DOCSLIB.ORG

In the Supreme Court of Florida

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
In the Supreme Court of Florida IN THE SUPREME COURT OF FLORIDA CSX TRANSPORTATION, INC., Petitioner/Defendant, vs. Case No. DAVID C. MCNEIL, Respondent/Plaintiff. __________________________________/ ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, SECOND DISTRICT CASE NO.: 2D01-4547 _________________________________________________________________ ____ PETITIONER’S BRIEF ON JURISDICTION _________________________________________________________________ ____ STEPHEN N. GORDON Florida Bar No.: 0452033 JOSE A. GUTIERREZ Florida Bar No.: 0964042 MELKUS, FLEMING & GUTIERREZ, P.L. 410 Ware Boulevard, Suite 1101 Tampa, Florida 33619 Telephone: (813) 623-2747 Attorneys for Petitioner/Defendant CSX Transportation, Inc. ii TABLE OF CONTENTS PAGE TABLE OF CITATIONS……………………...………………………………………… STATEMENT OF THE CASE AND FACTS.…..…………………………………… 1 ISSUE PRESENTED FOR PREVIEW………….…………………………………….2 WHETHER THE DISTRICT COURT=S DECISION REVERSING the TRIAL COURT=S ORDER GRANTING SUMMARY JUDGMENT FOR CSX TRANSPORTATION, INC. UNDER FLORIDA=S BORROWING STATUTE IS AN EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THE SUPREME COURT ON THE SAME QUESTION OF LAW AND WITH DECISION OF ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESITON OF LAW. SUMMARY OF ARGUMENT……………………………………………………….2 ARGUMENT………………………………………………………………………….4 CONCLUSION………………………………………………………………………10 CERTIFICATE OF SERVICE……………………………………………………….11 CERTIFICATE OF COMPLIANCE………………………………………………...11 APPENDIX I…………………………………………………………………………12 ii i TABLE OF CITATIONS Florida Cases Bates v. Cook, Inc., 509 So.2d 1112, 565 (Fla. 1987)……..………………………………….3,4,5,6,10 Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980)……………...……………………………………..4,5,7 Fabre v. Marin 623 So.2d 1182 (Fla. 1993)……………...……………………………………..9 Ford Motor Co. v. Kikis 401 So.2d 1341 (Fla. 1981)………………...…………………………………..4 Jenkins v. Rockwood 820 So. 2d 426, 428 (Fla. 4th DCA 2002)…....…………………………………7 Jones v. Cook 587 So.2d 570 (Fla. 1st DCA 1991)…………....………………………..3,8,9,10 Florida Statutes Florida Statute ' 95.10 (2000)…………………………....………………………4,5,6, Federal Statutes 28 U.S.C. '1331 (1995).…………………………………..…………………………1 28 U.S.C '1349 (1995)……………………………………….……………………..1 Miscellaneous RESTATEMENT (SECOND) OF CONFLICT OF LAWS '' 145 (1971) ………8,9 RESTATEMENT (SECOND) OF CONFLICT OF LAWS '' 146(1971) ....….3,7 STATEMENT OF THE CASE AND FACTS This personal injury tort action arises out of a collision that occurred on May 2, 1995, near Sycamore, South Carolina between a tractor-trailer and a passenger train operated by the National Railroad Passenger Corporation (hereinafter "Amtrak"). David McNeil (hereinafter AMcNeil@) was a passenger aboard the train. The accident occurred at a grade crossing maintained by CSX Transportation, Inc. (hereinafter "CSX"). The tractor-trailer was operated by Leroy Ellis, an employee of O&J Gordon Trucking, both residents of South Carolina. McNeil was a Florida resident at the time of the accident. CSX is incorporated in Virginia but conducts business in 23 states and has its principal office located in Florida. On September 28, 1998, McNeil filed a two-count complaint for personal injuries against Amtrak and CSX in the Circuit Court in Polk County, Florida.1 After voluntarily dismissing Amtrak, the case proceeded solely against CSX. He contended that CSX, as 1 The action was removed to federal court on January 20, 1999, because Amtrak was created by an act of Congress, thus vesting the federal court with original jurisdiction pursuant to 28 U.S.C. ''1331 and 1349 (1995). On November 22, 1999, Amtrak and CSX moved for summary judgment with supporting memoranda on a statute of limitations defense. Before the federal court had an opportunity to rule on the respective motions for summary judgment, McNeil moved simultaneously to voluntarily dismiss Amtrak (the source of original federal jurisdiction) and remand the action to state court. On March 20, 2000, the federal court granted the motion to remand. the owner of the tracks, had negligently designed, installed, and maintained the crossing