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David M. Duree has more than 30 years experience as a litigator.  With offices in St. Louis, Mo. and O'Fallon, Ill., he also handles cases in numerous other states.

Contact us for Free Initial Consultation about Personal Injury, Class Actions, Commercial Disputes, Franchising, Arbitration, Banking, Internet,  Intellectual Property, Class Action Litigation, Construction and Engineering Dispute Claims anywhere in the United States.

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DAVID M. DUREE AND ASSOCIATES, P.C.
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Providing daily law updates about Trial Practice, including Expert Opinion testimony, Class Actions, Diversity Jurisdiction, Lodestar Attorneys fees, Diversity Jurisdiction law, Lawsuits, Class Action Litigation,  the Abstention Doctrine, Federal Antisuit Injunctions and more. St. Louis Lawyer.

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These materials are in reverse chronological order.  New material is added at the top.  Older material is inserted in the correct chronological spot.  Overruled, modified and/or obsolete material is deleted, revised, consolidated and/or moved, when appropriate.  Citations preceded by <>are linked to the complete court opinion.  (NOTE: Some linked court sites are not always available). Illinois Attorney.                    

The Trustee of a pension trust brought an action against a broker, alleging violations of ERISA which resulted in losses from a motel investment.  The Supreme Court held that ERISA sections 29 U.S.C. 1106(a), 1132(a)(3), allowing a participant, beneficiary or fiduciary to bring a civil action for appropriate equitable relief, apply to suits against nonfiduciary parties for engaging in prohibited transactions.  184 F.3d 646 reversed.  <>Harris Trust and Savings Bank v. Salomon Smith Barney, et al., ____U.S.____, 120 S.Ct. 2180, 2000 WL 742912, (6-12-2000)

A discharged employee need not present direct evidence of the employer's intent to discriminate, to establish a claim for age discrimination under 29 U.S.C. 623(a)(1).   The employer's intent to discriminate may be established by circumstantial evidence, such as evidence that the reasons given were false or pretextual.   197 F.3d 688 reversed.  <>Reeves v. Sanderson Plumbing Products, Inc. ____U.S.____, 120 S.Ct. 2097, 2000 WL 743663 ( 6-12-2000)

The tort of retaliatory discharge does not apply to claims that an employee was discharged for refusing to dismiss his complaint under the Illinois Wage Payment and Collection Act, 820 ILCS  15/14(c).  The act does not contain either an express or implied civil remedy for damages for a retaliatory discharge.  <>McGrath v. CCC Information Services, Inc, ___ Ill.App.3d ___, ___ Ill.Dec. ___, ___N.E.2d ___, 2000 WL 726282, (Ill.App. 6-6-2000)  

It is not necessary to establish that a party which wrongfully removed a state case to the federal court acted in bad faith, in order to recover attorney fee awards after the case is remanded, under 28 U.S.C. 1447 (c).  <>Garbie v. DaimlerChrysler Corp.,(Case No. 99-3539) _______ F. 3d ______, 2000 WL 520614 (7th Cir. 2000)

When parallel federal lawsuits are filed between the same parties in different jurisdictions the first filed rule provides that the Court which first acquires personal jurisdiction over the parties should take priority over the other Court. Northwest Airlines, Inc. v. American Airlines, Inc. 989 F. 2d 1002 (8th Cir. 1993); <>Keymer v. Management Recruiters International, Inc., 169 F. 3d 501 (8th Cir. 1999);    <>Cortez Byrd Chips, Inc. v. Bill Harbert Construction Co., 120 S.Ct. 1331,___ U.S.___, (2000)

A  Federal Court need not grant full faith and credit to a Judgment rendered in another state unless that state had jurisdiction to render the Judgment, where the issue of jurisdiction was not litigated in the first case and could not have been litigated there by the party affected thereby in the current action. <>Tennessee v. Surety Bank, 200 F. 3d 373 (5th Cir. 2000).

