Precision wording….the key to law.

Sims v. Budd Lerner P.C., 2012 WL 4741587, (Super.Ct., App. Div. N.J. Oct. 5, 2012) is a case which examines the legal malpractice case within the scope of a post-divorce settlement agreement. The Plaintiff hired the defendant attorneys in relation to a post-judgment matter.

Originally, the Plaintiff had filed for divorce in 1997, and a property settlement agreement was executed in relation to the divorce. Under the agreement, Plaintiff and his ex-wife owned a property together, and agreed that joint ownership would be maintained until one party decided to buy or sell out the other.

From 1998-2000, the Plaintiff loaned money to his ex-wife and made various mortgage payments on behalf of his ex-wife. In 2005, the Plaintiff’s ex-wife sent correspondence containing her desire to sell, while the Plaintiff wanted to retain the property because he believed it would be a nice retirement home.  In 2004, Plaintiff retained the defendant to provide legal services in relation to the make-whole clause of the original agreement.

The defendant requested loan documents from the Plaintiff which would substantiate the claims relating to the mortgage. In 2006, the defendant informed the Plaintiff he was closing the file because no correspondence had been received related to the loan documents. Ex-wife became ill and unfortunately passed away. During the pendency of the estate, Plaintiff contacted the defendant again to file a claim against the estate. At that time, the estate objected to the claim, and asserted a 50% interest in the claim to the property. The claim settled when the estate admitted that Plaintiff owned 100% of the property. The court believed this ownership interest was enough to reimburse the loans and mortgage.

In January 2009, the Plaintiff initiated this complaint for legal malpractice because he believed the defendant did not file a claim within the statute of limitations causing him to lose money from the loans and reimbursement of the mortgage. The defendant moved for summary judgment on the grounds that the statute of limitations did not begin until the property sale; the Plaintiff failed to provide evidence of the loan; and there was no damage. The Court sustained the motion and the Plaintiff filed this appeal.

Generally an attorney by law must exercise the skill, knowledge and ability of similarly situated members of the legal profession and to employ reasonable care in connection therewith. Legal malpractice claims require a plaintiff show an attorney-client relationship; breach of the duty of care by the attorney outlined above; and proximate causation of damages. If a Plaintiff fails to show any of these on summary judgment, the claim will be dismissed. After viewing the facts in the light most favorable to the Plaintiffs, as required by law, the appeals court upheld the motion for summary judgment.

One of the keys to this decision was the 2004 retainer agreement signed by the Defendant and Plaintiff. That agreement provided that scope of representation involved “a pending post-judgment matter”, as opposed to asking for representation expressly for reimbursement. Additionally, Defendant’s request for information did not relate to mortgages or loans. Also, in 2005, the Plaintiff in correspondence with his ex-wife admitted that reimbursement could be provided out of the closing. The court implied that this communication meant the Plaintiff did not hire the defendant in connection with the loan and reimbursement since the Plaintiff and his ex-wife had made agreements related to the reimbursement. However, giving the benefit of doubt to the Plaintiff, required finding that there was a retainer in 2004 related to the loans.

First, related to the Plaintiff’s argument that the defendant missed a 6 year statute of limitation in 2004, the Court found in favor of the defendant. This was especially so because the Plaintiff suffered no damages and was in fact made whole by taking the property.

Second, due to the requirements of legal malpractice, the Plaintiff had to show clear and convincing evidence in his claim against his ex-wife, which he could not do. Dead-man’s statutes require clear-and-convincing evidence in favor of the moving party in an action against a decedent, where the evidence in question is an oral statement. In this case, any action against Plaintiff’s ex-wife would have required clear and convincing evidence, because the Plaintiff admitted he would not have filed an action until after her death. Because of this admission, the Court ruled for the defendant on this issue.

Finally, the Court believed the actions of the defendant did not proximately cause damage. This burden on the plaintiff requires real damages, not conjecture according to the court. This means the case if filed appropriately would have been won, and a favorable recovery would have resulted. In this case, the Plaintiff could not prove proximate causation of damages. The court analyzed the implications of what a favorable award would have provided, concluding that such an award would have resulted in a windfall because the Plaintiff would have received the property and in addition to reimbursement.

