Collusion

Collusion is still one of those old terms floating around in Mississippi divorce law from the times before irreconcilable differences. Divorce is still a creature of statute and issues still come up with it some. Mississippi Code Annotated 93-5-7 provides that "... in all cases, except complaints seeking a divorce on the ground of irreconcilable differences, the complaint must be accompanied with an affidavit of plaintiff that it is not filed by collusion with the defendant for the purpose of obtaining a divorce, but that the cause or causes for divorce stated in the complaint are true as stated."  A colleague of mine had an issue on this come up last week.  Opposing party was in contempt for the nonpayment of alimony in a rather large amount.  Turns out original divorce on fault grounds did not have collusion affidavit.  Result, divorce void for failure to comply with statute.

Objections to Guardian Ad Litem Report

I was doing some reading on guardian ad litems a few days ago and started doing some thinking.  When is the time to objection to a guardian ad litem report?  After doing some thinking, I think formal objections need to be made in written form prior to trial and then those objections need to be renewed at trial.  By making the objections early, any deficiencies may be remedied which could change the opinion on the case. This is similar to me in making a Daubert challenge.  I am aware of at least one appeals case pending concerning when these should be made and whether waiting until post trial to make the objections is sufficient or counts as a waiver.  

Scheduling Orders

Many times a court will issue a scheduling order in a case. Normally, I like them. It fits in with my OCD to some degree. Sometimes things come up which necessitate modifying the scheduling order due to uncooperative opposing counsel or emergencies of some kind. What is the standard to modify a scheduling order? There is not a ton of authority in Mississippi on it. However, there is 5th circuit caselaw on it which I suspect most Mississippi Courts would follow.  Below is some language that should be helpful authority.

Federal Rule of Civil Procedure 16(b)(4) provides that a scheduling order may only be modified "for good cause and with the judge's consent." The Fifth Circuit has explained that "[t]he good cause standard requires the `party seeking relief to show that the deadlines cannot reasonably be met despite the diligence of the party needing the extension.'" S & W Enters., L.L.C. v. SouthTrust Bank of Ala., NA, 315 F.3d 533, 535 (5th Cir.2003) (quoting 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 1522.1 (2d ed.1990)). In other words, the party who seeks to modify a scheduling order deadline must show that, despite acting diligently, it will still be unable to meet that deadline. Rivera v. County of Willacy, *493 2007 U.S. Dist. LEXIS 41401, at *2, 2007 WL 1655303, *1 (S.D.Tex. June 6, 2007). Mere stipulations by the parties do not constitute good cause. Id. at *1, 2007 U.S. Dist. LEXIS 41401 at *3 (citing Chiropractic Alliance of N.J. v. Parisi, 164 F.R.D. 618, 621 (D.N.J.1996)). "Neither the parties nor their counsel have the authority to stipulate or otherwise agree to changes in the Court's orders regarding discovery or any other scheduling matter unless expressly authorized to do so by Rule or by Court order." Olgyay v. Society for Environmental Graphic Design, 169 F.R.D. 219, 219 (D.D.C.1996).

In the context of an untimely motion to submit expert reports, designate experts, or amend the pleadings, the Fifth Circuit Court of Appeals applies a four-factor balancing test to determine whether good cause exists: (1) the explanation for the failure to adhere to the deadline at issue; (2) the importance of the proposed modification to the scheduling order; (3) potential prejudice; and (4) the availability of a continuance to cure such prejudice. See Reliance Ins. Co. v. La. Land & Exploration Co., 110 F.3d 253, 257 (5th Cir.1997) (submit expert reports); see Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990) (designate expert witnesses); see S & W Enters., LLC, 315 F.3d at 536 (amend the pleadings). At least one district court in the Southern District of Texas has also utilized this test in the context of a motion to reopen discovery. See United States v. McFerrin, 2007 U.S. Dist. LEXIS 91022, at *2, 2007 WL 4353709, *1 (S.D.Tex. Dec. 11, 2007) (citing Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541, 546 (5th Cir.2003)); see also Carmona v. Carmona, 2006 U.S. Dist. LEXIS 88868, at *6-7, 2006 WL 3839851, *3-4 (S.D.Tex. Dec. 8, 2006) (citing Hawthorne Land Co. v. Occidental Chem. Corp., 431 F.3d 221, 227 (5th Cir.2005)).

