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Agreement and Release of All Claims
SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS This Settlement Agreement and Release of All Claims (“Agreement”) is made and entered into by and between ANDRES ALEXANDER CACEDA-MANTILLA and CITY OF PALMER, ALASKA (hereinafter collectively referred to as “the Parties”). “Claimant” shall collectively mean Andres Alexander Caceda-Mantilla and his respective heirs, executors, administrators, successors, trustees, and assigns. “Released Party” shall collectively mean City of Palmer, Alaska, and its respective, employees, assigns, heirs, agents, attorneys, adjusters, insurers, and re-insurers. I. Recitals A. The purpose this Agreement is to facilitate the settlement, dismissal with prejudice, and release of any and all claims which were asserted, or which could have been asserted, with respect to the facts giving rise to Andres Alexander Caceda-Mantilla v. City of Palmer, Alaska, Kristi Muilenburg, Jamie Hammons, Daniel Potter, and Hilary Schwaderer, Case No. 3PA-18-01410 CI, a lawsuit now pending in the Superior Court for the State of Alaska at Palmer (“the Lawsuit”). B. The City of Palmer denies all the allegations of the Lawsuit and specifically denies that it has any liability based on the allegations set forth in the Lawsuit. C. The City of Palmer regrets any inconvenience, embarrassment, or personal hardship the incident may have caused Mr. Caceda-Mantilla. D. The Parties desire to enter into this Agreement to provide, among other things, for consideration in full settlement and discharge of all claims and actions of {00821062} SETTLEMENT AGREEMENT AND RELEASE OF ALL CLAIMS Andres Alexander Caceda-Mantilla v. City of Palmer, Alaska, et al., Case No. 3PA-18-01410 Civil Page 1 of 9 Claimant for damages that allegedly arose out of, or due to, the facts and circumstances giving rise to the Lawsuit, on the terms and conditions set forth in this Agreement. -
The Hand Formula in the Draft "Restatement (Third) of Torts": Encompassing Fairness As Well As Efficiencyalues V
Vanderbilt Law Review Volume 54 Issue 3 Issue 3 - Symposium: The John W. Wade Conference on the Third Restatement of Article 10 Torts 4-2001 The Hand Formula in the Draft "Restatement (Third) of Torts": Encompassing Fairness as Well as Efficiencyalues V Kenneth W. Simons Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the Torts Commons Recommended Citation Kenneth W. Simons, The Hand Formula in the Draft "Restatement (Third) of Torts": Encompassing Fairness as Well as Efficiencyalues, V 54 Vanderbilt Law Review 901 (2001) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol54/iss3/10 This Symposium is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. The Hand Formula in the Draft Restatement (Third) of Torts: Encompassing Fairness as Well as Efficiency Values Kenneth W. Simons* I. THE DRAFT RESTATEMENTS DEFINITION OF NEGLI- GENCE ............................................................................... 902 II NEGLIGENCE AND FAULT ................................................... 905 III. THE DRAFT's NEGLIGENCE CRITERION AND ECONOMIC EFFICIENCY ..................................................... 906 A. DistinguishingTradeoffs from Economic Efficiency ................................................................ 908 B. DistinguishingEx Ante Balancingfrom Consequentialism.................................................. -
Initial Stages of Federal Litigation: Overview
Initial Stages of Federal Litigation: Overview MARCELLUS MCRAE AND ROXANNA IRAN, GIBSON DUNN & CRUTCHER LLP WITH HOLLY B. BIONDO AND ELIZABETH RICHARDSON-ROYER, WITH PRACTICAL LAW LITIGATION A Practice Note explaining the initial steps of a For more information on commencing a lawsuit in federal court, including initial considerations and drafting the case initiating civil lawsuit in US district courts and the major documents, see Practice Notes, Commencing a Federal Lawsuit: procedural and practical considerations counsel Initial Considerations (http://us.practicallaw.com/3-504-0061) and Commencing a Federal Lawsuit: Drafting the Complaint (http:// face during a lawsuit's early stages. Specifically, us.practicallaw.com/5-506-8600); see also Standard Document, this Note explains how to begin a lawsuit, Complaint (Federal) (http://us.practicallaw.com/9-507-9951). respond to a complaint, prepare to defend a The plaintiff must include with the complaint: lawsuit and comply with discovery obligations The $400 filing fee. early in the litigation. Two copies of a corporate disclosure statement, if required (FRCP 7.1). A civil cover sheet, if required by the court's local rules. This Note explains the initial steps of a civil lawsuit in US district For more information on filing procedures in federal court, see courts (the trial courts of the federal court system) and the major Practice Note, Commencing a Federal Lawsuit: Filing and Serving the procedural and practical considerations counsel face during a Complaint (http://us.practicallaw.com/9-506-3484). lawsuit's early stages. It covers the steps from filing a complaint through the initial disclosures litigants must make in connection with SERVICE OF PROCESS discovery. -
