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Unformatted text preview: 4/8/2017 Study Aids Subscription | Book Preview 27 CHAPTER 2 Dr. Nami Bayan, M.D. is of Persian ancestry and Iranian national origin. He was formerly a fellow in the Geriatric Medicine Fellowship Program at the University of Connecticut School of Medicine. Dr. Gail M. Sullivan was the director of the Program. Dr. Bayan sued Dr. Sullivan in the Superior Court of Connecticut claiming tortious interference with professional expectancies and relationships and intentional infliction of emotional distress. Dr. Bayan alleged that Dr. Sullivan terminated him from the Program, falsely and maliciously stated that he was unprofessional and inappropriate in his relationships with colleagues, and refused to respond to inquiries seeking clarification of her opinions. The complaint stated that Dr. Sullivan was being sued in her individual capacity. Dr. Sullivan moved to dismiss on the ground that the court lacked subject matter jurisdiction because Dr. Bayan’s claims were barred by sovereign immunity. Before the court ruled on Dr. Sullivan’s motion to dismiss, Dr. Bayan filed a federal lawsuit in the federal district court for the District of Connecticut, alleging disparate treatment on the basis of his ancestry and national origin in violation of the Equal Protection Clause of the Fourteenth Amendment as enforced through 42 U.S.C. § 1983. The complaint in this action was substantially similar to the complaint in the state court action in both form and substance, centering on the same allegations that Dr. Sullivan terminated Dr. Bayan from the Program, falsely and maliciously stated that he was unprofessional and inappropriate in his relationships with colleagues, and refused to respond to inquiries requesting clarification of her opinions. However, the complaint in the federal action added allegations to support the § 1983 claim, including allegations that Dr. Sullivan believed that Dr. Bayan was Muslim, and asserted that another fellow in the Program was superior to Dr. Bayan because he was of Eastern European heritage. The state Superior Court granted Dr. Sullivan’s motion to dismiss the state court action and entered a judgment of dismissal. The entire substance of the court’s order read as follows: “Granted on the basis of statutory and sovereign immunity.” In the federal court action, Dr. Sullivan moved for judgment on the pleadings under Fed.R.Civ.P. 12(c) on the ground that Dr. Bayan’s current § 1983 claim was barred by res judicata because it could have been brought in the state court action. 28 QUESTION: (1) On a motion for a judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), a federal district court: (a) The standard of review is the same as a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6); (b) The court must draw all inferences in the moving party’s favor; (c) The court must not accept all the allegations in the complaint as true, but must probe beyond the pleadings to understand the actual nature of the case; (d) The court may not consider affirmative defenses; (e) The court should not dismiss a case on the pleadings because to do so early in the litigation would violate the plaintiff’s due process and jury trial rights. QUESTION: (2) In response to the defendant Sullivan’s motion to dismiss the case pursuant to Fed.R.Civ.P. 12(c), the federal district court should: (a) Grant the defendant’s motion to dismiss the case because the plaintiff Bayan’s § 1983 claim could have been brought in his state court action and therefore it was barred by the doctrine of res judicata; 1/19 4/8/2017 Study Aids Subscription | Book Preview (b) Grant the defendant’s motion to dismiss the case because the plaintiff Bayan was blatantly forum­shopping, which is disfavored by the courts; (c) Grant the defendant’s motion to dismiss because the plaintiff Bayan should be permitted to have “two bites at the apple”; (d) Deny the motion to dismiss because res judicata cannot be raised on a Rule 12(c) motion; (e) Deny the motion to dismiss because the state court dismissal was on jurisdictional grounds and not a judgment on the merits. * * * Tricia Basch, through her attorney Jeffrey S. Burg, filed a multi­claim lawsuit in the federal district court for the Western District of Michigan against the defendant Knoll, Inc. The plaintiff’s complaint asserted nine claims of employment discrimination and retaliation based on disability, gender, age, and the Family Medical Leave Act (FMLA). At the close of discovery, the defendant sent the plaintiff a safe­harbor letter and a proposed motion for Rule 11 sanctions, demanding that plaintiff withdraw her complaint. Plaintiff had an arguable basis for proceeding on her FMLA and disability claims. However, even under a most generous view of the pleadings, there were no factual allegations in the complaint with respect to the plaintiff’s age and gender claims. The plaintiff’s age and gender claims lacked any arguable evidentiary support. 