Tag Archives: action

Follow up: Rulings Against Sheriff Arpaio

A while back images where shown of Sheriff Arpaio, from Arizona, having 220 immigrants march in a line with shackles.  (One story here).  This story, among others, prompted lawsuits against Arpaio. The first case granted an injunction against Arpaio and the Sheriff’s Office.  The second case ruled that the Human Smuggling Act (which allowed the arrest and prosecution of immigrants).

It is interesting to point out that these decisions came before the 9th Circuit Court of Appeals decision (Oct. 8, 2013), discussed here, which held Arizona S.B. 1070 was void and preempted.

In Manuel de Jesus Ortega Melendres v. Arpaio, No. CV-07-02513-PHX-GMS (D. Ariz. Oct. 2, 2013), U.S. District Court Judge Snow granted an injunction and listed reforms in which Arpaio and the Maricopa Sheriff’s Office must comply with.  This list includes, for example:

  • Supervisors shall provide effective supervision necessary to direct and guide Deputies.  Some of these include, for example: Respond to certain arrests; confirm the accuracy and completeness of Deputies’ daily reports;and hold Deputies accountable.
  • Supervisors enforcing Immigration-Related laws will directly supervise law enforcement activities.
  • Appointment of a federal independent monitor;
  • Hiring a Community Liaison Officer who is a sworn Deputy fluent in English and Spanish; and
  • Video recorder in every patrol car to record every traffic stop.

In We are America v. Maricopa County Bd. of Supervisors, No. CIV 06-2816-PHX-RCB (Sept. 27, 2013), U.S. District Court Judge Broomfield enjoined Arizona’s Maricopa Migrant Conspiracy Policy.

Sheriff Arpaio created this policy based on the Human Smuggling Act, Ariz. Rev. Stat. 13-2319 which allowed for the arrest and prosecution of immigrants for “conspiring to transport themselves within Maricopa County.”

District Court Judge, like the reasoning of the 9th Circuit a few days later, ruled that the statute was preempted by the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.

The court also certified the class, which included “all individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. 13-2319 [Human Smuggling Act].”

via Courthouse News Service.

Advertisements

Leave a comment

Filed under civil rights, courts, discrimination, federal, immigration, legal decision, state

Supreme Court and collective action dismissals

The Supreme Court has recently decided a collective action case that affects how the litigation process can be cut promptly by defendants.  In summary of the details below, a plaintiff loses its interest in a collective action when an offer completely satisfies the plaintiff’s claim.  Further, if the plaintiff does not move for certification, even though the lawsuit had already started, the plaintiff’s case ends if the claim is no longer alive.

What this might imply is that plaintiffs in a collective action would need to move promptly when seeking certification.  The question, however, is: would you have enough supporting evidence by then?

In Genesis Healthcare Corp. v. Symczyk, 11-1059 (2013), the Supreme Court held that a collective action (FLSA) is moot when the named plaintiff has no continuing personal interest in the outcome of the lawsuit and no motion for conditional certification has been filed.

The District Court, finding that no other individuals had joined her suit and the Rule 68 offer that was ignored fully satisfied her claim, dismissed the lawsuit for lack of subject matter jurisdiction.  The Third Circuit Court of Appeals dismissed.  However, the Supreme Court agreed with the District Court, and thus reversed the Court of Appeals’ opinion.

The Supreme Court explained that Sosna v. Iowa, 419 US 393 (1975) and United States Parole Comm’n v. Geraghty, 445 US 388 (1980), held that a class action that was erroneously denied relates back to the time of the erroneous denial — as long as the named plaintiff’s claim remains live at the time of the denial of the class certification.

The Supreme Court, here, found that the named plaintiff had not moved for conditional certification and her claim became moot.  Consequently, the relate back provision did not apply in her case.

As to the Rule 68 offer, the Supreme Court held that the purposes of a collective action would not be frustrated by the offer.  The plaintiff alleged that the Rule 68 had the effect to “pick off” the named plaintiffs before the collection action’s process had run its course.  The Supreme Court explained that in Deposit Guaranty Nat. Bank v. Roper, 445 US 326 (1980), when the Rule 68 offer did not provide complete relief, the named plaintiffs could appeal because they retained an ongoing, personal economic stake in the lawsuit.

