Published By: Maxwell S. Kennerly, Esquire

Defendant here did a splendid job of waiving its rights and annoying Judge Pollak:

Second, defendant, in a footnote, suggests that this matter should be referred for arbitration in accordance with the grievance procedures outlined in the CBA. See Pl.’s Ex. 4, at § 1.05-09. Defendant’s presentation of this argument is, to say the least, underwhelming. Whether a dispute is subject to mandatory arbitration is a question of too much consequence to be relegated to a one-sentence footnote in an opposition to a motion for summary judgment. Section 3 of the Federal Arbitration Act is instructive:

 If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the  terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

9 U.S.C. § 3 (emphasis added). Parties desiring an order compelling arbitration must make application to the court for such an order. The manner of this application should, in accordance with Rule 7(b) of the Federal Rules of Civil Procedure, be a formal motion. Such a motion should, in accordance with Local Rule 7.1(c), be accompanied by a memorandum explaining the grounds for the party’s request. Here, rather than following these basic rules for requesting action from a federal district court, defendant has styled its request for relief as an alternative argument (that is, alternative to its main argument, which appears in the text of its opposition papers, that summary judgment is inappropriate on the merits) and tucked it into a footnote.

The court will deny defendant’s alternative request for arbitration for three reasons.

First, the request is not made in the form of a motion, as Rule 7(b) requires, nor it is briefed, as Local Rule 7.1(c) requires. Few rules of civil procedure are as easy to follow as Rule 7(b) and Local Rule 7.1(c). All these rules require is a formal  [*21] motion and a statement of grounds. If defendant cannot be bothered to submit a formal motion and a statement of grounds, then it cannot be serious about the relief it purports to desire. Moreover, the court could not easily rule on defendant’s request, as the court has not been provided a complete copy of the arbitration portion of the CBA. The copy submitted by plaintiffs does not include anything following the third line of § 1.09, which makes sense given that this section has nothing to do with plaintiffs’ argument. Defendant, however, has not submitted a complete copy to accompany its footnote request, nor has it made any argument as to how the grievance procedure works or how it applies. Without providing a complete copy of the arbitration agreement and some explanation of why defendant believes it applies here, the court cannot find that defendant has adequately demonstrated that this dispute is subject to arbitration.

Second, defendant has waived any right to arbitration by not raising the issue in motions practice before now. Although waiver by delay is not favored, the Third Circuit has held that the right to arbitration is waived when defendant’s delay causes prejudice. Hoxworth v. Blinder, Robinson & Co., 980 F.2d at 912, 926-27 (3d Cir. 1992). Here, defendant has, without a peep, submitted to full discovery in this matter. Discovery is now complete, and the case, having been pending for more than a year, is ready for disposition, either by summary judgment or by trial. Plaintiffs have doubtless spent substantial time, effort, and expense in getting this case ready for summary judgment practice and trial. The sheer number of exhibits and depositions submitted attests to plaintiffs’ efforts, which, particularly considering that this is not a high-dollar-value case, are significant. Moreover, the arbitration procedure outlined in those portions of the CBA available to the court do not appear to contemplate discovery. Thus, having accepted the benefit of discovery from plaintiffs, and having put plaintiffs to the expense of discovery, defendant should not now be allowed to stay these proceedings and access an arbitral forum. See id. at 926. The court acknowledges that it appears that defendant raised the issue of arbitration in its answer, and that there has not been, before now, any other substantial formal motions practice 6 (aside from the motions practice associated with vacating defendant’s default), id. at 927; nevertheless,  the court believes that, for the reasons just discussed, submitting this case to arbitration at this late stage would cause plaintiff prejudice, and should not be allowed.

Third, defendant’s alternative request for an order compelling arbitration bears a striking resemblance to forum shopping. The thrust of its opposition to plaintiff’s motion for summary judgment is that this court should deny plaintiff’s motion on the merits. But, just in case the court disagrees, it attempts to preserve an argument for arbitration in a footnote. This form of argument is not attractive, nor is it persuasive.

Ibew Local Union No. 380 Health & Welfare Fund v. Travis Electric, Inc., 2008 U.S. Dist. LEXIS 58037 (E.D. Pa. July 31, 2008)(emphasis added).

What were they thinking? The only good explanation I can think of is that the defendant didn’t actually want to arbitrate, and decided such long ago, yet tucked in the remark as some form of collateral persuasion, where you toss in barely-relevant arguments in the hopes that it will, by sheer inertia, carry your other arguments further.

