Sunday, October 22, 2017

Irreconcilable Differences - Unconstitutional

Mississippi is one of only two states that does not have a unilateral no fault divorce ground.  Back in June, a chancellor held that the lack of a unilateral no fault divorce was unconstitutional. A link to the opinion is here.  The opinion is very detailed and constitutionally sound.  The case is currently up on appeal at the moment and a domestic violence group has filed an amicus brief located here.   

I would not be surprised if this case did not make it to the U.S. Supreme Court.  From a legal analysis standpoint, the opinion by the trial court makes sense. 

Thursday, October 19, 2017

Secured Creditor and Probate

a secured creditor with a lien on a decedent's property is not required to present a probate claim in order to enforce its lien. See Gandy v. Citicorp, 985 So.2d 371, 374 (¶12) (Miss. Ct. App. 2008) (probating the claim protects the mortgagee's right to claim a deficiency).
a secured creditor with a lien on a decedent's property is not required to present a probate claim in order to enforce its lien. See Gandy v. Citicorp, 985 So.2d 371, 374 (¶12) (Miss. Ct. App. 2008) (probating the claim protects the mortgagee's right to claim a deficiency). However, a secured creditor who wishes to recover from the estate's assets or enforce a probate claim for a deficiency must timely file a statement of claim in probate. Id.
Clearly, a secured creditor with a lien on a decedent's property is not required to present a probate claim in order to enforce its lien. See Gandy v. Citicorp, 985 So.2d 371, 374 (¶12) (Miss. Ct. App. 2008) (probating the claim protects the mortgagee's right to claim a deficiency). However, a secured creditor who wishes to recover from the estate's assets or enforce a probate claim for a deficiency must timely file a statement of claim in probate. Id.a
A secured creditor with a lien on a decedent's property is not required to present a probate claim in order to enforce its lien. See Gandy v. Citicorp, 985 So.2d 371, 374 (¶12) (Miss. Ct. App. 2008) (probating the claim protects the mortgagee's right to claim a deficiency). However, a secured creditor who wishes to recover from the estate's assets or enforce a probate claim for a deficiency must timely file a statement of claim in probate. Id.

Wednesday, October 18, 2017

Motion to Dismiss Standards - Federal Court


Below is information on determining whether a motion to dismiss in Federal Court should be granted. 
It has long been understood that a dismissal for failure to state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review).

Because such dismissals are often based on the first ground, a few words regarding that ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this tension between permitting a "short and plain statement" and requiring that the statement "show[]" an entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading standard established by Fed. R. Civ. P. 8(a)(2).

On the one hand, the Supreme Court has long characterized the "short and plain" pleading standard under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal." Jackson, 549 F. Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has held that, by requiring the above-described "showing," the pleading standard under Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17 (citing Supreme Court cases) (emphasis added).

The Supreme Court has explained that such fair notice has the important purpose of "enabl[ing] the adverse party to answer and prepare for trial" and "facilitat[ing] a proper decision on the merits" by the court. Jackson, 549 F. Supp.2d at 212, n.18(citing Supreme Court cases); Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing Second Circuit cases). For this reason, as one commentator has correctly observed, the "liberal" notice pleading standard "has its limits." 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet the "liberal" notice pleading standard. Rusyniak,629 F. Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).

Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly,127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id.

As for the nature of what is "plausible," the Supreme Court explained that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "[D]etermining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1950 [internal quotation marks and citations omitted]. However, while the plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully," id., it "does not impose a probability requirement." Twombly, 550 U.S. at 556.

Because of this requirement of factual allegations plausibly suggesting an entitlement to relief, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949. Similarly, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8 "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (citations omitted).

This pleading standard applies even to pro se litigants. While the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.[1] Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.[2] Stated more simply, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28[citations omitted].[3]

Finally, a few words are appropriate regarding what documents are considered when a dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the four corners of the complaint may be considered without triggering the standard governing a motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer, (2) documents incorporated by reference in the complaint (and provided by the parties), (3) documents that, although not incorporated by reference, are "integral" to the complaint, or (4) any matter of which the court can take judicial notice for the factual background of the case.[4] Moreover, in the Second Circuit, a pro seplaintiff's papers in response to a defendant's motion to dismiss for failure to state a claim may be considered as effectively amending the allegations of his complaint-to the extent those papers are consistent with the allegations in the complaint.[5]
taken from:  Garassi v. Christian Trust located here.

Friday, October 13, 2017

School Expenses and Child Support

School expenses are normally considered part of child support.  Below is some caselaw dealing with it.

The Mississippi Supreme Court has stated that school tuition, at least in the context of college, is part of child support. See Mizell v. Mizell, 708 So.2d 55, 60 (Miss.1998). Any pre-college school requiring tuition in addition to what a public school education would cost should also be treated in this manner. Southerland v. Southerland, 816 So.2d 1004, 1006 (Miss. 2002).   The Mississippi Supreme Court has also stated that even where parents agree to send children to private school, support awards made in consideration of this expense must also be reasonable in light of both parents' financial means. Cupit v. Cupit, 559 So.2d 1035, 1038 (Miss.1990). 

Wednesday, October 11, 2017

Policy Violations and Negligence

Company polices can be used to prove negligence.  What the company policies show is foreseeablity.  If its in their manual, presumably the company knew about it and the risks.  As such, the failure to follow a policy is often times prima facie negligence.  

Friday, October 6, 2017

Heirship and Summons by Publication

I posted an article on summons by publication a while back located here.  One issue I thought of recently is on a petition to determine unknown heirs.  If the summons by publication language is not in there, I am of the opinion an order determining heirs would not be binding against an heir that appeared later.  It would be a good idea to update any pleadings to reflect this.

Saturday, September 30, 2017

Apportionment and the Caps

On Thursday, the Mississippi Supreme Court dismissed the cert petition granted in Mississippi Valley Silica Company, Inc. v. Dorothy Barnett, Individually and as Wrongful Death Beneficiary of Howard Barnett, Deceased, and on Behalf of All Wrongful Death Beneficiaries of Howard Barnett, Deceased finding that it was improvidently granted.  This left the Court of Appeals opinion as the law in place located here

The main issue of interest is how the caps on noneconomic damages apply when there is more than one Defendant.  Mississippi Code Section 11-1-60(2)(b) provides that “in the event the trier of fact finds the defendant liable, they shall not award the plaintiff more than One Million Dollars ($1,000,000.00) for noneconomic damages.”  The statute further provides that “[i]t is the intent of this section to limit all noneconomic damages to the above.”  Id.  Mississippi Code Section 85-5-7(2) provides that “the liability for damages caused by two (2) or more persons shall be several only, and not joint and several and a joint tort-feasor shall be liable only for the amount of damages allocated
to him in direct proportion to his percentage of fault.”.

Reading these two together, the defendants are assigned their amount of fault by the jury, then the caps are applied only to their portion of liability.