in South Carolina. Specifically, McNeil alleged that this grade crossing was ultra-hazardous due to an unusual hump that prevented the tractor-trailer from traversing the crossing without becoming lodged. Both McNeil and CSX moved for summary judgment on CSX's statute of limitations affirmative defense. CSX argued that Florida=s "borrowing statute," prohibited McNeil's action in Florida because the action arose in South Carolina and was time barred by South Carolina's three-year statute of limitations. McNeil maintained that Florida's four-year statute of limitations applied. After applying the significant relationship test, the trial court found that the cause of action arose in South Carolina, thus, granting CSX's motion for summary judgment. On appeal, The Second District Court of Appeal reversed and remanded holding that Florida's statute of limitations should apply. ISSUE PRESENTED FOR REVIEW WHETHER THE DISTRICT COURT'S DECISION REVERSING THE SUMMARY JUDGMENT FOR CSX TRANSPORTATION, INC., UNDER FLORIDA'S BORROWING STATUTE IS IN EXPRESS AND DIRECT CONFLICT WITH A DECISION OF THE SUPREME COURT AND WITH A DECISION OF ANOTHER DISTRICT COURT OF APPEAL ON THE SAME QUESTION OF LAW. SUMMARY OF ARGUMENT The Second District Court's decision in McNeil v. CSX Transportation, Inc., Case No.: 2D01-4547 (decided December 4, 2002), is in direct conflict with the decision of the Supreme Court in Bates v. Cook, Inc., 509 So.2d 1112 (Fla. 1987), as well as the decision of the First District Court of Appeal in Jones v. Cook, 587 So.2d 570 (Fla. 1st DCA 1991). These decisions hold that, in deciding conflict of law questions, Florida courts are required to apply the significant relationship test, as set forth in the RESTATEMENT (SECOND) OF CONFLICTS OF LAW '145-146 (1971), to determine where the cause of action "arose." If after employing the significant relationship test it is ascertained that the action arose in another state and that state=s laws forbid the maintenance of the cause of action based on a lapse of time, Florida's borrowing statute precludes the maintenance of the action in Florida. The Second District Court in McNeil misapplied the significant relationship test by failing to determine where the cause of action arose. Instead, the Second District structured its inquiry into what state had a more significant relationship to the statute of limitations issue. By framing the analysis in this manner, the court in McNeil concluded that because both parties are residents of Florida and Florida courts will resolve their dispute, Florida's statute of limitations should apply. The Second District's misapplication of the required analysis mandated by Bates and followed in Jones, not only ignores the principles set forth in the RESTATEMENT, but eviscerates the purpose of Florida's borrowing statute. ARGUMENT Florida=s borrowing statute, '95.10, Fla. Stat. (2000), sets Florida=s basic policy with respect to the application of an outside state=s statute of limitations. The borrowing statute requires Florida courts to apply an outside state=s shorter statute of limitations when confronted with a cause of action that arises within the outside state. In Bates v. Cook, 509 So.2d 1112 (Fla.1987), the Supreme Court held that the significant relationships test utilized in Bishop v. Florida Specialty Paint Co., 389 So.2d 999 (Fla. 1980), should be used by courts in this state in order to determine where a cause of action arose. The court in McNeil v. CSX Transportation, Inc., Case No.: 2D01-4547 (decided on December 4, 2002), acknowledges the application of the significant relationships test, but fails to properly apply this test to the borrowing statute in order to determine where the cause of action arose. Consequently, the opinion of the Second District Court of Appeals expressly and directly conflicts with Supreme Court precedent as well as the decision of at least one other District Court of Appeal. When such conflicts exist, this court=s jurisdiction is properly invoked. Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla. 1981) (AIt is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in order to create a >express= conflict under section 3(b)(3).