This case shows not only the general elements of legal malpractice, but also the way in which rules of law are still applicable. A legal malpractice action is unlike many other torts because statutes like the dead-men’s statute can serve to bar a suit initially, and then the malpractice suit which may have resulted. Of course, the other lesson is that a Plaintiff can’t ask for more than 100%. Actions of law are to make people whole, not double there original value. This is not an innovative idea, but something all possible plaintiffs should keep in mind.

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Finding Your Way to a New Venue.

Lay et al. v. Bumpass, CA: 3:11-CV-1543 (M.D.P.A. 2012) is a case which examines the correct place to file a complaint for legal malpractice. This particular decision was based in part on the filing of the complaint in the Middle district of Pennsylvania based on diversity, meaning the plaintiffs were citizens making an allegation against a Defendant from a different state. The facts of the case are below.

Originally, Plaintiffs werePennsylvaniaresidents who alleged an injury based on the negligence of TSA. As a result, their claim was required to be filed under the Federal Tort claims act. The injury form negligence occurred inArkansas, and the Plaintiffs hired anArkansaslawyer to handle the case.

The Plaintiffs alleged that theArkansasattorney, representingPennsylvaniacitizens committed malpractice by failing to follow the standards of the act. Namely, the attorney failed to timely provide notice as required by the FTCA. Thus when Plaintiffs made their claim it was rejected by the TSA due to a violation of the statute of limitations. Plaintiff initiated this malpractice suit after the personal injury suit was rejected for being untimely. The defendant moved to dismiss the case for improper venue in the Middle district of Pennsylvania. The Plaintiff’s main argument that the suit should have been in the Middle district were that 1) the dismissal of their personal injury suit occurred in the Middle district, thus it is the place of injury and 2) all of their experts and evidence were located in the Middle district of Pennsylvania. The court dismissed both arguments. The main problem according to the court is that the FTCA sets out what should be used as venue in a personal injury case. Plaintiffs were alleging malpractice based on the personal injury case representation which is why the court went to the statute. According to the FTCA venue is proper where in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.

However, that governs the personal injury suit, not the legal malpractice. Thus the court had to go to tort law as opposed to federal law. The venue in discussion in this case was that of the legal malpractice case. There was not a challenge to the venue of the FTCA claim, since by statute that could have been prosecuted inPennsylvania. The Middle district adopted the same rule other courts used that venue is proper in the county where the negligence arose.

In this case, the Plaintiffs got in the door to Federal court based on diversity. Where jurisdiction of the Federal court is based on diversity, the court recognized that by statute the case may be brought in any district where the defendant resides; any district where a substantial part of the case took place; or any district in which any Defendant is subject to personal jurisdiction.

It was uncontested that Defendant did not reside inPennsylvaniathus, that rule was crossed out by the Court. Ditto for personal jurisdiction. Personal jurisdiction did not apply because the attorney fromArkansasdid not do any advertising inPennsylvania. Thus that left only the district where a substantial part of the events occurred.

The Court was then tasked with deciding what district that was for purposes of this case. To establish where the Plaintiffs were when the action occurs in a legal malpractice case involves analyzing the relationship between attorney and client. Based on precedent the court established that a telephone call to a client or a mailing does not establish venue. Neither does the fact that tortuous conduct occurs in one venue when the harm is felt in another. Thus both of those took out specific parts of Defendant’s conduct which caused harm to Plaintiffs. The court could not find acts of the Defendant which also gave rise to venue.

At this point, Plaintiffs were out of ammunition, because a finding of personal jurisdiction would have been a due process clause question which is an article for another day. Plaintiffs hired anArkansasbased attorney to prosecute their claim, thus the court found there was no intentional relationship withPennsylvania. Additionally, all aspects of representation occurred inArkansas, thus the court transferred the case accordingly.

The reason Plaintiffs seek to file in certain courts is based on remedies. While this case may seem to have been an open and shut instance of filing in the wrong venue, Plaintiffs attorney was attempting to utilize the strategic advantage Plaintiffs gain in his view. While it was unsuccessful, it is important to keep in mind the three ways a diversity suit may come under the auspices of a court which would seem not to have an interest. This is increasingly important given the inter-connectivity in the computer age.

 

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The Meaning of Esoteric.

            Vazquez v. Macri et al., No: A-3572-10T1 (N.J. Super. 2012) is a New Jersey state case which discusses when an expert is needed to define the professional standard of care. In the original trial, the case was dismissed in the defendant attorney’s favor because no expert witness was produced. On appeal, the Plaintiff’s main argument was that lay jurors could replace experts in this limited circumstance. The appeals court showed particularly why pre-litigation discovery, specifically depositions are so important in proper case preparation.

