Statute of Limitations to Right and Remedy
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FTCA Handbook Is a Revision of the Material Originally Published in July 1979 and Updated Periodically Since
JACS-Z 1 November 1999 MEMORANDUM FOR CLAIMS JUDGE ADVOCATES/CLAIMS ATTORNEYS SUBJECT: Federal Tort Claims Act (FTCA) Handbook 1. This edition of the FTCA Handbook is a revision of the material originally published in July 1979 and updated periodically since. The previous edition was last updated in September 1998. This edition contains significant cases through September 1999 pertaining to the filing and processing of administrative claims under the FTCA (Title 28, United States Code, Sections 2671-2680) and related claims statutes. 2. This Handbook provides case citations covering a myriad of issues. The citations are organized in a topical manner, paralleling the steps an attorney should take in analyzing a claim. Older citations have not been removed. Shepardizing is essential. 3. If any errors are noted, including the omission of relevant cases, please use the error sheet at the end of the Handbook to bring this to our attention. Users needing further information or clarification of this material should contact their Area Action Officer or Mr. Joseph H. Rouse, Deputy Chief, Tort Claims Division, DSN: 923-7009, extension 212; or commercial: (301) 677-7009, extension 212. JOHN H. NOLAN III Colonel, JA Commanding TABLE OF CONTENTS I. REQUIREMENTS FOR ADMINISTRATIVE FILING A. Why is There a Requirement? 1. Effective Date of Requirement............................ 1 2. Administrative Filing Requirement Jurisdictional......... 1 3. Waiver of Administrative Filing Requirement.............. 1 4. Purposes of Requirement.................................. 2 5. Administrative Filing Location........................... 2 6. Not Necessary for Compulsory Counterclaim................ 2 7. Not Necessary for Third Party Practice................... 2 B. What Must be Filed? 1. Written Demand for Sum Certain.......................... -
Libel As Malpractice: News Media Ethics and the Standard of Care
Fordham Law Review Volume 53 Issue 3 Article 3 1984 Libel as Malpractice: News Media Ethics and the Standard of Care Todd F. Simon Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Todd F. Simon, Libel as Malpractice: News Media Ethics and the Standard of Care, 53 Fordham L. Rev. 449 (1984). Available at: https://ir.lawnet.fordham.edu/flr/vol53/iss3/3 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. LIBEL AS MALPRACTICE: NEWS MEDIA ETHICS AND THE STANDARD OF CARE TODD F. SIMON* INTRODUCTION D OCTORS, lawyers, and journalists share a strong common bond: They live in fear of being haled into court where the trier of fact will pass judgment on how they have performed their duties. When the doc- tor or lawyer is sued by a patient or client, it is a malpractice case.I The standard by which liability is determined is whether the doctor or lawyer acted with the knowledge, skill and care ordinarily possessed and em- ployed by members of the profession in good standing.' Accordingly, if * Assistant Professor and Director, Journalism/Law Institute, Michigan State Uni- versity School of Journalism; Member, Nebraska Bar. 1. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts, § 32, at 185-86 (5th ed. -
Conflict of Laws: Florida 1968-69
University of Miami Law Review Volume 24 Number 3 Article 2 5-1-1970 Conflict of Laws: Florida 1968-69 S. A. Bayitch Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation S. A. Bayitch, Conflict of Laws: Florida 1968-69, 24 U. Miami L. Rev. 433 (1970) Available at: https://repository.law.miami.edu/umlr/vol24/iss3/2 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. university of miami law review VOLUME 24 SPRING 1970 NUMBER 3 CONFLICT OF LAWS: FLORIDA 1968-69 S.A. BAYITCH* I. GENERAL PROBLEM S ...................................................... 434 II. JURISDICTIONAL CONFLICTS ................................................ 438 A. Long-Arm Statutes .................................................. 442 1. NONRESIDENT MOTORISTS .......................................... 443 2. NONRESIDENT AIRCRAFT AND WATERCRAFT OPERATORS .................... 444 3. BUSINESS BY NONRESIDENTS ....................................... 444 4. UNAUTHORIZED FOREIGN INSURERS .................................... 455 5. NONRESIDENT CHARITABLE ORGANIZATIONS AND SOLICITORS .............. 456 6. NONRESIDENT PARTNERSHIPS ....................................... 456 7. FOREIGN LAND DEVELOPERS ....................................... -
Case: 1:13-Cv-00098-LW Doc #: 33 Filed: 06/04/14 1 of 26. Pageid
