Appealing in Nevada

Ninth Circuit Upholds Laws Restricting the Advertising of Prostitution

cowdent@gtlaw.com (Tami Cowden) — Thu, 11 Mar 2010 11:07:09 -0800

In Coyote Publishing v. MIller, the Ninth Circuit today overturned Judge Mahan's decision that had ruled Nevada's laws restricting advertising of legal brothels unconstitutional. It is the second reversal this week for Judge Mahan.

In an opinion that ironically begins by quoting George Bernard Shaw regarding the losing nature of the fight against prosititution, Judge Berzon upholds NRS 201.430, which limits advertisement of brothels within counties where such establishments are legal, and NRS 201.440, which bans advertisement of brothels in counties where they are not permitted. The Court found that the statutes are constitutional limitations on commercial speech, subject to intermediate scrutiny. Finding that Nevada has a substantial interest in limiting the commodification of sex, the Court held the limitation is constitutional.

The Court was careful to assert that it is not the underlying act that is being repressed, but merely the notion that such an act should be performed for money. Or at least, not in Clark County, "where by far most Nevadans live (and where most outsiders visit)." The Court refers to the ban of adervertisement of an activity legal in all but six counties in Nevada an "idiiosyncratic balance between various important but competing state interests-- the pro brothel balance being a desire to curb the "negative health and safety impacts of uregulated, illegal prostition." Although, again, apparently not in Clark County.

I doubt we've heard the last of this..

FMLA front pay is equitable remedy

cowdent@gtlaw.com (Tami Cowden) — Fri, 05 Mar 2010 10:41:44 -0800

In Traxler v. Multnomah County, the Ninth Circuit determined that under the Family Medical Leave Act, front pay is an equitable remedy, a substitute for reinstatement, and therefore, both the remedy’s availability and the amount to be awarded must be determined by the court, rather than by a jury. This decision is consistent with how front pay is treated for other employment rights. While the Ninth Circuit joins the Fourth, Fifth and Tenth Circuits on this issue; the Sixth Circuit holds that while the court determines the propriety of a front pay award, the jury determines the amount.

The Court also determined that a District Court must make specific findings on the record that a violation of the FMLA was made through acts taken in good faith if it does not award the liquidated damages provided by the statute.

The Ninth Circuit determined that under the Family Medical Leave Act, front pay is an equitable remedy to be decided by the trial court.

Domain registration location provides quasi in rem jurisdiction

cowdent@gtlaw.com (Tami Cowden) — Fri, 05 Mar 2010 10:21:04 -0800

In Office Depot v. Zuccarini, decided February 26, 2010, the Ninth Circuit upheld the appointment of a receiver to sell domain names held by a cybersquatter to satisfy the judgment Office Depot had obtained.

The Court held that “type two” quasi in rem jurisdiction, aka “attachment jurisdiction” was appropriate where Verisign, the registry for the “.com” and “.net” domains is located. In so holding, the Court found that, under California law, domain names are intangible property subject to attachment.

The opinion includes an explanation of domain registration. Using the sample domain of example.com, it explains that “registries” hold the “.com” level, while registrars hold the “example” level of the domain name. In dicta, the Court also noted that quasi in rem jurisdiction would exist where registrars are located.

This ruling makes attachment of domain names easier for creditors, because, while there are registrars all over the world, Verisign, located in California, is the only registry for “.com” and “.net” levels. Now a single lawsuit can lead to the property.

High Court chips away at Miranda

cowdent@gtlaw.com (Tami Cowden) — Thu, 25 Feb 2010 10:21:28 -0800

The U.S. Supreme Court issued two opinions this weak that arguably weaken Miranda. However, neither seem a radical departure from previous rulings.

In Maryland v. Shatzer, issued February 24, 2010, the U.S. Supreme Court held that where there is a break in custody, police may question a suspect for a second time, eve though the suspect invoked Miranda's right to remain silent during the first period of custody. The ruling weakens the long standing so-called Edwards v. Arizona rule, which had held that once Miranda is invoked , any subsequent waiver of the right resulting from police prompting is deemed involuntary.

In this case, the suspect, who was in prison, had invoked his rights while being questioned in 2003, but when questioned again in 2006, waived his rights after being advised again. The Court set a standard for a 14 day break in custody.

Scalia authored the opinion. Thomas concurred in part, and Stevens concurred in the judgment.