The attorney client relationship at issue arose when the Plaintiff hired the respective attorneys to represent her during the purchase of a home. Among the allegations, the most serious relating to malpractice was that the defendant failed to ensure that the home-seller delivered a document which showed all zoning was complied with required by the borough called a CCO. During a deposition taken prior to litigation, the defendant conceded he was responsible for the proper delivery of this document, as the purchaser’s attorney. He also testified in a deposition that the realtor gave him a document which purported to show the home was complying with more stringent codes. The problem with this more stringent document was it did not replace the legally required document which showed all zoning was in compliance.

The defendant testified during deposition about the routine practice he maintained related to real estate. In doing so, he described his routine checks during most closings, and acknowledged that in this case, he was unsure if he followed the correct routine in getting the CCO. The home closed in November 2006, and the case was brought in June 2008. The Plaintiff alleged she discovered the problem sometime in 2007.

After the facts, the court went to analysis of whether expert testimony was required for a case such as this. Legal malpractice in their words is a claim of negligence relating to an attorney’s representation of a client. In order to make out a proper claim, a person must allege facts which show an attorney-client relationship creating a duty; breach of that duty; and proximate causation of damages suffered by Plaintiff. The general rule which defines duty is that an attorney must use reasonable professional skill in carrying out representation.

Interestingly, the court defines the need for experts as arising in cases where “the matter to be addressed is so esoteric that the average juror could not form a valid judgment as to whether the conduct of the professional was reasonable.” Id. The court went on to state that the expert would then define the standard of care which jurors were to apply to the case.

On the other hand, expert testimony is not required when the duty owed a client can be determined by the court as a matter of law and where the breach is obvious. Expert testimony according to the court may not even be needed for proximate cause when it is simply a situation where a loss is caused by the attorney’s breach such that the judge can call it a matter of common knowledge. Common knowledge doctrine is best applied when attorneys have failed to fulfill the most basic obligations.

The court then went on to state that the cause of damages and viability of claim was not susceptible to expert testimony in this case. Mainly, the Defendant in his deposition, conceded that the borough required the CCO, as attorney he was responsible for getting the CCO, and he mistakenly believed the document delivered to him was the CCO. The court believed based on the facts of this case, an expert was not necessary for either showing the negligence or that the plaintiff suffered a loss from the harm.

This case is interesting because it seems to draw an unclear line in the sand. For instance, one can think of many obligations which are common knowledge such as deadlines and forgetting to attach documents. At what point however does a procedural rule which may be common to people with legal training become esoteric as opposed to common. Furthermore, at what point do an individual’s acts then cut off the proximate cause liability for which an expert is not needed? These are both questions which have no easy answer, and will be further refined as the courts become more adept at applying this rule.

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The Importance of Time in Employment Discrimination.

            Highwater v. Animus, CA No.: 12-3206, (E.D.P.A. Oct. 10, 2012) is an employment discrimination case. The main issue analyzed by the court is when an action must be brought to be within the statute of limitations. These issues are not as easy as one would think because the statute begins to run in employment discrimination cases from the point at which the discriminatory act is performed.

The case arose when the plaintiff, an African-American woman was demoted and given poor performance reviews. The employee was promoted in 2009, and believed the position was permanent. Then, in March, 2010, she believed she would be getting a pay raise. When the pay raise did not come, she complained to an ethics board, and was subsequently demoted. She also alleged that a Caucasian female was promoted over her, and that after her demotion a Caucasian male replaced her in her earlier position. Plaintiff again filed an ethics complaint, and claimed that as a result she was given a lower performance rating. As a result she instituted claims for race and gender discrimination under Title VII and the PHRA as well as an equal pay act claim. She received a right to sue letter from the EEOC on March 12, 2012, and then filed suit June 6, 2012. The defendants moved to dismiss the claims for Title VII and PHRA as time barred; additionally they moved to dismiss the equal pay act claims because the Plaintiff failed to allege a male employee received higher compensation for similar work.

