Employer Liable For Torts of Employees if in Course and Scope of Employment and Not for Personal Reasons

The Michigan Court of Appeals has ruled in Peterson v. Brannigan Bros Restaurants that an employer may be held liable for the tortious conduct of an employee so long as that conduct was “committed in the course and within the scope of the employee’s employment,” but not if the act was outside the employee’s authority or committed for the employee’s own personal purposes. “While the issue of whether the employee was acting within the scope of his employment is generally for the trier of fact, the issue may be decided as a matter of law where it is clear that the employee was acting to accomplish some purpose of his own.”

DOL Is Issuing Opinion Letters Again

In 2010, the Department of Labor stopping issuing "Opinion Letters" to assist employers and employees in understanding how labor regulations were applied to particular situations.  Although not binding on either the DOL or courts, they were quite helpful and were issued with some frequency.  Between 2010 and 2016, however, that practice was stopped and less formal "Administrative Interpretations" were issued on an infrequent basis.  From 2010 to 2016, only 11 AI's were released.

Opinion Letters have been reinstated by Labor Secretary Alexander Acosta, and already 17 OL's have been issued in 2018.  To review them, click here.

SCOTUS Adopts "Stop-the-Clock" Tolling of Statute of Limitations for State Law Claims

On January 22, 2018, the United State Supreme Court held that claims arising under state law in a federal lawsuit, unless there is a state law to the contrary, are tolled or suspended, and plaintiffs have the time remaining on the statute of limitations period applicable to their state law claims plus the 30-day window provided under 28 U.S.C. 1367(d) to refile their state law claims once a federal court declines to exercise supplemental jurisdiction over those state claims. The lower courts had ruled that the "grace period" approach, allowing just 30 days to refile state claims if the statute of limitations had run during the time the case was pending in federal court, should be used, but the Supreme Court rejected that view and adopted the "stop-the-clock" approach. Artis v. District of Columbia, ___ U.S. ___ (2018).

Punitive damages, which are not allowed in products liability cases in Michigan, also cannot be recovered in an accident occurring in Mississippi, which does permit punitive damages.  In Gaillet v Ford Motor Co., the U.S. District Court in the Eastern District of Michigan ruled that even though the accident giving rise to the case occurring in another state, the Michigan law of damages applied.  Read Judge Edmunds choice of law opinion here.

ABA Publishes Best Law Blogs for 2018

Every year, the ABA publishes a list of the 100 best legal blogs.  In December 2017, the ABA posted it here.

New Caps on Non-Economic Damages for 2014

The Michigan Department of Treasury has announced that the new caps on noneconomic damages in products liability cases where the product did not cause either death or permanent loss of a vital bodily function for 2014 is $440,200. The indexed cap in cases involving death or permanent loss of a vital bodily function is now $786,000. The cap on noneconomic damages in medical malpractice cases is now $464,400.

ABA Picks the 100 Best Legal Blawgs/Blogs

For the 7th time, the ABA has picked its favorite 100 blogs (or blawgs) and there are some very good ones no matter what area you practice in.  Click here.

The Author of “The Curmudgeon’s Guide to Practicing Law” Speaks at 48th Annual Association of Defense Trial Counsel Meeting on May 21, 2013

Mark Hermann, the Global Head of Litigation for Aon, the world’s largest insurance and reinsurance broker, and the author of one of the best-selling books ever published by the Litigation Section of the ABA, will be the featured speaker at the DAC on May 21, 2013.  He will discuss that book, his enormously popular blogs and articles on litigation, and his new book, “Inside Straight”, which collects his best postings and commentaries on the practice of law in general and litigation in particular.

Four Big Changes to Removal Under the Federal Courts Jurisdiction and Venue Clarification Act

The Federal Courts Jurisdiction and Venue Clarification Act went into effect on January 6, 2012 and alters removal of cases from state to federal court in four fundamental ways.

First, it now allows each defendant in a multiple defendant case a full thirty days following service on that defendant to file a removal notice.  Previously, there was a split of authority on whether the 30 days ran from the date the first defendant was served.