Meanwhile, one day earlier, in Florida v. Powell, a 7-2 majority upheld Florida's alternative wording of the Miranda warning, even though it does not explicitly state that a suspect has a right to have an attorney present during questioning. The Florida warning states, as relevant here:

You have the right to talk to a lawyer before answering any of our questions” and “[y]ou have the right to use any of these rights at any time you want during this interview.

Ginsberg authored the 7-2 decision; Stevens dissented on both jurisdictional grounds and on the merits; Breyer joining in the majority decision on the jurisdictional issue, and in the dissent on the merits.

Test for excessive force focuses on the force, not the injury

cowdent@gtlaw.com (Tami Cowden) — Thu, 25 Feb 2010 10:18:05 -0800

In Wilkins v. Gaddy, the U.S. Supreme Court held that whether force is “excessive” depends on the level of force applied, not on the level of injury suffered. The District Court had dismissed the prisoner complaint sua sponte, due to the de minimus nature of the alleged injuries, and the Fourth Circuit affirmed.

In a per curiam decision, the Court stated that “[a]n inmate who is gratuitously beaten by guards does not lose his ability to pursue an excessive force claim merely because he has the good fortune to escape without serious injury

"Principal place of business" is nerve center of corporation.

cowdent@gtlaw.com (Tami Cowden) — Thu, 25 Feb 2010 10:02:58 -0800

Reversing the Ninth Circuit, the U.S. Supreme Court handed down another opinion favoring corporations. In Hertz Corp. v. Friend, issued February 23, 2010, the Court held that for purposes of diversity jurisdiction, the “nerve center” of a corporation, i.e., where the high level executives direct, control, and coordinate the company’s operations, is the “principal place of business.”

The Court recognized that the nerve center approach is imperfect, but considers its simplicity and certainty superior to other methods, including the 9^th Circuit’s “plurality of business activity” approach.

Breyer authored the unanimous opinion.

Parents cannot stipulate to nonmodification of child support

cowdent@gtlaw.com (Tami Cowden) — Thu, 04 Feb 2010 10:30:09 -0800

In Fernandez v. Fernandez, the Nevada Supreme Court held that a stipulation between the parties that a child support order will not be modified cannot supersede statutory provisions allowing modification, up or down, upon a material change in circumstances.

The Court stated “The formula and guideline statutes are not designed to produce the highest award possible but rather a child support order that is adequate to the child’s needs, fair to both parents, and set at levels that can be met without impoverishing the obligor parent or requiring that enforcement machinery be deployed.” Absent legislative approval of parents’ ability to waive the right to modify on the basis of changed circumstances, the parties cannot stipulate around those statutory provisions.

3-0 decision authored by Pickering, with Parraguirre and Douglas concurring.

Successive summary judgment motions OK in Nevada, too.

cowdent@gtlaw.com (Tami Cowden) — Thu, 04 Feb 2010 10:11:13 -0800

Successive dispositive motions weren’t exactly the issue in Dictor v. Creative Management Services, but the Court did cite the two week old 9^th Circuit decision in Hoffman v. Tonnemacher, [discussed here] with approval. Therefore, it looks like the Court will follow the federal court lead on this issue.

In Dictor, the Nevada Supreme Court clarified the law of the case doctrine and choice of law decisions.

In this case, involving an insurance subrogation claim, the Court had previously determined in an unpublished decision that because the neither the insured nor the claimant were Nevada residents, NRS 687A.095, which bars suit against an insured of an insolvent insurer, did not apply.

On remand, the District court determined that a similar Missouri statute barred the suit, and granted summary judgment again.

Dictor appealed again, claiming that the Missouri law should not have applied, because the Supreme Court had decided that statutory defenses did not apply. It seems an amicus brief filed days before the oral argument in the first appeal had raised the Missouri statute. However, the Court had not considered or ruled on the applicability of that statute.

The Court stated the rule of the case doctrine bars reconsideration only of issues actually decided by the appellate court, and does not apply if the issue presented in a subsequent appeal differ from those previously presented. Application of the Missouri statute had not been addressed in the previous appeal, and the Court’s remand order had not prevent consideration of other statutory defenses.

The Court also addressed choice of law considerations for subrogation, adopting the comment d to Restatement of Conflicts, § 145, which states “the local law of the state where the parties are domiciled, rather than the local law of the state of conduct and injury, may be applied to determine whether one party is immune from tort liability to the other.” This is consistent with the Court’s previous adoption of the Restatement analysis for choice of law decisions in General Motors Corp. v. District Court, 122 Nev. 466, 134 P.3d 111 (2006), and emphasizes that whichever Restatement section is most specific to the facts should apply.