A defendant owes a duty of care to preserve evidence if a reasonable person in the defendant's position would have foreseen that the evidence was material to a potential civil action. <>Stinnes Corp. v. Kerr-McGee Coal Corp., 309 Ill. App. 3d 707, 243 Ill. Dec. 98, 722 N.E.2d 1167 (Ill App. 2000)

A verdict of $8,000,000 compensatory damages and $135,000,000 punitive damages was set aside and a new trial ordered by the trial court because of attorney misconduct, in a trademark infringement case.  The court had sustained 778 objections by the defendant to plaintiff's evidence, and the court itself  interposed 67 additional objections.  This created the appearance that the court and the "large" defendant were conspiring to conceal evidence offered by the "small" plaintiff. As a result a new trial was required.  The court also found that the California state courts would not recognize the common law tort of unfair competition by reverse confusion where the parties were not in competition in the same market.  Forward confusion occurs when the consumer might believe the junior user's product is that of the senior user, i.e. the defendant "palms off" its product as that of the senior user (trademark holder).  Reverse confusion occurs when the consumer believes the products of the senior user (small company-trademark holder) are actually the products of the junior user (large company-infringer).  This usually occurs when the infringer is much larger and more well known than the trademark holder.  <>Dreamwerks Production Group,Inc v. SKG Studio, dba DreamWorks SKG  142 F.3d 1127 (9th Cir. 1998). Since plaintiff's state common law claims fail, its claims for punitive damages must also fail because punitive damages are not recoverable under the Federal Trademark (Lanham) Act, 15 U.S.C. 1052, 1117 et seq. The court also found that plaintiff's claims for statutory trademark infringement could not exceed $500,000 as a matter of law.  Trovan, Ltd. v. Pfizer, Inc. ___F.Supp.2d ___, 2000 WL 709149 (C.D. Cal. 5-24-2000)

Federal courts are required to determine whether the state in which they sit would be authorized to exercise personal jurisdiction, to determine whether the federal court has personal jurisdiction, unless the case is proceeding under a federal statute which expressly authorizes nationwide service. Fed. R. Civ. P. 4(k)(1)(A, D).  The amended Illinois long arm statute, 735 ILCS 5/2-209(c), extends Illinois long arm power to the limit allowed by the U.S. Constitution. As a result, a tortfeasor who commits a tort against an Illinois business so that the injury is felt in Illinois, submits himself to the personal jurisdiction of the Illinois state and federal courts. Trademark infringement and unfair competition are torts.  Torts of this kind which cause damage in Illinois, even though resulting from conduct in other states, establish personal jurisdiction in Illinois. Illinois Attorney. <>Janmark, Inc., v. Reidy et al., 132 F.3d 1200 (7th Cir. 1997); Bunn-o-matic Corporation v. Bunn Coffee Service, Inc. 88 F.Supp.2d 914 (C.D.Ill. 2-10-2000)

Attorneys who received privileged documents from their opponents attorneys,   as a result of the attorneys' mistake, were not required to return them. The privilege was destroyed once the documents were delivered, even though they were delivered by mistake. Amgen, Inc. v. Hoechst, Marion, Roussel, Inc., 190 F.R.D. 287 (D. Mass. 2000)

A newspaper reporter was not collaterally estopped from asserting her reporter's statutory privilege before a special grand jury, notwithstanding the fact that a Circuit Court in a previous case had divested the reporter of her privilege, and the reporter had failed to appeal the order of divestiture. <>People v. Pawlaczyk, 189 Ill. 2d 177, 244 Ill. Dec. 13, 724 N.E. 2d 901 (Ill. 2000)

The Pennsylvania Supreme Court determined, in a medical malpractice case, that  expert opinion testimony  (for the defense) could be provided during direct examination from a "learned treatise", as a limited exception to the hearsay rule, for the purpose of explaining other expert opinion testimony, also provided on direct examination. <>Aldridge v. Edmunds, 750 A. 2d 292, 2000 WL 509876 (Pa. 2000)

