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Article • May 15, 2007
Texas Jury Verdict Finds Civil Rights Violations but Awards $0 for Assault by Texas prisoner Frank Guerro was assaulted on December 2, 1995, by prison guard Antonio Torres, who stuck Guerro, causing a large and painful bruise to his right ribs. He also alleged other guards assaulted him on December …
Article • May 15, 2007
Kansas Prisoner Convicted of Sodomy Entitled to DNA Testing by Dale Denney, a Kansas state prisoner, was convicted of sodomy in 1992. He later filed a motion in the trial court requesting that DNA tests be performed, pursuant to KSA 2003 § 21-2512.p The trial court denied the motion because …
MA Mental Health Patient Wins Over $1.5 M for Beating by Hospital Staff by On August 12, 1993, Jason Davis, a Massachusetts state mental health patient at the Westborough State Hospital left without permission and drank an undisclosed amount of alcohol. He was found later that day and returned to …
Article • May 15, 2007
Numerosity Supports Class Certification by Former employees alleged age discrimination in employment. Numerosity is presumed at a level of 40 class members. At 474: "Commonality is met if a common issue of law or fact is shared by the members of the prospective class." (Emphasis supplied) At 476: "Where, as …
Article • May 15, 2007
Class Certified in Customs Strip Search Suit by African-American women sued the Customs Service over airport searches. The commonality requirement for class certification "is not a demanding requirement; one issue of fact or law common to all class members will suffice." Here the common issues are whether or not the …
Article • May 15, 2007
Deponents Must Explain Changes to Testimony by A witness made substantive changes to his deposition testimony and could not explain them. Rule 30(e) permits changes both in form and substance. A deponent who makes such changes may be subject to the reopening of the deposition concerning them. However, the rule …
Article • May 15, 2007
Mental Exam Barred in Discrimination Suit by An employee did not place her mental condition sufficiently "in controversy" to require her to submit to a mental examination under Rule 35, Fed.R.Civ.P., by alleging emotional distress as an element of damages in a Title VII discrimination case. While her mental condition …
Article • May 15, 2007
Class Numerosity Satisfied With 40 or More Members by At 590: "Generally, courts will find a class sufficiently numerous when it comprises 40 or more members." However (id.): . . . [W]here a class is not obviously numerous, courts should, in addition to the number of proposed class members, consider …
Article • May 15, 2007
Rule 68 Offers Not Allowed in Class Actions by The plaintiff filed suit. The defendant--before appearing or answering--served an offer of judgment under Rule 68 which supposedly offered everything that the plaintiff could have gotten in the litigation. The plaintiff moved for class certification and then to strike the offer …
Article • May 15, 2007
Class Certification Granted in Disparate Impact Case by Minority schoolteachers alleged that standardized tests they were required to pass had a disparate impact based on race. The defendants argued that no class should be certified under Galvan. The court rejects the argument, holding that Galvan does not always require denial …
Article • May 15, 2007
NY Court Certifies Class Action of Pay Searched Minorities by The court certifies a class of black and Latino men stopped and frisked by the Street Crimes Unit and alleging lack of probable cause and racial profiling. Class certification is particularly appropriate where a plaintiff seeks injunctive relief against discriminatory …
Article • May 15, 2007
Rule 68 Offer May Conflict With Class Action Rule by A Rule 68 offer of judgment may generally be in conflict with the policies and principles of Rule 23, that proposition does not apply where a class has not been certified. Here, the plaintiff fails to provide "one iota" of …
Article • May 15, 2007
Suit Can Be Settled Before Class is Certified by Most federal courts have held that a suit filed as a class action should be treated as one for purposes of settlement or dismissal, even though the class has not been certified, until it is determined that class certification is not …
Article • May 15, 2007
Filed under: Telephones, Attorney Calls
Police Not Liable For Ban on Attorney Calls by At 778 n. 4: The defendant state police could not be held liable for the plaintiff's inability to make a long distance call to his attorney from jail, since the right to counsel had not yet attached after his arrest, and …
Article • May 15, 2007
Shower Fall May Implicate 8th Amendment by The plaintiff complained that he fell in the shower in the North Infirmary Command Unit 2-B and was injured, after he and other prisoners had filed grievances about the deteriorated conditions. The court applies Eighth Amendment standards to this detainee case (reciting the …
Article • May 15, 2007
Filed under: Civil Procedure, Parties
Leave to Amend Denied in NY Retaliation Suit by The plaintiff sought to amend his complaint to add 20 new defendants and numerous new incidents at a different prison from the actions complained of in his first complaint, and he did so shortly before the deadlines for completing discovery and …
Defense Verdict in Illinois Brutality, Cold Case Upheld by The plaintiff alleged that officers confined him in a cell with a broken window in subzero weather, used excessive force against him, and made false statements leading to wrongful disciplinary action. A jury found for the defendants. The verdict as to …
Article • May 15, 2007
Requesting Party May Be Required to Pay Discovery Copying Costs by An African-American state trooper alleged employment discrimination. The magistrate judge should not have required defendants to produce photocopies of five years worth of personnel files of other officers; it was sufficient to produce two years' worth for review. Rule …
Article • May 15, 2007
Police Investigative Records Ordered Disclosed in Suit by The plaintiff is entitled to discovery of police internal investigative records and the defendant's personnel file, subject to a protective order and redacting medical information, social security numbers, home addresses, and home telephone numbers. The court holds that the question is one …
Article • May 15, 2007
Filed under: Civil Procedure, Discovery
Failure to Timely Object Waives Discovery Objection by Failure to object timely to discovery requests may result in waiver of the objection, though courts should avoid "hair-trigger" findings of waiver. Rule 34 should be read like Rule 33 in this respect despite the lack of explicit provision for waiver. At …
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