As to the time-barred argument of Defendants, the court noted that the PHRA and Title VII overlap in this regard. Thus one analysis of time-lines is enough. In order to sue under either, the Court stated a plaintiff must exhaust administrative remedies by filing a charge with either the PHRC or EEOC. If filing with the PHRC, it must be done within 180 days of the alleged discrimination. If filing with the EEOC it must be within 300 days of the discriminatory action or within 30 days of receiving notice that the local agency has finished their investigation and dismissed the case. In this case, the Plaintiff filed her complaint with the EEOC on March 24, 2011. For the purposes of the complaint then, discrimination which happened on or after May 10, 2010 was sufficient for Title VII. On the other hand, PHRA claims had to have occurred on or after September 24, 2010. The plaintiff in this case failed to properly allege any discriminatory acts which occurred within these respective filing periods. In fact, when trying to use the continuing violations theory, the Court found that not even one act had been alleged to have occurred within the relevant time frame. As a result the Defendant won the motion to dismiss both these claims as time-barred.

An equal pay act claim is a bit different than the other claims because it requires a plaintiff to demonstrate that employees of the opposite sex were paid differently for performing work of substantially equal skill, effort and responsibility, under similar working conditions. Under the equal pay act, a claim must be brought within 2 years if the violation is not willful and within 3 if it is willful. Plaintiff did not have to exhaust administrative remedies for this claim; however, any acts which the claim was based on had to have occurred within the relevant period. As a result, alleging on June 6, 2012 that a non-willful act occurred in March, 2010 essentially was not actionable. The other problem the Court had was even if the plaintiff was given the more favorable 3 year period, there was no allegation that the male employee was paid any differently. As a result, the Defendant’s motions were granted.

This case is a good example of the highly structured nature of employment discrimination claims. While the cases may be difficult to prove, it is more important that dates are observed. Consider in this case, had the Plaintiff filed her EEOC complaint as soon as a negative employment act occurred, and then there would not have been a statute of limitations problem.

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Arbitration Agreements and the Employment Relationship.

Wagner v. Open Road Auto Group, No.: A-5312-10T3, (N.J. Super. App. Div. Jan. 10, 2012) is an employment discrimination case which analyzes the impact of arbitration agreements on discrimination claims. Many times, when employment is offered to a person, the employment may be conditioned upon acceptance of an arbitration agreement. In this case, the Plaintiff reported a supervisor’s sexual harassment of other employees to a supervisor. After reporting said conduct, he was fired, for what he alleged was complaining to authorities. The arbitration agreement signed during employment stated:

any claim, dispute, difference, or controversy, whether or not related to or arising ou[t] of the employment relationship, and including any claim, dispute, difference, or controversy (i) arising under federal, state or local statu[t]e or ordinance (including claims of discrimination and harassment); (ii) based on any common-law rule of practice, including breach of contract or fraud; (iii) involving the validity or interpretation of this [a]greement; or (iv) any other claim, dispute, difference, or controversy whatsoever.

When the suit made its way to court, the defendants argued that all claims were barred, and that instead the case was required to go through binding arbitration. This decision discussed why the court agreed with the defendants’ interpretation, instead of with the lower court which felt the clause was too broad and could not encompass this claim.

According to the court,New Jerseyhas a strong public policy favoring arbitration. Agreements to arbitrate should be read liberally to allow parties to waive statutory remedies. The court’s feelings on arbitration should be limited by certain principles. An arbitration agreement should clearly state its purpose. A waiver of statutory rights must be unambiguously stated such that contractual language alleged to be a waiver should not be read expansively.

The court needed to decide only what is necessary then to waive access toNew Jersey’s anti-discrimination statutes. To be a valid waiver, the clause alleged to waive access to the courts should provide that the agreement to arbitrate waives rights related to the employment relationship or its termination. Similarly, when doubtful, the arbitration agreement should be read against the employer.

In this case, the Court decided that the claim needed to be submitted to arbitration. The clause shows what sorts of claims are contemplated by the clause, as well as the fact that it says whether or not related…to the employment relationship. The court held this employee was subject to the arbitration agreement.

The reason this case is important is because it represents a way in which an employer can be ahead of the game prior to employment discrimination suits. By waiving access to courts, and instead utilizing an arbitrator, employers can avoid jury trials. They instead go before a neutral decision maker who may be an expert in the area, and thus lose the courtroom of their choice. It is an interesting litigation strategy that is commonly used, and in this case was valid.

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The Attorney-Client Privilege: It’s Place in Legal Malpractice.

