Tuesday, January 24, 2012

Lincoln's Day saves the day for defendant

In Postlewait v. City of Wheeling, the West Virginia Supreme Court confirmed that legal holidays designated in W.Va. Code § 2-2-1 are "legal holidays" under Rule 6(a) of the West Virginia Rules of Civil Procedure, including "Lincoln's Day." Therefore, they are excluded in calculating deadlines of fewer than 11 days:
The question we must therefore resolve is, does the term "legal holiday" in Rule 6(a) of the Rules of Civil Procedure include "Lincoln's Day" (the Friday after Thanksgiving Day) or any other legal holiday designated by the Legislature in W.Va. Code, 2-2-1? We hold that it does.
In this case, the 18 calendar days between the November 19, 2010, judgment order and the December 7, 2010 motion for a new trial were only ten "Rule 6" days due to all of the weekends and holidays.  Therefore, the motion for a new trial was timely filed.

Thursday, January 12, 2012

Changes to Jurisdiction, Removal and Venue Statutes Now Effective

On Wednesday, December 07, 2011, President Obama signed into law H.R. 394, the "Federal Courts Jurisdiction and Venue Clarification Act of 2011," which amends the statutes dealing with jurisdiction and venue of civil actions in U.S. district courts, including procedures for removal of cases from state courts.

For Fourth Circuit practitioners, one of the more important changes relates to the 30-day time limit for defendants to remove a case. You may recall there was a split of circuits on the so-called "last served defendant rule."  The Fourth Circuit itself was even split on this issue.  There were two different opinions in Barbour v. Int'l Union United Auto. Aerospace, a 2010 opinion adopting the last-served defendant rule, and a later 2011 en banc opinion adopting the "McKinney Intermediate Rule".  No use going into details because this new law settles the question once and for all.

Under the newly amended 28 U.S.C. 1446(b), each defendant now has 30 days to remove from receipt or service of the initial pleadings. The new 1446(b)(2) reads:
(A) When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.
(B) Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons described in paragraph (1) to file the notice of removal.
(C) If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal.
This avoids unfair prejudice to the later-served defendant where an earlier-served defendant blew his deadline.

The new law also has some other provisions you will want to review.  It
  • allows removals in diversity cases beyond one year where the court “finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”
  • adopts a “preponderance of the evidence” standard for proving the amount in controversy and makes some other changes to the amount in controversy proof requirements; and
  • allows removal of cases involving both removable and non-removable claims with required severance and remand of certain non-removable claims; and
  • allows venue changes by consent of all parties
This law does a lot to improve defendants' access to the federal courts.

Supreme Court recognizes "ministerial exception" to employment discrimination laws

Yesterday, the Supreme Court recognized, for the first time, a “ministerial exception” to employment discrimination laws, holding that churches and other religious organizations are free to choose their ministers without government interference. Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553 (Jan. 11, 2012).

Writing for the unanimous court, Chief Justice Roberts stated that allowing anti-discrimination lawsuits against religious organizations could force churches to take religious leaders they no longer want.

"Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs ... By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."

The Court avoided creating a set of "hard and fast" rules regarding who is a religious employee of a religious organization.  "We are reluctant ... to adopt a rigid formula for deciding when an employee qualifies as a minister ... It is enough for us to conclude, in this, our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment."

Tuesday, January 03, 2012

Federal Judges Overturn Redistricting Plan

Federal Judges Overturn Redistricting Plan: The Legislature has time to come up with a new Congressional plan before one automatically takes effect.

Jefferson County Commission v. Tennant, Civil Action No. 2:11-CV-0989 (Mem. Op. and Order dated Jan. 3, 2012):

"Upon careful consideration of the parties' written submissions and the testimony, evidence, and arguments of counsel, we conclude that West Virginia's congressional apportionment was not accomplished in conformance with the Constitution of the United States. The plaintiffs are therefore entitled to have the enactment declared null and void, and, in turn, to have the Secretary of State permanently enjoined from conducting West Virginia's elections for Congress in accordance therewith."