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courtroom-2-1236719-685x1024The commencement of pro se litigation, meaning without attorney representation, is no easy task. A common aspect of pro se litigation involves a request to proceed in forma pauperis (IFP). A granted IFP request allows a pro se litigant to have the prepayment of fees or costs waived. See 28 U.S.C. § 1915  A court retains the power to dismiss an IFP request if the court finds that the plaintiff has not established himself as a pauper, or if the plaintiff’s claim is frivolous. 28 U.S.C. § 1915(e)(2)

Generally, pro se litigants are able to establish their status as a pauper but the issue of frivolous claims tends to be a more difficult hurdle. This was exactly the case for Ms. Arterburn who filed a pro se legal malpractice suit against her attorney in the United States District Court for the Western District of Louisiana. After motion hearings in the District Court caused her lawsuit to be dismissed Ms. Arterburn appealed to the United States Court of the Appeals for the Fifth Circuit.

The Fifth Circuit first established that Ms. Arterburn showed she was a pauper,  and then examined her legal malpractice claim. Specifically, Ms. Arterburn argued that her due process right to a fair hearing was denied in the course of her legal malpractice action. Her issue with the previous decision by the Western District of Louisiana was that the court did not review a transcript from a 2011 hearing that her attorney did not attend and that further that he did not appeal in time an issue concerning fault in her marriage break up. Further, Ms. Arterburn insisted that the district court excessively questioned her about inaccessible previous testimony and that she was not allowed to rebut evidence. Lastly, Ms. Arterburn argued that during the hearing she was not accommodated for her disability and could not think clearly.

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usa-flag-5-1444783-1024x683This post continues our discussion on the United States Fifth Circuit Court of Appeal’s analysis of the public policy exception in Article V(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). As discussed in the previous post, Article V(2)(b) of the New York Convention permits a signatory country to refuse the recognition or enforcement of a foreign arbitral award if “recognition or enforcement of the award would be contrary to the public policy of that country.”

To reset the stage, a brief review of the facts is warranted. Lito Martinez Asignacion, a Filipino sailor was injured aboard a German vessel docked in the Port of New Orleans. He sued in Louisiana court, but the court ruled that the dispute should proceed to arbitration in the Philippines. A Philippine arbitration panel applied the Philippine law and awarded Asignacion the lowest grade of compensable disability under the Standard Terms in his contract. Asignacion sought to have the Philippine arbitral award set aside in the United States under the public policy exception in Article V(2)(b) of the New York Convention.

Asignacion’s public policy argument rested on the adequacy of remedies available under Philippine law. Asignacion pointed out that United States public policy provides “special solitude to seamen” and requires that foreign arbitral panels give seamen an adequate choice-of-law determination. He argued that the Philippine arbitral panel erred by relying exclusively on the choice-of-law provisions in his contract, which dictated that Philippine law apply.  

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new-york-city-xmas-2007-15-1213202-768x1024The world we live in today is more interconnected than ever before. International commerce has led to rapid economic development in the United States and abroad. As more and more firms participate in international commerce, complex legal disputes arise. International disputes involve a multitude actors of different nationalities, implicating various national and international legal frameworks. In the mid-20th century, the United States and countries around the world sought to harmonize international commerce by codifying rules governing the resolution of international disputes. As a global commercial hub, United States courts have been pivotal in interpreting these international rules and more generally, contributing to the development of private international law. In 2015, the United States Fifth Circuit Court of Appeal interpreted the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York convention”), adding clarity as to when a court may refuse to recognize foreign arbitral awards on public policy grounds.

In this case, Lito Martinez Asignacion, a citizen of the Philippines was hired by Rickmers, a German corporation to work aboard its vessel, which sailed under the flag of the Martial Islands. While docked in the Port of New Orleans, Asignacion suffered injuries in an accident aboard the ship. After receiving medical treatment in Baton Rouge and the Philippines, Asignacion sued Rickmers in Louisiana state court. However, the Louisiana court ruled that the dispute should proceed to arbitration in the Philippines. The Philippine arbitration panel refused to apply the law of the Marshall Islands, the law of the flag state (a potential legal error), applied the Philippine law and awarded Asignacion the lowest grade of compensable disability under the Standard Terms in his contract, a lump sum of $1,870.

Asignacion returned to Louisiana state court seeking to have the Philippine arbitral award set aside for violating United States public policy. Rickmers removed the case to the United States District Court for the Eastern District of Louisiana. The District Court held that the Philippine arbitral award violated United States public policy because it effectively denied Asignacion the opportunity to pursue damages he would be entitled to as a seaman. The Fifth Circuit reversed and remanded the case to the District Court to enforce the award. It held that even with regard to seamen – who are normally accorded special remedies under United States law – the provision of lesser remedies under the foreign law does not violate United States public policy.