In the Fifth Circuit, state class actions may be removed to the Federal Court even where the amount in dispute with some class members does not meet the $75,000.00 level required under federal diversity jurisdiction law. The Fifth Circuit held that 28 U.S.C. 1367 gave the Federal Court supplemental jurisdiction over the claims which did not meet the jurisdictional amount. The United States Supreme Court had previously held that the amount-in-controversy requirement for jurisdiction must exist for each member of the class.<>Zahn v. International Paper Co., 414 U.S. 291 (1973). The United States Supreme Court agreed to review the case because the decision conflicted with decisions in other Federal Circuits, but affirmed in a 4-4 vote with one Justice not participating. This issue will most likely be reviewed again in the United States Supreme Court in the near future because of the conflict between the Circuits;<>51 F. 3d 524 (5th Cir. 1995) affirmed;  <>Free v. Abbott Laboratories, Inc., 120 S. Ct. 1578, _____ U.S. ______ , (2000)

A college student raped by two other students filed an action for personal injuries under 42 U.S.C. 13981, which provides a federal civil remedy for the victims of gender-motivated violence. The Supreme Court determined that this section was unconstitutional because it plainly acceded congress' constitutional bounds. It was not authorized by either the commerce clause or Section 5 of the Fourteenth Amendment; see also <>United States v. Lopez, 514 U.S. 549 (1995); <>Civil Rights Cases, 109 U.S. 3 (1883);<>City of Boerne v. Flores, 521 U.S. 507 (1997);  <>United States v. Morrison et el., ____ U.S. _____,120 S. Ct.1740,  2000 WL 574361  (5-15-2000). 

The sole shareholder of a corporation was denied due process of law when he was added, individually, to ongoing litigation after Judgment had been entered against the company he owned, because the Trial Court was concerned that the corporation might have insufficient assets to pay the Judgment, against it. The Trial Court then proceeded to enter the same Judgment against the individual, sole shareholder. The United States Supreme Court reversed ruling that the individual shareholder was entitled to notice and a hearing before Judgment could be entered against him;  reversing 175 F. 3d 1343 (Fed. Cir. 1999).   <>Nelson v. Adams USA, Inc., ____ U.S. _____, 120 S. Ct. 1579, (2000 WL 459282) (2000)

A District Court in Georgia certified a class of Dairy Queen franchisees and denied the franchiser's Motion to Dismiss the Antitrust Tying Claims. The case is still pending. Collins et el. v. International Dairy Queen et al., 59 F. Supp. 2d 1312 (M.D. Ga. 1999), 939 F. Supp. 875 (M.D. Ga. 1996), 174 F.R.D. 511 (M.D. Ga. 1997), 980 F. Supp. 1252 (M.D. Ga. 1997), 990 F. Supp. 1469 (M.D. Ga. 1998), 2 F. Supp. 2d 1465 (M.D. Ga. 1998), 186 F.R.D. 689 (M.D. Ga. 1999), 190 F.R.D. 633 (M.D. Ga. 2000). Litigation Attorney.

A Minnesota Statute requiring arbitration of claims under the Minnesota Sales Representative Act, even where the parties did not contractually agree to arbitrate, is void as unconstitutional because it deprives the parties of their 7th Amendment right to a jury trial and violates the "Contracts Clause" as special interest legislation lacking a public purpose.   Angostura Internet Ltd. v. Melemed,  25 F. Supp. 2d 1008  (D. Minn. 1998);  GTFM, LLC v. TKN Sales, Inc., _______ F. Supp. 2d _____, 2000 WL 364871 (S.D. N. Y. 2000)

The Federal Insecticide Fungicide and Rodenticide Act (FIFRA) preempts state law claims for crop damage resulting from spraying allegedly dangerous and defective pesticide products. <>Etcheverry v. Tri-Ag Service, Inc., 993 P. 2d 366 (Cal. 2000)

The 30 days for removing a state action to the federal court begins when the defendant is personally served with the Summons and Complaint, not when the defendant receives a courtesy copy or a copy through informal delivery practices. <>Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999)

Providing daily law updates about Trial Practice, including Expert Opinion testimony, Class Actions, Diversity Jurisdiction, Lodestar attorneys fees, Diversity Jurisdiction law, Class Action Litigation,  Attorney Fee Awards, Lawsuits, the Abstention Doctrine, Federal Antisuit Injunctions and more. St. Louis Lawyer. Legal Malpractice Claims, Legal Malpractice Litigation, Legal Malpractice Damages.