Second, the Act adopts new procedures for establishing the amount in controversy necessary to sustain diversity jurisdiction, with the default being “the sum demanded in good faith in the initial pleading" or Complaint.  There are several important exceptions, however, including discovery conducted in the state court proceeding after the case is no longer removable being a basis for later removal.

Third, while the one year absolute bar to removal remains, the Act provides that even after one year a case can become removable if “plaintiff has acted in bad faith in order to prevent a defendant from removing the action.”

Finally, the Act eliminates a federal court’s discretion to hear state-law claims asserted in a case removed to federal court on the basis of federal question jurisdiction and requires the district court to "sever from the action all [state-law] claims . . . and . . . remand the severed claims to the State court from which the action was removed.”

Google Search Tips for Litigators

• To restrict searches to a particular domain, like university websites, type in your search terms and then add site:.edu.  It looks like this:  masters degree architecture site:.edu.
• To exclude something, use the minus sign.  It looks like this: Newt-Gingrich.  That search would exclude references to Newt Gingrich.
• To restrict searches to the exact words you are looking for, as opposed to Google’s default mode which includes pleurals, synonyms, etc., put the words in quotation marks.  It looks like this: “motion to dismiss” would not return motions to dismiss.
• Use OR.  Google assumes that a space between search terms means “and.”  If you want to search for more than one term at the same time but not necessarily on the same page separate the words with OR.  It looks like this: class action OR lawsuit.
• If you want to restrict your searches to particular dates, click on the “Search Tools” tab that appears above your results and restrict the results to one of the time frames suggested under “Any Time” or put in a date range in the “Custom Range” option at the bottom of that pull down menu.   Your results are then restricted to that time period.

These and other search tips for litigators are discussed in more detail in the ABA Section on Litigation article entitled "Eight Google Skills All Litigators Should Master."

Cross Exam LInks and Quotes

Professor James Elkins from the West Virginia College of Law has assembled a great set of links and quotes on cross-examination here.

6th Circuit Overturns 17 Years of Precedent in ADA Case

In Lewis v. Humboldt Acquisition Corporation, Inc., __ F.3d ___, 2012 WL 1889389 (6th Cir. May 25, 2012), a 17 year old rule that plaintiffs alleging violation of the Americans with Disabilities Act (ADA) may prevail only if they show that their disability was the “sole” reason for any adverse employment action.  The Court of Appeals reversed, held, en banc, that an employee is not required to show that her disability was the “sole” reason for her termination in order to prevail on her ADA claim. However, the Sixth Circuit refused to adopt the “motivating factor” analysis from Title VII cases and ruled than an employee is required to show that her disability was a “but for” cause of the employer’s adverse employment action.  The Court relied on Gross v. FBL Financial Services, 557 U.S. 167 (2009), where the Supreme Court construed similar language found in the Age Discrimination in Employment Act (ADEA).   

Procedures Attorneys Must Follow in Other States to Take Depositions of Michigan Residents

MCR 2.305(E) permits depositions to be taken of Michigan residents when actions are pending in another state. It provides:

"Action Pending in Another State, Territory, or Country. An officer or a person authorized by the laws of another state, territory, or country to take a deposition in Michigan, with or without a commission, in an action pending in a court of that state, territory, or country may petition a court of record in the county in which the deponent resides, is employed, transacts business in person, or is found, for a subpoena to compel the deponent to give testimony. The court may hear and act on the petition with or without notice, as the court directs."

In addition, Michigan has a statute that establishes a clear procedure for deposing residents of Michigan in actions pending in other states. MCL 600.1852(2) states:

"Any court of record of this state may order a person who is domiciled or is found within this state to give his testimony or statement or to produce documents or other things for use in a proceeding in a tribunal outside this state. The order may be made upon the application of any interested person or in response to a letter rogatory and may prescribe the practice and procedure, which may be wholly or in part the practice and procedure of the tribunal outside this state, for taking the testimony or statement or producing the documents or other things. The order shall be issued upon petition to a court of record in the county in which the deponent resides or is employed or transacts his business in person or is found for a subpoena to compel the giving of testimony by him. The court may hear and actupon the petition with or without notice as the court directs. To the extent that the order does not prescribe otherwise, the practice and procedure shall be in accordance with that of the court of this state issuing the order. The order may direct that the testimony or statement be given, or document or other thing produced, before a person appointed by the court. The person appointed shall have power to administer any necessary oath. A person within this state may voluntarily give his testimony or statement or produce documents or other things for use in a proceeding before a tribunal outside this state."

