Changes in Deadline for Removal to Federal Court Effective Now

New legislation signed on December 7, 2011 changing the law regarding the removal of cases to federal court. The newly enacted legislation took effect on January 6, 2012 and alters the existing removal statute surrounding (1) the timing of removal, (2) the amount in controversy, and (3) severing unrelated state claims. Each of these areas is addressed below.

1. The Timing of Removal to Federal Court.

The most significant change involves the timing of removal by a single defendant in a multiple defendant lawsuit. Under the old law, a defendant must file his removal within thirty (30) days of being served. This requirement stood regardless of whether there are multiple named defendants who were served earlier or later than the removing defendant—this rule is known as the “First-Served” rule. The revised statute now invokes the“Later-Served” rule which retains the requirement that a single defendant remove a case within 30 days of being served. However, under the new“Later-Served” rule, a defendant outside the 30 day removal deadline may join in the removal with another later-served defendant who is still within its own 30 day deadline to remove the case to federal court.

The revised statute also adds a “Bad Faith” exception to the general rule that a case cannot be removed to federal court more than 1-year after the plaintiff filed the complaint in state court. Under the new law, if a court finds that a plaintiff added a non-diverse defendant in bad faith solely in order to defeat diversity and avoid having the case removed to federal court, the federal court may disregard the 1 year limitation and allow the remaining diverse defendant to remove the case more than 1 year after the complaint was filed in state court.

2. The Amount in Controversy

The current removal statute requires that the plaintiff’s claim be worth at least $75,000.00 for it to be removed on the basis of diversity of citizenship. While the $75,000.00 jurisdictional minimum has not changed, the new legislation addresses the situation where a plaintiff does not state in the petition the amount being claimed. If a plaintiff does not disclose the amount of the claim in the petition but during the course of discovery is it learned that the plaintiff is actually claiming more than $75,000.00, the defendant will then have thirty (30) days from this time to remove the case to federal court. However, absent a finding of bad faith, if this is discovered more than one year after the plaintiff’s petition is filed, the defendant will not be able to remove the case to federal court.

Please note that in LOUISIANA (and more broadly the 5^thCircuit Court of Appeal), we have been allowed to Petition Removal to federal court within 30 days of DISCOVERING that amount in controversy exceeds $75,000. Typically, our firm has used the procedure of submitting Requests for Admissions to force the plaintiff’s attorney to disclose that the amount in controversy exceeds $75,000; however, with these new changes, we probably will not have to do that. We may continue the procedure to because it hastens the removal to federal court.

3. Severing Unrelated State Claims

When a defendant removes a case based on federal question jurisdiction, rather than diversity, the new legislation changes how the federal court addresses unrelated claims based on state law mixed with claims based on federal law. Under the old rule, the federal judge had discretion as to whether the unrelated state claims should be severed from the federal claims and remanded back to state court. Under the new rule, the federal judges do not have discretion but are required to sever and remand all unrelated state claims that fall outside the federal court’s supplemental jurisdiction.

Lastly, prior to the new legislation, there was a long-standing judicial rule that required all defendants to consent to removal. The revised statute codifies this judicial rule and requires all defendants in a multiple-defendant suit to consent to removal.

More Than You Ever Wanted to Know on Excluding Admissibility of Social Security Administration Findings of Disability From Tort Claim

I am about to present you with WAY MORE  than you may ever want to read, but a very thorough argument to prevent the introduction of evidence in liability lawsuit of the SSA determination of a plaintiff's disability.

Over the years, I have regularly seen plaintiffs make a claim for disability while their tort claim is pending. Perhaps with the SSA threatening subrogation for reimbursement of SSDI benefits, plaintiffs are less likely to make these claims while a tort claim is pending, but this article addresses how to keep that information from being admitted in the liability claim.

It is very common for person claiming a brain injury from a trucking accident to make a disability claim, but I have also seen SSDI disability claims for back injuries. In every case I have been involved, the plaintiff has had a pre-existing condition or unrelated emotional/mental problems that he/she attempts to relate to the trucking accident. They WANT their disability determination to be admissible in the liability claim.

I keep it OUT! Here's how I do it. I welcome your insight.

The Louisiana Supreme Court has  long maintained the position that Social Security Administration  records, factual findings, and judgments are inadmissible hearsay. Green v. Connor, 644 So.2d 618 (La. 1994).

In Green a plaintiff who was injured in a motor vehicle accident brought an action against his UM carrier, State Farm. The plaintiff also filed a claim for social security benefits. After State Farm requested and received the records of the social security proceedings, the plaintiff filed a motion in limine to exclude the records from evidence. The defense argued that the records were admissible under the "business records" hearsay exception of La. Code Evid. art. 803(6) and the "records of a public agency" hearsay exception at La. Code Evid. art. 803(8)(a)(iii).

Art. 803(8)(a)(iii) of the Louisiana Code of Evidence excepts from the hearsay rule records of a public agency setting forth "[f]actual findings resulting from an investigation made pursuant to authority granted by law." However, La. Code Evid. art. 803(8)(b)(iv) excludes "[f]actual findings resulting from investigation of a particular complaint, case, or incident, including an investigation into the facts and circumstances on which the present proceeding is based" from the "records of a public agency" hearsay exception.

Pointing to art. 803(8)(b)(iv), the Supreme Court in Green held that the plaintiff’s SSA records did not fall within the "records of a public agency" hearsay exception. The Court reasoned:

[W]hile factual findings of general investigations are admissible, those of particular incidents are not admissible as public records. The social security proceedings involved the same incident as the present case, and all factual findings which resulted are therefore inadmissible under La.Code Evid. art. 803(8)(a).

