Defendants may have greater access to federal appeals courts thanks to a recent Supreme Court decision concerning district court remand orders. The Supreme Court recently settled a circuit split over the authority of federal appeals courts to review district court remand orders, as well as the scope of that review, under 28 U.S.C. § 1447(d). In BP P.L.C., et al. v. Mayor and City Council of Baltimore, the court held that appellate courts have jurisdiction to review all of a district court’s grounds for remand — not just those based on the propriety of federal officer or civil rights jurisdiction — where the case was removed, based at least in part on 28 U.S.C. §§ 1442 and/or 1443.

The case was originally filed in Maryland state court by the City of Baltimore, which alleged that the defendant energy companies caused the city to sustain injuries related to climate change. Two defendants removed the case to the United States District Court for the District of Maryland on several grounds, including federal officer jurisdiction. The defendant energy companies asserted that they were acting under the direction of federal officers in light of their alleged contractual obligations to the U.S. government. The city moved to remand the case, arguing that the federal court lacked subject matter jurisdiction.

The district court agreed with the city and entered an order of remand, saying in part that federal officer jurisdiction was lacking. Immediately after this decision, the defendants attempted to secure a stay of the remand order from both the district court and Fourth Circuit Court of Appeals. Both courts, however, denied defendants’ efforts to stay the remand order pending appeal, finding that defendants were unlikely to prevail on appeal.


Continue Reading Supreme Court settles circuit split over remand orders under 28 U.S.C § 1447(d)

Considering a rarely invoked provision, the Delaware Superior Court interpreted a Delaware Constitutional provision prohibiting individuals convicted of certain crimes from holding elected office. President Judge Jan R. Jurden granted the State of Delaware’s motion to bar former Town of Newport (“Newport”) Police Chief Michael Capriglione from taking office as a Newport Town Commissioner despite his election to the position earlier this year in State of Delaware, Ex. Rel. Kathleen Jennings, Attorney General v. Michael Capriglione, and Town of Newport, C.A. No. N21C-04-091 JRJ (Del. Super. May 4, 2021). [1] She ruled he was ineligible for the office because his prior conviction for misdemeanor Official Misconduct was an infamous crime under Article II, Sec. 21 of the Delaware Constitution.

On April 5, 2021, Newport elected Michael Capriglione to serve as a Commissioner.  Newport has a Council-Manager form of government with five Commissioners forming the town council, including the Mayor.  On May 19, 2018, while serving as Police Chief and on his way to teach a defensive driving course, Mr. Capriglione backed his police car into a parked car in the police department’s parking lot.  A surveillance camera recorded the collision, and Mr. Capriglione later ordered the deletion of the surveillance video capturing the collision.  As a result, a grand jury indicted him, and he eventually pleaded guilty to Careless or Inattentive Driving and Official Misconduct (resulting from the deletion of the surveillance video), both misdemeanor convictions.


Continue Reading Delaware Judge Bars Town of Newport Commissioner from Taking Office

The United States Supreme Court is expected to resolve a critical circuit split this term concerning a defendant’s right to appeal orders of remand based on several grounds when removal from state to federal court is triggered by federal officer or civil rights jurisdiction. To do this, the Court must examine the plain language and legislative intent of at least six different provisions contained in Title 28 of the United States Code, clarify the duties of the Courts of Appeal, and potentially even redefine the meaning of an “order” that is issued by a U.S. district court.

On January 19, 2021, the Court heard oral argument in BP P.L.C., et al. v. Mayor and City Council of Baltimore.  This case – which garnered the attention of nearly two dozen amici curiae, including the United States government and the United States Chamber of Commerce – was originally filed in Maryland state court by the City of Baltimore (the “City”).  Mayor and City Council of Baltimore v. BP P.L.C., et al., 388 F.Supp.3d 538, 568 (D. Md. 2019).  The City alleged that the defendant energy companies caused the City to sustain injuries related to climate change.  Id. at 548.  Two of the defendants removed the case to the United States District Court for the District of Maryland on several grounds, including federal officer jurisdiction.  Id. at 567.  The defendant energy companies asserted that they were acting under the direction of federal officers in light of their alleged contractual obligations with the U.S. government to supply fuel to the U.S. Navy.[1]  Id. at 568.


