Justia Civil Procedure Opinion Summaries

Several years ago, law firm Lueder, Larkin & Hunter represented the Pine Grove Homeowners Association in lawsuits seeking to collect delinquent fees from homeowners. One homeowner settled, and eventually Pine Grove voluntarily dismissed the other two suits. The homeowners then sued Lueder, Larkin & Hunter, arguing in state court that the law firm’s actions violated the Fair Debt Collection Practices Act (“FDCPA”). The firm removed the cases to federal court, where they were consolidated before a magistrate judge. After reviewing the complaints, the firm became convinced that the FDCPA claims filed against it were “unsubstantiated and frivolous”—meaning that the homeowners’ attorney had committed sanctionable conduct. The firm served the homeowners’ counsel with draft motions for Rule 11 sanctions.   The law firm appealed the denial of sanctions, and the homeowners appealed the summary judgment decision. The Eleventh Circuit affirmed the district court’s grant of summary judgment and vacated its denial of the Rule 11 motions. The court explained that it has long held that Rule 11 motions “are not barred if filed after a dismissal order, or after entry of judgment,” though it is apparently necessary to clarify that point in light of later cases. The homeowners claim that a later case, Walker, changed the Eleventh Circuit’s law. The court, looking at the relevant cases together, held that the reconciled rule follows: If a party fulfills the safe harbor requirement by serving a Rule 11 sanctions motion at least 21 days before final judgment, then she may file that motion after the judgment is entered and Lueder, Larkin & Hunter satisfied this rule. View "Wilbur Huggins v. Lueder, Larkin & Hunter, LLC" on Justia Law

Charles and Tracy Lamirand took out a mortgage loan to buy a home in Florida but did not keep up with the payments. After they defaulted, the loan servicer sued to foreclose on the home. While the foreclosure suit was pending, Fay Servicing took over the loan. A disagreement arose, leading the Lamirands to sue Fay Servicing. The parties soon settled both lawsuits and agreed that the Lamirands owed $85,790.99 on the loan, to be paid in one year. But four months later, Fay Servicing sent the Lamirands a mortgage statement notifying them that their loan had “been accelerated” because they were “late on [their] monthly payments.” On Fay Servicing’s fast-tracked timetable, the Lamirands owed $92,789.55 to be paid in a month. If they did not pay, Fay Servicing’s statement warned, they risked more fees and even “the loss of [their] home to a foreclosure sale.” The statement then detailed many ways the Lamirands might pay. The statements distressed the Lamirands, who thought they needed to pay only $85,790.99 and make that payment by the date set in the settlement agreement. They eventually sued, alleging that by sending the statements Fay Servicing had violated the FDCPA and Florida’s Consumer Collection Practices Act. To the district court, the periodic statements were unrelated to debt collection, even though they urged the Lamirands to make their past-due loan payments, because Fay Servicing was required to send monthly updates under the Truth in Lending Act. The court thus held that the Lamirands had not stated an FDCPA claim, declined to exercise supplemental jurisdiction over the Florida law claims, and dismissed the complaint. The Eleventh Circuit Court of Appeals found a periodic statement mandated by the Truth in Lending Act could also be a debt-collection communication covered by the FDCPA. Because the complaint here plausibly alleged the periodic statements sent to the plaintiffs aimed to collect their debt, the district court’s dismissal of their complaint was reversed. View "Lamirand, et al v. Fay Servicing, LLC" on Justia Law

Plaintiff American Savings Bank, F.S.B (“ASB”) sent text messages to his mobile phone without the consent required by the Telephone Consumer Protection Act (“TCPA”). Affirming the district court’s summary judgment, the Ninth Circuit held that under Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017), messages sent by Plaintiff’s phone to ASB’s “short code” number provided the required prior express consent for ASB’s responsive messages.   The district court granted ASB’s motion for an award of costs under Rule 41(d) for costs, including attorney’s fees, that ASB incurred in defending identical litigation commenced and later voluntarily dismissed by Plaintiff in the District of Connecticut. Joining other circuits, and reversing in part, the court held that Rule 41(d) “costs” do not include attorney’s fees as a matter of right. Accordingly, the district court abused its discretion in including attorney’s fees in its award of costs under Rule 41(d).   The court explained that it did not decide if bad faith is sufficient to allow a party to recover attorney’s fees as “costs” under Rule 41(b), as bad faith was not alleged, much less proven, by ASB in the district court. The court did not address whether attorney’s fees are available under Rule 41(b) if the underlying statute so provides because, here, it was undisputed that the TCPA does not provide for the award of attorney’s fees to the prevailing party. View "CRAIG MOSKOWITZ V. AMERICAN SAVINGS BANK" on Justia Law