Often times, the attorney-client relationship is noteworthy for the confidentiality which is imbued within communications between the parties. Thus, when a plaintiff files a legal malpractice action, certain privileges relating to representation are automatically waived. What those privileges are is not always the same. This issue is seen in an order from O’Kinsky v. Perrone, CA: No. 10-6075, Memorandum Order (October 11 2012, E.D.P.A.). The case was a malpractice action filed against a defendant law firm, but did not include the lawyer who actually represented the plaintiff. During the ensuing deposition, defendants’ attorneys asked questions of the plaintiff which were objected to on the basis of attorney-client privilege.

The attorney-client privilege has been enacted in order to protect the confidentiality of communications made for the purposes of representation. In order for communications to be given this status, they must be made without the presence of strangers for the purpose of securing legal advice. The questions of waiver regarded whether 1) filing a malpractice action alone is a waiver and 2) by partial disclosure of the legal advice in an email to 2 defendants.

The court found that the Plaintiff did not waive attorney-client confidentiality by filing the malpractice action. Generally, the privilege is waived when a plaintiff sues a former attorney related specifically to that representation. In this case, the Plaintiff did not file an action against his former attorney. The claim was against parties unaffiliated with the original attorney. Thus, when the defendants’ attorneys asked questions in a deposition about this representation, relevance alone did not waive the privilege.

The other issue which the court was concerned with was the presence of a disclosure in an email sent to multiple defendants. During the negotiations of the underlying business dealings with defendants, the Plaintiff revealed his attorney’s opinion that the business deal was a bad one. Based on the contents of the letter, the court granted a limited waiver of attorney-client privilege. The e-mail served as a waiver of only what was in that e-mail.

In not granting a full waiver, the court noted that often times plaintiffs disclose certain privileged materials in an attempt to both use the privilege as a shield and sword in litigation. In situations such as that, courts have recognized an implied waiver of attorney-client privilege. The waiver is implied because of the fairness doctrine which allows the court to prevent prejudice resulting from selective disclosure.

The court noted that the fairness doctrine is used when communications are during pending litigation. If a person discloses selectively before litigation, as the plaintiff did here, not purposely, but to advise plaintiffs that his attorney advised he not proceed with the deal does not count as selective disclosure. The plaintiff was not using the privilege to prejudice his adversaries’ prejudice, and as a result, full disclosure would not be an equitable remedy.

This case does not directly impact the majority of legal malpractice cases. It is important to note that if there is a legal malpractice action, the disclosure made way before litigation will not affect attorney-client privilege for the most part. This will of course change if instead the privilege is claimed in an action against an attorney relating to their representation, because by bring the action, the privilege is waived.

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Transactional Legal Malpractice: A Difficult Task.

Often times, the most difficult legal malpractice cases are those involving transactions. Generally, this is a more difficult case because there is no formal deadline, or process such as in litigation. Jobar Realty Co, Inc. v. Tombalakian et al., No.: A-3660-10T1 (N.J. Super. Ct. App. Div. Mar. 26, 2012) is case where a court took the time to explain legal malpractice elements as it applies to a situation outside the litigation arena.

Jobar was a company which owned a small strip-mall plot, and was looking to conduct a real estate land transfer. One of the conditions of settlement was that a clearance be acquired from the New Jersey Department of Environmental Protection. The attorney first enlisted for the property matter was not specialized in environmental matters, thus, they associated with Tombalkian.

In an effort to bring the property up to environmental code, settlement negotiations opened between the Plaintiff, and one of his former tenants who had previously inhabited and polluted the site. On February 23, 2004, the former tenant’s attorney offered a settlement proposal of $14, 510 which included certain terms of non-admission of guilt. Tombalkian forwarded the offer to the Plaintiff, and advised that it was lower than the initial demand. Tombalkian also advised that the choices were to try and get to the demand of $21,000 or to begin a lawsuit. She also advised that a lawsuit would be a costly endeavor.

On May 28, in an e-mail, the Plaintiff was informed that he should begin to get the settlement money as soon as possible to pay off interest accruing debt. He was also advised that the insurance company wanted a settlement agreement to review. At this point, the Plaintiff responded that he was unaware the insurance company would be handling the claim, and believed the individual tenant was paying out of pocket.