GUZMAN Delivered the Opinion of the Court
IN THE SUPREME COURT OF TEXAS 444444444444 NO. 14-0067 444444444444 MIRTA ZORRILLA, PETITIONER, v. AYPCO CONSTRUCTION II, LLC AND JOSE LUIS MUNOZ, RESPONDENTS 4444444444444444444444444444444444444444444444444444 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS 4444444444444444444444444444444444444444444444444444 Argued March 26, 2015 JUSTICE GUZMAN delivered the opinion of the Court. In this residential construction dispute, the paramount issue on appeal is whether the statutory cap on exemplary damages is waived if not pleaded as an affirmative defense or avoidance. See TEX. R. CIV. P. 94 (requiring pleading and proof of affirmative defenses and avoidances); see also TEX. CIV. PRAC. & REM. CODE § 41.008(b) (limiting exemplary damages to the greater of $200,000 or two times economic damages plus noneconomic damages not exceeding $750,000). Our courts of appeals are split on the issue, and in this case, the lower court affirmed an exemplary damages award in excess of the statutory cap because the petitioner did not assert the cap until her motion for new trial. 421 S.W.3d 54, 68-69 (Tex. App.—Corpus Christi 2013). We hold the exemplary damages cap is not a “matter constituting an avoidance or affirmative defense” and need not be affirmatively pleaded because it applies automatically when invoked and does not require proof of additional facts. See TEX. R. CIV. P. 94. Here, the petitioner did not plead the statutory cap but she timely asserted the cap in her motion for new trial. We therefore reverse the court of appeals’ judgment in part and render judgment capping exemplary damages at $200,000. -
Claims of Wrongful Life and Wrongful Birth - NY by Victoria Belniak
October 2006 Health Care Law Claims of wrongful life and wrongful birth - NY By Victoria Belniak Background The New York courts have long struggled with determining what injuries are properly compensable when a child is born impaired, and the parents are able to establish that a health care provider was negligent in failing to detect the impairment prenatally or to advise the parents of the likelihood of the impairment. Typically, in such cases, parents will argue that had they been advised of the impairment before the child was born, they would have chosen to terminate the pregnancy. In wrestling with the thorny damages issues presented by such cases, the New York courts have made a distinction between damages stemming from “wrongful life” and those stemming from “wrongful birth.” Issues What is the difference between a claim for wrongful life and one for wrongful birth, and can recovery be had under such theories? Comments Wrongful life claims are typically initiated on behalf of an impaired infant, seeking to recover damages for the very fact that he or she was born at all. The New York courts have rejected such claims, signaling an unwillingness to hold that life, even if marred by disability or disease, is a compensable injury. In Alquijay v. St. Luke’s-Roosevelt Hospital, 63 N.Y.2d 978, 473 N.E.2d 244 (1984), a mother claimed that had she known that her baby would be born with Down’s syndrome, she would have terminated the pregnancy. The Court of Appeals held that there is no cause of action for wrongful life, and life, even when the baby is born in an impaired state, does not constitute an injury. -
No. 15-CV-146 DISTRICT OF
No. 15-CV-146 ______________________________ DISTRICT OF COLUMBIA COURT OF APPEALS _____________________________ TURQUOISE WYLIE, Appellant v. GLENNCREST, Appellee. ______________________________ ON APPEAL FROM THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA, CIVIL DIVISION ______________________________ BRIEF OF APPELLANT ______________________________ Jonathan H. Levy (No. 449274) Rachel A. Rintelmann (No. 1003498)* Legal Aid Society of the District of Columbia 1331 H Street NW, Suite 350 Washington, DC 20005 Tel: (202) 628-1161 Fax: (202) 727-2132 [email protected] [email protected] Counsel for Appellant Turquoise Wylie *Presenting oral argument. RULE 28(a)(2)(A) STATEMENT The parties to the case are appellant Turquoise Wylie, the defendant below, and appellee Glenncrest, the plaintiff below. In the Superior Court, Ms. Wylie was pro se. She is represented in this court by Rachel A. Rintelmann and Jonathan H. Levy, of the Legal Aid Society of the District of Columbia. In the Superior Court, the appellee was represented by Edward Pugh. Appellee is also represented in this court by Mr. Pugh and Mark Raddatz. No intervenors or amici appeared in the Superior Court. i TABLE OF CONTENTS STATEMENT OF THE ISSUES PRESENTED ............................................................................ 1 STATEMENT OF THE CASE ....................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................ -
The Metropolitan Corporate Counsel: Are Punitive Damages Available