Plaintiff executed a 2007 note for over a million dollars. She defaulted on her payments and applied for a loan modification in 2017. After a 2018 foreclosure sale, Plaintiff brought a wrongful foreclosure action against a bank and Rushmore Loan Management Services, LLC. During discovery answered a key contention interrogatory with one word: “Unsure.” When later confronted with a defense summary judgment motion, however, Plaintiff developed belated clarity and finally specified the type of wrongdoing she was accusing Defendant of committing.   The Second Appellate District affirmed the trial court’s grant of summary judgment in favor of Defendants. The court explained that Code of Civil Procedure section 2030.310 provides a mechanism for parties to amend responses to interrogatories under certain circumstances, yet Plaintiff did not attempt to amend. Thus, Plaintiff's untimely and contradictory effort cannot support any attack on this grant of summary judgment, which was proper. View "Field v. U.S. Bank Nat. Assn." on Justia Law

Defendants, VSL Pharmaceuticals, Inc. and Alfasigma USA, Inc., appealed the district court’s order finding them in contempt of the court’s permanent injunction. The injunction prohibited Defendants from suggesting in promotional materials that their probiotic contained the same formulation as one marketed by Claudio De Simone and ExeGi Pharma, LLC.   On appeal, Defendants (1) their statements weren’t contemptuous, (2) their statements didn’t harm Plaintiffs (3) the district court improperly awarded attorneys’ fees, and (4) VSL and Alfasigma shouldn’t be jointly liable for the fee award. The Fourth Circuit affirmed the district court’s order.   The court explained a party moving for civil contempt must establish four elements by clear and convincing evidence, relevant here are the last two: that the alleged contemnor by its conduct violated the terms of the decree, and had knowledge (at least constructive knowledge) of such violations; and that the movant suffered harm as a result.   Defendants emphasized that consumers couldn’t access the Letter from Alfasigma’s home page. That’s true, as De Simone and ExeGi showed only that consumers could access the Letter by searching “vsl3 litigation” on Google. But the way in which consumers could access the Letter is irrelevant to Alfasigma’s constructive knowledge that it remained on the website.   Further, under the Lanham Act, “commercial advertising or promotion” is “commercial speech . . . for the purpose of influencing consumers to buy goods or services.” Here, Defendants’ press release’s final sentence emphasizes VSL#3’s commercial availability, so the district court reasonably viewed the message as an attempt to realize economic gain. View "Claudio De Simone v. VSL Pharmaceuticals, Inc." on Justia Law

Plaintiffs sued the Inter-American Development Bank (the “IDB” or the “Bank”), alleging that the IDB violated its internal investigatory procedures when investigating allegations that the Plaintiffs had engaged in “Prohibited Practices”—e.g., corruption, fraud, coercion, collusion, obstruction and misappropriation—in the performance of IDB-financed contracts, an investigation that ultimately led to the imposition of severe sanctions against the Plaintiffs. The IDB moved to dismiss the suit for lack of subject matter jurisdiction, asserting immunity under the International Organizations Immunities Act (IOIA), 22 U.S.C. Sections 288–288l. Plaintiffs countered that their case fell within two exceptions to IOIA immunity: the commercial activity exception and the waiver exception. Rejecting the Plaintiffs’ arguments, the district court granted the IDB’s motion to dismiss.   The DC Circuit affirmed the district court’s ruling, holding that Plaintiffs’ cases did not fall within the IOIA immunity exceptions. The court reasoned that in the context of a multilateral bank like the IDB, the Court has generally looked to whether waiver of immunity serves to “enhance the marketability” of an international organization’s financial products “and the credibility of its activities in the lending markets. Weighing the costs and benefits here, the court saw no reason to find a waiver of immunity. It is true that the IDB is obligated to, among other things, “promote the investment of public and private capital for development purposes” and “encourage private investment,” IDB Charter art. I, Section 2(a), meaning that the Plaintiffs’ argument that judicial review would assuage commercial partners’ “fears that [the Sanctions Procedures] will be applied in bad faith,” and thereby promote investment, is, at the very least, colorable. View "Noah Rosenkrantz v. Inter-American Development Bank" on Justia Law