Otherwise, someone dropped the ball, or perhaps never even picked up the ball since they were so busy churning the billable hours on the litigation…

Sickening, but not unexpected:

In his New York Times review of Jane Mayer’s new book, The Dark Side, Alan Brinkley describes how by the end of 2005, torture advocates within the Bush administration were fighting to continue their extreme detainee program “because they feared being prosecuted should the program be halted and exposed.” In one White House meeting described by Mayer, Vice President Dick Cheney argued against releasing innocent detainees because “they’ll all get lawyers“:

By the end of 2005, those defending the regime of torture were no longer seeking primarily to protect the search for valuable intelligence. They were fighting for its survival, in the face of considerable evidence of the failure of SERE and other programs, because they feared being prosecuted should the program be halted and exposed. Even releasing detainees whom they knew to be entirely innocent was dangerous, since once released they could talk. “People will ask where they’ve been and ‘What have you been doing with them?’” Cheney said in a White House meeting. “They’ll all get lawyers.”

(HT: Noam Scheiber)

Perhaps Cheney should re-read the East Pediment at the Supreme Court. We have it here, too, at the Federal Courthouse where the Court of Appeals for the Third Circuit and District Court for the Eastern District of Pennsylvania both sit. Care to guess what word is on that hidden wall, what it is that is the guardian of liberty?

Justice: The Guardian of Liberty

(image from flickr)

In The Legal Intelligencer:

In a ruling that could have far-reaching effects on the handling of high-profile trials, the 3rd U.S. Circuit Court of Appeals ruled Friday that the media has a presumptive right of access to the names of jurors, and that a Pittsburgh federal judge erred when he sought to empanel an anonymous jury in the corruption trial of former Allegheny County coroner Cyril H. Wecht.

"The prospect that the press might publish background stories about the jurors is not a legally sufficient reason to withhold the jurors’ names from the public. Although such stories might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process," 3rd Circuit Judge D. Brooks Smith wrote in United States v. Wecht.

The court’s 118-page decision included a lengthy dissent by Senior 3rd Circuit Judge Franklin S. Van Antwerpen that said the ruling "effectively creates a new constitutional right" and "sets a precedent of permitting our court to micro-manage trial procedures established by the district courts."

Van Antwerpen complained that "requiring district courts to bow to media demands to know the names of prospective jurors would certainly impair the public good in many cases."

Frankly, I don’t think this ruling is a big deal, for two reasons.

First, jurors generally know if they’re going to serve in a high profile case. If they did not already know it was a big case, the lawyers will almost always tell them during voir dire. Maybe the plaintiff’s lawyer mentions it because they think juries award bigger numbers in "big" cases; maybe the defense attorney mentions it because they think that jurors pay more attention in "important" cases.

If a juror has a problem serving in an high-profile case, they’ll find a way out. Usually the problem is the opposite: too many jurors want to serve on a high-profile case so they can later give an interview or, in rare cases, write a book.

Second, I don’t believe that "the public" or "the media" has a big influence on juror’s decisions. Spouses have a big influence. Friends and coworkers have a big influence. When reaching a decision in a high profile case, most jurors don’t worry about what some morning commuter who skims over their name will think about the verdict they rendered, they worry — agonize — over what they will tell people they know, who will all know the details of the case whether it’s high profile or not.

Slightly increasing the likelihood that a newspaper will reveal their name, which I still consider a slim possibility unless the juror consents, won’t change that dynamic.

 

[Update, September 21, 2013: More than five years after the below post, the Pennsylvania Supreme Court has granted allocatur on a “gist of the action” case. Read more at Tort Talk. The question presented, reformed slightly by me for clarity, is:

Does the “gist of the action” doctrine bar recovery on the Brunos’ negligence claim against Erie Insurance Company where their claim was not based on the underlying insurance contract but instead upon independent, affirmative, and gratuitous acts of the Insurer and its expert when they summarily and without analysis or testing told Mr. Bruno that the mold infestation in the home was not dangerous and described the dangers of mold as a media exaggeration?”

I don’t know the underlying facts, but I’m assuming the plaintiff ended up physically injured. If that’s the case, then I would most certainly hope the Pennsylvania Supreme Court finds the ‘gist of the action’ doctrine does not preclude the plaintiff’s negligence claim. To hold otherwise would be to allow insurers to mislead insureds about health risks, without consequence.]