See also Ewin v. Burnham, 272 Mich. App. 253 (2006).

What Does "Full Authority to Settle" Really Mean?

While it is "true that a trial court may order the parties to appear for a settlement conference, MCR 2.401(A), and may order that the parties, including insurance companies, send a representative to the conference who possesses full authority to settle, MCL 2.401(F)(2); Henry v Prusak, 229 Mich App 162, 168; 582 NW2d 193 (1998), that does not mean that a court can willy nilly hold a representative in contempt of court. In Bencheck v Estate of Paille, the Michigan Court of Appeals overturned two contempt of court rulings against the same insurance company because the Court of Appeals found that the carrier was fully entitled to rely on contractual language in the insurance policy and to instruct its representatives not to settle until after the underlying policy limits had been offered or paid. The Court of Appeals added, in what must be of considerable comfort to insurance companies everywhere, that a court cannot “force” settlements upon parties and may not assess penalties against a party or its representative for failing to make a settlement offer. Bencheck v Estate of Paille, (Michigan Court of Appeals) (Lawyers Weekly No. 08-76568) (unpublished per curium).

Q. “Federal Question, Diversity, CAFA, and Supplemental.” A. “What are four ways to get subject matter jurisdiction in an overtime case?”

By Dale R. Burmeister

There are at least four ways that federal courts have subject matter jurisdiction over overtime cases. First, federal court have federal question subject-matter jurisdiction over FLSA collective actions and the Rule 23 class actions to the extent that the latter arise under a separate federal law, such as RICO. Pursuant to 28 U.S.C. § 1331, federal district courts have original subject-matter jurisdiction over all civil actions arising under the laws of the United States. The FLSA is a law of the United States, and the FLSA collective action seeking to recover overtime arises under that law.

Second, federal district courts have original subject-matter jurisdiction over claims brought by parties from different states – diversity jurisdiction. In some overtime cases, all of the named plaintiffs are from states other than the state where suit is filed. Under those circumstances, a federal districti court has original subject matter jurisdiction.

It is important to point out that removal jurisdiction is narrower than original jurisidition. As a result, if all the plaintiffs in an overtime time case are from states other than where the defendant, often a corporation, resides and has it principal place of business, the plaintiffs can file the case in state court and it can not be removed by a defendant that resides or has its principal place of business in that state, unless, of course, there is another basis for jurisdiction, such as federal question jurisdiction.

Third, a federal court may also have jurisdiction over all the claims pursuant to the Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d) (“CAFA”). CAFA provides: "The district courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000 exclusive of interest and costs, and is a class action in which . . . any member of a class of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2). CAFA applies to actions commenced on or after the Act's effective date of February 18, 2005. Prime Care of Ne. Kan., LLC v. Humana Ins. Co., 447 F.3d 1284, 1285 (10th Cir. 2006). Thus, if even one of the named members of the class are citizens of a state other than where the employer is incorporated and has its principal place of business, there is jurisdiction.

Finally, if a district court has jurisdiction over some of the claims, it can also exercise supplemental jurisdiction over others, such as state law claims. In 1990, Congress enacted the supplemental jurisdiction statute, 28 U.S.C. § 1367, which essentially codified common law doctrines of pendent, ancillary, and pendent-party jurisdiction. The statute provides that “the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.”

When A Deal Is Not A Deal -- You Can't Waive Overtime

It is not uncommon to claim that a "deal is a deal" in employment cases like overtime and independent contractor lawsuits as a defense. It is often argued that the plaintiff agreed to be classified as an independent contractor or agreed to accept a salary in lieu of overtime even though expecting to work more than 40 hours a week. In Brooklyn Bank v. O’Neal, 324 U.S. 697, 707 (1945), however, the Supreme Court held:

"No one can doubt that to allow waiver of statutory wages by agreement would nullify the purposes of the [FLSA]. [P]olicy considerations ... forbid waiver of basic minimum and overtime wages under the Act ...."