@ A Adiscussion of the legal principles which the court applied supplies a sufficient basis for a petition for conflict review@). The key question presented in Bates was whether, in applying Florida=s borrowing statute to an action based on the theft of trade secrets, Florida uses the Alast act necessary to establish liability@ or the Asignificant relationships@ test to determine where the cause of action arose. First, the court found there was Ano reason to treat an action for theft of trade secrets differently than other tort actions.@ Bates, 509 So.2d at 1113. The court then held that the significant relationships test should be applied in tort law situations to determine where the cause of action arose. In so doing, Bates sets up a three-step process for courts to use whenever a potential tort law conflict presents itself under '95.10. In the first step the court must identify the cause of action. If the cause of action is based in tort law, the second step requires the court to use the significant relationships test set out in Bishop to determine where the cause of action arose. If it is determined that the cause of action arose outside the state, the court then moves to the third step. This third step is purely mechanical, as Florida=s borrowing statute requires the court to apply the outside state=s shorter statute of limitations if the cause of action arose in that state. In Bates this court held that an action for theft of trade secrets was no different than a regular tort action and thus, identified it as such. 509 So.2d at 1113. As the McNeil case is also a personal injury tort action, the Bates 3-step process should have been utilized. However, The Second District treated this personal injury action differently from any other tort action by failing to determine where the cause of action arose and instead focusing on what state had a more significant relationship to the statute of limitations issue.
Load more

Recommended publications
  • 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 .......................................
    [Show full text]
  • 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.
    [Show full text]
  • 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
    [Show full text]
  • 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.
    [Show full text]
  • In the United States District Court for the Eastern District of Pennsylvania
    IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA JAMES OETTING, Individually and on CIVIL ACTION behalf of all others similarly situated, Plaintiff, v. NO. 11-4757 HEFFLER, RADETICH & SAITTA, LLP, EDWARD J. SINCAVAGE, EDWARD J. RADETICH, JR., and MICHAEL T. BANCROFT, Defendants. DuBois, J. August 11, 2017 M E M O R A N D U M I. INTRODUCTION This case involves claims asserted by plaintiff James Oetting on behalf of himself and a certified class of similarly situated individuals who received payments from a settlement fund in a long-running multidistrict litigation in the United States District Court for the Eastern District of Missouri. This case was originally filed as a separate action in that district but was transferred to this Court pursuant to 28 U.S.C. § 1404(a) by Order dated July 25, 2011. Plaintiff seeks damages from defendants for harm suffered by the class due to fraudulent claims made on the settlement fund by a former employee of defendant Heffler, Radetich & Saitta, LLP (“Heffler”), that were authorized by defendants. Plaintiff asserts claims for negligence, accountant malpractice, breach of fiduciary duty, and fraud. Presently before the Court are the parties’ memoranda and supplemental memoranda on all choice of law issues. For the reasons that follow, the Court concludes that Pennsylvania’s statute of limitations, the Missouri savings statute, and Missouri substantive law are applicable to this case. II. BACKGROUND The relevant facts as outlined in plaintiff’s Second Amended Complaint, attached exhibits, and the underlying MDL docket are as follows. This case arises out of securities litigation following a merger between BankAmerica Corporation (“BankAmerica”) and NationsBank.