3-0 decision authored by Hardesty, with Parraguirre and Pickering concurring.

7th Circuit holds federal jurisdiction continues even if class not certified

cowdent@gtlaw.com (Tami Cowden) — Fri, 29 Jan 2010 09:49:08 -0800

In Cunningham Charter Corp. v. Learjet, Inc., the 7th Circuit Court of Appeals joins the 11^th circuit in resolving a jurisdictional question posed by the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1332(d), 1453, and 1711-1715. That Act creates federal diversity jurisdiction over certain class actions in which at least one member of the class is a citizen of a different state from any defendant (that is, in which diversity may not be complete).

The Court held that where a class action has been transferred to federal court under the Act, but class certification is denied, the federal court retains jurisdiction. While the Act applies “to any class action [within the Act’s scope] before or after the entry of a class certification order,” the use of the term “a class certification order” rather than “the class certification order ” indicates the provisions refers only to timing, and does not create a requirement that the class be certified to retain federal jurisdiction.

Authored by Judge Richard Posner, the opinion ends what he called the potential for "ping-pong" between the federal and state courts. The Court “vindicate[d] the general principle that jurisdiction once properly invoked is not lost by developments after a suit is filed, such as a change in

the state of which a party is a citizen that destroys diversity.”

The 9^th Circuit has not yet ruled on the issue. In unpublished decisions, the Southern and Central Districts of California have ruled that jurisdiction under CAFA never existed if class certification is denied.

Successive summary judgment motions permitted by 9th Circuit

cowdent@gtlaw.com (Tami Cowden) — Fri, 22 Jan 2010 10:04:06 -0800

Joining 5 other circuits, the Ninth Circuit ruled in Hoffman v. Tonnemacher that FRCP 56 gives the district court the discretion to consider successive motions for summary judgment.

Here, in a medical malpractice case, the district court had partially denied a pre-trial motion for summary judgment and denied a motion for judgment as a matter of law on the remaining issues following presentation of evidence at trial. The jury deadlocked. After receiving permission to designate a new expert witness, the defendant filed another motion for summary judgment, which the court granted. The plaintiff challenged both the ruling and the consideration of the motion. While the Court found consideration of the motion was not an abuse of discretion, the grant of summary judgment was reversed in a separate memorandum disposition.

While the ruling makes clear that consideration of successive summary judgment motions is within the district court’s discretion, the decision is not exactly ground breaking. The Court had previously ruled such motions were permissible on the issue of qualified immunity, and had previously noted that summary judgment decisions are subject to reconsideration at any time. The language of FRCP 56 itself expressly grants a court discretion to alter the default timing limits on summary judgment motions.

The Court did note that district courts “retain discretion to weed out frivolous or simply repetitive motions."

The Court joined the 2d, 5^th, 6^th, 7^th, and 8^th Circuits on this issue.

Opinion issued January 21, 2010, authored by Graber, joined by Tashima and Bybee.

Executive branch cannot limit jurisdiction of judiciary

cowdent@gtlaw.com (Tami Cowden) — Thu, 21 Jan 2010 11:36:36 -0800

In Kucana v. Holder , the U.S. Supreme Court held that federal appellate courts have the jurisdiction to review Justice Department and immigration court decisions not to reopen deportation proceedings. The 7^th Circuit had held that it lacked jurisdiction to review the administrative determination, holding that 8 U. S. C. §1252(a)(2)(B)(ii) bars judicial review not only of administrative decisions made discretionary by statute, but also of those made discretionary by regulation.

The Court cited "separation of power concerns" in determining that the executive branch does not have the power to limit the jurisdiction of the judiciary.

The opinion, issued January 20, 2009, was authored by Ginsburg with all but Alito joining. Alito concurred on narrower grounds.

U.S. Supreme Court strikes down limits on campaign spending

cowdent@gtlaw.com (Tami Cowden) — Thu, 21 Jan 2010 11:17:59 -0800

It is a new world for politics, with the 2010 campaign likely to see even more corporate money in play.

In Citizens United v. FEC, the U.S. Supreme Court struck down the requirement of the McCain Feingold campaign finance act that corporations channel their campaign spending into political action committees rather than directly funding "electrioneering communications." The ruling overturned two prior decisions by the Court, a 2003 decision upholding the same provision, and a 1990 decision upholding a state law with a similar restriction.

