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March 2013 Archives

Civil Rights, Federal Tort Claims Act & Statutory Interpretation

In a unanimous decision written by Justice Thomas, the Supreme Court has held that liability exception in the Federal Tort Claims Act for "investigative or law enforcement officers" applies regardless of whether they commit the specified torts in the course of investigative or law enforcement activities.  The plaintiff alleged that three correctional officers employed by the Bureau of Prisons had sexually assaulted him. 

First Amendment and Municipal Liability

The federal district court has found that a plaintiff's First Amendment rights were violated when she tried to distribute flyers outside an auditorium at which the former mayor of Providence was giving a speech.  However, the court found there were issues of fact as to which defendants were liable for the violation and denied plaintiff's summary judgment motion.  Plaintiff sued the City of Providence, the Chief of Police and two Providence police officers. 

Privilege Log

A justice of the Superior Court has written a decision on a issue not addressed by the Rhode Island Supreme Court and required the production of a "privilege log" when ever a party withhold documents from discovery on the basis of some kind of privilege. In so doing, he followed the lead of the federal district court (as well as at least one other Superior Court justice, to our knowledge).  The Court said the privilege log must state with particularity the persons making and receiving the allegedly privileged communications, including their relationships, the subject matter of the communication or the grounds for the particular privilege asserted.  The Court conditionally granted the movant's motions to compel unless the objecting party provided the movant and the Court with a sufficient log that would allow the Court to determine whether the claim of privilige was facially valid.  If necessary, the Court would conduct an in camera review of the documents.  Lamendola v. Raposa, K.C. 2011-0160 (R.I. Super. March 21, 2013). 

Personal Guarantees, Oral Modifications, Mitigation, Waiver

The Rhode Island federal district court has rejected the arguments of three defendants who personally guaranteed a loan that the lender had made oral modifications of the loan terms, had waived its rights or failed to mitigate its damages.  The defendants made the guarantees with respect to a residential real estate development near the famous St. Andrews golf course.  The development company defaulted on the loans and the lender sued on the guarantees seeking almost 16 millions pounds.  The court said the terms of the loan barred defendants' arguments that there were oral modifications of the loan terms or that the lender failed to mitigate its damages or that the lender had waived its rights, among other affirmative defenses.  It granted summary judgment.  The Governor and Company of the Bank of Scotland v. Wasserman, C.A. No. 10-328-M (D.R.I. Mar. 5, 2013). 

Yacht Mortgagee Appropriately Sold Yacht Pursuant to Mortgage

A yacht mortgagor argued that the mortgagee was barred from pursuing him for a deficiency on the sale of a repossessed yacht because it did not give the mortgagor notice of the time and place of the sale as required by one section of the mortgage.  The First Circuit held that in the event of default the mortgage gives the mortgagee the right to proceed in several different ways including a different section that permitted sales pursuant to the applicable law, i.e., the Florida UCC.  The Circuit Court held this section did not require notice of a specific time and place of the sale.  Barclays Bank PLC v. Poynter, No. 11-2289 (1st Cir. Mar. 13, 2013). 

USDC-RI finds diversity juridiction due to fraudulent joinder

The Rhode Island federal district court has found there was diversity jurisdiction over plaintiff's property damage claims against a Delaware company because the Providence Board of Licenses and its individual members were fraudulent joined.  Plaintiff filed suit in Superior Court alleging the Board improperly issued a "junkshop" license to the Delaware company that resulted in damage to his adjoining property and he requested injunctive relief.  He alleged damages claims againt the Delaware company.  The Delaware company removed the case to federal court and argued that the Board and its members were fraudulently joined to defeat federal jurisdiction.  The court found that plaintiff's remedy for the licensing decision was a petition for writ of certiorari to the Rhode Island Suprem Court.  "Because Plaintiff may not pursue the injunctive and declaratory relief sought in Rhode Island Superior Court, the City was a fraudulently joined party."  Providence Piers, LLC v. SSM New England, Inc., C.A. 12-532-S (D.R.I. Jan. 16, 2013).

Asbestos, Summary Judgment, liability for replacement parts

The Superior Court has denied Crane Co.'s summary judgment motion with respect to most claims holding that there are issues of fact as to whether it should be liable for asbestos exposure from replacement gaskets and packing made by other companies but installed in Crane Co. valves.  The Court granted summary judgment as to plaintiff's civil conspiracy claim.  Sweredoski v. Alfa Laval, Inc., P.C. 2011-1544 (R.I.Super. March 7, 2013). 

Personal Injury, Unsworn Statement Insufficient to Defeat Partial Summary Judgment, Duty to Inspect

The federal district court has held that unsworn witness statements are insufficient to defeat a motion for summary judgment.  However, an affidavit signed by a witness swearing to the truth of the statements contained in his statement was sufficient.  Based on the latter, the court said plaintiff had raised material issues of fact sufficient to defeat summary judgment on certain negligence claims against a company that constructed scaffolding in the cargo hold of a oil barge and had obligations under OSHA to inspect the scaffolding.  The court said that to the extent plaintiff's objection and certain claims relied on an unsworn witness statement, the motion was granted.  Matias v. Amex, Inc., C.A. 10-80S (D.R.I. Mar. 4, 2013). 

Finance Agreement Gives Maine Court Jurisdiction Over S.C Construction Company

The First Circuit has held the Maine federal district court has specific personal jurisdiction over a South Carolina construction company that purchased supplies from another South Carolina company when the purchases were financed by a Maine company.  The Maine finance company sued when its bills were unpaid.  The district court held it did not have personal jurisdiction.   The Circuit Court noted the S.C. company had faxed its credit application to Maine, had several communications with the Maine company before signing the credit agreement, and the credit agreement said the Maine court would have jurisdiction and be governed by Maine law.  Bluetarp Financial, Inc. v. Matrix Construction Co., 2013 WL 765123 (1st Cir. Mar. 1, 2013).  /Practice-Areas/Business-Commercial-Litigation.shtml

Superior Court Allows Media to Intervene to Get Access to Documents Covered By Confidentiality Order

In a case that raises several issues of first impression in Rhode Island, the Superior Court has allowed several Media Entities-the Associated Press, the Providence Journal, the New York Times and the National Catholic Reporter-to intervene in a civil lawsuit to seek access to documents covered by a confidentiality order.  The underlying case involved a dispute over a substantial donation to the Legion of Christ.  The Court also held that there is a right of access under the First Amendment to documents filed with the court, as opposed to documents produced during discovery but not filed.  Finally, the Court adopted a "balancing of the interests" test to determine when it appropriate to vacate a confidentiality order.  Applying the test, it vacated orders it and the probate court had entered so the intervenors could get access to documents that had been filed with the court.  Duaray v. Estate of Gabrielle D. Mee, P.B. 10-1195 (R.I. Super. Jan. 23, 2013).  /Practice-Areas/Business-Commercial-Litigation.shtml