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cash-money-1520773-1-1024x768This post follows up on our discussion of the Louisiana Supreme Court’s 2015 ruling requiring that a contradictory hearing is held before striking a defendant’s deficient answer and entering a default judgment in favor of a plaintiff. In this case, the defendant (Dirt Worx of Louisiana, L.L.C.) wrote a letter to the Clerk of Court denying the allegations in plaintiff’s (Citadel Builders, L.L.C.) petition. Citadel moved to strike Dirt Worx’s letter from the record, arguing that Dirt Worx’ letter did not meet the requirements of an answer under the Louisiana Code of Civil Procedure, and even if it did, Dirt Worx’s letter was filed by a non-lawyer in violation of the Louisiana Revised Statutes.
In Louisiana, the defendant’s answer must comply with certain requirements under the Louisiana Code of Civil Procedure. Generally, the defendant’s answer must admit or deny the allegations in the plaintiff’s petition and – in “short and concise terms” – state the material facts upon which the defendant’s defenses will be based, and any affirmative defenses the defendant will attempt to prove at trial. The plaintiff will then scrutinize the defendant’s answer. If the plaintiff finds any arguable deficiencies, he or she will move to strike the defendant’s answer from the record as insufficient and move for a default judgment. Before deciding to strike the defendant’s answer the Trial Court must conduct a contradictory hearing, allow both parties to be heard. Failure to conduct a contradictory hearing on a motion to strike may constitute a legal error. However, a Court of Appeal can still confirm a Trial Court’s erroneous ruling if the error is harmless; i.e. does not affect the outcome of the case.
In this case, the Louisiana Supreme Court vacated the default judgment, finding that the Trial Court’s failure to conduct a contradictory hearing was harmful to Dirt Worx’s case. The Supreme Court found that the Court of Appeal’s ruling failed to consider that Citadel’s motion to strike was based on an allegation that Dirt Worx answer was filed by a non-lawyer, an allegation which requires proof. The Louisiana Supreme Court noted that the Trial Court granted Citadel’s motion ex parte, without hearing any evidence from the parties. Had the Trial Court conducted the hearing, Citadel would have had the opportunity to offer proof in support of its motion, and Dirt Worx would have been able to cure any deficiencies in its answer either by contesting Citadel’s evidence or by hiring a lawyer to appear on its behalf in court. As the Louisiana Supreme Court noted, neither alternative was made available to Dirt Worx. Thus, it held that the Trial Court erred in granting the Citadel’s motion to strike and entering the default judgment.
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In Louisiana, the plaintiff initiates a civil lawsuit by filing a petition with the Clerk of the Court and serving the defendant with a copy of the petition and citation. The defendant must answer the plaintiffís petition or risk a default judgment. A default judgment is a binding judgment in favor of one party based on the other party’s failure to take action in a case. If the defendant fails to properly respond to a plaintiff’s petition or appear before the court, a skilled litigation attorney will timely move for a default judgment to quickly end the case in plaintiff’s favor without going to trial. However, the defendant is not without recourse. In a 2015 case, the Louisiana Supreme Court held before striking a defendantís deficient answer from the record and entering a default judgment, a Louisiana Trial Court must give both parties an opportunity to be heard, and allow the defendant to correct any deficiencies in his or her answer.

The plaintiff, in this case, Citadel Builders, L.L.C. sued Dirt Worx of Louisiana, L.L.C. for breach of a contract to provide work for its construction project. After serving its citation and petition initiating its case, Citadel obtained a preliminary default judgment. Dirt Worx then filed a letter to the Clerk of Court denying all of Citadelís claims. The Clerk of Court filed Dirt Worx letter as an Answer to Original Petition. A few months later, Citadel sent a letter to Dirt Worx, stating that it intended to file a motion to confirm the default judgment. Citadel explained that it did not receive Dirt Worx’s letter; Dirt Worx’s letter did not meet the requirements of an answer under the Louisiana Code of Civil Procedure; and even if it did meet the requirements of an answer, Dirt Worx’s letter was filed by a non-lawyer in violation of the Louisiana Revised Statutes.

Citadel followed up on its letter by filing two pleadings with the court: a motion to strike Dirt Worx’s answer, and a motion for final default judgment. The Trial Court granted Citadel’s motion to strike Dirt Work’s answer, ordered Dirt Worx’s answer to be stricken from the record, and rendered a default judgment of $1,256,205.39 plus interest in Citadel’s favor. The Trial Court ruled on Citadel’s motion ex parte (without Dirt Worx being present or allowing it to be heard on the matter).