29 The plaintiff did not withdraw her complaint, nor did she withdraw any of her individual claims. The defendant subsequently filed a motion for summary judgment on all nine claims. In its brief on summary judgment, the defendant argued that all of the plaintiff’s discrimination and retaliation claims were deficient because the plaintiff failed to show an adverse employment action, because she failed to establish a prima facie case, and because she did not rebut the defendant’s legitimate non­discriminatory reason for her termination. The defendant did not independently analyze the plaintiff’s age and gender claims. In response to the summary judgment motion, the plaintiff only defended her claim under the FMLA. With respect to her eight remaining claims alleging disability, gender, and age discrimination and retaliation under federal and state law, the plaintiff stated that she did not abandon her arguments, but was unable to complete them at that time. She further asserted that she would move for leave to supplement her brief. The court previously had granted the plaintiff two extensions of time to respond to the defendant’s motion and had indicated that no further extensions would be granted. The plaintiff never moved to supplement her response to the defendant’s motion for summary judgment, and the court ultimately found that the defendant was entitled to summary judgment on all nine of the plaintiff’s claims. The plaintiff only appealed the ruling with respect to her FMLA retaliation claim, and that ruling was affirmed on appeal. The defendant requested sanctions against the plaintiff and/or her attorney under Rule 11 and under 28 U.S.C. § 1927. QUESTION: (3) On the defendant’s motion for sanctions against the plaintiff and/or her attorney under Rule 11 and 28 U.S.C. § 1927, the federal district court should: (a) Deny the defendant’s motion for Rule 11 sanctions against the plaintiff because her attorney had a good faith basis for pursuing all the claims; (b) Deny the defendant’s motion for Rule 11 sanctions against the plaintiff because the defense counsel failed to comport with the proper procedures for filing a Rule 11 motion; (c) Deny the defendant’s motion for sanctions against the plaintiff under 28 U.S.C. § 1927 because the plaintiff’s counsel was merely zealously representing the interests of his client; (d) Grant the defendant’s motion for sanctions under Rule 11 and 28 U.S.C. § 1927 because the plaintiff’s counsel used a shot­gun approach in the complaint and failed to review the viability of the claims after the close of discovery; (e) Grant the defendant’s motion for sanctions under Rule 11 and 28 U.S.C. § 1927 because the court granted the defendant summary judgment for the defendant on all the plaintiff’s claims. 30 2/19 4/8/2017 Study Aids Subscription | Book Preview * * * Tyrese Doughty filed a single­count complaint against the defendant Washington Metropolitan Area Transit Authority (“WMATA”) in the federal district court for the District of Maryland, contending that she incurred personal injuries as a result of the defendant’s negligence. Specifically, the plaintiff claimed that she was walking at the defendant’s Rosslyn Metro Station when she fell as a result of a “black oily substance” on the escalator. The defendant moved for summary judgment on the complaint. In Maryland, the duty that an owner or occupier of land owes to persons entering onto the land varies according to the visitor’s status as an invitee (i.e., a business invitee), a licensee by invitation. The highest duty is owed to a business invitee, defined as “one invited or permitted to enter another’s property for purposes related to the landowner’s business.” Storekeepers, such as the defendant, owe their business invitees or customers a duty of ordinary and reasonable care to maintain their premises in a reasonably safe condition. The customer is entitled to assume that the storekeeper will exercise reasonable care to ascertain the condition of the premises, and, if he discovers any unsafe condition, he will either take such action as will correct the condition and make it reasonably safe or give a warning of the unsafe condition. The duties of a storekeeper thus include the obligation to warn customers of known hidden dangers, a duty to inspect, and a duty to take reasonable precautions against foreseeable dangers. Nevertheless, storekeepers are not insurers of their customers’ safety, and no presumption of negligence arises merely because an injury was sustained on a storekeeper’s premises. A storekeeper’s liability under negligence principles for a customer’s injuries arises only from a failure to observe the duty of ordinary and reasonable care. The defendant’s motion set