Archive for September 2006

Lawsuit filed by Utah State University crash victims

September 18, 2006

Family members of eight Utah State University students killed in a rollover accident, and two survivors, have filed a lawsuit in federal court against Daimler Chrysler and Cooper Tire & Rubber Company.

For those not familiar with this tragedy……

In September 2005, USU instructor Evan Parker was transporting 10 students home from a field trip when the left rear tire of the vehicle blew, causing the van to roll four times. All 11 men were ejected from the van. Parker and eight students were killed in the crash. The two other students were seriously injured.

The Utah Highway Patrol determined that none of the men were wearing a seatbelt at the time of the rollover — a controversial statement that some family members have disputed.

Also certain to be a point of contention is the speed of the van. The Utah Highway Patrol initially reported the van was traveling near 100 mph. However, a later state forensics report estimated the speed at around 75 mph.

Here is a 2005 news report of the crash.

Noticeably absent as a plaintiff in the case is Evan Parker’s estate (the driver of the vehicle).

The case has been assigned to Judge Tena Campbell. Brad H. Bearnson of Bearnson & Peck, Logan, Utah, represents the plaintiffs.

Judge Tena Campbell – Motion for Summary Judgment denied

September 18, 2006

CLARE DOLL CHASE, Plaintiff, vs. CEDAR CITY CORPORATION, et al., Defendants.

Case No. 2:05 CV 293

2006 U.S. Dist. LEXIS 65638

September 12, 2006

Judge Tena Campbell

He said / she said.

Plaintiff Clare Doll Chase was arrested for disorderly conduct and interfering with an arresting officer after she challenged the right of cable workers to be in her backyard.

The police officer states that he responded to the Plaintiff’s property to ensure that cable workers were able to finish a job located within a utility easement in plaintiff’s backyard. Officer states that he warned plaintiff several times to return to the house to avoid arrest. Despite the warnings, plaintiff continued “accost the workers.” At that time, the officer used force on the plaintiff, putting her in a “twist lock” and ultimately arresting her.

Plaintiff (not surprisingly) said she was “fully cooperative and compliant” with the officer. She also claims that she was never informed that she should return to the house or face possible arrest.

Plaintiff alleges she was discriminated against in violation of the Americans with Disabilities Act, was subjected to excessive force, and was illegally arrested. Ms. Chase also alleges a cause of action for trespass, challenging the right of the cable company workers to be in her backyard.

Defendants include Cedar City, Utah, two Cedar City police officers, the cable workers themselves, as well as multiple communications companies. In denying Cedar City’s motion for summary judgment, the court remarked: “the lack of discovery in this matter, coupled with the reality that the parties dispute the core facts that form the basis for Ms. Chase’s claims, precludes the entry of summary judgment at this time.”

Judge Ted Stewart – Motion for Summary Judgment granted

September 15, 2006

JODI NIX, Plaintiff, vs. PARK CITY MUNICIPAL CORPORATION, a Utah municipal corporation, LLOYD D. EVANS, an individual and Chief of the Park City Police Department, PHIL KIRK, an individual and a Lieutenant in the Park City Police Department, THOMAS B. BAKALY, an individual and City Manager of the Park City Municipal Corporation, Defendants.

Case No. 2:04cv01197TS

2006 U.S. Dist. LEXIS 65232

September 11, 2006

Judge Ted Stewart

Plaintiff Jodi Nix, a former Park City police officer, alleged a “class-of-one” equal protection claim pursuant to 42 U.S.C. § 1983. Defendants included Park City, two high ranking officers within the police department, and the Park City city manager. 

The court pointed out that: “an individual asserting a class-of-one equal protection claim must prove that he or she was singled out for different treatment or persecution due to some personal animosity, ill-will or malice by the defendant.”

Judge Stewart opined that plaintiff failed to show either: (1) that she was treated differently than other similarly situated individuals; and (2) that there was any malice, ill-will or animosity between plaintiff and the individual defendants.

Motion for Summary Judgment granted. Case dismissed.

Good suggestion by Magistrate Judge David Nuffer

September 14, 2006

Magistrate Judge David Nuffer has a wonderful blog regarding Utah District Court CMECF updates.  If you haven’t had a chance, I highly recommend that you take some time to read through this very helpful blog.

http://utd-cmecf.blogspot.com/

As many of you already know, it is now required to electronically file most documents with the court (as opposed to bringing it to the clerk’s office and filing the paper copy with the clerk).

The Judge’s latest blog entry brings up a great point.  If you’re going to ask the court to act on something, its best to file the document as a “Motion” and not a “Request.” Magistrate Judge Nuffer indicates that a “request” will not appear on the court’s motion reports, which some courts, judges and law clerks use as a “to do” list. 

If its not on the “to do” list (as generated by the computer), the “request” may never get acted upon.

Judge Paul G. Cassell bio

September 14, 2006

Attached is a wonderful bio for Judge Paul G. Cassell that is posted on the Federal Bar Association, Utah Chapter website.

Judge Tena Campbell – Motion for Summary Judgment denied

September 10, 2006

JOHN C. WOOD, Plaintiff v. AT&T CORP., Defendant

Case No. 2:05 CV 131

2006 U.S. Dist. LEXIS 63885

September 6, 2006

Judge Tena Campbell

Plaintiff filed suit claiming that his former employer, AT&T Corp.: (1) did not grant him applicable leave under the Family Medical Leave Act (“FMLA”); and (2) alleges his employment was improperly terminated as a direct result of AT&T’s failure to grant him requested leave.

In denying the motion, the court states: “The parties dispute whether [Plaintiff] requested additional FMLA leave time, which possibly would have excused his otherwise unapproved absences. Further, it is not clear from the record whether AT&T would have imposed different performance criteria on [Plaintiff] if extended FMLA leave had been granted. Accordingly, AT&T has not established that it is entitled to summary judgment.”

Motion for summary judgment denied.

To footnote or not to footnote, that is the question

September 7, 2006

Reading Magistrate Judge Brooke C. Wells’ latest opinion reminds me of a continuing debate between comentators, authors and judges regarding the writing style of judicial opinions.

There seems to be a growing trend for some judges to put citations in footnotes and to generally abstain from using substantive footnotes.  This argument is advocated by leading author Bryan Garner, as summarized by this article. (By the way, Garner’s lectures and seminars are outstanding if you ever have the chance to attend).

Judge Richard A. Posner, a judge on the U.S. Court of Appeals for the Seventh Circuit, opposes this style, as outlined in this article

Magistrate Judge Wells clearly prefers placing citations in footnotes.