Monthly Archives: July 2012

Engler v. Gulf Interstate (7/9/12)

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The Supreme Court took this case because CA1’s opinion in it (which we reported here) conflicts with CA2’s opinion in McCloud v. Kimbro.

The court affirms Engler and rejects the McCloud analysis. Respondeat superior depends on the employers right to control, which is measured at the time of the tort.

The opinion does not expressly disapprove McCloud, pretending that it depended on an administrative regulation that was not involved in Engler. “But to the extent that McCloud II suggests that employees generally are acting within the course and scope of their employment when ‘driving to a restaurant’ while off duty during an extended out-of-town assignment ‘because eating is incidental to a multiple-day assignment,’ we disagree.”

(link to opinion)

Sierra Tucson v. Lee (6/28/12)

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This case underscores the importance for both sides of moving quickly on the issue of venue.

Sierra Tucson was sued after a patient disappeared from its psychiatric hospital and was later found dead. Plaintiff filed in Pima County. Sierra Tucson moved for change of venue – under the 12-404 procedure, filing an affidavit before the time for an Answer – since its a foreign corporation and its hospital is in Pinal County. Plaintiff first said she had no objection but then changed her mind and moved to amend the Complaint to add as a defendant a Sierra Tucson employee who lives in Pima County. The trial court granted that, denying the motion for change of venue. Sierra Tucson took this special action; the Court of Appeals accepted it and grants relief.

Change of venue is mandatory unless a party disputes the movant’s affidavit with one of its own within five days. Because the plaintiff did not, the Court of Appeals holds that the trial court had no authority to consider the Motion to Amend or to do anything other than order the transfer.

Plaintiff argued that because no responsive pleading had been filed she had the right under Rule 15 to amend “once as a matter of course.” The court agrees that a motion for change of venue is not a responsive pleading. But it holds that the right to amend did not survive the five-day deadline; she needed to move to amend before that. The court raises but declines to answer the question of whether she also had to file a controverting affidavit.

Plaintiff argued that if she lost she would simply dismiss the case in Pinal and re-file it, including the new defendant, in Pima. The court points out that that doesn’t make the trial judge’s ruling correct.

(link to opinion)