    [Show full text]
  • Conflict of Laws - Application of Orumf State's Statute of Limitations to Litigation with Which the State Has No Significant Contacts Is Unconstitutional
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Villanova University School of Law: Digital Repository Volume 33 Issue 3 Article 7 1988 Conflict of Laws - Application of orumF State's Statute of Limitations to Litigation with Which the State Has No Significant Contacts Is Unconstitutional David A. Ebby Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Conflict of Laws Commons Recommended Citation David A. Ebby, Conflict of Laws - Application of orumF State's Statute of Limitations to Litigation with Which the State Has No Significant Contacts Is Unconstitutional, 33 Vill. L. Rev. 610 (1988). Available at: https://digitalcommons.law.villanova.edu/vlr/vol33/iss3/7 This Issues in the Third Circuit is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Ebby: Conflict of Laws - Application of Forum State's Statute of Limita 1988] CONFLICT OF LAWS-APPLICATION OF FORUM STATE'S STATUTE OF LIMITATIONS TO LITIGATION WITH WHICH THE STATE HAS No SIGNIFICANT CONTACTS IS UNCONSTITUTIONAL Ferens v. Deere & Co. (1987)t Under Klaxon Co. v. Stentor Electric Manufacturing Co.,' a federal dis- trict court sitting in diversity must apply the choice-of-law rules of the state in which it sits. If a diversity suit is transferred from one federal district court to another, Van Dusen v. Barrack 2 directs that the transfer does not result in the application of a new choice-of-law rule.
    [Show full text]
  • 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
    1 1 COURT OF APPEALS 2 STATE OF NEW YORK 3 ---------------------------------------- 2138747 ONTARIO, INC., 4 Appellant, 5 -against- 6 No. 57 SAMSUNG C&T CORPORATION, 7 Respondent. 8 ---------------------------------------- 9 20 Eagle Street Albany, New York 10 April 24, 2018 Before: 11 CHIEF JUDGE JANET DIFIORE 12 ASSOCIATE JUDGE JENNY RIVERA ASSOCIATE JUDGE LESLIE E. STEIN 13 ASSOCIATE JUDGE EUGENE M. FAHEY ASSOCIATE JUDGE ROWAN D. WILSON 14 ASSOCIATE JUDGE PAUL FEINMAN 15 16 Appearances: 17 JACOB BUCHDAHL, ESQ. SUSMAN GODFREY LLP 18 Attorney for Appellant 1301 Avenue of the Americas, 32nd Floor 19 New York, NY 10019 20 GRANT A. HANESSIAN, ESQ. BAKER & MCKENZIE LLP 21 Attorney for Respondent 432 Fifth Avenue 22 New York, NY 10018 23 24 Sara Winkeljohn 25 Official Court Transcriber 2 1 CHIEF JUDGE DIFIORE: The next appeal on this 2 afternoon's calendar is appeal number 57, Ontario v. 3 Samsung. 4 Counsel. 5 MR. BUCHDAHL: Good afternoon; Jacob Buchdahl of 6 Susman Godfrey for the plaintiff-appellant. I'd like to 7 reserve three minutes for rebuttal. 8 CHIEF JUDGE DIFIORE: You may, sir. 9 MR. BUCHDAHL: May it please the court. This is 10 a case about freedom of contract, specifically about the 11 ability of commercial parties from around the world to 12 choose New York Law to enforce their contracts. Our client 13 - - - 14 JUDGE STEIN: Aren't we - - - aren't we looking 15 to intent here? Isn't that what - - - isn't that what it's 16 all about? 17 MR. BUCHDAHL: Absolutely. 18 JUDGE STEIN: Okay. So in doing that seems to me 19 nobody here has argued, okay, that we intended this and we 20 intended that and there should be extrinsic evidence of our 21 negotiations or something like that and then we can 22 determine intent.
