Dan Berexa's Tennessee Law Blog

Tennessee Supreme Court Rejects the Twombly/Iqbal Analysis in Motions to Dismiss for Failure to State a Claim

The Tennessee Supreme Court rejected the Twombly/Iqbal analysis applied in federal court to relate motions to dismiss for failure to state a claim. The Tennessee Supreme Court continues to apply the standard articulated in Conley v. Gibson, 355　U.S. 41 (1957) that the court should grant a motion to dismiss only when it appears that the plaintiff can prove "no set of facts" that would entitle the plaintiff to relief. Click here for an excellent article authored by my law partner, J.K. Simms, regarding the Tennessee Supreme Court’s recent ruling in Webb v. National Area Habitat for Humanity, Inc., rejecting the Twombly/Iqbal "plausibility" standard.

Attack on Hannan - Two New Bills Conform Tennessee Summary Judgment Standard to Federal Standard

Two new bills address Tennessee’s standard for granting motions for summary judgment.  One of the acts, which will be codified as Tenn. Code Ann.§ 20-16-101, is intended to bring Tennessee law in line with the federal standard applicable to motions for summary judgment.  This statute act is a direct response to the Tennessee Supreme Court’s 2008 decision in Hannan v. Alltel Publishing Company, which greatly restricted the availability of summary judgment, a procedure by which the court can determine the legal merits of a case prior to trial.  Prior to Hannan, summary judgment was available to dismiss a case, in full, or in part, if a party was unable to offer evidence, prior to trial, to establish the essential elements of its claims.  The act returns Tennessee law to a standard which is consistent with the federal standard and should lead to an increase in the number of cases that are dismissed, in whole or in part, on summary judgment.  The Hannan decision caused a dramatic decrease in the number of summary judgment motions that were being filed and granted.  Tenn. Code Ann. § 20-16-101 will apply to actions filed on or after July 1, 2011. 

On a related topic, Senate Bill No. 940/House Bill No. 1641 clarifies the law as it relates to summary judgment in the context of employment claims for discrimination, retaliatory discharge and wrongful discharge.  This act incorporates the federal burden-shifting standard that was also rejected by the Tennessee Supreme Court.  The new law will apply to claims accruing on or after the effective date of the act.

Dan Berexa
Nashville, Tennessee

Comment Period Coming to End for Proposed Amendments to Tennessee Rules of Civil Procedure

Every year the Advisory Commission on the Rules of Practice and Procedure presents recommendations to the Tennessee Supreme Court for amendments the Rules of Procedure and Tennessee Rules of Evidence.  The Court is soliciting written comments on the proposed amendments through November 30, 2009.  The significant proposed amendments to the Tennessee Rules of Civil Procedure are as follows:

 

Rule 4.01 – the filing of a complaint is ineffective if plaintiff’s counsel intentionally delays issuance of the summons or service for more than thirty (30) days

Rule 5.02 – permits service on attorney via e-mail if document is in Adobe PDF format.  The sender must mail, fax or hand-deliver a seperate notice that advises that the document served has been transmitted electronically.

Rule 5(b) – permits courts to adopt local rule allowing electronic filing.

Rule 26.02 – permits discovery of liability insurance.  

Rule 41.02(2) – requires findings of fact and conclusions of law in the event trial court dismisses an action pursuant to Rule 41.02.

Dan Berexa
Nashville, Tennessee

 

Bad Offer of Judgment Can Perpetuate Litigation

Drafting an offer of judgment can be tricky business. In State ex rel. Landenberger v. Project Return, Inc. the court warns:  

It has been said that, “[i]f there is any occasion in civil litigation which calls for caution and care by counsel, it is the drafting of a Rule 68 offer.” (citation omitted).

The case contains an excellent discussion of Rule 68, its shortcomings and how to avoid getting embroiled in litigation over the terms of an offer of judgment.  In Landenberger, a $5000 offer of judgment, which was intended to conclude the litigation, spawned a battle to set aside the plaintiff's acceptance and resulted in an appeal.

Be careful.

Dan Berexa
Nashville, Tennessee

Civil Procedure Amendments Including E-Discovery Rules Adopted by Tennessee Supreme Court

Here are the amendments to the Tennessee Rules of Civil Procedure and the E-Discovery Amendments. The E-Discovery Amendments, which are part of the rules of Civil Procedure, are the first set of rules directed specifically to E-discovery in Tennessee state courts. Both sets of amendments were adopted by the Tennessee Supreme Court on January 8, 2009 and will become effective July 1, 2009, subject to ratification by the General Assembly.

Dan Berexa
Nashville, Tennessee 

Local Counsel and Appearing Pro Hac Vice in Tennessee

In Tennessee, out of state lawyers who do not have a Tennessee law license are required to associate local counsel in order to qualify for admission Pro Hac Vice in our state courts. The terms and conditions for Pro Hac Vice attorneys are defined in Rule 19 of the Rules of the Supreme Court of Tennessee. Lawyers seeking admission must make filings with the Board of Professional Responsibility (BPR) in addition to seeking formal admission, on a case by case basis, from the court in which they wish to practice. Currently the BPR also requires a registration fee of $170 per calendar year.

