ii) notify the Secretary in writing and signed in the official name in which he was commissioned.

§ 47.1-15. Prohibitions.

A notary shall not:

1. Notarize a document if the signer is not in the presence of the notary at the time of notarization, unless otherwise authorized by law to do so.

2. Use the official notary title or seal to endorse, promote, denounce, or oppose any product, service, contest, candidate, or other offering.

3. Notarize a signature on a document without notarial certificate wording on the same page as the signature.

4. Affix an official signature or seal on a notarial certificate that is incomplete.

A notary shall not perform any official act with the intent to deceive or defraud.

A nonattorney notary shall not assist another person in drafting, completing, selecting, or understanding a document or transaction requiring a notarial act. This section does not preclude a notary who is duly qualified, trained, or experienced in a particular industry or professional field from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field or prevent a notary from adding a notarial certificate or electronic notarial certificate to a paper or electronic document at the direction of a principal or lawful authority.

A notary may decline to notarize a document.

§ 47.1-16. Notarizations to show date of act, official signature and seal, etc.

A. Every notarization shall include the date upon which the notarial act was performed, and the county or city and state in which it was performed.

B. A notarial act shall be evidenced by a notarial certificate or electronic notarial certificate signed by a notary in a manner that attributes such signature to the notary public identified on the commission.

C. Upon every writing which is the subject of a notarial act, the notary shall, after his certificate, state the date of the expiration of his commission in substantially the following form:

"My commission expires the . . . . day of . . . . . ., . . . .."

Near the notary's official signature on the notarial certificate of a paper document, the notary shall affix a sharp, legible, permanent, and photographically reproducible image of the official seal, or, to an electronic document, the notary shall attach an official electronic seal. However, in the case of a nonelectronic seal, failure to affix an official seal shall not in any way impact the legality or efficacy of the paper document.

D. The notary shall attach the official electronic signature and seal to the electronic notarial certificate of an electronic document in a manner that is capable of independent verification and renders any subsequent changes or modifications to the electronic document evident.

E. A notary's electronic signature and seal shall conform to generally accepted standards for secure electronic notarization.

Brian Peterson over in West Virginia also has this post.

Interesting books I read lately

Two interesting and provocative history books -

One was On the Shoulders of Giants: My Journey Through the Harlem Renaissance, by Kareem Abdul-Jabbar. Probably, I would not have read it but for the famous author.

Another was A Land As God Made It: Jamestown And the Birth of America, by James P. P. Horn. Probably, I would not have read it but for the 400th celebration.

The Horn book makes me think that this goofy story in the Post is somewhat right but leaves out some of the interesting parts, on the story of Pocahontas and John Smith. Evidently, the big deal about Pocahontas at the time was that when she came to England, she became a celebrity as an example of how a "Virginian" could be made a Christian, which helped to revive support for the company behind the Virginia colonies.

I also read The Castle in the Forest: A Novel by Norman Mailer, which was really weird.

Sunday, May 06, 2007

The South Carolina Floyd, not the Virginia Floyd

A while back, I linked to this post, which references South Carolina federal judge Henry Floyd, whose name is not John Floyd, as I wrote.

John Floyd is the name of a former Governor of Virginia, and the Secretary of War under James Buchanan, and who died and was buried in Abingdon. His adopted daughter was the wife of federal judge Robert William Hughes, who was also buried in Abingdon. I have written about Judge Hughes here and here.