Legal Alert
Does the standard Virus Exclusion in an all-risk policy cover government-ordered COVID-19 shutdowns? Judges in the EDVA disagree.
When the wave of shutdown orders hit small businesses in the Spring and Summer of 2020, many owners looked at their insurance policies to see if they had insurance coverage for their business losses. Buried in the standard policy was a provision that looked daunting: "Fungi", Wet Rot, Dry Rot, Bacteria And Virus: We will not pay for loss or damage caused directly or indirectly ...
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Magistrate Judge Leonard holds that the FRCP Require Parties to Sign Authorizations
As if subpoena practice is not expensive and time-consuming already, there are times in which even a subpoena will not suffice to obtain a third-party’s records. Federal statutes may create confidentiality issues, or a state agency may require a Court order for the production of documents. And there have been times that I have been in conflict with opposing counsel as to whether a party ...
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Non-EDVA Opinion of the Month: Candy Sticks and the 3rd Circuit
Intellectual Property law—be it patent, trademark, or trade dress—can sometimes center a huge financial dispute on a remarkably simple issue. The Third Circuit reinforced that idea with its recent decision in Ezaki Glico Kabushiki Kaisha v. Lotte International America Corp. At issue was whether the Defendant could keep selling "thin, stick-shaped cookies. . . partly coated with chocolate." The candy you may know as a pocky ...
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Non-EDVA Opinion of the Month: Candy Sticks and the 2nd Circuit
Intellectual Property law—be it patent, trademark, or trade dress—can sometimes center a huge financial dispute on a remarkably simple issue. The Third Circuit reinforced that idea with its recent decision in Ezaki Glico Kabushiki Kaisha v. Lotte International America Corp. At issue was whether the Defendant could keep selling "thin, stick-shaped cookies. . . partly coated with chocolate." The candy you may know as a pocky ...
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To Lawyers, “R&R” Doesn’t Only Refer to Rest and Relaxation
The Norfolk and Newport News divisions are blessed with three experienced and able magistrate judges. The judicial office of magistrate judge was created by statute in 1968—more accurately, the position was created in 1968, but the title Magistrate Judge came from the Judicial Improvements Act of 1990.[1] 28 U.S. Code § 636(b)(1)(a) provides that a magistrate judge may “hear and determine any pretrial matter” with ...
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LOCAL FBA CHAPTER ANNUAL MEETING on November 10, 2020
You can have the rare opportunity to hear from both Chief Judge Davis and from Judge Novak all from the comfort of your own office. You can even skip the tie with no fear of a finding of contempt. On Tuesday, November 10, 2020, at Noon, the Hampton Roads Chapter of the Federal Bar Association will hold its annual meeting by Zoom. Chief Judge Davis ...
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BOOOOO!
As a special Halloween Treat, we look at a recent Motion to Dismiss ruling by Judge Doumar. The facts are colorful. An unidentified SeaWorld employee, dressed as a clown, was working at the Howl-O-Scream event at Busch Gardens in 2018. He intentionally startled Plaintiff while she was using a set of lockers to store her belongings. The clown is described as “a fully costumed, make-up ...
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OYSTER FIGHT!
I spend a lot of time handling cases on or near the waterfront. One recent opinion caught my eye. Judge Jackson ruled on a Motion to Dismiss concerning an oyster farm and distribution business. The individual defendants were the founders of the corporate defendant—Wharf Oyster Company, LLC. The Plaintiff was an investor. After a period of investment in the domestic business, Plaintiff was solicited to ...
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Let Your Fingers Fly—At Least in North Carolina
As we discussed last summer, the North Carolina Court of Appeals issued a surprising decision that there was probable cause to pull over a driver in North Carolina after he makes “an up-and-down pumping motion with his middle finger extended.” We thought the decision was wrong, and we praised the dissent by Judge Arrowood. Justice has prevailed. The North Carolina Supreme Court overturned the decision ...
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The Power of the Court Compels You: The Frequency and Result of Motions to Compel in the Norfolk and Newport News Divisions of the Eastern District of Virginia
[Reprinted from “Fed Tide”—newsletter of the Hampton Roads Chapter of the Federal Bar Association. If you are not a member, and you practice in Hampton Roads, you should be!] Few litigators like discovery. It can be extensive, expensive, and irritating. It can also lead to a motion to compel and the unpleasantries that often surround those motions. In general, Fed. R. of Civ. P. Rule ...