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injury-1432459-1024x683One of the biggest fears of any parent is the sudden and unexpected death of your spouse, leaving only you to raise and provide for your children. The thought alone can be crippling. When tragedy strikes, one of the only comforts a surviving spouse can find is believing that they will receive financial compensation to relieve the monetary burden left behind by the loss of a spouse who provided a steady source of income. At the center of every wrongful death claim is the issue of getting the surviving family member relief to overcome the hardship of carrying on without their spouse or parent who helped support them. For individuals killed on the job, the Louisiana Workers’ Compensation Act (the “Act”) provides an avenue for compensation for surviving family members. Under the Act, an employee injured in an accident during the course and scope of the employment is generally limited to the recovery of workers’ compensation benefits as his exclusive remedy against his employer and may not sue his employer in tort. See La. R.S. 23:1032.

Likewise, when an employee is killed during the course and scope of their employment, surviving family members expect compensation from their loved one’s employer. Unfortunately, many companies elect to deny responsibility or claim to be free from fault rather than help the family. Moreover, oftentimes workers’ compensation benefits do not adequately compensate for the loss of a loved one. While these workers’ compensation benefits may be subpar, they are at least guaranteed to the surviving family members.

Other companies that may be responsible for a workplace injury may attempt to label itself as an employer of the injured person in order to protect itself from a tort lawsuit by using the Workers’ Compensation Act as a shield. Whenever this happens, it is imperative that surviving family members have adequate counsel to identify the scheme these companies are attempting to carry out. A recent case out of New Orleans, Louisiana highlights the struggle that grieving family members face when attempting to receive compensation from the companies responsible for a workplace fatality.

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power-2-1315569-683x1024When a person is injured, a countdown begins. If you think you have a lawsuit, you need to file that lawsuit within a certain amount of time or else you will lose the right to that claim. Similar to what some states would call a statute of limitations, Louisiana uses something called “liberative prescription” or just “prescription.”  Under this legal doctrine, after a certain amount of time has passed, a plaintiff can no longer bring their claim.  The claim is treated as if it never came into being. In some cases, this period is one year. See La. C.C. art. 3492.  A defendant can avoid a claim that has passed this period under the defense of peremptory exception, which dismisses a claim for being untimely filed. For some plaintiffs, there is relief in the form of the legal doctrine contra non valentum.  Under this idea, the time period to bring a claim does not begin on the day the injury occurred but rather when the person realizes what has happened with enough certainty to file a lawsuit. See Bailey v. Khoury, 891 So.2d 1268 (La. 2005). Prescription exists to keep parties from being surprised by claims from events that have happened years in the past.  Contra non valentum likely exists to help people who have been prevented in some way from discovering exactly who or what has caused their injury.

The Louisiana Fifth Circuit Court of Appeal recently applied these legal theories on a work-related illness. Natividad Tenorio worked from 1981 to 1988 in his employer’s (Alpha Technical Service) yard removing radioactive substances (oilfield-generated radiation or OGR) from oil and gas pipes.  In November  2009, Mr. Tenorio was diagnosed with throat cancer.  In 2013, a former co-worker informed Mr. Tenorio about the dangerous airborne radiation to which the workers had been exposed during that period of years. One year later, Mr. Tenorio brought a lawsuit against numerous gas and oil companies that had used the radiation-generating pipes. The Defendants asserted their affirmative defense of peremptory exception under the notion that the time period for prescription had passed.  The Trial Court sided with the Defendants and dismissed the lawsuit; Mr. Tenorio appealed.

On appeal, Mr. Tenorio argued that the Trial Court should not have deemed his lawsuit “prescribed” after only one year.  He claimed that the grace period should have been extended under the theory of contra non valentum since he did not discover that his work put him at risk of cancer until four years after his diagnosis.  Defendants argued that Mr. Tenorio should have known the cause within the year following his diagnosis and that he did not show any evidence of anything that may have prevented him from discovering that the radiation from his former job led to his cancer.  The Court of Appeal noted that under these circumstances, the burden of proving that his claim was not prescribed rested with Mr. Tenorio.  As such, he offered evidence that showed he only found out about the radiation in 2013.   However, the Court of Appeal found for the Defendants, reasoning that when a person fails to realize that he or she has a potential claim through only his or her own neglect or ignorance, that person should not be granted a grace period.  Moreover, a year-long prescription period in a personal injury case such as this one is deemed to begin when a plaintiff knows or should know the relevant facts.  The Court of Appeal believed that Mr. Tenorio should have researched possible causes of his cancer immediately after the diagnosis in order to be able to begin his lawsuit within that first year. But because he did not, the Court of Appeal found that Mr. Tenorio was unreasonably late in filing his lawsuit and the Trial Court’s dismissal of his claim was upheld.