A state court determination that the current taxpayer challenging Alabama's foreign corporation franchise tax is bound by a prior ruling against another taxpayer, under the doctrines of res judicata and/or collateral estoppel, violates the due process clause of the 14th amendment of the U.S. Constitution. Neither case was a class action.  The two cases involved different taxpayers for different tax years and there was no privity or special relationship between the taxpayers.  The franchise tax statute also impermissibly discriminated against interstate commerce, in violation of the commerce clause of the U.S. Constitution, by imposing more stringent requirements on foreign  than domestic corporations.  The U.S. Supreme Court had jurisdiction to hear this appeal from a state court determination of a federal question, irrespective of whether the State was the plaintiff or defendant in the trial court.  The 11th amendment jurisdictional challenge was recently decided against the State in <>McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Florida Dept of Business Regulation, 496 U.S. 18, 30 (1990);  <>South Central Bell Telephone Co. et al., v. Alabama, 526 U.S. 160 (1999) 

The Illinois Code of Civil Procedure, 2-604.1, does not permit a claim under punitive damage law when any part of the Complaint is based upon a negligence theory. The intentional tort/punitive damage claims were stricken, properly, where the Complaint also included a claim of negligence.  <>McCann v. Presswood, 308 Ill. App. 3d 1068, 242 Ill. Dec. 532, 721 N.E. 2d 811 (Ill. App. 1999)

Claims under punitive damage law based on violations of Civil Rights Statutes, such as Title VII, 42 U.S.C. 1981, do not require proof of outrageous or egregious conduct. An intentional violation is sufficient under punitive damage law. <>Kolstad v. American dental Assoc., 527 U.S. 526, 119 S.Ct. 2118 (1999). Litigation Attorney.

The Federal Courts recently tightened the requirements for admissibility of expert opinion testimony. To be admissible, expert opinion testimony must be shown to be trustworthy and scientifically (or otherwise) valid. The District Court is the "gatekeeper" on questions of admissibility, and should consider whether the theory or technique at issue has been tested, reviewed and publicized, whether the method employed has been accepted in the scientific community, whether there is a known or potential rate of error for the technique in question and whether there are established standards for controlling the technique's operation. These requirements for admissibility apply irrespective of whether the offered expert opinion testimony is based on scientific, technical or "other specialized" knowledge of the witness. Federal Rule of Evidence 702;<>Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993);<>Berry v. City of Detroit, 25 F. 3d 1342 (6th Cir. 1994); <>General Electric Company v. Joiner, 522 U.S. 136 (1997); <>Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).

A Federal Court may not enjoin parties from transferring assets, before Judgment is entered, on the sole ground that the assets may no longer be available to the defendant if and when a Judgment is subsequently entered. This is particularly true where the assets in question are located in another country.  <>Groupo Mexicano de Desarrollo, S.A.  v. Alliance Bond Fund, Inc. , 527 U.S. 308 (1999).

The Arbitration Clauses in Franchise Agreements were enforceable where the franchisees argued that the arrangement was unconscionable as permitting the franchisor to litigate its claims, while requiring the franchisees to arbitrate. The franchisees also argued that the arrangement in the lease, sublease cross-default clause, in combination with the Arbitration Clauses in the Franchise Agreements, was void as against public policy. The Court disagreed.  St. Louis Lawyer. <>We Care Hair Development Corp. v. Eric Engen, et al., 180 F. 3d 838 (7th Cir. 1999)

Lodestar attorneys fees may be recovered in contingent fee cases. The lodestar method determines the amount of reasonable fees that would have been incurred under an hourly agreement.  <>Neal v. Honeywell, Inc., 191 F. 3d 827 (7th Cir. 1999)

A federal court's authority to issue federal antisuit injunctions against nonparties under Fed. R. Civ. P. 65(d) is limited to enjoining the nonparties from aiding and abetting enjoined parties from violating the federal antisuit injunctions against them; United Pharmacal Corp. v. United States, 306 F. 2d 515 (1st Cir. 1962); Alemite Mfg. Corp. v. Staff, 42 F. 2d 832 (2nd Cir. 1930);  <>Doctor's Associates, Inc. v. Reinert & Duree, P.C., et al., 191 F. 3d 297 (2nd Cir. 1999)

Parallel conduct may serve as circumstantial evidence of a civil conspiracy, but proof of the conspiracy still requires evidence that each conspirator knowingly and voluntarily participated in a common scheme to commit an unlawful act or a lawful act in an unlawful manner. Here the mere fact that asbestos manufacturers manufactured similar products was insufficient to establish a civil conspiracy. <>McClure v. Owens Corning Fiberglass Corp., 188 Ill. 2d 102, 241 Ill. Dec. 787, 720 N.E. 2d 242 (Ill. 1999).

