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Case Updates from United States Supreme Court, Fifth Circuit, Eighth Circuit, and Eleventh Circuit

United States Supreme Court

  • Civ. Pro.: Jurisdictional v. Mandatory Processing Rules

Hamer v. Neighborhood Hous. Servs. of Chicago, No. 16-658, 2017 WL 5160782 (U.S. Nov. 8, 2017):  The U.S. Supreme Court clarified whether the time allowed to file appeal under 28 U.S.C. § 2107(c) is a jurisdictional rule (a statute imposed deadline that necessitates dismissal of the appeal if not complied with) or a mandatory claims-processing rule (a court imposed rule which may be waived).  The Court explained that when notice of the entry of judgment is timely, Fed. R. App. P. 4(a)(5)(C) sets forth a 30 day time-limit for appeal.  Since that time-limit does not have a statutory basis, it is a mandatory claims-processing rule and, thus, may be waived.  However, when notice is not timely, the 14 day time-limit within 28 U.S.C. § 2107 applies and is jurisdictional.  The Court explained that “[b]ecause Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in § 2107(c), that limitation is more than a simple claim-processing rule.”


Fifth Circuit 

  • FLSA / Portal-to-Portal Act

Bridges v. Empire Scaffold, L.L.C., 2017 WL 5184256 (5th Cir. Nov. 9, 2017): Empire employed plaintiffs to erect and dismantle scaffolding. Plaintiffs sued Empire for failing to compensate them for pre-shift wait time under the FLSA.  Empire claimed that the Portal-to-Portal Act, which exempts employers from liability for claims that arise from traveling to or from work and activities that are preliminary to work, precluded plaintiffs’ claims.  The court applied the “integral and indispensable test” and held that while reporting to the right location on time was intrinsic to efficiently implementing the plaintiffs’ work, the time spent waiting for principal activities to begin wasn’t. Since the wait time wasn’t tied to or necessary to the erection and dismantling of scaffolding (the principal work activities), the court held that the time wasn’t compensable under the Portal-to-Portal Act.


  • Negligence & Premises / Product Liability

Latory Jones v. Family Dollar Store of Louisiana, Inc., 2017 WL 5186866 (E.D. La. Nov. 9, 2017):  The court applied the duty-risk analysis implemented in negligence cases to hold that a retailer’s scope of duty to reasonably maintain its premises does not encompass ensuring that a third-party does not remove a shopping cart from the premises and leave it in a distant roadway.


Jones v. Family Dollar Stores of La., Inc., 2017 U.S. Dist. LEXIS 196802 (E.D. La. Nov. 30, 2017):  Plaintiffs argued that the Gatekeeper wheel-locking system on the defendant’s shopping carts was unreasonably dangerous because the wheel lacked reflective tape to make it more visible.  Using the duty-risk analysis of proximate cause utilized in Louisiana product liability cases, the court held that making the carts more visible was not within the scope of Gatekeeper’s duty because the intended purpose of the wheel-locking system was to prevent shopping carts from leaving a retailer’s premises.

  • Slip and Fall

Moses v. Wal-Mart Stores, Inc., 2017 La. App. LEXIS 2214 (La. App. 3 Cir. 11/29/17):  Video surveillance showed that the plaintiff’s friend was holding a Subway cup when she turned down a store aisle but was not holding it when she exited the aisle.  One minute later, the plaintiff slipped in the spilled Subway soda.  The appellate court reversed the trial court’s decision denying Wal-Mart’s summary judgment, reasoning: (1) plaintiff didn’t offer positive evidence that the spill existed for such a period of time that Wal-Mart, in exercising reasonable care, would have discovered it, and (2) plaintiff didn’t present any evidence of Wal-Mart’s clean-up policies or any evidence that a Wal-Mart employee should have noticed the spill.

  • Beneficiary Standing

In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, 2017 WL 5625811  (E.D. La. Nov. 22, 2017):  The decedent’s wife filed and settled all claims in a limitation action. Months after the settlement, the decedent’s mother filed a DOSHA claim.  When defendants filed to dismiss the action based on standing, the decedent’s mother presented an order from a Louisiana state court appointing her as the decedent’s personal representative. The court dismissed the case, holding that it was not aware of precedent allowing “the serial appointment of putative beneficiaries as personal representatives in maritime wrongful death cases to pursue their own individual claims when a duly-appointed personal representative has already compromised and settled those claims.”