Notwithstanding this four-factor test, the court still has the "inherent power to control its own docket to ensure that cases proceed before it in a timely and orderly fashion." U.S. v. Waldman, 579 F.2d 649, 653 (1st Cir.1978) (citing United States v. Correia, 531 F.2d 1095, 1098 (1st Cir.1976)). The purpose of a scheduling order is to allow the district court to control and expedite pretrial discovery matters. Geiserman, 893 F.2d at 790. Scheduling orders and their enforcement are regarded as essential in ensuring that cases proceed to trial in a just, efficient, and certain manner. Rouse v. Farmers State Bank of Jewell, Iowa, 866 F.Supp. 1191, 1198 (N.D.Iowa 1994) (citations omitted). To achieve this end, the Court is given broad discretion so that the integrity and purpose of the pretrial order may be preserved. See Bilbe v. Belsom, 530 F.3d 314, 317 (5th Cir.2008) (stating that the district court's decision regarding whether to modify a scheduling order is afforded great deference, especially where the facts of the case suggest a lack of diligence on the part of the movant); S & W Enters., LLC, 315 F.3d at 535; Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.1979).

Expert Affidavits

Here is an expert affidavit form I have been working on based upon reading a number of federal and state court cases regarding medical malpractice in Mississippi.  I have been trying to make something that covers most of the areas that summary judgment seems to keep being granted on cases.  I am sure it is not perfect, but I thought it might help somebody in responding to summary judgment motions.  No one size fits all, but think is a good start to make sure everything is covered.  Any input is appreciated.  Summary judgment and Daubert challenges regarding testifying experts seems to be the number one reason medical malpractice cases are being dismissed no matter how bad the injuries are or obvious the malpractice seems.  

Tennessee Book of Interest

John Day is publishing a new book on Tennessee trial practice called Tennessee Law of Civil Trial.  A copy can be ordered here.   It is set to be released July 1, 2014 and I pre-ordered a copy yesterday.  The law in Tennessee and Mississippi while different, is substantially similar in many respects.  I believe this book will be helpful in trying cases in general.  

Twombly/Iqbal Standards

I have written several articles in the past dealing with Twombly/Iqbal issues on pleadings.  I was at at excellent CLE last week and received a nice list of several Mississippi federal cases regarding this issue listed below.  I have not had a chance to read them but here they are if the issue comes up.

(1)  Berry v. Auto Ins. Co., 2014 U.S. Dist. LEXIS 58622 (S.D. Miss. April 28, 2014)
(2)  Hopson v. Chase Home Fin., LLC, 2014 U.S. Dist. LEXIS 50353 (S.D. Miss. April 11, 2014)
(3)  Cecil v. Smith, 2014 U.S. Dist. LEXIS 49034 (N.D. Miss. April 9, 2014)
(4)  M Street Investments, Inc. v. Zurich American Ins. Co., 2014 U.S. Dist. LEXIS 42096
       (S.D. Miss. March 28, 2014)
(5)  Nationwide Mut. Ins. Co. v. Evanston Ins. Co. , 2014 U.S. Dist. LEXIS (S.D. Miss. March 26, 2014)

Modification of Property Division

In Mississippi, property division is generally nonmodifiable.  East v. East, 493 So. 2d. 927 (Miss. 1986). On some very rare occasions, the Court can fashion some form of remedy when the property is destroyed in very limited circumstances.  Furthermore, pursuant to Houck v. Houck, 861 So.2d 1000, 1002 (Miss. 2003) and Gregg v. Montgomery, 587 So.2d 928, 933 (Miss. 1991), a party cannot agree to alter a Chancery Court order without court approval.  What all of this amounts to is that you are generally stuck with property division which you cannot agree to modify.