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Tort Law

"Deep Pocket Jurisprudenceā„¢" and Meaningful Civil Justice Reform - Podcast

Litigation Practice Group Podcast
Victor E. Schwartz March 28, 2017

This Teleforum discussed what Victor Schwartz has labelled "Deep-Pocket Jurisprudence™." According to Mr. Schwartz, this occurs when state appellate courts expand tort law to include an innocent defendant because the wrongdoer is "judgment proof" or cannot be reached by the judicial process. The Supreme Court of Iowa has used the term and condemned the practice.

This call focused on the possible enactment of federal civil justice reform. On March 9 and 10th 2017 the House of Representatives passed three federal civil justice reform measures, namely the H.R. 720, Lawsuit Abuse Reduction Act, H.R. 725, Innocent Party Protection Act and H.R.925, the Fairness in Class Litigation Act. Each enjoy strong support from Speaker Paul Ryan and this marks the earliest in a congressional term that such federal civil justice reform measures have passed the House. Nevertheless, it remains to be seen whether they will pass through the Senate and be approved by President Trump.

Featuring:

  • Victor E. Schwartz, Partner, Shook, Hardy & Bacon LLP

Dollar General Corporation v. Mississippi Band of Choctaw Indians - Post-Decision SCOTUScast

SCOTUScast 8-18-16 featuring Zachary Price
Zachary Price August 18, 2016

On June 23, 2016, the Supreme Court decided Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges.

The question before the Supreme Court was whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

In a per curiam opinion, the judgement of the Fifth Circuit was affirmed by an equally divided court.

To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

Simmons v. Himmelreich - Post-Decision SCOTUScast

SCOTUScast 6-15-16 featuring Aaron Nielson
Aaron Nielson June 15, 2016

On June 6, 2016, the Supreme Court decided Simmons v. Himmelreich. This case arose out of lawsuits filed by federal prisoner Walter Himmelreich after he was assaulted by a fellow prisoner. Himmelreich’s initial lawsuit, filed against the United States, was ultimately dismissed pursuant to an exception under the Federal Tort Claims Act (FTCA) for certain discretionary actions by prison officials. While that suit was still pending, however, Himmelreich filed a second suit: a constitutional tort action against individual Bureau of Prisons employees. When Himmelreich’s initial suit was dismissed, these employee defendants argued that his action against them was foreclosed by the FTCA’s “judgment bar” provision, under which a judgment in an FTCA suit forecloses any future suit against individual employees. The District Court granted summary judgment in favor of the employees. On appeal the U.S. Court of Appeals for the Sixth Circuit reversed, holding that the judgment bar provision did not apply to Himmelreich’s suit. The Supreme Court then granted certiorari to resolve a Circuit split on whether the judgment bar provision applies to suits that, like Himmelreich’s, are dismissed as falling within an “exception” to the FTCA.

By a vote of 8-0, the Supreme Court affirmed the judgment of the Sixth Circuit and remanded the case. Justice Sotomayor delivered the opinion for a unanimous Court, holding that the FTCA’s judgment bar provision does not apply to claims dismissed because they fall within an FTCA "exception."

To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.

Simmons v. Himmelreich - Post-Argument SCOTUScast

SCOTUScast 3-28-16 featuring Aaron Nielson
Aaron Nielson March 28, 2016

On March 22, 2016, the Supreme Court heard oral argument in Simmons v. Himmelreich. This case arises from a lawsuit filed by federal prisoner Walter Himmelreich as the result of an assault by a fellow prisoner.  Although several of Himmelreich’s claims were dismissed in an initial round of litigation, the U.S. Court of Appeals for the Sixth Circuit allowed two to proceed on remand, of which one was a “Bivens” claim made against certain officials in their individual capacities for failing to protect him in violation of the Eighth Amendment. The district court ultimately dismissed the claim, concluding that the “judgment bar” of the Federal Tort Claims Act (“FTCA”) precluded Himmelreich from pursuing a Bivens action against the officials individually when his underlying FTCA claim against the government had failed. On a subsequent appeal the Sixth Circuit disagreed and again revived the Bivens claim, reasoning that the grounds on which the FTCA claim had failed--namely, an exception to liability--indicated a lack of subject matter jurisdiction that did not trigger the FTCA judgment bar.  The federal officials sought certiorari.

The question before the Supreme Court is whether, in an FTCA action brought under Section 1346(b), a final judgment dismissing the claim on the ground that relief is precluded by one of the FTCA exceptions to liability, 28 U.S.C. § 2680, bars a subsequent action by the claimant against the federal employees whose acts gave rise to the FTCA claim.

To discuss the case, we have Aaron Nielson, who is Associate Professor of Law at Brigham Young University Law School.

Dollar General Corporation v. Mississippi Band of Choctaw Indians - Post-Argument SCOTUScast

SCOTUScast 12-15-15 featuring Zachary Price
Zachary Price December 15, 2015

On December 7, 2015, the Supreme Court heard oral argument in Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges.

The question before the Supreme Court is whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.