    [Show full text]
  • Original TABLE of CONTENTS
    Case No. 70949-6-1 COURT OF APPEALS, DIVISION I OF THE STATE OF WASHINGTON CLAIRE C. WOODWARD, a single individual, Appellant, v. AVA A. TAYLOR and "JOHN DOE" TAYLOR, wife and husband, and THOMAS A. KIRKNESS and "JANE DOE" KIRKNESS, husband and wife, Respondents. BRIEF OF RESPONDENTS Mark S. Cole Glenn E. Barger Attorney for Respondents Dylan T. Becker Taylor and Kirkness Attorneys for Respondent Taylor Cole I Wathen I Leid I Hall, P.C. Barger Law Group 303 Battery Street 4949 Meadows Road, Suite 620 Seattle, WA 98121 Lake Oswego, OR 97035 Telephone: (206) 622-0494 Telephone: (503) 303-4099 WSBA #6583 WSBA #38023 ORiGINAL TABLE OF CONTENTS I. INTRODUCTION ... .... ........... ........ ... ........... ... ..................... 1 II. ASSIGNMENT OF ERROR. ...............................................3 Issues Pertaining to Assignment of Errors No. 1 ................................ ........................ .......... ... 3 No. 2 ............. ... ........................ ... .......................... 3 No. 3 ................................................ .................... 3 III. STATEMENT OF THE CASE. .... .. ... ............. ..... .......... 3 IV. ARGUMENT ............. ...... ... ................................. ..... 6 1. Standard of Review .... ....... .. ............................. 6 2. RCW 4.18.020 Controls the Selection of the Statute of Limitations ..... ............ .. .. ............................. 6 A. Traditional Approach and Criticisms ............ 6 B. Washington Adopts Uniform Act.. .......... .... 8 C. Methodology
    [Show full text]
  • In the Supreme Court, State of Wyoming
    IN THE SUPREME COURT, STATE OF WYOMING 2014 WY 147 OCTOBER TERM, A.D. 2014 November 18, 2014 COURTNEY C. BOUTELLE, Appellant (Plaintiff), v. S-14-0060 CLINTON T. BOUTELLE, Appellee (Defendant). Appeal from the District Court of Park County The Honorable Steven R. Cranfill, Judge Representing Appellant: Larry B. Jones and Colin M. Simpson of Simpson, Kepler & Edwards, LLC, The Cody, Wyoming division of Burg Simpson Eldredge Hersh and Jardine, P.C., Cody, WY. Argument by Mr. Jones. Representing Appellee: Curtis B. Buchhammer of Buchhammer & Kehl, P.C., Cheyenne, WY. Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ. NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume. HILL, Justice. [¶1] Courtney Boutelle (Sister) filed a negligence action against her brother Clinton Boutelle (Brother) in the Fifth Judicial District Court, Park County, Wyoming, for injuries sustained in a single-vehicle accident that occurred in Montana. Applying Wyoming’s borrowing statute, the district court found that Sister’s action was barred by Montana’s three-year statute of limitations and granted Brother’s motion for summary judgment. We affirm. ISSUES [¶2] Sister states the issues on appeal as follows: I. In applying Wyoming’s “Borrowing Statute”, Wyo. Stat. Ann. § 1-3-117 (LexisNexis 2013) and holding that Montana’s three-year statute of limitations for personal injuries applied in this instance, the lower court failed to correctly apply the relevant Montana case law and statutory provisions.