Almost 40 years later, the Court reaffirmed in Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 745 (1981), that FLSA rights are not waivable. Lower courts have obviously followed suit. See, e.g., Abbott v. Beatty Lumber Co. 90 Mich. App. 500, 504, 282 N.W.2d 369, 371, 282 N.W.2d 369 (1979)(statutory entitlement to overtime compensation may not be waived by the employee even by a collective bargaining agreement, since to do so would nullify the purposes of the FLSA); Marshall v. R&M Erectors, 429 F. Supp. 771, 780 (D. Del. 1977); Kendrick v. Alternative Care, Inc., 2006 WL 4756451 (M.D. Fla. Oct. 25, 2006); Underwood v. NMC Mort. Corp., 445 F.R.D. 720, 723 (D. Kan. 2007)(employees cannot waive their right to overtime wages); Harrington v. Despatch Indus. L.P., 2005 U.S. Dist. LEXIS 12781 (D. Mass. 2005) (even though Plaintiff’s hiring letters stated that he was an exempt employee, plaintiff did not thereby relinquish his entitlement to overtime pay).

Amusing Judicial Opinions II -- Very Funny!

This Judge shows some real enthusiasm for a settlement that was reached right before trial, which made him "happier than a tick on a fat dog . . . ." Click here to read it.

Amusing Judicial Opinions -- "Tough as a Three-Dollar Steak"

For a humorous article from the Wall Street Journal on how judges spice up their opinions, click here.

Do You Recall Update

On July 11, 2009, I wrote that using "do you recall" in a question has its advantages. In "Elements of Trial Practice: More than 500 Techniques and Tips for Trial Lawyers," by Peter D. Polchinski, however, he makes a valid point, particularly when examining your own witnesses: "Avoid do you recall, do you remember, do you know or did you notice. Those headers suggest that the witness may not know the answer and they weaken the testimony."

U.S. Supreme Court Employee Trifecta -- High Court Sides with Employees in Two Retaliation Cases and a Discrimination Case in 2011 So Far

On January 24, 2011, the United States Supreme Court ruled in Thompson v. North American Stainless that Title VII of the Civil Rights Act prohibits employers from retaliating against employees who complain of discrimination by terminating the employment of closely related third-parties, such as spouses or family members. Title VII’s anti-retaliation provision covers a broad range of employer conduct and therefore is not limited to discriminatory actions affecting the terms and conditions of employment. It also prohibits employers from taking action that might dissuade a reasonable worker from making or supporting a charge of discrimination. The Court held a reasonable employee would likely be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.

On March 1, 2011, the U.S. Supreme Court ruled in Staub v. Proctor Hospital that if an employee or former employee can show that any of the supervisors involved in the line that lead to the ultimate employment action at issue, had a discriminatory intent or animus in their actions, then the action of that supervisor can form the basis for the employer's liability. It no longer matters that the non-decision-maker did not have power or control over the decision-maker. It also does not matter that the decision-maker made an independent review and analysis of the grounds for the adverse employment action if the supervisor holding the discriminatory animus was anywhere in the line that led up to the ultimate employment action. Employing the so-called “cat’s paw” theory of employment discrimination -- that an employer can be liable for the discriminatory animus of an employee who influences, but does not make, an ultimate employment decision – the Court held that “if a supervisor performs an act motivated by . . . animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable . . . .”

On March 22, 2011, the Court decided Kasten v. Saint-Gobain Performance Plastics Corp. In Kasten, the Court found that oral employee complaints alleging violations of the Federal Labor Standards Act need not be in writing to receive anti-retaliation protection. In a 6-2 decision, the Court interpreted the statutory phrase "filed any complaint" to include oral complaints. Reasoning that a narrower interpretation limited to written complaints would not further the remedial purpose of the Act, the Court ruled that oral complaints could be "filed" for purpose of anti-retaliation protection if properly made. Thus, the Court held that if an oral complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of [employees'] rights protected by the statute and a call for their protection,” such an oral complaint may be protected by the FLSA.