The McCain-Feingold provision requiring political messages to disclose their funder was upheld. The ruling also does not affect the longstanding federal law preventing corporations from directly donating to federal political candidates.

Kennedy authored the 5-4 decision issued January 21, 2009. Stevens authored the dissent, joined by Ginsberg, Breyer, and Sotomayor.

Sixth Amendment requires public access to trial during voir dire

cowdent@gtlaw.com (Tami Cowden) — Wed, 20 Jan 2010 14:23:40 -0800

In Presley v. Georgia, the U.S. Supreme Court underscored the importance of public access to criminal trials.

In Presley, over the defendant’s objection, the trial court had excluded a member of the public, who happened to be the defendant’s uncle, because the courtroom was too small to hold both the prospective jurors and the relative without both sitting in the same row. The trial court had been concerned that the jurors could be tainted by such proximity.

The Court ruled per curiam 7-2 that judges must consider alternatives to closing a courtroom during jury selection, even if no party makes any suggestions for how to otherwise address the issue prompting the judge to consider closing the court in the first place. The high court majority said the Georgia Supreme Court had disregarded the U.S. Supreme Court's explicit instructions on that point.

Thomas and Scalia dissented, objecting to the summary disposition of the case.

Beware of jurors bearing gifts

cowdent@gtlaw.com (Tami Cowden) — Wed, 20 Jan 2010 14:13:18 -0800

Obviously, in some trials, jurors can develop a real fondness for the judge and the bailiff. Or so one must assume from the gifts given by jurors in

In Wellons, the U.S. Supreme Court ruled without full briefing or argument, vacating the 11^th Circuit ruling that Wellons’s challenge to his conviction was procedurally barred due to an adverse ruling in his state court habeas proceedings. That ruling had come before last year’s Supreme Court Cone v. Bell decision, ruling that federal courts should not deny relief on such grounds.

In this case, there had been ex parte contact between the judge who sentenced the defendant to death and the jurors, including a reunion either during or immediately after the penalty phase where the jurors gave the judge and bailiff chocolate in risqué shapes. The judge did not report the contact, and the defendant learned of the matter only post sentencing. The matter was raised in both the direct appeal and habeas petition, but efforts to obtain discovery into the matter were denied at every level.

The Court began its opinion by noting "From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect."

The Court remanded the matter for further proceedings to determine whether an evidentiary hearing on the nature and possible prejudicial effect of the contact was appropriate.

The opinion, issued January 19, was unsigned. Roberts, Scalia, Thomas, and Alito dissented, asserting that the 11^th Circuit had ruled on other grounds.

Settling individual claims may not render class issues moot

cowdent@gtlaw.com (Tami Cowden) — Tue, 19 Jan 2010 10:01:36 -0800

In Narouz v. Charter Comm, LLC, the Ninth Circuit held that a class representative who voluntarily settles his or her individual claims in a putative class action does not necessarily render an appeal from a denial of class certification moot. If the class representative specifically retains an interest in the class litigation in the release agreement, then an appeal of class certification issues is not mooted.

Opinion issued Jan 15, authored by Smith, with concurring opinion by Korman. Rymer dissented on the basis of general language in the release.

Court reaffirms Frye as Nevada evidentiary standard.

cowdent@gtlaw.com (Tami Cowden) — Fri, 15 Jan 2010 10:29:21 -0800

The Court’s first published opinion of 2010, Higgs v. State, was initially released in May 2009, as an unpublished order. The Court rejected Higgs’ various challenges to his conviction for the murder of his wife, Kathy Augustine, including the argument that a failure to grant a continuance to allow a defense expert a longer opportunity to review the prosecution’s

The opinion was noteworthy for its extensive discussion of the different standards for admission of expert testimony presented by NRS 50.572 and the near identically worded FRE 702. Amicus curiae Nevada Justice Association moved for the publication of the ruling, which the Court granted.

Although in federal courts, the admission of expert testimony is governed by the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in Nevada, the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) continues to be the appropriate standard. The Court noted that to the extent Daubert presents a flexible approach, it may be considered persuasive, but a mechanistic application of the factors cited in Daubert is not appropriate in Nevada courts.