    [Show full text]
  • The Erie Doctrine: a Flowchart
    William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2018 The Erie Doctrine: A Flowchart Michael S. Green William & Mary Law School, [email protected] Follow this and additional works at: https://scholarship.law.wm.edu/facpubs Part of the Civil Procedure Commons, Conflict of Laws Commons, and the Jurisdiction Commons Repository Citation Green, Michael S., "The Erie Doctrine: A Flowchart" (2018). Faculty Publications. 1991. https://scholarship.law.wm.edu/facpubs/1991 Copyright c 2018 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs THE ERIE DOCTRINE: A FLOWCHART Michael S. Green * I. Introduction ............................................................... 2 15 II. The Four Considerations in an Erie Problem ............ 216 A. Sovereignty Considerations ................................ 216 B. Borrowing Considerations .................................. 222 C. Countervailing Considerations ............................ 225 D. Separation-of-Powers Considerations ................. 226 II: The Flow chart ............................................................ 228 III. Explanations .............................................................. 233 IV . C onclusion ................................................................. 257 I. INTRODUCTION A flowchart belongs in a commercial outline. Why would any self- respecting legal scholar write a symposium piece presenting one? Well, the Erie
    [Show full text]
  • United States District Court Eastern District of Missouri Eastern Division
    Case: 4:11-cv-00044-CDP Doc. #: 284 Filed: 02/11/15 Page: 1 of 23 PageID #: <pageID> UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION SR. KATE REID, et al., ) ) Plaintiffs, ) ) vs. ) Case No. 4:11CV44 CDP ) DOE RUN RESOURCES CORP., et al., ) ) Defendants. ) MEMORANDUM AND ORDER Pending before me is the defendants‟ motion for a determination of foreign law pursuant to Federal Rule of Civil Procedure 44.1. The defendants have requested that the court determine that: (1) the plaintiffs‟ claims “originated” in Peru and are “fully barred” under Peruvian law so that, in accordance with Missouri‟s borrowing statute, Peru‟s shorter statute of limitations applies; and (2) under Missouri‟s choice-of-law analysis, Peru (and not Missouri or New York) has the most significant relationship to this action, so its substantive laws govern the plaintiffs‟ claims. The plaintiffs argue that these issues cannot be determined now on an incomplete record, and that if they can, the law of Missouri or New York (and not Peru) applies. In case the court disagrees, the plaintiffs also advance an interpretation of the relevant Peruvian law that is favorable to them. Case: 4:11-cv-00044-CDP Doc. #: 284 Filed: 02/11/15 Page: 2 of 23 PageID #: <pageID> I have considered the voluminous briefs and exhibits submitted by the parties, including the reports and rebuttal reports from the retained experts in Peruvian law, and I have also conducted my own research. After considering all of these materials, I have concluded that: (1) there has been no showing the plaintiffs‟ claims are fully barred in Peru and so Missouri‟s statute of limitations applies; and (2) I cannot determine without more discovery whether Peru‟s substantive law governs part or all of the plaintiffs‟ claims, and so I decline to make a Rule 44.1 ruling as to the content of that law.
    [Show full text]
  • In the Court of Chancery of the State of Delaware
    IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE CARLYLE INVESTMENT MANAGEMENT ) L.L.C. and TC GROUP, L.L.C., ) ) Plaintiffs, ) ) v. ) C.A. No. 5527-CS ) NATIONAL INDUSTRIES GROUP ) (HOLDING), ) ) Defendant. ) MEMORANDUM OPINION Date Submitted: October 3, 2012 Date Decided: October 11, 2012 R. Judson Scaggs, Jr., Esquire, Pauletta J. Brown, Esquire, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Robert A. Van Kirk, Esquire, David S. Kurtzer-Ellenbogen, Esquire, Brian C. Rabbitt, Esquire, WILLIAMS & CONNOLLY LLP, Washington, District of Columbia, Attorneys for Plaintiffs Carlyle Investment Management L.L.C. and TC Group, L.L.C. Michael F. Bonkowski, Esquire, Therese A. Scheuer, Esquire, COLE, SCHOTZ, MEISEL, FORMAN & LEONARD, P.A., Wilmington, Delaware, Attorneys for Defendant National Industries Group (Holding). STRINE, Chancellor. I. Introduction This is a dispute between one of the world‟s largest private equity firms, the Carlyle Group (“Carlyle”), and a Kuwait-based multi-national, multi-billion dollar conglomerate, National Industries Group (“National”). In 2006, these two sophisticated parties, who had long-standing business dealings with each other, entered into an agreement for National to make a $10 million investment into a Carlyle-affiliated closed- end investment fund, Carlyle Capital Corporation, that was going to make investments primarily in residential mortgage-backed securities. The investment fund was not successful, and was placed in compulsory liquidation. National wanted its money back. Ignoring the forum selection clause in the agreement between the parties, which provided that “[t]he courts of the State of Delaware shall have exclusive jurisdiction over any action, suit or proceeding with respect to [the parties‟] Agreement,” National filed suit against Carlyle in Kuwait.1 In response, Carlyle sought to enforce the forum selection clause in the agreement by filing this action in the Court of Chancery.
    [Show full text]