A swimwear manufacturer which used the trademark "Miraclesuit" was not entitled to a preliminary injunction against another manufacturer which used the trademark "The Miracle Bra". Preliminary injunction granted by the District Court vacated. A preliminary injunction requires a demonstration of the likelihood of confusion, not just the possibility of confusion, by the consuming public. The preliminary injunction was vacated because the remedies of royalties and damages would likely be improper once the case was heard on the merits. A & H Sportswear, Inc., v. Victoria Secret Stores, Inc., et el, 166 F. 3d 197 (3rd Cir. 1999)

A verdict of $196,000,000 compensatory damages plus $150,000,000 under punitive damage law,  for a certified class of Meineke Muffler Franchisees, against the franchiser and related parties, was reversed by the Fourth Circuit which found that the requirements for class certification had not been met, which tainted the entire case, and that the claims were essentially for breach of contract, dismissing the tort claims. The franchisees had asserted claims alleging that the franchiser misused funds paid by the franchisees into an advertising fund managed by the franchiser. The Court also ruled that the franchiser did not owe a fiduciary duty to the franchisees with respect to the administration of the advertising fund. <>Broussard et el. v. Meineke Discount Muffler Shops, Inc. et el., 155 F. 3d 331 (4th Cir. 1998)

Providing daily law updates about Trial Practice, including expert opinion testimony, Diversity Jurisdiction, Lodestar attorneys fees, diversity jurisdiction law, lawsuits, the abstention doctrine, federal antisuit injunctions and more. St. Louis Lawyer. Legal Malpractice Claims, Legal Malpractice Litigation, Legal Malpractice Damages.

The full faith and credit clause of the United States Constitution and the full faith and credit act, 28 U.S.C. 1738, do not require a state or federal court in one state to provide full faith and credit to a state judgment in another, which barred an expert witness from testifying in other cases against General Motors. The enforcement measures (such as injunctions) provided by the judgment do not travel, under the full faith and credit clause or the Act, to other states. <>Baker v. General Motors Corp., 118 S.Ct. 657 (1998).

Equitable principles require that an eviction action filed against a franchisee, sublessee be stayed where the franchisor, affiliated with the eviction plaintiff, lessee, had obtained  federal antisuit injunctions barring the franchisee, sublessee from raising otherwise available defenses to the eviction action. <>Subway Restaurants, Inc. et al. v. Riggs, 297 Ill. App. 3d 284, 696 N.E. 2d 733, 231 Ill. Dec. 437 (1998)

A physician was entitled to recover the amount due him out of a personal injury recovery under his physician's lien on the proceeds, notwithstanding technical deficiencies in the lien, under a conversion theory against the plaintiff's attorney, recovering actual damages and under punitive damage law  <>Cirrincione v. Johnson, 184 Ill. 2d 109, 234 Ill. Dec. 455, 703 N.E. 2d 67 (Ill. 1998)

A class may be certified for settlement only purposes without considering whether the case would present intractable problems of trial management.  The other requirements for class certification, however, such as commonality of issues of fact and law and adequacy of representation must be established.  <>Amchem Products, Inc. v. George Windsor, et al., 521 U.S. 591 (1997)

Contracts to provide medical malpractice expert witnesses on a contingent fee basis are void and unenforceable in Illinois. The choice of law and choice of forum clauses requiring suit in Virginia and application of the law of Virginia are also void as against public policy. <>First Nat'l Bank of Springfield, as Guardian v. Malpractice Research, Inc., 179 Ill.2d 353, 688 N.E.2d 1179, 228 Ill. Dec. 202, 70 A.L.R. 5th 759 (Ill. 1997)