Vicki Hebert filed a putative class action against Barnes & Noble, Inc. (Barnes & Noble), alleging it willfully violated the Fair Credit Reporting Act (FCRA). According to Hebert, Barnes & Noble willfully violated the FCRA by providing job applicants with a disclosure that included extraneous language unrelated to the topic of consumer reports. The Act required employers like Barnes & Noble provide a job applicant like Herbert a standalone disclosure stating that the employer may obtain the applicant’s consumer report when making a hiring decision. Barnes & Noble moved for summary judgment, arguing that no reasonable jury could find its alleged FCRA violation was willful. The company asserted it included the extraneous information in its disclosure due to an inadvertent drafting error. The trial court agreed with Barnes & Noble, granted the company’s motion, and entered judgment in the company’s favor. The Court of Appeal disagreed with the trial court, determining a reasonable jury could have found that Barnes & Noble acted willfully because it violated an unambiguous provision of the FCRA, at least one of the company’s employees was aware of the extraneous information in the disclosure before the disclosure was displayed to job applicants, the company may not have adequately trained its employees on FCRA compliance, and/or the company may not have had a monitoring system in place to ensure its disclosure complied with the FCRA. Judgment was reversed and the matter remanded for further proceedings. View "Hebert v. Barnes & Noble, Inc." on Justia Law

Ralph and Heidi Bowser bought a 2006 Ford F-250 Super Duty truck, with a 6.0-liter diesel engine (6.0L engine). They had owned a 2004 model of the same truck; that turned out to be a lemon. The dealership, however, assured them that Ford had “fixed” the problems. After the purchase, the truck required repair after repair. After the truck had about 100,000 miles on it, the Bowsers largely stopped driving it; it mostly sat in their driveway. The Bowsers’ expert testified that, in his opinion, the 6.0L engine had defective fuel delivery and air management systems. Over Ford’s objections, the Bowsers introduced a number of internal Ford emails and presentations showing that Ford was aware that certain parts of the 6.0L engine, including fuel injectors, turbochargers, and EGR valves, were failing at excessive rates, and that Ford was struggling to find the root cause of some of these failures. Ford conceded liability under the Song-Beverly Act. A jury found for the Bowsers on all causes of action, and awarded compensatory and punitive damages. Ford appealed, raising a number of alleged evidentiary errors at trial, and challenged the jury’s award of damages. Finding no reversible error, the Court of Appeal affirmed. View "Bowser v. Ford Motor Company" on Justia Law

Plaintiff sued Adventist Health System/West and Hanford Community Hospital (collectively, Hospital), for a violation of the Consumer Legal Remedies Act (CLRA; Civ. Code, Sec. 1750 et seq.) and declaratory relief.Plaintiff received emergency treatment and services at Hospital’s emergency room in Hanford. The emergency room did not contain a posted notice or warning that a substantial EMS Fee would be added to Plaintiff’s bill on top of the individual charges for each item of treatment and services provided to her. Plaintiff alleged Hospital engaged in a deceptive practice when it did not disclose its intent to charge her a substantial emergency room EMS Fee.Hospital moved for judgment on the pleadings, which the trial court granted. The court found that although Plaintiff’s pleading adequately alleges Hospital failed to disclose facts that were known exclusively by Hospital and were not reasonably accessible to Plaintiff, the court concluded Plaintiff’s conclusory allegation that she relied on the failure to disclose the EMS Fee and thereafter received treatment at the Hospital does not plead the element of reliance with sufficient particularity.In an unpublished part of the opinion, the court concluded Plaintiff has not carried her burden of demonstrating the trial court erred when it denied her leave to file a third amended complaint. Thus, the court affirmed the judgment. View "Torres v. Adventist Health System/West" on Justia Law

Plaintiff bought garments from Eddie Bauer Outlet Stores advertising sales of 40–70% off. The price tags of the garments included two numbers: a higher price, which the parties call a “reference” or “list price,” and a lower “sale” price. Plaintiff paid the “sale” price for the clothes. She alleges that she relied on the representation that she was getting the clothes on sale, but later discovered that the “list prices” were misleading because Eddie Bauer never sold the garments for the “list price” and that the Eddie Bauer Outlet Stores have perpetual sales of 40–70% off.The court concluded that the disposition of this appeal turns on a question of Oregon law: whether a consumer suffers an “ascertainable loss” under Or. Rev. Stat. Sec. 646.638(1) when the consumer purchased a product that the consumer would not have purchased at the price that the consumer paid but for a violation of Or. Rev. Stat. Secs. 646.608(1)(e), (i), (j), (ee), or (u), if the violation arises from a representation regarding the product’s price, comparative price, or price history, but not about the character or quality of the product itself. View "SUSAN CLARK V. EDDIE BAUER LLC" on Justia Law