The Green Court also rejected the  contention that the SSA records were admissible under the "business records" exception. The Court correctly held that "the ‘business records’ exception of La.Code Evid. art. 803(6) expressly bars the use of records falling under the La.Code Evid. art. 803(8)(b) exclusions[,]" such as art. 803(8)(b)(iv) discussed above. The Court ruled that all transcripts and judgments from the SSA proceedings were inadmissible and also prohibited any testimony regarding the factual findings of the SSA.

Pursuant to the holding and reasoning of the Supreme Court in Green, courts in Louisiana should order that  SSA records, factual findings, determinations, and judgments are inadmissible hearsay, not admissible under either the "business records" exception of La. Code Evid. art. 803(6) or the "records of a public agency" exception at La. Code Evid. art. 803(8)(a)(iii).

Although Green’s holding is limited to the "business records" and "records of a public agency" exceptions, there is no other exception or exclusion from the hearsay rule that would permit SSA records to be admitted or permit witnesses to reference them in their testimony.

The Fourth Circuit opinion of Gilchrist v. Ozone Spring Water Co., 639 So.2d 489 (La. App. 4th Cir. 1994), affirmed the trial court decision that permitted social security records to be introduced as evidence of a plaintiff's prior disability under the "then existing physical or mental condition" exception to the hearsay rule. However, Gilchrist should be limited. Furthermore, subsequent criticism of its holding suggests that it probably would have been reversed, had the case been appealed to the Supreme Court.

NTSB Recommends Ban on ALL Handheld Devices!

The following was recently reported by M. Alex Johnson of MSNBC:

The government's transportation safety experts recommended to ban all American drivers from using portable electronic devices — including cellphones, even if you use a hands-free device.

The recommendation makes only two exceptions:

• You could still use GPS navigation devices, and
•  you could use your cellphone in an emergency.

"No call, no text, no update, is worth a human life," Deborah Hersman, chairwoman of the National Transportation Safety Board, said at a news conference in Washington.

 

Besides calling for government action, the NTSB also urged consumer electronics manufacturers to figure out a way to "disable the functions of portable electronic devices within reach of the driver when a vehicle is in motion" while at the same time being able to turn themselves back on in an emergency.

 

 

MSNBC took a poll "Should the US ban handheld devices for drivers?"

Yes: No call or text is worth a person's life: 35%

No: Hands-free technology can make them safe to use: 49%

Maybe: A limited ban on some handheld uses may be the best course: 16%

 

 

The focus should be on drivers' choices, not on "specific devices." Of course, manual texting while driving shouldn't be allowed to do it, but the safety board's suggestion to disallow hands-free devices like Bluetooth earpieces is too strict.

The NHTSA reported  that about 20 percent of all drivers and 50 percent of drivers 21 to 24 years old admit to having texted while driving. Overall, more than three-quarters of drivers say they are willing to answer calls on all, most or some trips.

"People continue to make bad decisions about driving distracted — but what's clear from all of the information we have is that driver distraction continues to be a major problem," NHTSA Administrator David Strickland said last week in reporting the numbers.

Scientists strongly endorse NTSB proposal

But similar studies linking cellphone use to poor driving have been challenged, most recently by researchers at Wayne State University in Detroit, who concluded last month that some earlier studies were seriously flawed.

The report, published in the journal Epidemiology, examined to earlier studies that examined crashes in which cellphone records showed that the driver had used a cellphone. Those studies "likely overestimated the relative risk for cellphone conversations," the researchers said, because they improperly assumed that the drivers were actually in motion when they were on the phone — in other words, they didn't factor in such so-called part-time driving.

 

Only 10 states ban handheld devices right now, and 35 ban texting while driving.The recommendation comes following the NTSB's investigation of an August 2010 accident in Gray Summit, Mo., involving a pickup truck, two school buses and several other vehicles.

The NTSB recommendation wouldn't cover GPS devices, but — if it eventually becomes law — it would ban using your phone for any reason, even with a Bluetooth headset or speakers. The only exception would be to call 911 in an emergency.

New HOS To Be Implemented by July 1, 2013

The FMCSA has just released its final Hours of  Service Rule and carriers are expected to comply by July 1, 2013. However, like  so many other government regulations, I wonder if compliance mandates will be postponed for months, if not years.

The following is a summary of the changes:

• The final rules will reduce the work week of truck drivers by up to 12 hours as under current rules a driver could be on duty for up to 82 hours in a seven day period. New rules will reduce that to 70 hours.
• Drivers will now be required to take a 30 minute break after they drive for 8 hours, this break maybe taken at any time during that 8 hour period.
• On duty time will no longer include:
• Time resting in a parked CMV this can be off duty
• Time in the passenger seat before or after 8 consecutive hours in the sleeper berth, this can be off duty.
• The current 11 hour drive limits will remain the same.
• The rule requires truck drivers who maximize their weekly work hours to take at least two nights’ rest when their 24-hour body clock demands sleep the most – from 1:00 a.m. to 5:00 a.m. This rest requirement is part of the rule’s “34-hour restart” provision that allows drivers to restart the clock on their work week by taking at least 34 consecutive hours off-duty.
• The final rule allows drivers to use the restart provision only once during a seven-day period.
• Trucking companies that allow drivers to exceed the 11-hour driving limit by 3 or more hours could be fined $11,000 per offense, and the drivers themselves could face civil penalties of up to $2,750 for each offense. This will be an egregious violation.

Carriers have until July 1, 2013 to comply with the new rules though some portions come into effect February 27, 2012 namely the change in the definition of “egregious” violations and the change in definition of on-duty time, go into effect Feb. 27, 2012.

Let's see what happens in the  next few weeks!