The Plaintiff complained about Tombalkian’s handling of the case was responded to on June 21. On August 31, the insurance company forwarded settlement documents to be signed. On September 30, the Plaintiff advised that he would not be signing the documents releasing the insurance company from cleaning up their own mess. He then instructed Tombalkian to do all he could to ensure that the insurance company would comply.

On October 1, Tombalkian told the Plaintiff that he was bound to honor the agreement. Furthermore, he stated that he had performed his tasks, and that if it were unacceptable, new counsel should be sought. Plaintiff sent an e-mail October 4, advising why he took so long to object to the agreement, and that his concern was future liability. On October 21, the Department of environmental protection refused to clear the site.

As a result, Plaintiff spent $6300 for an engineer to remedy the site. Additionally, because buyer’s lender would wait no longer, $10,000 was lost in escrow. On May 5, 2005, represented by new counsel, the Plaintiff sued the original tenant, and the insurance company. The court found the agreement enforceable. There was no unilateral mistake, or requirement that Plaintiff be informed of insurance coverage. After receiving settlement check in July, 2008, Plaintiff filed suit on January 21, 2009. The allegations were legal malpractice by wrongfully advising that Ryan had no insurance.

To show legal malpractice generally requires evidence of an attorney-client relationship creating a duty, breach of that duty, and proximate causation of harm. An expert’s opinion is required to show a breach of duty when it is not the type that a layperson would be aware of. In this case, the critical issue was whether there were damages stemming from the breach. The plaintiff’s expert testified to the duty, and breach, but the defendants contended that any breach did not prevent damages.

In order to show proximate causation, a plaintiff must show competent, credible evidence that the defendant’s negligent conduct was a substantial factor in bringing about the complained of injury. Damages in legal malpractice are generally considered to be the amount a person would have received absent an attorney’s negligence. This is proven by the suit within a suit method whereby a plaintiff generally shows he would have recovered in a suit against the underlying defendant; the amount of that judgment; and the degree of collectability of that judgment.

The difficulty in this method is shown in transactional practice where instead of using the underlying suit as a standard; a plaintiff must show that negligence was a substantial factor in bringing about the loss of a gain or benefit from the transaction at issue.  In this case, the plaintiff alleged damages stemming from the subsequent hiring of an attorney, and the fact that he would have recovered damages from an insurer.

The court ultimately rejected these claims as conjecture. There was no proof that an insurance company had agreed to pay more than that settlement already agreed upon. Additionally, the costs of suit were not suitable damages, because Tombalkian advised that a suit might be prohibitive due to the costs, thus there was no remuneration available. The court watered the argument down to the premise that “there would not have been a settlement if the plaintiff was aware of the insurer.” The plaintiff failed to produce evidence that knowledge of this fact would have led to a greater settlement, thus damages were not proven.

This case certainly opens a Pandora’s Box of “what-if?” There seems to be an imprecise guessing game concerning what damages are allowable in a transactional setting. For example, based on the analysis had the Plaintiff been able to prove that Hartford had a greater settlement amount offered on the basis of acknowledging coverage, then perhaps legal malpractice would have been proven. This case is important not for what it contains as far as malpractice by an attorney, but rather because it is part of the outline of acts not considered to be malpractice.

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When was the Discrimination?

Seltman v. Exelon Corp.,C.A. No: 11-07195 (E.D.Pa. 2012) is an employment discrimination case fromPennsylvania. The main import of the case is that it analyzes when the statute of limitations begins to run on a case of employment discrimination. A typical case of employment discrimination involves the discrete act making up the discrimination, the termination, and then a filing of a charge with the respective administrative agencies. Theoretically, these times should all be concrete, however more often than not it is a nebulous concept. This case involves some discussion of waiver of rights but the crux of the case is the timeliness analysis.

In this case, the Plaintiff, Seltman, was working for Exelon in 2007, when the company began an investigation into sexual assault claims. Seltman worked in a nuclear power plant, and thus had certain security clearances which allowed access to and from his workspace. However, a month after questioning, approximately May 24, 2007, he was informed that his access was being cancelled. As a result, he appealed this decision, and again on September 14, 2007, was informed that he had 90 days to find employment with Exelon which did not involve unescorted access. On November 19, 2007, Exelon terminated Seltman. As a result of his dismissal, Seltman filed a claim with the EEOC which was cross-claimed with the state agency on September 27, 2008.

When Seltman brought suit in Federal court, the defendants challenged the timeliness of his charge. Exelon argued that Seltman could not win on any charge because he had waited until the statute of limitations had passed.