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Welcome Back to Hampton Roads Judge Roderick Young
On a vote of 93-2, the Senate confirmed the EDVA’s newest judge. The Honorable Roderick C. Young will now preside over cases in Hampton Roads. Who are the two senate holdouts? Chuck Schumer of New York and Richard Blumenthal of Connecticut. In contrast, the two Virginia Senators said in a press statement that “Roderick Young will be a fair, even-minded judge who is already well-respected ...
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EDVA Norfolk is BACK!
The world has changed. One day you are taking your boy to Disney, he is hugging every character in sight, and life feels carefree. Two weeks later, you worry about going to the grocery store, and your son doesn’t even get to hug his grandparents while everything is sorted out. But we are six months later. The Courts have reopened! There are at least a ...
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Is Denial of a Motion to File a Surreply Really a Denial if the Court Reads it Anyway?
Everyone likes to have the last word. Indeed, often dubbed the “recency effect” there is scientific support that going last may increase persuasion. But in ordinary motions practice in the EDVA, the movant both goes first and last. Local Rule 7(f)(1) does allow the non-movant to request leave of court to file a surreply. I often advise clients it is a request that should rarely ...
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STATUTES, STATUES, AND MUNICIPAL CONSTITUTIONAL RIGHTS (Part 2)
We previously discussed the suit in the EDVA brought by the City of Norfolk against the Commonwealth of Virginia to try and remove the civil war monument in downtown Norfolk. Service has been waived, and we can now expect responsive pleadings on October 22, 2019. Then we will see whether the state challenges the right of a municipality to bring First and Fourteenth Amendment claims ...
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The Return of Corpus Linguistics
On a previous post on the blog, we discussed the increased judicial focus on “corpus linguistics,” the use of searchable databases to find specific examples of how a word is used at a given time. The idea got additional appellate attention, again, at the instigation of Judge Thapar of the Sixth Circuit. In Wright v. Spaulding, the Court considered a habeas petition and the right ...
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Upcoming CLE—Be the Exception to the Rule: Beyond the Basics of Federal Court Practice
Please consider joining well-respected federal litigator Jim Theuer and (less well-respected) me as we present a 2-hour CLE on advanced issues in federal court practice. The CLE is sponsored by the NPBA, and registration information is here. We anticipate the first hour will be dedicated to how to get into and stay out of federal court, taught through a series of vignettes. To whet your ...
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It’s Not Over ‘til it’s Over
A motion to enforce a settlement agreement in the EDVA is a good reminder that until all the paperwork is signed, and the money is in your client’s hand, cases are not necessarily over. In Brunelle v. Norfolk Southern Railway Co., 2:18-cv-290, the Plaintiff requested the Court reopen the dismissed case and enforce the settlement agreement between the parties. At issue, is the execution of ...
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“I Like Beer”: Non-EDVA Case of the Month
Beer was a more central topic of a recent Supreme Court nomination battle in the Senate than ever before. One appellate step below the Supreme Court, it was also the central topic of a recent 7th Circuit oral argument and case. Before the Court were questions concerning a preliminary injunction about Bud Light’s “Corn Syrup” advertising campaign that was featured during the 2019 Super Bowl. ...
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You Can’t Win if You Don’t Play
In a terse opinion, Judge Jackson dismissed the claims of the plaintiff in Mortensen v. SeaWorld Parks & Entertainment, LLC, 4:19-cv-00038. The defendant served discovery on May 15, 2019. But the plaintiff apparently never communicated with her attorney despite attempts on May 23, May 31, June 1, June 4, June 5, and June 10. Hearing nothing but silence, plaintiff’s counsel moved to withdraw. On August ...
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Service on an Incompetent Man?
Judge Davis entered an interesting ruling, or “non-ruling” as the case may be, on August 8, 2019 in a case captioned Mid-Century Insurance Company v. Thompson, Civ. No. 2:18cv459. The Plaintiff was an insurance company subrogated to the interest of Dwight Mills. The suit stems from a fire that the Defendant allegedly started with a cigarette. A default judgment was entered ordering the Defendant to ...
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