Forensic engineers (expert witnesses) who perform tests, testify, advertise their services or otherwise hold themselves out as professional engineers in Illinois, must first be licensed as professional engineers by the State of Illinois, under the Professional Engineering Act,  225 ILCS 325/1 et seq., to avoid charges of unlicensed practice.  The practice of forensic engineering in Illinois for 20 years before the act was amended (in 1989) to include forensic engineering does not fall within the grandfather clause.  Licensing is still required to practice forensic engineering after the effective date of the amended act.  Miller v. Department of Professional Regulation, et al., 276 Ill.App.3d 133, 213 Ill.Dec. 53, 658 N.E.2d 523 (Ill App. 1995);  Charles Van Breeman v. Zollar, Director of the Department of Professional Regulation et al., (unreported) 96 C 7095, 1997 WL 124266 (N.D. Ill 3-14-1997)

When state law provides the rule of decision in federal diversity cases,  <>Erie Railway co. v. Tompkins, 304 U.S. 64 (1938) and the Rules of Decision Act, 28 U.S.C. 1652, require the federal courts to ascertain and apply state law; the federal courts may certify a question to the state supreme court when state law is unsettled.  Here, the Illinois Supreme Court answered the certified question, holding that under Illinois law an airframe and airplane engine are a single product, precluding  recovery for purely economic loss damages to one by the other, under tort, products liability and warranty theories.  Illinois Supreme Court rule 20 permits the Illinois Supreme Court to accept certified questions from the U.S. Seventh Circuit and the U.S. Supreme Court, but not from other Federal Courts. <>Trans States Airlines v. Pratt & Whitney Canada, Inc., 86 F.3d 725 (7th Cir. 1996); answering certified questions<>177 Ill.2d 21, 224 Ill.Dec. 484, 682 N.E.2d 45 (Ill. 1997);applying Illinois Supreme Court opinion, 130 F.3d 290 (7th Cir. 1997)

Where parallel state and federal actions are filed raising claims to be determined solely by state law (the state case was removed, under diversity jurisdiction law,  then remanded), the Federal District Court abused its discretion by abstaining from hearing the federal case because of the pending parallel state case, without first discussing and evaluating the 10 factors  under the abstention doctrine, which requires "exceptional circumstances" for the Federal Court to abstain.  <>Sverdrup Corp. v. Edwardsville Community Unit School District No. 7, 125 F. 3d 546 (7th Cir. 1997)

A landlord was permitted to recover from a franchiser for fraud.   A submissible claim under punitive damage law was also established, and evidence of conduct  defrauding other landlords was admissible, in a jury trial, to establish the pattern and practice of the franchiser, which had defrauded landlords by using  assetless, alter ego, leasing companies to enter into leases with the landlords and subleases with its franchisees. <>Jannotta v. Subway Sandwich Shops, Inc., et al., 125 F. 3d 503 (7th Cir. 1997).  Litigation Attorney.

 Franchisees' claims for damages of less than $75,000.00 apiece in state court did not deprive the federal court of subject matter jurisdiction, under diversity jurisdiction law,  in federal actions by the franchisor to compel arbitration where the franchisor alleged in Federal Court that the amount in dispute was more than $75,000.00 for each franchisee. <>The Barbers, Hairstyling for Men & Women, Inc. v. Bishop, et al., 132 F. 3d 1203 (7th Cir. 1997)

Punitive damage awards violate the due process clause of the 14th amendment of the U.S. Constitution  when grossly excessive, considering the ratio to compensatory damages and the degree of reprehensibility of the defendant's conduct.  An award of $10,000,000 in exemplary damages and $19,000 for compensatory damages was not grossly excessive, where the defendant's conduct was truly reprehensible.  <>TXO Production corp. v. Alliance Resources corp, 509 U.S. 443 (1993).  Where the defendant's conduct (fraudulent in Alabama) was lawful, by statute,  in most other states, its' reprehensibility level was low, and  an award of  $2,000,000 in exemplary damages and $4,000 in compensatory damages met the grossly excessive standard, violating the due process rights of the defendant.  The trial court also erred in permitting the jury to consider the defendant's conduct in other states, where it was lawful, is assessing exemplary damages.  Principles of sovereignty and comity forbid a state of enact policies for the entire nation, or to impose its' own policy on neighboring states.  <>BMW of North America, Inc v. Gore, 517 U.S. 559 (1996)