forth record evidence regarding the circumstances of the plaintiff’s injury, which evidence was provided exclusively from the transcript of the plaintiff’s testimony during her deposition. In pertinent part, the defendant stated the following from the deposition: The plaintiff slipped and fell while walking up a moving escalator. Deposition of Tyrese Doughty (“Doughty Dep.”), pp. 16:17–17:2. It was not raining, but it had snowed the night before. Id. at 14:13–14. The plaintiff does not recall for sure that she was holding the handrail. Id. at 17:3–7. The escalator made no movements that caused her to slip. Id. at 18:1–3. The plaintiff believed that an oily substance caused her to fall, based on the fact that there was an oily substance on her coat. She did not notice the substance until she arrived at her office. Id. at 18:4–18. 31 The plaintiff has no information that the defendant was aware of the substance and she does not know how long the substance had been there. Id. at 24:4–12. The plaintiff’s opposition to the summary judgment motion, in its entirety, was limited to two pages. While the opposition set forth several additional “facts,” the plaintiff did not direct the court to any support in the record, nor did the plaintiff provide a supporting affidavit. The plaintiff provided four photographs of the coat she was wearing at the time. QUESTION: (4) On the defendant’s motion for summary judgment pursuant to Fed.R.Civ.P. 56 against the plaintiff’s once­count complaint, the federal court should: (a) Deny the defendant’s motion to dismiss the case under Rule 56 because the defendant, as the moving party, has failed to satisfy its initial burden of production; (b) Deny the defendant’s motion to dismiss the case under Rule 56 because there is a genuine issue of material fact as to whether an oily substance caused the plaintiff’s fall; (c) Grant the defendant’s motion to dismiss the case under Rule 56 because the plaintiff has failed to adduce evidence demonstrating a triable issue of fact; (d) Grant the defendant’s motion to dismiss the case under Rule 56 because the plaintiff’s photographs of her coat were self­serving; (e) Before issuing a ruling on the summary judgment motion, permit the plaintiff to conduct additional discovery in response to the defendant’s motion for summary judgment. 3/19 4/8/2017 Study Aids Subscription | Book Preview * * * Otis Allen initially brought an action in the federal court for the Eastern District of Louisiana seeking relief under 42 U.S.C. § 1983 against James Pohlmann, Sheriff of the St. Bernard Parish Sheriff’s Office, and Karl Bartholomew, individually and in their official capacities. The plaintiff also sought relief under state law against R & S Towing, Inc. of Chalmette (R & S Towing). The court continued the trial dates noting that R & S Towing had only recently made an appearance in the case. Soon after, the court granted the plaintiff’s motion to voluntarily dismiss the defendants Karl Bartholomew and James Pohlmann in light of a settlement between the plaintiff and those defendants. The plaintiff subsequently moved for leave to file an amended complaint. The plaintiff’s proposed amendment named both state actors and R & S Towing as defendants. The plaintiff was granted leave to file an amendment, but only as to R & S Towing, because all claims against the named state actors had been settled. In pertinent part, the plaintiff alleged that R & S Towing towed the plaintiff’s vehicle. At some point thereafter and while the plaintiff was 32 incarcerated, the plaintiff’s family attempted to pay R & S Towing the fees necessary to recover the vehicle; however, R & S Towing rejected the family members’ offer and instead sold the plaintiff’s vehicle without providing proper notice under the Louisiana Towing and Storage Act. R & S Towing had not participated in discovery, any negotiations, and did not participate in conference calls in the matter. With no remaining federal claims the court ordered the parties to brief the issue of whether the Court should continue to exercise its supplemental jurisdiction. R & S Towing filed a motion to dismiss for lack of jurisdiction over the remaining state law claims in the case. The essence of R & S Towing’s argument was that the court should allow a state court to decide the matter because the court had not yet become familiar with the facts of the case or reached the merits of any argument. The plaintiff filed its support of continued jurisdiction. QUESTION: (5) On the defendant R & S Towing’s motion to dismiss for lack of jurisdiction, the federal district court should: (a) Grant the defendant’s motion to dismiss under 28 U.S.C. § 1367(c) because the court has discretion to dismiss state law claims when no federal claims remain; (b) Grant the defendant’s motion to dismiss because the court never had good jurisdiction over the