The EDVA Norfolk Blog

Non-EDVA Opinion of the Month:  Candy Sticks and the 2nd Circuit

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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BOOOOO!

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!

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

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

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

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!

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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beer case 7th circuit

“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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EDVA

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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EDVA

A Proposed Amendment to Rule 7.1 

The Advisory Committee on Civil Rules has released a proposed amendment to Rule 7.1 regarding disclosure statements filed in district courts.  The proposed modification requires parties in diversity cases to file a disclosure statement that “names—and identifies the citizenship of—every individual or entity whose citizenship is attributed to that party at the time the action is filed.” The change is intended to address the complicated ...
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court room

Statutes, Statues, and Municipal Constitutional Rights, Oh My.

The EDVA made the national news this week with a story that the City of Norfolk has sued the Commonwealth of Virginia in the district seeking a declaratory judgment that it could move a statue in downtown Norfolk commemorating the efforts of the Confederacy during the Civil War.  A copy of the Complaint is here.  At issue is a Virginia statute that criminalizes the removal ...
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EDVA BY THE NUMBERS: How Frequently are Magistrates Overseeing Cases in Norfolk?

EDVA BY THE NUMBERS: How Frequently are Magistrates Overseeing Cases in Norfolk?

As we noted in a previous post, the parties in that case consented to a Magistrate Judge assuming jurisdiction over their claims.  That option is presented in every civil case, and is a topic that is always addressed in the initial pretrial conference.  But how often do parties consent to use a Magistrate? We looked back at the 249 “Core Civil” cases from 2017 to ...
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Lady Justice Statue

EDVA OPINION WATCH: Beware: Your “Notice Of Claim” May Not Be a Notice of Claim

Judge Doumar issued an interesting opinion In Re Vulcan Construction Materials, LLC, As Owner of the Tug Jeanie Clay, Case No. 2:18-cv-00668.  The case came before the Court as a maritime Limitation of Liability Act case in which a vessel owner petitions the Court to limit its liability for any claims arising during a vessel’s voyage to the value of the vessel at the conclusion ...
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I’m Well-Versed in Bird Law.

I’m Well-Versed in Bird Law.

Whether for work or vacation, many of us have traveled to and from North Carolina.  Some of us have seen or interacted with the state’s law enforcement officials.  I had my own interaction once; the officer and I were very cordial to one another, and the speeding ticket he issued was deserved.  But others take a different approach to dealing with North Carolina law enforcement ...
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