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chemicals-1240490-1024x688Bringing a mass tort claim is an extremely complicated task, even for the best of lawyers. Luckily, the attorneys for a group of Plaintiffs in a suit against Evans Harvey Corp. and its insurer, Lexington Insurance Co., knew exactly what they were doing. In the end, each Plaintiff was awarded damages ranging from $2,500 to $13,500. The following discussion serves as an example of one of the rare successes in the mass tort context.

On March 31, 1998, Evans Harvey Corp. was doing maintenance work on a drum reconditioning unit at its facility in Harvey, Louisiana. During the work, there was a chemical release for approximately ten minutes. In those ten minutes, multiple people were exposed to hydrogen chloride and hydrogen sulfide released into the air in the immediate and surrounding area. As a result of the exposure to the chemicals, many people reported itchy eyes, trouble breathing, nausea, vomiting, and itchy skin.

Ten people exposed to the chemicals brought suit against the corporation. Three of them were never seen by a doctor and treated themselves with over the counter remedies, while the remainder were treated either on-site or at a nearby hospital. After being certified as a class for a class-action lawsuit, the case was tried before a district court judge in July 2013. At trial, the Plaintiffs won their case and were awarded between $2,500 and up to $13,500 plus special damages for each Plaintiff. In September 2013, three additional Plaintiffs who were not in the original class were awarded damages.

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stonehenge-spb-ii-1213824-1024x682Good news for professionals; potentially bad news for consumers. Affixing a professional seal to a document does not alone expose a professional to liability if the professional does not directly offer any services to the consumer. The Louisiana Fourth Circuit Court of Appeal recently heard a case that dealt with this very issue.

Martha Hohensee wished to build a new home in New Orleans, Louisiana.  She discussed her plans to construct a residential home with Raymond Bergeron of Raymond C. Bergeron, Jr., Architects, LLC (“Bergeron Architects”). Mr. Bergeron informed her that he did not provide residential architectural services and referred Ms. Hohensee to an architectural designer, Sean Turner of Turner Design Collaborative (“TDC”), who was not a licensed architect. After consulting with Mr. Turner, Ms. Hohensee hired him to design her house. Turner drew up plans for the new home, but the plans could not be submitted to the City of New Orleans without the seal of a licensed architect.

As a favor to Mr. Turner, Raymond Bergeron affixed his seal to Turner’s plans regarding Ms. Hohensee’s home and the plans were submitted to the City for approval. Mr. Turner was told by city officials that certain modifications to the plans needed to be made for City before approval could be given.  Accordingly, Mr. Turner made the necessary modifications but never consulted with Mr. Bergeron. As it turns out, the changes to the plans both increased the cost of construction and produced a structurally unsound home.  Parts of the house were not up to code and the floor buckled from the addition of a crawlspace under the home.

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martian-mold-1556041-1024x768Class action lawsuits are nontraditional litigation procedures. The ultimate purpose is to not only get relief for a defined class of persons but also a relief for all others similarly situated. See Brooks v. Union Pacific R.R. Co., 13 So.3d 546 (La. 2009). Oftentimes, the issue of who is in the defined class can be complicated in its own right, apart from the substantive issues of the particular case. The trial court has broad authority in deciding whether to certify a class. See Chiarella v. Sprint Spectrum LP, 921 So.2d 106 (La. Ct. App. 2005).

Recently, the Housing Authority of New Orleans (HANO) was facing a class action lawsuit for breach of contract. HANO failed to uphold its responsibilities and duties to the tenants of a housing development pursuant to a lease agreement. The District Court defined the class to include all leaseholders and permanent residents under HANO’s jurisdiction who were adversely affected by the presence of toxic mold in their apartments. The class action plaintiffs asserted that HANO’s failure to keep the apartments and common areas free of mold violated its contractual duty to the federal government, specifically the Department of Housing and Urban Development (HUD).

This case centers on whether plaintiffs, Janice Claborne and Sheryl Jones, could rightfully bring a class action under Louisiana law. In other words, were Claborne and Jones part of the defined class of persons. There are several requirements that must be satisfied before a class action can be brought under Louisiana law: (1) numerosity, (2) commonality, (3) typicality, (4) adequacy of representation, and (5) predominance and superiority.

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