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Douglas v. Governing Board (CA1 5/28/09

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What these plaintiffs were trying to do makes sense only if you know that federal law permits something similar.

Former teachers in the Window Rock School District sued it, claiming that the District had not properly calculated their pay under a particular statute. After the trial court denied the plaintiffs’ motion for certification as a class action, the District made an Offer of Judgment. Plaintiffs accepted it. Then, before the judgment had been entered, they filed a motion for reconsideration of their class-action motion. The court denied this as being moot.

Plaintiffs appealed. They argued that the OJ didn’t cover their claim to represent a class, which is separate from their individual claims on the merits. They pointed to federal cases under which one can, indeed, accept an OJ but then appeal certification.

The Court of Appeals pointed out that Rule 68 specifically says that an OJ need not “be apportioned by claim.” So, the OJ extinguished all of the plaintiffs’ claims. And, while federal litigants can accept and appeal, they must explicitly reserve the right to appeal when they accept; in Arizona, acceptance must be unconditional.

Because they had no claim left to appeal, their appeal was dismissed.

This was an interesting issue but the opinion makes it look harder than it is. The court’s extended discussion of the statutory basis of its jurisdiction, for example, is mostly unnecessary, as is the amount of space spent on the plaintiffs’ lesser – and faintly ridiculous – arguments (e.g., that they can file motions on behalf of people who are not parties to the case and that the OJ doesn’t dispose of all claims unless it contains the word “action”).

Kline v. Kline (CA1 5/21/09)

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Reading cases on law you don’t practice can teach you things. Whether they’re the right things is another question.

This is, just like it sounds, a divorce case, which we don’t usually read. Wife got spousal maintenance based on an Amended Complaint she didn’t serve; the Court of Appeals, after some tendentious meandering, decided that she came close enough.

The interesting part is Footnote 5. It tells us that there is, after all, despite years of people’s thinking and being taught the opposite, a difference between a “general” and a “special” appearance. How did the court conclude that? First, because In re Hindi, 71 Ariz. 17 (1950), which had been cited to the court for the proposition that there was no difference, “predates the effective date of the Arizona Rules of Civil Procedure.” Second, because later cases had used the phrase “general appearance.”

How do courts make mistakes like this? We’ve said it before: footnotes too often contain things that have only been half thought through. In this case, the footnote resulted from something said at oral argument, which may mean that it was an afterthought to an opinion that had already been researched and drafted – and which, perhaps, nobody wanted to have to change too much. (Yes, we know we just asked for a footnote in another case but that was a brief, explanatory footnote, not a footnote attempting substantive legal analysis.)

(Don’t understand why the court was wrong? Here’s the deal:)

In In re Hindi, our Supreme Court took judicial notice that there was no difference under the “new” rules between a general and a special appearance. What rules was it referring to? The tip-off should have been the authority it cited for that conclusion: Moore’s Federal Practice. Moore’s has always been about the federal rules of civil procedure, the rules we adopted and have now, which had been promulgated federally in 1938. In re Hindi, in other words, was referring to our present set of rules, not to some earlier set.

The Rules of Civil Procedure, as rules, were adopted in Arizona in 1949, and in large part had been incorporated as statutes in A.C.A. 1939. If you look in the rule book nowadays – which is apparently all the court did – it does say that the rules were effective in 1956. What happened, though, was that the rules were re-adopted in 1956 when the A.R.S. replaced the A.C.A. 1939. A bit tricky, perhaps, but don’t we expect courts to be able to handle these things?

The court also failed to consider that the present rules,  which it suggests established a difference between types of appearance where none had existed before, do no such thing. No rule defines general versus special appearances (except the very recent Rule 5.2 on “limited” appearances in vulnerable-adult matters).

Why have courts occasionally used the phrase “general appearance?” As Kline itself acknowledges, “general appearance” means the same as “appearance.” Lawyers and judges sloppily interchange phrases like that all the time.  That “general appearance” means the same as “appearance” logically  suggests not that there is a “special” appearance but that there isn’t. If they mean the same then the broader “appearance” subsumes the narrower “general appearance,” not the other way around.

(We deliberately left out one reason the court didn’t think In re Hindi applied: because it “has never been cited for this proposition.” Precedent can’t be cited until its been cited? Don’t get us started . . .)

Holland v. Hurley (CA2 5/19/09)

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NOTE: THIS OPINION HAS BEEN ORDERED DEPUBLISHED

This is a personal-jurisdiction case involving eBay.

Holland, an Arizona resident, bought a car on eBay from Hurley, a Michigan resident. When Holland got the car he was dissatisfied. He sued Hurley in Pima County. Hurley argued that Arizona had no personal jurisdiction over him; the trial court agreed.

So did the Court of Appeals. In a labored analysis, the court held that putting something up for sale on eBay does not itself constitute purposeful contact with Arizona.  This is consistent with earlier cases about interstate sales, of which – except for the eBay angle – this is a fairly typical example.

The court did have to distinguish Uberti v Leonardo, 181 Ariz. 565 (1995), which held that a foreign manufacturer’s extensive nationwide marketing justified jurisdiction in Arizona because the manufacturer otherwise wouldn’t be subject to American law (or so said our Supreme Court). That concern didn’t apply here because Holland could sue Hurley in Michigan.

That is enough to dispose of the case but the court also wanted to write about cases involving eBay and other web sites. There are cases (in other jurisdictions) that draw distinctions based on how much interactivity a site’s owners set it up to offer. They don’t apply here, even if they were the law of Arizona, because Hurley doesn’t own or control eBay.

The mere fact of selling on eBay, then, does not produce jurisdiction. The opinion makes allowances for other cases in which a seller does additional things that show purposeful contacts with Arizona.

In a very brief concurring opinion, Judge Espinoza suggests that Uberti could indeed apply to a domestic seller who uses eBay to sell to all States. “[T]hat would appear to be the whole point of utilizing the boundless eBay cyber marketplace.” He joins because, he says, that conclusion can’t be drawn from the “skeletal facts” available on this appeal. But if that’s the “whole point” of using eBay, what other facts need there be? If the concurrence doesn’t mean that it is basically a dissent, its hard to know what it does mean.

At the end of the opinion the court upheld the trial court’s ruling preventing Holland from doing discovery to supplement those “skeletal facts.” This is not publishable stuff, so it must be proof that the court reads us and agrees that it shouldn’t really be splitting one appeal into more than one opinion.