The 3rd circuit has developed large amounts of case-law which provide assistance in interpreting employment discrimination laws. The statutes require that PHRA claims, those with the state agency must be filed within 180 days of the adverse decision. EEOC claims, those arising under Federal laws must be filed within 300 days of the adverse employment decision.  An adverse employment decision occurs when an employee receives notice that termination is an inevitable result. Thus, if a person receives a 2 week notice for example that would be the date from which the statute runs.

Several other cases were analyzed. One prominent case, Watson v. Eastman Kodak Co., 235 F.3d 851 (3d Cir. 2000) involved a somewhat similar situation. The court found that in that case, a person was notified of a job demotion by letter, and not on the date of actual termination. The employee was demoted and then failed to find another position within the company in the 31 days required in a demotion letter. The plaintiff in that case argued that the possibility of continued employment meant the date was pushed forward to actual termination. However, the court disagreed, and the statute of limitations ran from the date the demotion letter was received. Because the earlier date was more than 300 days before an EEOC charge was filed, the court held it was untimely.

In this case, the Court undertook a similar analysis. The charge was filed September 27, 2008. The court then based on this date, held that any discriminatory act would have had to occur after December 2, 2007 to be timely. Similarly, any possibility of continued employment does not change the date of notification for statutory purposes. Another problem was that the discrimination charge was not based on termination from his position but restricting unescorted access, thus taking the date from which the statute ran further back. The court thus dismissed the case as untimely.

This case shows that while employment discrimination may occur, and there are certain elements which must be met, the first step is time. Failing to allege discrimination with the proper agencies within 180 days or 300 days could signal a death knell to a case. In Seltman’s matter, the court notably did not address whether there was discrimination because it was a needless examination. The defendants were able to show the charge was untimely, and thus the plaintiff’s case ended before it began.

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What is in a Complaint?

Manley v. Memorial Hospital of Salem, C.A. No.: 11-2117, (D. N.J. 2012) is a case which is important because it states the standard of what should be contained in a hostile work environment complaint. A complaint is the legal document by which a party institutes a lawsuit. Within the document, a party must specify the facts which give rise to the complaint. As you will see below, courts look for certain elements in reading complaints.

In this case, the Plaintiff alleged that her former employer, the hospital discriminated against her based on race. Her allegation of discrimination was called a hostile work environment claim. Within her complaint, the Court pared the discrimination down to one paragraph which stated:

“Defendant, through its employees and agents, discriminated against plaintiff in sundry manners which included, but were not limited to advising her that they would “get rid of her” because she was African American, assigning her less favorable work shift based on her race, isolate her from other workers because of her race, assigning her less favorable assignments because of her race, allowing the use of racial slurs, all of which created a hostile work environment, based on plaintiff’s race.”

This was the allegation the court focused on, and the defendant in response filed a motion to dismiss.

To continue the case, the complaint must allege facts that raise a right to relief above a “speculative level.” Courts construe this idea as meaning that if a court accepts as true what is contained in the complaint, and then there must be an inference of wrongdoing. The caveat however, is that the court does not accept sweeping legal conclusions. Thus, in this case, during the analysis based on these factors, the court determined that parts of the complaint should be dismissed.

The court analyzed the elements of a hostile work environment claim, and stated that in order to survive a motion to dismiss, the complaint needed to allege that Manley suffered intentional discrimination as a result of her membership in a protected class; the discrimination was pervasive and regular; the discrimination detrimentally affected her; the discrimination would have similarly affected a reasonable person in the same situation; and finally, a basis for holding the employer responsible.

The court then looked back at the above paragraph and determined certain parts were considered legal conclusions. The first allegation of “through its employees and agents” was considered a legal conclusion, as was the statement “all of which created a hostile work environment, based on plaintiff’s race.” The court then accepted the rest of the paragraph as written.

However, once those other paragraphs were dismissed, the Plaintiff was missing several elements of her claim. She could show membership of a protected class (African-American); however the court stopped once it had to analyze the pervasive and regular prong. Because the complaint failed to state how many incidents of discrimination occurred, the Court could not answer whether the discrimination was considered severe and pervasive.

As a result of the court’s analysis, the Plaintiff’s complaint was dismissed without prejudice. This alone, means that the Plaintiff could have amended the complaint and re-filed it within the time given by the court. However, this also means that time would have passed, and Manley’s memory or witnesses may have been less crisp.