Under Frye, expert opinion based on a scientific technique is inadmissible unless the technique has “gained general acceptance in the particular field in which it belongs.” Under Daubert, admissibility is based upon the testimony’s “relevance and reliability.” The difficulty of Daubert, however, is the tendency to apply the factors listed therein in a mechanical way, even those such factors were expressly not intended to be a definitive checklist, and would not even logically apply to situations outside scientific fields. In Higgs, the Court clarifies that admissibility standards for expert testimony in Nevada courts are not limited to the factors set forth in Daubert.

Hardesty drafted the 4-2 opinion, issued January 14, 2010. Pickering recused. Cherry and Saitta each filed separate dissents, with Cherry’s more strongly worded.

The dissents, however, were not directed at the Frye/Daubert debate, but instead, were directed at the Court’s conclusion that Higgs’s rights had not been violated by the denial of the continuance. Both Cherry and Saitta expressly concurred with the Court’s reaffirmance of Frye as the appropriate evidentiary standard.

Family Court has no jurisdiction over property dispute of cohabiting couples.

cowdent@gtlaw.com (Tami Cowden) — Mon, 04 Jan 2010 15:58:50 -0800

In Landreth v. Malik, the Nevada Supreme Court held that the family courts do not have jurisdiction to hear disputes over property ownership between unmarried couples. Here, the dispute involved a claim that the funds used to purchase and renovate a home in Nevada were joint funds of a couple who had cohabited, but never married. The Court’s ruling was based on the jurisdictional grant set forth in NRS 3.223, which does not include an action of the type here.

The statute is pretty straight forward. I do question the use of the word “meretricious” to describe the relationship between the parties, however. That word is commonly used to describe an unlawful sexual relationship. Meanings do change though, so perhaps this is an example.

Also, the impact of this decision on those who register as domestic partners, remains to be seen. SB 283 expressly provided that termination of such a domestic partner relationship would follow the requirements of NRS Chapter 125, which would fall within family court jurisdiction. However, domestic partners can terminate outside of Chapter 125 if the parties meet certain qualifications. One such requirement is the lack of community property, the determination of which lack could, of course, be precisely the issue to be decided . . .

Decided December 24, 2009. Douglas authored the opinion, with Parraguirre, Cherry, and Pickering concurring.

Hardesty dissented, with Saitta and Gibbons concurring.

Evidentiary standards for Indian Child Welfare Act issues determined

cowdent@gtlaw.com (Tami Cowden) — Mon, 04 Jan 2010 15:54:38 -0800

In In re the Parental Rights as to N.J., the Nevada Supreme Court held that a dual-standard burden of proof is appropriate for evidentiary findings in parental termination cases involving the Indian Child Welfare Act (ICWA), with the higher beyond-a-reasonable-doubt evidentiary standards of the ICWA used for ICWA-related findings, and Nevada’s clear-and-convincing evidence standard for state law findings. The Court also held that under specific circumstances, such as when the breakup of a Native American family is not at issue, application of the Existing Indian Family (EIF) doctrine, a judicially created exception to the ICWA, may be appropriate.

Decided December 24, 2009, 7-0 decision, authored by Saitta.

Pharmacists owe no duty to those injured by customers driving under influence

cowdent@gtlaw.com (Tami Cowden) — Mon, 04 Jan 2010 15:50:01 -0800

In Sanchez v. Wal-Mart Stores, the Nevada Supreme Court upheld the dismissal of the suit against pharmacists by persons injured by a pharmacy customer driving while under the influence of drugs dispensed through multiple prescriptions.

The Court held that pharmacists do not owe of duty to unidentifiable third parties. Because such third parties are not included in the group intended to be protected by pharmacy statutes and regulations, such third parties cannot not raise a negligence per se claim either.

Decided December 24, 2009. 5-2 decision. Opinion by Hardesty; Parraguire, Douglas, Gibbons, and Pickering concurring.

Cherry dissented, with Saitta concurring in the dissent. They would recognize a special relationship between a pharmacy and customer, based on the pharmacist’s professional standard of care, which includes an obligation to ensure that medications are dispensed only for medically necessary purposes.

Jury questionnaires public records

cowdent@gtlaw.com (Tami Cowden) — Mon, 04 Jan 2010 15:44:04 -0800

In Stephens Media v. Dist. Ct., the Court determined that the press may intervene in a limited fashion in criminal cases to assert first amendment rights. The Court also determined that juror questionnaires used in jury selection are presumptively subject to public disclosure. The case involved jury questionnaires from the O.J. Simpson case.

Decided December 24, 2009. Hardesty authored the opinion, which was 6-0. Pickering recused.