The federal courts do not have federal question subject matter jurisdiction to hear motions to vacate or confirm arbitration awards even where the arbitrated claim was based upon a federal statute.  Motions to vacate, filed in the federal court, must be dismissed if the court does not have jurisdiction under diversity jurisdiction law;<>Kasap v. Folger Nolan Fleming & Douglas, 166 F. 3d 1243 (D.C. Cir. 1999);<>Minor v. Prudential securities, Inc., 94 F. 3d 1103 (7th Cir. 1996)

The Seventh Amendment to the United States Constitution, providing for a  jury trial in an "at law" case at the time the Constitution was adopted, precludes appellate courts from redetermining the amount of damages awarded in a jury trial.   Claims that jury damage awards were excessive or inadequate must be reviewed under rules applicable to new trial requests, including remittitur, and on appeal under "abuse of discretion" standards. The Seventh Amendment precludes "reexamination" of damage awards by juries. This does not preclude new trial orders, judgments n.o.v. or remittitur orders which require a plaintiff to elect between accepting a reduced amount or a new jury trial. <>Gasperini v. Center For Humanities, Inc., 518 U.S. 415 (1996).

Under the abstention doctrine, Federal Courts have discretion to dismiss or stay Federal actions for equitable, declaratory or other discretionary relief, and may stay (but not dismiss) Federal actions for damages (at law claims) where parallel State actions are pending between the same parties, where undecided issues of State common law or complicated State statutory schemes are at issue in both cases. Normally, Federal Courts may not enjoin pending, parallel, State actions raising the same claims between the same parties. 28 U.S.C. 2283. The abstention doctrine is applied by the Federal Courts infrequently. <>Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996); <>Railroad Com'n. of Texas v. Pullman Co., 312 U.S. 496 (1941); <>Burford v. Sun Oil Co., 319 U.S. 315 (1943);<>Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); <>Wilton v. Seven Falls Co., 515 U.S. 277 (1995)

Some courts hold that attorneys are prohibited from ex parte contacts with the former employees of their litigation opponents if the former employees' statements could be imputed to the former employer for the purpose of imposing liability. Other courts hold that ex parte contacts with former employees are prohibited only if the former employees were part of the former employer's "litigation control group", i.e. those prominently involved in the determination of its legal position. Public Service Electric & Gas Co. v. Associated Electric & Gas Insurance Services, LTD., 745 F. Supp. 1037 (D.N.J. 1990); Curley v. Cumberland Farms, Inc., 134 F.R.D. 77 (D.N.J. 1991); In Re the Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. 148 (D.N.J. 1995); Orlowski v. Dominick's Finer Foods, Inc., 937 F. Supp. 723 (N.D. Ill. 1996); Valassis v. Samuelson, 143 F.R.D. 118 (E.D. Mich. 1992); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341 (D. Conn. 1991). Virginia bars any ex parte contact. Carmsey v. Medshares Management Services, Inc., 184 F.R.D. 569 (W.D. Va. 1998). Florida prohibits ex parte contacts which elicit confidential information from ex-employees. Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F. Supp. 651 (N.D. Fla. 1992). Florida also requires that the information gained during the ex parte interview be produced to the attorneys for the former employer. Lang v. Reedy Creek Improvement Dist., 888 F. Supp. 1143 (M.D. Fla. 1995) see also Andrews v. Goodyear Tire & Rubber Co., Inc., 2000 WL 175098 (D.N.J.) and In Re Aircrash Disaster, 909 F. Supp. 1116 (N.D. Ill. 1995)