Case: 1:13-cv-00098-LW Doc #: 33 Filed: 06/04/14 1 of 26. PageID #: <pageID> UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION PSYCHIATRIC SOLUTIONS, et al., ) Case No. 1:13CV0098 ) Plaintiffs, ) ) vs. ) JUDGE LESLEY WELLS ) (Magistrate Judge Kenneth S. McHargh) WALLER LANSDEN DORTCH & ) DAVIS, LLP, et al., ) ) Defendants ) ) ) ) REPORT AND ) RECOMMENDATION McHARGH, Mag. J. The plaintiff Windsor- Laurelwood Center for Behavioral Medicine (“Laurelwood”) filed suit against defendants Waller Lansden Dortch & Davis, LLP, attorney Mark Peters, and attorney W. Judd Peak. The amended complaint (“amended complaint,” or simply, “complaint”) contains three counts: (1) legal malpractice, against defendants Peters and Peak; (2) fraud, against defendants Peters and Peak; and (3) vicarious liability/ respondeat superior, against defendant Waller. The amended complaint seeks compensatory and punitive damages. (Doc. 2 5 , Am. Compl.) The defendants had represented Laurelwood in a prior employment discrimination action brought against Laurelwood. Laurelwood’s allegations stem from the defendants’ handling of discovery documents and certain representations made to Laurelwood during the course of their attorney-client relationship. Case: 1:13-cv-00098-LW Doc #: 33 Filed: 06/04/14 2 of 26. PageID #: <pageID> The defendants have filed a motion to dismiss the fraud count, and the request for punitive damages. (Doc. 27, and exhibits, doc. 28.) The plaintiffs have filed a memorandum in opposition. (Doc. 29.) The defendants have filed a reply (doc. 30), with supplemental authority (doc. 31). The plaintiffs have weighed in on the supplemental authority. (Doc. 32.) I. MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Until fairly recently, the standard for a motion to dismiss for failure to state a claim upon which relief can be granted was that the motion establish, beyond a reasonable doubt, that “the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. -
American Conflicts Law
Copyright © 2018 Carolina Academic Press, LLC. All rights reserved. American Conflicts Law: Cases and Materials Sixth Edition 2018-2019 Supplement By ROBERT L. FELIX James P. Mozingo III Professor Emeritus of Law University of South Carolina RALPH U. WHITTEN Senator Allen A. Sekt Professor Emeritus of Law Creighton University RICHARD H. SEAMON Professor of Law University of Idaho JESSE M. CROSS Assistant Professor of Law University of South Carolina CAROLINA ACADEMIC PRESS Copyright © 2018 Carolina Academic Press, LLC. All rights reserved. COPYRIGHT © 2018 CAROLINA ACADEMIC PRESS, LLC ALL RIGHTS RESERVED CAROLINA ACADEMIC PRESS 700 KENT STREET DURHAM, NORTH CAROLINA 27701 TELEPHONE (919) 489-7486 FAX (919) 493-5668 E-MAIL: [email protected] WWW.CAP-PRESS.COM Copyright © 2018 Carolina Academic Press, LLC. All rights reserved. PREFACE _____________________________________________________________________________ This Supplement is intended to update teachers and students on the latest cases and literature pertinent to the course in Conflict of Laws. Since the publication of the Sixth Edition of the casebook in 2015, there have been no major developments in the general area of choice of law that would constitute a fundamental alteration in the direction of the AConflicts Revolution@ that constitutes the main subject matter of the casebook. However, the recent decision of the United States Supreme Court in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584 (2015), holding that the Due Process and Equal Protection Clauses prohibit a state from refusing to allow same-sex marriages under its own law, will affect DOMA and full faith and credit issues discussed in Chapter 7 of the casebook. -
Conflict of Laws
University of Miami Law Review Volume 22 Number 3 Article 2 5-1-1968 Conflict of Laws S. A. Bayitch Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation S. A. Bayitch, Conflict of Laws, 22 U. Miami L. Rev. 509 (1968) Available at: https://repository.law.miami.edu/umlr/vol22/iss3/2 This Leading Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. CONFLICT OF LAWS S. A. BAYITCH* I. GENERAL PROBLEM S ....................................................... 510 II. JURISDICTIONAL CONFLICTS ................................................ 513 A. Acting within Jurisdiction ............................................ 514 1. NONRESIDENT MOTORISTS ........................................... 516 2. NONRESIDENT WATERCRAFT OPERATORS ................................ 517 3. BUSINESS BY NONRESIDENTS ........................................ 517 4. UNAUTHORIZED FOREIGN INSURERS .................................. 527 5. NONRESIDENT CHARITABLE ORGANIZATIONS AND SOLICITORS .............. 528 6. NONRESIDENT PARTNERSHIPS ........................................ 528 7. FOREIGN LAND DEVELOPERS .......................................... 528 B. Jurisdiction in R em .................................................. 529 C. Forum Non -
Restricting Evidence of Battered Child Syndrome