The lawyers in my firm are often called upon to serve as local counsel. We are retained by national and regional counsel to assist in Tennessee litigation. Frequently we are associated in personal injury, product liability, health care, commercial matters and employment cases. I am often asked to assist in plaintiff's personal injury cases. The role of local counsel can be as expansive as handling most day to day aspects of the case or limited to offering assistance to insure compliance with local rules and practices. 

Effective use of local counsel can enhance the quality of the representation, make lead counsel's job easier and acheive cost savings for the client. Some of the benefits of good local counsel are:

-Ready knowledge of Tennessee law, procedure and local rules/practices
-Prior experience with and insight regarding judges
-Access to local experts
-Ability to conduct local investigations and call upon local resources
-Cost effective handling of motion practice, depositions and document production
-Awareness of local perceptions of parties and issues
-Knowledge of jury verdict data
-Assistance with jury panel research and jury selection
-Knowledge of local vendors (good court reporters, videographers, restaurants and lodging)

When you have the occasion to use local counsel take full advantage of all they can do for you and your client.

Dan Berexa
Nashville, Tennessee 

  

File Suit, Hold the Summons and You May Find Yourself Being Served.

Thinking of filing suit and holding the summons for a while?  

Don't . . .  at least if you want to count on the filing of the suit to toll the statute of limitations. Under Tenn. R. Civ. P. 4.01(3), intentionally causing a delay in the issuance of a summons, or service, makes the filing of the complaint ineffective. See Jones v. Cox, where ironically, a lawyer prosecuting a legal malpractice case made this mistake when attempting to sue the plaintiffs' first lawyer who also failed to effect timely service of process. 

Dan Berexa
Nashville, Tennessee

E-Discovery Rules - Coming to a Tennessee State Court Near You.

While e-filing in our state court has been put on hold, e-discovery rules are likely on their way. The Tennessee Supreme Court's Advisory Commission on the Rules of Practice and Procedure has submitted proposed amendments to the Tennessee Rules of Civil Procedure, governing the discovery of electronically stored information. The Court is soliciting written comments until late November and the expectation is that the final version of the "e-discovery" amendments will be enacted and become effective in mid-2009. Many of the concepts found in the amendments are similar to the e-discovery rules found in the Federal Rules of Civil Procedure. If you are not familiar with "clawback agreements," "quick peeks" and "litigation holds," it is time to start familiarizing yourself with the basics of e-discovery. Click here to view the proposed amendments.

Dan Berexa
Nashville, Tennessee

      

Forget About Permission or Leave of Court! Just File Your Amended Complaint When the Defendant Alleges Comparative Fault of Third Party.

 Tenn. Code Ann sec. 20-1-119 was enacted following the adoption of comparative fault by the Tennessee Supreme Court. The statute provides the means for a plaintiff to pursue non-parties who are identified as being at-fault in a defendant's answer or amended answer. The plaintiff has 90 days to either amend the complaint, and join the third party in the pending suit, or file a separate action against the third party. The claims against the third party are considered timely, for statute of limitations (but not statute of repose) if the plaintiff completes the necessary steps within 90 days. Following the enactment of the statute, a number of appellate opinions addressed various factual scenarios where plaintiffs failed to file their amended complaints within 90 days. Filing the motion to amend within 90 days was insufficient. The motion had to be granted, and the amended complaint filed, within 90 days of when the defendant alleged the fault of the third party.

Last year it became much easier for the plaintiff to comply with the 90 day deadline. The 2007 amendment to Rule 15.01 of the Tennessee Rules of Civil Procedure added the following language to the end of the rule: 

For amendments adding defendants pursuant to Tenn. Code Ann. §20-1-119, however, written consent of the adverse party or leave of court is not required.

Now, when you need to amend to join a non-party who is identified in a defendant's answer, there is no need to seek leave of court or the permission of your opponent. Just file and serve your amended complaint and there is no excuse for failing to act within the 90 day window.

Dan Berexa
Nashville, Tennessee

Tennessee Enacts Uniform Interstate Depositions and Discovery Act - Makes it Easier for Out of State Litigants to Subpoena in the Volunteer State

The Tennessee legislature enacted the Uniform Interstate Depositions and Discovery Act, Tenn. Code Ann. §§24-9-201 et. seq. The act, which will take effect July 1, 2008, provides a mechanism for the issuance, service, enforcement and quashing of subpoenas originating from out of state courts. The act applies to the situation where a litigant, in a case pending in another state, wants to conduct discovery in Tennessee. The act requires Tennessee court clerks to issue a subpoena, if presented with a subpoena issued under the authority of a court of record from a state other than Tennessee. "State" includes any territory or possession subject to the jurisdiction of the United States. The act applies to subpoenas for testimony or for the production of documents or things.

Service of the subpoena and any deposition under the act must be in accordance with the Tennessee Rules of Civil Procedure. The act also addresses applications to enforce, quash or modify the subpoena. The full text of the Act can be viewed by clicking  here.

The new law deletes former Tenn. Code Ann. §24-9-103 (Uniform Foreign Depositions Act) in its entirety and does away with the former cumbersome requirement of the issuance of a mandate, writ or commission, from the foreign court, and the filing of a petition in the Tennessee court requesting the issuance of a subpoena of a local witness.  

Dan Berexa
Nashville, Tennessee