Here, however, the named plaintiff conceded that the Rule 68 offer offered complete relief, and plaintiff asserted no continuing interest in shifting attorney’s fees and costs.

Leave a comment

Filed under Appellate, courts, employment, legal decision, rules, wage

Drop in Employment Civil Rights Lawsuits

TRAC Reports has recently released its latest data on the trends of employment civil rights lawsuits.  The decrease of civil rights lawsuits in the employment context is not surprising.

TRAC Reports states:

The latest available data from the federal courts show that during February 2013 the government reported 950 new employment civil rights filings. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse TRAC, this number is down 7.9 percent over the previous month when the number of filings of this type totaled 1,032, and has dropped 13.2 percent from its level one year ago see Table 1.

Drop in Employment Civil Rights Lawsuits

 

TRAC further states that the volume of civil rights matters filed in federal districts during February 2013 was 3.1 per every million persons in the US.  Last year, that number of filings was 4.2.

via Drop in Employment Civil Rights Lawsuits.

Leave a comment

Filed under civil rights, courts, employment

In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality

On February 4, 2013, the Supreme Court of the State of Minnesota adopted amendments to the Rules of Civil Procedure, including those affecting discovery.  Of particular note were amendments to Rules 1 and 26.  Specifically (and significantly), Rule 1 was amended to state that it is the responsibility of the parties and the court to assure proportionality throughout the litigation.  Accordingly, Rule 1 now states (new language is underlined):

These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81.  They shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.

It is the responsibility of the court and the parties to examine each civil action to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues.  The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties’ resources, and complexity and importance of the issues at stake in the litigation.

Similarly, in addition to other significant amendments to Rule 26, Rule 26.02(b) has been amended to require that the scope of discovery “comport with the factors of proportionality, including without limitation, the burden or expense of the proposed discovery weighed against its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.”  While such limitations to discovery were previously acknowledged, the amended rule more strongly emphasizes the importance of proportionality.

Significant amendments to other rules were also adopted.  Notably, an order attaching “corrective amendments” was entered several days later.  Those orders are available HERE and HERE.  The newly adopted amendments become effective July 1, 2013.

via In Minnesota, Amendments to the Rules of Civil Procedure Highlight Proportionality : Electronic Discovery Law.

Leave a comment

Filed under courts, discovery, District Court, electronic discovery, Judges, legal decision, Minnesota, rules, sanctions

NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Contract

Alan Ritchey Inc., 359 N.L.R.B. No. 40, 12/14/12 [released 12/19/12], is a major NLRB decision. The time after a union is certified until it reaches its first contract is often long and difficult.

This decision holds, for the first time, that an employer MUST bargain with the union BEFORE imposes major discipline on unit employees notwithstanding the fact that a CBA has not been reached. As the NLRB stated:

Not every unilateral change that affects terms and conditions of employment triggers the duty to bargain. Rather, the Board asks “whether the changes had a material,substantial, and significant impact on the employees’ terms and conditions of employment.” Toledo Blade Co., 343 NLRB 385, 387 2004 emphasized.

This test is a pragmatic one, designed to avoid imposing a bargaining requirement in situations where bargaining is unlikely to produce a different result and, correspondingly, where unilateral action is unlikely to suggest to employees that the union is ineffectual or to precipitate a labor dispute. We draw on this basic principle, adjusted to fit the present context, today.

Disciplinary actions such as suspension, demotion, and discharge plainly have an inevitable and immediate impact on employees’ tenure, status, or earnings. Requiring bargaining before these sanctions are imposed is appropriate, as we will explain, because of this impact on the employee and because of the harm caused to the union’s effectiveness as the employees’ representative if bargaining is postponed.

Just as plainly, however, other actions that may nevertheless be referred to as discipline and that are rightly viewed as bargainable, such as oral and written warnings, have a lesser impact on employees, viewed as of the time when action is taken and assuming that they do not themselves automatically result in additional discipline based on an employer’s progressive disciplinary system.

Bargaining over these lesser sanctions—which is required insofar as they have a “material, substantial, and significant impact” on terms and conditions of employment—may properly be deferred until after they are imposed.

(emphasis added).

via Adjunct Law Prof Blog: NLRB Issues Major Decision Imposing Bargaining Obligation Over Discipline Before Union Reaches Conract.

Leave a comment

Filed under labor, legal decision, NLRB, union