CorporateThe Metropolitan Counsel® www.metrocorpcounsel.com Volume 13, No. 3 © 2005 The Metropolitan Corporate Counsel, Inc. March 2005 Are Punitive Damages Available Under The Copyright Act? Marc J. Rachman Sara L. Edelman and David Greenberg DAVIS & GILBERT LLP Given the Copyright Act’s1 express enu- meration of available remedies under the Act and its silence with respect to punitive damages, one would think that a copyright owner is barred from seeking punitive damages when bringing a claim for copy- Marc J. Rachman Sara L. Edelman David Greenberg right infringement. Several recent deci- sions in the Southern District of New York, profits of the infringer... or ... statutory statutory damages amount. however, have allowed punitive damages damages....” 2 A copyright owner may elect The Second Circuit United States Court claims to proceed. This article will discuss to recover statutory damages at any time of Appeals long ago stated explicitly that the traditional view that punitive damages prior to final judgment; such damages can “[p]unitive damages are not available in are not available under the Copyright Act, range anywhere from as little as $200 for statutory copyright actions.” 6 That court and will explore recent decisions indicating innocent infringements to $150,000 for recently explained that “[t]he purpose of that such damages might be recoverable willful infringements.3 Notably, Congress punitive damages – to punish and prevent under certain circumstances. This article made no provision in the Act for awards of malicious conduct – is generally achieved will then discuss the implications for both punitive damages. “The language is clear, under the Copyright Act through the provi- plaintiffs and defendants, and will finally unambiguous, and exclusive: these are the sions of 17 U.S.C. -
The Neutral Reportage Privilege in Theory and Practice
UCLA UCLA Entertainment Law Review Title When the Slander is the Story:The Neutral Reportage Privilege in Theory and Practice Permalink https://escholarship.org/uc/item/0d65t53k Journal UCLA Entertainment Law Review, 17(1) ISSN 1073-2896 Author Laidman, Dan Publication Date 2010 DOI 10.5070/LR8171027133 Peer reviewed eScholarship.org Powered by the California Digital Library University of California When the Slander is the Story:The Neutral Reportage Privilege in Theory and Practice Dan Laidman* I. INTRODUCTION It is an angry time in American politics. Members of Congress have disputed the President's citizenship and accused him of promoting "Nazi" policies,' an ex-President has called a Congressman racist,2 and a member of the House of Representatives publicly questioned the sanity of a constituent who compared the President to Adolph Hitler.3 Traditional media outlets have chronicled the comments and then countless websites have republished them, leading some to find a causal connection between the explosions in new media and political rhetoric.' On the local level, municipal politics continue to generate fierce disputes which often lead to allegations of slander involving public officials.5 Only now, with the collapse of the * J.D., UCLA School of Law, 2010. Many thanks to Professor Gia Lee at UCLA Law School and to Joseph Doherty, director of the school's Empirical Research Group. 1 See Andie Coller, G.O.P. 'Cranks' Dominating Debate, POLITICO, Sept. 10, 2009, http://www.politico.com/news/stories/0909/27015.html. 2 See Jeff Zeleny & Jim Rutenberg, White House is Sitting Out Race Debate, N.Y. -
I:\WILSON\Procedure\Motion for Default Judgment\Guardian V
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION THE GUARDIAN LIFE INSURANCE ) COMPANY OF AMERICA, ) ) Civil Action No. 5:10cv00004 Plaintiff, ) ) v. ) MEMORANDUM OPINION ) CHARLES SPENCER, et al., ) ) By: Samuel G. Wilson Defendants. ) United States District Judge Plaintiff Guardian Life Insurance Company of America (“Guardian”) filed this interpleader action on January 21, 2010, seeking to ascertain the appropriate beneficiary of a group life insurance policy issued by Guardian to Defendant Charles Spencer (“Spencer”) through Spencer’s employer pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§ 1001, et seq. (“ERISA”). To date, Spencer has failed to file an answer or responsive pleading to the amended complaint, and upon the plaintiff’s motion, the Clerk entered a default against Spencer on May 19, 2010. This matter is currently before the court on the plaintiff’s motion for entry of default judgment pursuant to Federal Rule of Civil Procedure 55(b)(2). First, the court considers sua sponte whether there is federal subject matter jurisdiction over the case pursuant to 28 U.S.C. § 1331 and ERISA, 29 U.S.C. § 1132, and finds that the plaintiff has met the requirements imposed by these statutes. Next, the court considers the merits of the plaintiff’s motion and finds that because Spencer has failed to respond to the plaintiff’s complaint in a timely manner, default judgment is appropriate. Therefore, the court grants plaintiff’s motion for default judgment, and finds that Spencer is not entitled to share in the judgment proceeds from the underlying interpleader action. -
Damages Surprisingly Victims?