  • Insurance Policy Interpretation:

Richardson v. Zurich Am. Ins. Co., No. CV 17-571, 2017 WL 5499792 (E.D. La. Nov. 16, 2017):  The question was whether a plaintiff, a trucker on his way to get a replacement tire, was “in the business” of his employer at the time another driver hit him.  The court considered whether the plaintiff was on standby for a delivery at the time of the accident or whether he was conducting personal activities. Ultimately, the court held that the plaintiff was acting “in the business” of his employer as contemplated by the insurance policy because he was performing required maintenance on the truck and moving in the direction of the next load.


Eighth Circuit

  • Insurance: Policy Interpretation

Aziz v. Allstate Ins. Co., No. 16-3888, 2017 WL 5489693 (8th Cir. Nov. 16, 2017): The Eighth Circuit affirmed summary judgment in favor of an insurer because: (1) plaintiff failed to present any evidence of the home’s value immediately before the fire destroyed it; (2) pictures did not establish the home’s value after the fire; and (3) there was no evidence of the value of personal property.  The court held that evidence of the home’s value at the time of purchase didn’t suffice to calculate “actual cash value” because it did not account for deterioration, obsolescence, or other depreciation as required by the policy and under Missouri law.


Doe Run Res. Corp. v. Am. Guar. & Liab. Ins., 2017 WL 5078078(Mo. Oct. 31, 2017): The court considered whether an insurance policy’s general pollution exclusion bars defense coverage of a toxic tort claim arising from alleged industrial pollution.  Doe Run, a producer of lead, was sued by several minor plaintiffs allegedly injured by toxic pollution released from Doe Run’s smelting facility in Peru.  When its insurer filed for summary judgment, Doe Run claimed that the policy’s pollution exclusion, which defined pollutant as “any solid, liquid, gaseous, or thermal irritant or contaminant,” was ambiguous.  The Missouri Supreme Court disagreed, noting that lead is undoubtedly an irritant or contaminant when released as particulate matter into the environment.  The court then held that Doe Run’s reliance on Hocker Oil Co. v. Barker-Phillips-Jackson, Inc., 997 S.W.2d 510 (Mo. App. 1999) was misplaced.  The exclusion in that case, which didn’t define gasoline as a pollutant, was ambiguous as to a gasoline company specifically because gasoline was the company’s product.  Since toxic emissions were not Doe Run’s business products, the court held that Hocker did not apply and the pollution exclusion unambiguously barred coverage.


Eleventh Circuit

  • Maritime Negligence

Gorczyca v. MSC Cruises, S.A., 2017 U.S. App. LEXIS 22108 (11thCir. Nov. 6, 2017): 

A cruise ship passenger was allegedly injured while descending a stairway in a shipboard theater.  The court held that she failed to create an issue of fact as to whether the cruise ship company had prior actual or constructive notice that the metal nosing on the strip of the step on which she tripped was loose, that the LED lights attached to the strip emitted a blinding glare, or that there was no handrail for her to hold onto as she descended the steps.  Under maritime law, the owner of a ship in navigable waters owes to passengers the duty to exercise reasonable care under the circumstances.  Plaintiff failed to present evidence that the defendant had actual notice of any of the three allegedly dangerous conditions or any evidence of prior accidents substantially similar to hers that would provide the defendant with constructive notice.

  • Maritime Liens

Barcliff, LLC v. M/V Deep Blue, 2017 U.S. App. LEXIS 24187 (11th Cir. Nov. 30, 2017):  The court held that the district court did not err in finding that a subcontractor, who acted on the order of an affiliate of a global marine fuel supplier (not the vessel owner), did not have a maritime lien on a vessel.  The subcontractor also failed to present evidence that it fell into the significant-and-ongoing-involvement exception, therefore that argument was not preserved on appeal.  The court further found that the fuel supplier had a lien on the vessel because it provided the bunkers to the vessel within the meaning of 46 U.S.C. § 31342(a) and that the supplier assigned the lien to the assignee under a security agreement.

  • Discovery: Inspecting Telephones

DONELL L. TILLMAN v. ALLY FINANCIAL INC., Defendant.,2017 WL 5187748 (M.D. Fla. Nov. 9, 2017): Plaintiff claimed that the defendant violated the Telephone Consumer Protection Act by continuing to call his number after plaintiff asked to be removed from the call list.  In discovery, defendant requested to inspect the plaintiff’s telephone and then filed a motion to compel when the plaintiff did not provide it.  In ruling that defendant was not entitled to the phone, the court noted that the record already established that the plaintiff routinely received calls from the defendant, the district’s discovery rules allowed inspection of similar devices only in exceptional circumstances, and the motion to compel was untimely.