NELSON 2/15/2012 4:48 PM THE MISUSE OF ABUSE: RESTRICTING EVIDENCE OF BATTERED CHILD SYNDROME KIP NELSON* “We must not allow our abhorrence of an act to become the abhorrence of conscious and deliberate thought and observation in connection with child abuse.”1 I INTRODUCTION The line between medicine and law has never been exactly bright. Yet when physical violence occurs, it naturally implicates both disciplines. This interdisciplinary blend is particularly evident in the case of child abuse. Thus, as child abuse became a recognized phenomenon in medical science, it also became a subject of criminal prosecution. As the scientific definition of child abuse has expanded, so has its importance in the legal arena. Battered child syndrome (BCS), which was originally intended to be a helpful tool for physicians, has evolved into a cunning instrument for prosecutors and a clever trump card for parricide defendants. Since 1962, doctors have been researching child abuse in the form of BCS. More recently, over the past few decades, both child abuse prosecutors and homicide defendants have sought to introduce evidence of the syndrome into the courts. Because of these two distinct and conflicting forms, one might ask, “[W]hich use of battered child syndrome do you believe? Many courts have still not figured this out.”2 Medical and mental health professionals generally use BCS as a shorthand description of serious abuse. Children who are intentionally harmed by their caretakers are labeled battered children.3 Injuries that may fall within BCS range from minor bruises to fatal skull fractures.4 Furthermore, the broad Copyright © 2012 by Kip Nelson. -
Choice-Of-Law Rules in Bankruptcy: an Opportunity for Congress to Resolve Conflicting Approaches
SEVENTH CIRCUIT REVIEW Volume 5, Issue 2 Spring 2010 CHOICE-OF-LAW RULES IN BANKRUPTCY: AN OPPORTUNITY FOR CONGRESS TO RESOLVE CONFLICTING APPROACHES ∗ VIKTORIA A. D. ZIEBARTH Cite as: Viktoria A. D. Ziebarth, Choice-of-Law Rules in Bankruptcy: An Opportunity for Congress to Resolve Conflicting Approaches, 5 SEVENTH CIRCUIT REV. 309 (2010), at http://www.kentlaw.edu/7cr/v5-2/ziebarth.pdf. INTRODUCTION When a dispute arises and the parties are from different states or more than one law within a single jurisdiction applies to the dispute, which law should govern? Choice-of-law rules answer that question. In the early years following the founding of the United States, state law was fairly uniform, so it usually did not matter which state’s law was applied.1 However, in subsequent years, states enacted statutes that conflicted with those of their sister states.2 Choice-of-law “is a device for choosing among states’ substantive laws.”3 Writing in 1927, Justice Benjamin Cardozo called conflict of ∗ J.D. candidate, May 2010, Chicago-Kent College of Law, Illinois Institute of Technology; B.A., International Studies, 1997, Rhodes College. 1 Robert H. Jackson, Full Faith and Credit—The Lawyer’s Clause of the Constitution, 45 COLUM. L. REV. 1, 11 (1945). Justice Jackson’s article, which was given as the fourth annual Benjamin N. Cardozo Lecture on December 7, 1944, provides excellent insight into the origins of the Full Faith and Credit Clause and the Supreme Court’s full faith and credit jurisprudence through the early 1940s. 2 Id. 3 Scott Fruehwald, Choice of Law in Federal Courts: A Reevaluation, 37 BRANDEIS L.J. -
Fraud and Misrepresentation Claims Against Lawyers
16 NEV. L.J. 57, RICHMOND - FINAL.DOCX 1/15/16 1:34 PM FRAUD AND MISREPRESENTATION CLAIMS AGAINST LAWYERS Douglas R. Richmond* TABLE OF CONTENTS INTRODUCTION ................................................................................................. 57 I. UNDERSTANDING FRAUD AND MISREPRESENTATION ........................... 63 A. Common Law Fraud ...................................................................... 63 B. Fraudulent Concealment ............................................................... 70 C. Constructive Fraud ....................................................................... 75 D. Negligent Misrepresentation ......................................................... 77 E. The Role of Rules of Professional Conduct ................................... 82 II. ILLUSTRATIVE CASES ............................................................................ 84 A. Settlement Negotiations in Litigation ............................................ 84 B. Litigators’ Allegedly Fraudulent Statements Outside of Settlement Negotiations ................................................................. 88 C. Third Party Reliance on a Lawyer’s Statements in a Real Estate Transaction ......................................................................... 93 D. The Dean Foods Opinion Controversy ......................................... 99 CONCLUSION .................................................................................................. 103 INTRODUCTION Most lawyers are competent, diligent, and honest. No lawyer -
Note, the Standard of Proof of Causation in Legal Malpractice Cases