10 Damages Personal Injury [10.10] What remedy does (and should) the legal system provide to tort victims? Although they may occasionally obtain injunctions intended to prevent ongoing harm, almost all successful tort claimants obtain money damages.’ A surprisingly large number of difficult and contested issues arise, however, in determining just how much money should be awarded. This chapter explores those issues. Part of the problem is factual uncertainty, especially, but not only, with respect to losses that will occur in the future, that is, after the trial or settlement of the case. But, in addition, there are fundamental legal questions at issue that centrally arise from disputes about the underlying reasons for awarding tort damages in the first place; whether tort law is ultimately compensatory, a deterrent or concerned with corrective justice is discussed in Chapter 1. The focus of this chapter will be on damages for bodily injury (and death). The material is organised in this way. First, the question of whether damages should be paid in a lump sum or periodically is addressed. Secondly, consideration is given to the strength of the proof plaintiffs must offer in order successfully to claim their damages. 2 So, The focus then shifts to the specific types of recoveries that are allowed. thirdly, considerable attention is given to what are typically termed pecuniary losses — (a) expenses incurred (or to be incurred) because of the harm the tortfeasor has imposed on the victim and (b) the victim’s lost income or lost earning power. Fourthly, compensatory awards for non-pecuniary losses (for example, pain and suffering) are explored. -
Civil Matters: Default Default Rule of Civil Procedure 55 Default Default • 2 Steps Default
Civil Matters: Default, Extending Time, Default Confessions of Judgment What is it? Ann M. Anderson New Clerks of Superior Court When a defending party fails to respond to January 8−10, 2013 a pleading, the claimant may be able to obtain judgment in his favor without going through the litigation process – judgment by default. 2 Default Default • Applies when party fails to: Rule of Civil Procedure 55 – Answer complaint – Reply to counterclaim – Answer cross-claim – Answer third party claim 3 4 Default Default • 2 steps –Entry of Default Complaint Clerk Enters Judge (or Filed and Party Fails to Default Clerk*) Signs Proper Respond on –Default Judgment (Upon Default Service of Time Motion) Judgment Process *In certain circumstances 5 6 1 Entry Default • Entry of Default • Default Judgment – An official entry in the record that a party has Clerk may sign when: failed to plead and allegations are deemed – Entry of default has been made admitted – Amount shown by verified pleading or affidavit – Claimant presents motion to clerk for entry – Defaulting party has never made appearance • Must demonstrate that party was properly served and has not filed responsive pleading. – Defaulting party not infant or incompetent, nor • No affidavit required. Record before the court the State of North Carolina (or agency or officer) should demonstrate the relevant dates. – Claim is for a “sum certain” or “can by • If Rule 12 motion or motion for extension of time is computation be made certain” pending, no entry of default. 7 8 Default Judgment Default Judgment “Sum certain” or “can by computation be “Debt buyers” must show, by authenticated business made certain” records: – Where contract makes clear what is due (1) The original account number. -
Contra Costa Superior Court Martinez, California Department: 23 Hearing Date: 01/13/20
CONTRA COSTA SUPERIOR COURT MARTINEZ, CALIFORNIA DEPARTMENT: 23 HEARING DATE: 01/13/20 GENERAL INSTRUCTIONS FOR CONTESTING TENTATIVE RULINGS IN DEPT. 23 The tentative ruling will become the Court’s ruling unless by 4:00 p.m. of the court day preceding the hearing, counsel or self-represented parties call the department rendering the decision to request argument and to specify the issues to be argued. Calling counsel or self-represented parties requesting argument must advise all other affected counsel and self-represented parties by no later than 4:00 p.m. of his or her decision to appear and of the issues to be argued. Failure to timely advise the Court and counsel or self-represented parties will preclude any party from arguing the matter. (Local Rule 3.43(2).) Court Call is approved for all hearings except Law and Motion, Issue Conferences and Trial. Department 23’s telephone number is: (925) 608-1123. Submission of Orders After Hearing in Department 23 Cases The prevailing party must prepare an order after hearing in accordance with CRC 3.1312. The order must include appearances. If the tentative ruling becomes the Court’s ruling, a copy of the Court’s tentative ruling must be attached to the proposed order when submitted to the Court for issuance of the order. 1. TIME: 9:00 CASE#: MSC15-00829 CASE NAME: MELLO VS. MAGGANAS HEARING ON MOTION TO DETERMINE PARTY PREVAILING ON CONTRACT FILED BY ATHAN MAGGANAS, MAXACO, LLC, PETER A. MAGGANAS * TENTATIVE RULING: * While the Court is in receipt of a Proof of Service for Defendants’ Motion for Attorney’s Fees and Costs, and Plaintiff has filed an Opposition to Determine Party Prevailing on Contract, Defendants’ Motion is not on file with the Court.