Most importantly, this complaint should be used as a lesson. There are certain elements which a complaint must allege. These are factual elements, which must meet the legal requirements. However, in this case, the complaint failed to properly detail the incident giving rise to the claim, and thus was dismissed at first. Discrimination claims are especially fact-intensive, which is why this is an important case for people who have suffered discrimination.

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The Merits of being Timely

Slewion v. Weinstein et al., CA No. 10-CV-5325, (E.D.PA August 6, 2012) is a case which involved a summary judgment motion based on a lack of certificate of merit. The plaintiff in the case was unable to produce the certificate of merit upon request by the court. This case was chosen because despite the rather commonplace certificate of merit absence, it also involves the court detailing certain situations where a plaintiff was allowed to move forward without a certificate of merit.

The case arose based on an accident in which the plaintiff Slewion was injured while staying at a hotel. As a result of his injury, he brought a personal injury suit against the hotel where the injury occurred. The plaintiff then selected Weinstein and his law firm, but brought this complaint after he alleged the defendants did not request a jury trial, nor did they request the correct damages. He won an arbitration case, and then appealed the arbitration in an effort to get a higher award. However, the plaintiff failed to appear at the arbitration appeal, and thus his case was closed. An interesting aside in this case is that the case was in Federal court because the plaintiff was a Liberian citizen, thus a claim which would otherwise have been litigated in State court was allowed to move forward in Federal court.

Following the appeal loss, the plaintiff filed this lawsuit in October, 2010. In response to the claims, the defendant attorneys used various legal devices in an effort to have the case dismissed. Finally, the court decided to hold a hearing on the motion to dismiss, which requires a showing that the claim alleges an action for which the court cannot grant relief.

The court first laid out the elements to win on legal malpractice inPennsylvania, or at this point in the case, to at least survive.Pennsylvaniarequires a plaintiff establish employment of an attorney or other basis for duty; failure of an attorney to exercise ordinary skill or judgment; and that the attorney’s actions were the proximate cause of damages. The other requirement is that once a suit is alleged, a plaintiff must file the certificate of merit within 60 days of the law suit filing. This is an effort to keep frivolous legal malpractice suits from reaching the court system.

One important aspect of the certificate of merit is that the Federal court considered it a substantive rule as opposed to a procedural rule. If it were a procedural rule, then the rules of Federal court would have been controlling. However, the court noted that as a diversity court applying a rule of substance, they were required to apply the certificate of merit requirement. That is to say, there may be a different rule depending on what State’s law applies.

After the suit was filed, no certificate of merit was forthcoming. The first thing the court does is to exemplify the plaintiff’s lack of actions relating to expert testimony or that the case is one where an expert is not required. Had either of these facts existed, then the plaintiff may have been able to avoid the request for a certificate of merit.

The court also noted there was no excuse presented by the plaintiff for the lack of a certificate of merit. Despite the defendants raising the issue there was no “reasonable excuse for noncompliance.” It is interesting that when the court cites this proposition, a case is cited which allowed for an untimely filing of a certificate of merit based on substantial compliance where a plaintiff compiled reports, and filed necessary documents for extensions, thus meeting the technical requirements of the rule. It suggests that a court would allow an untimely certificate of merit as long as a plaintiff shows an effort to work within the boundaries created by the rule, mainly to ensure that a suit is not frivolous.

After the court addressed the lack of certificate of merit, a discussion is maintained concerning the status of the case. Generally, when a plaintiff fails to file a certificate of merit, the case is marked as non-pros and a litigant is allowed to refile with the proper paperwork (without prejudice). The caveat is that it is without prejudice so long as the claim is still within the statute of limitations. This was another shortfall by the plaintiff. The lawsuit was automatically dismissed with prejudice because an attempt to refile the suit would have been done outside the statute of limitations. While the plaintiff failed to attain a certificate of merit, the claim lapsed, and thus, he could not pursue a charge after this dismissal.

Thus, in this case the plaintiff failed on two accounts; time and merit. It serves as a lesson that if a suit is to be filed alleging legal malpractice, there should be a clock ticking down 60 days before the suit can be overcome based on lack of certificate of merit. The other lesson is that time stops for no one, and in this case, the plaintiff waited himself into the statute of limitations and lost any chance to succeed on his claim.

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