Case Western Reserve University School of Law Scholarly Commons Faculty Publications 2006 Note, The Standard of Proof of Causation in Legal Malpractice Cases Erik M. Jensen Case Western University School of Law, [email protected] Follow this and additional works at: https://scholarlycommons.law.case.edu/faculty_publications Part of the Legal Profession Commons, and the Torts Commons Repository Citation Jensen, Erik M., "Note, The Standard of Proof of Causation in Legal Malpractice Cases" (2006). Faculty Publications. 455. https://scholarlycommons.law.case.edu/faculty_publications/455 This Article is brought to you for free and open access by Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. THE STANDARD OF PROOF OF CAUSATION IN LEGAL MALPRACTICE CASES INTRODUCTION In Link v. Wabash Railroad Co., 1 the United States Supreme Court, while holding an innocent and unsuspecting plaintiff re sponsible for the sins of his attorney, gave hope to similarly ag grieved clients: "[I]f an attorney's conduct falls substantially below what is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice."2 Nevertheless, if nearly insuperable barriers prevent most aggrieved clients from prevailing in meritorious legal malpractice suits, the Court's reas surance is hollow indeed. The traditional standard of proof of causation in legal malpractice cases, the "but for" test, 3 stands as one imposing barrier to recovery. To the extent that judges invoke misplaced confidence in the malpractice remedy to justify punish ing clients for attorney misconduct, they distort the legal process. -
140500 Justice Leroy F
Present: Lemons, C.J, Goodwyn, Millette, McClanahan, and Powell, JJ., and Russell and Lacy, S.JJ. SHEVLIN SMITH OPINION BY v. Record No. 140500 JUSTICE LEROY F. MILLETTE, JR. February 26, 2015 BRUCE W. McLAUGHLIN FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Michael F. Devine, Judge In this appeal we consider, among other issues, (1) whether an attorney breaches the duty to a client by failing to correctly anticipate a judicial ruling on an unsettled legal issue, (2) whether collectibility is relevant to a legal malpractice claim when the alleged injury is the loss of an otherwise viable claim, and (3) whether non- pecuniary damages are recoverable in a legal malpractice claim. I. Facts And Proceedings This appeal arises from a legal malpractice claim. Typically, a legal malpractice claim involves a case within the case, because the legal malpractice plaintiff must establish how the attorney's negligence in the underlying litigation proximately caused the legal malpractice plaintiff's damages. This appeal presents an additional level to this typical format, as the underlying litigation in which the alleged malpractice occurred was itself a legal malpractice claim. This legal malpractice claim therefore implicates a case (the initial criminal matter) within a case (the criminal malpractice matter) within the case (the legal malpractice matter that is now before us). A. The Criminal Matter In 1998, Bruce McLaughlin was charged on multiple counts of felony sexual abuse. McLaughlin hired William J. Schewe of the firm Graham & Schewe, and Harvey J. Volzer of the firm Shaughnessy, Volzer & Gagner, P.C. to represent him in this criminal matter. -
Legal Malpractice Claim Against Law Firm Barred by Former Attorney's Prior Knowledge −
NEWSLETTER Legal Malpractice Claim Against Law Firm Barred by Former Attorney's Prior Knowledge − December 2011 The United States District Court for the Middle District of Florida has granted partial summary judgment for an insurer, holding that coverage for a legal malpractice claim against a law firm under a lawyer's professional liability (LPL) policy was barred by the policy's prior knowledge exclusion. AXIS Ins. Co. v. Farah & Farah, P.A., et. al., 2011 WL 5510063 (M.D. Fla. Nov. 10, 2011). It was undisputed that a former attorney of the law firm had a reasonable expectation, prior to the effective date of the LPL policy, that a former client would bring a legal malpractice claim against the firm. The court held that the attorney was an Insured as defined under the LPL policy, thus triggering the prior knowledge exclusion. In April 2003, an attorney entered into an agreement with the insured law firm to "provide litigation, support, service, direction and decision making for plaintiff's bodily injury and wrongful death cases to [the law firm] in- house at [the law firm's] office." The attorney's name was added to the name of the law firm. In August 2003, the law firm, and the attorney in particular, filed a medical malpractice lawsuit against the United States government on behalf of the parents of a minor child who had sustained serious and permanent injuries in a Navy hospital. The district court ruled in favor of the parents and their son on the medical malpractice claim and awarded the parents loss of consortium damages in an amount over $800,000.