Continue Reading Removal, Remand, and Appeal: A Weedy Issue of Orders, Statutory Language, and Jurisdiction Under SCOTUS Review

Punitive damages are meant to serve two purposes: punish the defendant for the conduct at issue in the lawsuit and deter similar conduct in the future. But, sometimes a punitive damages award goes beyond serving these two purposes and moves into the territory of violating the Due Process Clause of the 14th Amendment to the United States Constitution. The 14th Amendment, through the Due Process Clause, prohibits the imposition of grossly excessive or arbitrary punishments.

Punitive damages are allowed in California under California Civil Code section 3294(a), which states “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Although California law does not define “clear and convincing evidence”, it carries a higher burden of proof than “preponderance of the evidence,” which is the burden of proof necessary to prevail in a civil lawsuit. In determining whether to award punitive damages, the jury considers: (1) the reprehensibility of the defendant’s conduct; (2) whether there is a reasonable relationship between the amount of punitive damages and the plaintiff’s harm; and (3) what amount will punish the defendant and discourage similar future conduct. In determining this amount, the jury considers the defendant’s financial condition. In California, there is no official cap on punitive damages.
Continue Reading Excessive Punitive Damages Awards Continue To Be An Issue In California

In September 2018, Governor Jerry Brown signed a series of bills aimed at drastically reshaping California’s approach to claims of discrimination and harassment amidst the “#MeToo” Movement. Among the legislation is Senate Bill 1300 which clarifies and expands employee rights under the California Fair Employment and Housing Act (“FEHA”). SB 1300, which was met with both opposition and support, became effective January 1, 2019. In addition to Senate Bill 1300, Gov. Brown also signed into law a series of bills on issues relating to workplace harassment, gender equality and human trafficking.

CALIFORNIA SENATE BILL 1300: HEIGHTENED EXPOSURE FOR EMPLOYERS

SB 1300 intends to close loopholes in the law that discourage or prevent victims from speaking out, and allow employers to avoid sexual harassment and discrimination laws and leave employees vulnerable to sexual harassment at work. In an attempt to aid these efforts, SB 1300 provides the following enhancements, further described below: 1) a new “single occurrence” standard for sexual harassment cases; 2) increases the challenges of recovering litigation costs for defendants; 3) potentially holds employers liable for third-party harassment; 4) prohibits release of both claims and non-disparagement agreements; and 5) provides for workplace accommodation and bystander training.

“SINGLE OCCURRENCE” STANDARD

One highly significant implication of SB 1300 is that it now makes a single instance of sexually harassing conduct a potentially triable sexual harassment claim by statute. Under FEHA, action was required to be so “severe or pervasive” so as to create a hostile work environment before it was actionable. However, the term “severe or pervasive” was subjective, leaving room for interpretation as to what conduct would be significantly severe or pervasive to support a claim under the existing law. For example, in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), the Ninth Circuit Court of Appeals found that an employee touching another employee’s chest under her sweater was not significant enough to rise to the level of “severe or pervasive,” and, thus, granted the employer’s motion for summary judgment.

SB 1300 narrows the definition of “severe or pervasive” by clarifying that a single incident of harassing conduct is sufficient to create a triable issue, so long as the conduct limited the employee’s work performance or created a hostile work environment. The Legislation specifically rejects the court’s holding in Brooks and states that the case opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the FEHA.

Of significance to litigation resulting from employment claims, SB 1300 affirms the court’s opinion in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243. In Nazir, the Plaintiff filed a lawsuit against his former employer, United Airlines, and his former supervisor (“Defendants”). Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues. The appellate court found that hostile work environment cases involve issues that are “not determinable on paper.” SB 1300’s reference to the finding in the Nazir case that employment issues are too complex for motions for summary judgment may be a threat to the validity of future motions for summary judgment in employment law cases which has been a common and successful defense tactic.
Continue Reading California Enacts Legislation to Combat Discrimination and Harassment