The Noerr-Pennington Doctrine. The Noerr-Pennington Doctrine was developed to protect efforts to influence legislative or executive action by the government (by petitioning and/or filing lawsuits) from liability under the antitrust statutes. Litigation or other conduct petitioning the government cannot be the basis for claims of malicious prosecution or abuse of process or the basis for enforcing or establishing a monopoly under the antitrust laws, unless the litigation is sham litigation, i.e. litigation which is objectively baseless; <>Eastern Rail Road President's Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961); <>United Mine Workers v. Pennington, 381 U.S. 657 (1965); <>California Motor Transport v. Trucking Unlimited, 404 U.S. 508 (1972); Defino v. Civic Center Corp., 780 S.W. 2d 665 (Mo. App. 1989); Oregon Natural Resources Council v. Mohla, 944 F. 2d 531 (9th Cir. 1991); Franchise Realty Interstate Corp. (McDonald's Affiliate) v. San Francisco Local Joint Executive Board of Culinary Workers, 542 F. 2d 1076 (9th Cir. 1976); <>Whelan v. Abell, 48 F. 3d 1247 (D.C. Cir. 1995); Havoco of America, LTD. v. Hollobow, 702 F. 2d 643 (7th Cir. 1983); <>Professional Real Estate v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993)

A franchisor waived its right to compel arbitration by filing eviction lawsuits against its franchisee, sublessee to resolve related disputes. The eviction lawsuits were filed by the alter ego or agent leasing company of the franchisor. Illinois Attorney. Yates v. Doctor's Associates, Inc., 193 Ill. App. 3d 431, 549 N.E. 2d 1010, 140 Ill. Dec. 359 (1990)

Attorney fee awards may be recovered in the Federal Court even in the absence of a contract or statutory right, when an unfounded action is brought or maintained in bad faith, wantonly, vexatiously or for oppressive reasons, under equitable principles.<>Alyeska Pipeline Service Co. v. Wilderness Soc'y, 421 U.S. 240 (1975); San Juan Products Inc., v. San Juan Pools of Kansas, Inc., 849 F. 2d 468 (10th Cir. 1988). Litigation Attorney.

Lodestar attorneys fees are recoverable under a contractual provision so long as the fees and expenses were incurred for a legal action that was integral to enforcement of the contract. Pennsylvania Truck Lines, Inc., v. Solar Equity Corp., 882 F. 2d 221 (7th Cir. 1989); Carefree Foliage v. American Tours, Inc., 153 Ill. App. 3d 190, 106 Ill. Dec. 248, 505 N.E. 2d 1039 (1987)

A Federal Court may not enjoin State Court proceedings unless expressly authorized by Federal Statute or where necessary in aid of the Federal Court's jurisdiction or to protect or effectuate a Federal Judgment. The exceptions are to be construed narrowly. 28 U.S.C. 2283; <>Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988); <>Vendo v. Lektro-Vend Corp., 433 U.S. 623 (1977).

Federal Courts hearing cases based on diversity apply state substantive law and federal procedural law. The "outcome-determination" test, applied to decide whether an issue is governed by procedural or substantive law, is not to be applied mechanically, but must be guided by the twin aims of the Erie Rule; (1) discouragement of forum-shopping and avoidance of inequitable administration of the laws. <>Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); <>Guaranty Trust Co. v. York, 326 U.S. 99 (1945);<>Hanna v. Plumer, 380 U.S. 460 (1965);<>Byrd v. Blue Ridge Rural Elec. Co-op, Inc., 356 U.S. 525 (1958)

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff cannot prove a set of facts in support of his claim, which would entitle him to relief. <>Conley v. Gibson, 355 U.S. 41 (1957)

A request for a declaratory judgment does not provide an independent basis for federal jurisdiction. <>Skelly Oil Co. v. Phillips Petrolium Co., 339 U.S. 667 (1950)

Penal Judgments in one state are not entitled to full faith and credit in other states. The test of whether a judgment of another state is penal, for which full faith and credit is not required, or provides a private remedy, is whether the purpose of the award was to punish an offense against the public justice of the state, or to afford a private remedy to a person injured by the wrongful act;Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888); Huntington v. Attrill, 146 U.S. 657 (1892). S. H. v. Adm'or of Golden Valley Health Ctr., 386 N.W. 2d 805 (Minn. App. 1986); <>Nelson v. George, 399 U.S. 224 (1970); <>Milwaukee County v. M.E. White Co., 296 U.S. 268 (1935). Legal Malpractice Claims, Legal Malpractice Litigation, Legal Malpractice Damages.

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