claims under 28 U.S.C. § 1367(a); (c) Grant the defendant’s motion to dismiss because federal courts are courts of limited jurisdiction and do not adjudicate state law claims; (d) Deny the defendant’s motion to dismiss because the state law claims against R & S Towing were properly in the court’s supplemental jurisdiction over the plaintiff’s original federal claims; (e) Deny the defendant’s motion to dismiss because it doesn’t make a difference to the federal court’s jurisdiction that the plaintiff’s original federal claims were settled. * * * Nelcia Collins was employed with the Department of Defense Education Activity (“DoDEA”) as a special education assessor in Okinawa, Japan. Collins claimed that “she felt as though she was singled out and treated different from peers who worked in a similar capacity,” and that she “was subject to harassment and intimidation throughout the course of her employment.” She reported her treatment to Diversity Management & Equal Opportunity within the DoDEA. Stan Hays, the principal of the school where she worked and her immediate supervisor, subsequently sent Collins a termination letter that pointed out problems with her work performance, conduct and “general character traits,” 33 and stated that based upon his review, he concluded that her performance warranted her termination. Collins asserted that she “was not provided any performance evaluations throughout the year to substantiate or validate Hays’ assessment.” 4/19 4/8/2017 Study Aids Subscription | Book Preview Collins filed a complaint in the federal district court for the Northern District of Georgia, suing Chuck Hagel, the Secretary of Defense and Marlee Fitzgerald, the Director of the DoDEA. Collins alleged that the defendants discriminated against her because of her race (African American), gender (female), and national origin (West Indies), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. In paragraph five of her complaint, the plaintiff asserted that “all actions/inaction by Defendants, as alleged, occurred by officers/employees of the United States. As such, Plaintiff contends that venue in this district is proper for the Defendants pursuant to 28 U.S.C. § 1391(e).” The defendants filed their answer. The defendants asserted that the plaintiff had not alleged a proper basis for venue in the district court, and “with respect to the allegations in paragraph 5 of the Complaint, Defendants admit that the named defendants are employees of the United States. Defendants deny that venue is determined by 28 U.S.C. § 1391(e) but rather by the specific venue provisions of Title VII of the Civil Rights Act.” 42 U.S.C. § 2000e–5(f)(3) provides, in relevant part, that the appropriate venue for a Title VII claim is: (1) in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, (2) in the judicial district in which the employment records relevant to such practice are maintained and administered, or (3) in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but (4) if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought. The plaintiff worked at Kadena Elementary School in Okinawa, Japan. The claimed Title VII violations occurred in Okinawa, Japan, and she would have continued to work in Okinawa, Japan, if the alleged discrimination had not occurred. The plaintiff’s employment records were maintained by the DoDEA Human Resources Directorate, located in Alexandria, Virginia. The principal office of defendant Marilee Fitzgerald, the Director of DoDEA, was in Alexandria, Virginia, and the principal office of the defendant Chuck Hagel, the Secretary of Defense, was located at the Pentagon in Arlington, Virginia. Both Alexandria and Arlington, Virginia, are located within the Eastern District of Virginia. 34 QUESTION: (6) On the defendants’ motion to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3), the federal district court for the northern District of Georgia should: (a) Grant the defendants’ motion to dismiss for improper venue because the Secretary of Defense is not subject to suit in federal court; (b) Grant the defendant’s motion to dismiss for improper venue because the proper venue is in Japan; (c) Grant the motion to dismiss for improper venue because the Title VII special venue provision supersedes the general venue provision under 28 U.S.C. § 1391(e); (d) Deny the motion to dismiss for improper venue because venue is proper under 28 U.S.C. § 1391(e), because the plaintiff resides in Georgia; (e) Deny the motion to dismiss for improper venue because the court should defer to the plaintiff’s choice of forum in a Title VII civil rights case. * * * James R. Hausman filed a negligence action in the federal district court for the Western District of Washington against Holland America Line­U.S.A., a cruise company, and other related corporate entities. ...
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