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Preston v. Kindred Hospitals West (CA1 8/5/10)

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NOTE: THE SUPREME COURT ACCEPTED REVIEW AND AFFIRMED THIS OPINION

The court tells us that this is an original issue about the substitution of real parties in interest under Rule 17(a).

Preston, while in bankruptcy, died in Kindred Hospital. His sisters sued it for malpractice. The hospital moved to dismiss, arguing that the bankruptcy trustee owned the claim. The sisters admitted this and moved under Rule 17(a) to join or substitute the trustee as plaintiff.

That rule says that “no action shall be dismissed on the ground that it is not prosecuted in the name of the real party interest until a reasonable time has been allowed after objection for . . . joinder or substitution of the real party in interest.” But the trial court granted the dismissal, reasoning that the rule must refer to situations is which the real party in interest is, basically, unknown or uncertain. That is the gloss that the federal rule has acquired and it is what a State Bar Committee note, parroting the corresponding federal note, suggests.

The Court of Appeals reverses. It says that this is an issue of first impression. What it apparently means is that 17(a) has never been brought up on these exact facts, for it then goes on to cite, among others, its own earlier case holding – in a case where the real-party-in-interest wasn’t unknown or uncertain – that the trial court can’t immediately dismiss without allowing time for joinder or substitution. The case suggested that prejudice might be a factor but that wasn’t argued here so the court “declines to consider” whether it is or not.

We’ve waited for a case like this. We knew one had to come. The practice of making, printing, and paying any attention to State Bar Committee notes is a lousy idea. The notion that the committee members are experts on a particular rule or subject matter – or, for that matter, on any – is a flattering myth; as here, they’re as often as not cribbing from another source, one that might or might not itself have been more knowledgeable than they and one that they might or might not have given much consideration to. And to the extent that they make a substantive, original contribution, they shouldn’t. The language required to understand what the rule means belongs in the rule. The rest belongs in the rulings; judges should tell us what rules mean, not anonymous nobodies trying to steer the law in one direction or another. (Yes, we’re anonymous, and you can assume that we’re nobodies, but we’re not trying to make law or decide your case.) As for strictly factual/historical matters, lawyers and judges can read; whether a 1970 rule was intended to change, or not, the result of a 1966 opinion they can figure out by seeing that the later rule differs, or not, from the earlier case.

Why are the notes made? Because they’re printed. And why are they printed? Mostly to stroke the egos of the committee members. Have you ever met a member of a Bar committee (other than yourself, of course) whose ego needed to be stroked? Most need to be tied up in a box and kept in a cool, dark place.

(link to opinion)

In Re MH-2008-000867 (8/5/10)

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In this case the Supreme Court permits court testimony by telephone. It’s a mental health case, so there are points of distinction, but it should probably be at least a blip on a civil trial lawyer’s radar.

A statute requires that two doctors testify for the State at a commitment hearing. In this case one of them was out of town, the patient refused a continuance, so the court took his testimony by phone. The patient appealed the resulting commitment order.

The Court of Appeals reversed, deciding that although commitment hearings are civil a patient’s due process rights include a Sixth Amendment right of confrontation. The telephone failed Sixth Amendment analysis.

The Supreme court vacates that opinion and affirms the commitment order. Commitment hearings are civil. The Sixth Amendment does not apply to civil proceedings. Instead, a due-process analysis applies. Telephonic testimony “does not significantly increase the risk” of an incorrect result. The witness on the phone was “subject to full cross-examination.” In addition, the patient’s lawyers already had his report and his testimony largely overlapped that of the doctor who gave live testimony.

Some context is useful. Commitment proceedings, theoretically civil, are handled by county attorneys and public defenders, which means that for purposes of strategy and tactics they have turned into what those folks know: criminal cases. The lower courts have to some extent been caught up in that mood. This opinion is perhaps not so much a call for wider civil use of the telephone as a reminder that commitment really is a civil proceeding.

It will, though, be cited by lawyers who for various reasons can’t or don’t want to show the jury their witness. Of course, taking trial testimony by phone is not unheard of and in administrative hearings bureaucrats do it all the time. And this case deals with a bench proceeding, not a jury trial. But this is the direction the courts want to take us, toward trials as administrative hearings – short and simple, in rooms with a few people and, increasingly, a lot of machines. In theory all finders of fact are entitled to consider the witness’s demeanor, etc., even with experts, and we know that juries pay a lot of attention to that (thus the defendants who show up for trial sporting their first suit, tie, and shave). That used to be an argument in favor of using juries. And anybody who’s tried cases will wonder about that “subject to full cross-examination” idea. Mustn’t question progress, though.

 

(link to opinion)

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Ruiz v. Lopez (CA1 8/3/10)

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This case holds that failure to give proper notice of default renders default judgment void.

Ruiz sued Lopez and served her at work. When she didn’t file an Answer he filed for default; he sent copies of the default paperwork to the large apartment complex where she lived without including the apartment number on the envelope. She moved to set aside the resulting default and default judgment. Lopez argued that Ruiz should have sent mail to her work address, which he knew, and that in any event there was excusable neglect. Ruiz’ argued that he didn’t know the right apartment number but that the letter carrier or apartment manager would deliver it anyway and that the letter wasn’t returned to him as undeliverable. The trial court granted the motion, although it found no excusable neglect. Ruiz appealed; this opinion affirms.

Rule 55(a)(1)(i) says that a copy of the application for default must be mailed to the defaulting party if his “whereabouts” are known. The court concludes that “whereabouts” means the particular place were the party can be found, not the general area. Ruiz knew where that was – Lopez’ workplace – but sent it to an area instead. Moreover, “mailed” implies a proper mailing address, which includes the apartment number according to a New York case discussing postal requirements. A party, the court said, should give the “best notice practicable” – in this case, to the workplace.

Ruiz argued that the judgment was voidable, not void, and that Lopez could therefore obtain relief only under Rule 60(c)(1) (excusable neglect). But the court holds that because notice was insufficient the default was of no effect and the default judgment was void. The trial court was therefore required to set it aside under Rule 60(c)(4).

 

(link to opinion)