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October 2013 Archives

First Circuit Affirms Dismissal of Section 1981 Claim Where Plaintiff Fails To Allege Racial Comments Interfered With A Contract

The First Circuit has affirmed the dismissal of Section 1981 claims by a Kmart customer who alleged that a store clerk had made racial comments during a layaway transaction but failed to allege the comments interfered with or harmed the transaction.

Federal Court Holds Corporate Dissolution Statute of Repose Does Not Apply to Corporation That Kept Doing Business After Corporate Certificate Was Revoked

Rhode Island's federal District Court has held that the statute of repose that bars claims brought against a corporation more than two years after it is dissolved does not apply to a corporation that continued to do business after its certificate of incorporation was revoked.

First Circuit Affirms Dismissal of 93A Claim for Lack of Plausible Causation Allegation

The First Circuit has affirmed the dismissal of 93A claims against doctors, a clinic and the publisher of a case report the doctors wrote. Plaintiffs alleged that the case report fraudulently misstated the facts of a childbirth, that the case report was introduced as evidence in prior medical practice suits plaintiff had brought and that the case report caused them to lose those malpractice cases. The First Circuit held the district court properly dismissed because plaintiffs failed to allege a plausible theory of causation.

Bankruptcy Appellate Panel Upholds Conversion of Chap. 13 Case Based on Bad Faith

The Bankruptcy Appellate Panel for the First Circuit has upheld a bankruptcy court's decision to convert a Chapter 13 case to a Chapter 7 case based on the debtor's bad faith in failing to disclose two pending personal injury claims.

Superior Court Remands Zoning Board Decision Because Member Was Biased

The Superior Court has determined that a zoning board violated the Due Process Clause because one of its members who cast the deciding vote had determined how he was going to vote before the hearing and he was business partners with one of the remonstrants.

Asbestos-Superior Court Denies Motion for Reconsideration Based on "Bare Metal" Defense

In the latest ruling in a fiercely-litigated asbestos case, the Superior Court has issued a decision denying Crane Co.'s motion for reconsideration of its summary judgment motion based on its "bare metal" defense. The "bare metal" defense is one in which the defendant argues that although plaintiff worked with its products, it did not make the asbestos-containing components of that product to which plaintiff was exposed and, accordingly, it is not liable for that exposure.

Federal Court Finds Plaintiffs' Motion to Compel Production of ESI Fails Rule 26 Proportionality Test

Rhode Island's federal district court has held that plaintiffs have failed to meet the "proportionality" test included in Rule 26 to compel defendants to search backup tapes for emails they may contain. The court said the relatively high cost of the search compared to the low likelihood the tapes contained email not already produced weighed against requiring defendant to search the tapes.

Superior Court Denies Motion for Stay Pending Cert Petition

The Superior Court has denied defendant's motion to stay the case while it petitions the Supreme Court to issue a writ of certiorari. Defendant requested the stay while it sought Supreme Court review of the Superior Court's decision vacating a dismissal for lack of prosecution.

First Circuit Holds That Municipal Ordinances Prohibiting Tobacco Discount Coupons And Restricting Sale Of Flavored Tobacco Products Do Not Violate First Amendment And Are Not Preempted

The First Circuit has held that two ordinances promulgated by the City of Providence regulating the sales of tobacco products do not violate the First Amendment and are not preempted by federal or state laws.

Receipt of Royalty Payments In Rhode Island Not Sufficient For Personal Jurisdiction

The federal district court has accepted a magistrate judge's recommendation that a complaint alleging tortious interference with contract and advantageous business relations be dismissed for lack of personal jurisdiction where plaintiff could not establish either general or specific personal jurisdiction. The magistrate judge applied the prima facie method of review and concluded that the one direct contact related to the dispute, i.e., plaintiff's receipt of royalty payments in Rhode Island, was not sufficient to confer jurisdiction.

Superior Court Dismisses Shareholder Derivative Suit For Failure To Plead With Particularity That Pre-suit Demand Was Futile

The Superior Court has dismissed without prejudice a shareholder derivative suit on the grounds that it failed to allege with sufficient particularity that making a pre-suit demand of the board of directors would be futile. The Court also said plaintiff failed to allege that she was a shareholder at the time of the transactions at issue.

Asbestos-Superior Court Holds Valve Manufacturer Subject To Jurisdictional Discovery

The Superior Court has held that an asbestos plaintiff who admits she cannot demonstrate general personal jurisdiction over the defendant is entitled to conduct jurisdictional discovery to determine whether there are sufficient facts to establish specific personal jurisdiction. Moreover, plaintiff can conduct the discovery with respect to the entire period her decedent worked at the jobsite where defendant's products were located, not just for the period decedent worked with the defendant's products.