So sayeth 3si Sec. Sys. v. Protek, 2008 U.S. Dist. LEXIS 56283 (E.D. Pa. July 23, 2008), more routine commercial litigation:

The gist of the action doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Adver., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) citing Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. Ct. 1992). The difference between a cause of action for tort and breach of contract is that “tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.” Bash, 601 A.2d at 829. A breach of contract may give rise to a tort claim only when defendant’s wrongful conduct is the gist of the action, and the contract is collateral. Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 582 (Pa. Super. Ct. 2003) citing Bash, 601 A.2d at 829)

To successfully prove a negligence claim a plaintiff must demonstrate the following elements: (1) a duty of care was owed by defendant; (2) defendant breached this duty; and (3) the breach resulted in injury. McCandless v. Edwards, 908 A.2d 900, 904 (Pa. Super. Ct. 2006) (citations omitted). Because Defendant’s obligation to provide Plaintiff with FlexPac batteries arose from the contract and not from a general duty of care, Plaintiff’s negligence claim should be barred by the gist of the action doctrine.

In Factory Market v. Schuller Intl, defendant guaranteed plaintiff it would install a watertight roof. 987 F. Supp. 387, 388 (E.D. Pa. Jan. 9, 1997). Defendant promised to pay for any repairs needed to maintain the roof in a watertight condition. Id. at 389. From the onset “the roof was plagued with leaking problems,” which defendant attempted to fix on a number of occasions. Id. Upon various unsuccessful  attempts by defendant to repair the roof, plaintiff brought suit against defendant alleging breach of contract, negligence, and fraud. Id. at 391. The court held that plaintiff’s negligence claim sounded more in contract than in tort. Id. at 394. Plaintiff merely alleged that defendant’s repairs were negligently performed, and as a result the roof was not watertight despite defendant’s guarantee. Id. at 394-95. The court ruled that defendant did not owe plaintiff a duty of care; rather defendant’s obligation to repair the faulty roof was imposed by way of the contract, and without the contract plaintiff “simply would not have [had] a claim.” Id. at 395. Therefore, the court barred plaintiff’s negligence claim. Id.

(emphasis added).

Without fail, defendants raise the “gist of the action” doctrine in every single breach of contract case that also includes other claims. It doesn’t matter if the other claim is unjust enrichment, tortious interference, fraud, defamation, professional malpractice, or any other entirely appropriate claim that can rest alongside a breach of contract. If there’s a contract, and there’s another claim, the preliminary objections / 12(b)(6) are inevitable.

And it’s usually wrong.

The doctrine is simple: the “gist of the action” doctrine precludes negligence claims where, under the facts alleged, the defendant has no duty to the plaintiff except for those created by contract. The “gist” is contractual — there are no duties between the parties except for those created by the contract.

A reminder: everyone has a duty not to defraud others. Everyone has a duty not to tortious interfere in others’ business. Everyone has a duty not to defame others. If someone defrauded you, that’s wrong; you don’t need to first have a signed and sealed Agreement Not To Defraud Me.

Ergo, there’s really only one instance in which, at the complaint stage, the “gist of the action” doctrine applies: where a complaint alleges breach of contract and negligence based solely upon that contract. That a plaintiff cannot do.

Fraud and breach of contract? That’s fine — indeed, they’re usually entirely appropriate forms of alternative relief which a plaintiff should allege if they have the factual basis.

But if you’re alleging negligence, there must be an independent duty outside from the contract itself.

 

In the NYTimes another complaint about the internet eating brains:

As teenagers’ scores on standardized reading tests have declined or stagnated, some argue that the hours spent prowling the Internet are the enemy of reading — diminishing literacy, wrecking attention spans and destroying a precious common culture that exists only through the reading of books.

Kevin Drum at The Washington Monthly responds:

… the fact remains that an awful lot of longish nonfiction writing is needlessly overwritten, and this isn’t something that struck me quite so forcefully before I started blogging. But now, for better or worse, it has. I’m much more sensitive to — and much less tolerant of — padded writing.

So my point is this: if even I, hailing from an earlier generation, feel this way, I can only imagine how teenagers raised on the internet feel. Sure, part of the story may be that their attention spans have become dangerously short, but another part of the story may be that they aren’t willing to slog through multiple pages of irrelevant muck waiting for the author to finally get to the point. It’s not either/or.

I wrote about this subject earlier, back when The Atlantic Monthly was complaining. I wrote:

Fact is, for ages prolific readers have taught themselves how to quickly peruse useful information from nonfiction. I emphasize "peruse" because the word did not originally mean "to skim," it meant "to use thoroughly." The "inverted pyramid" of news reporting, beginning with the most important information first and slowly working in details as the story progresses, wasn’t born with the internet.

Nonfiction, which comprises the bulk of the Internet (news, weblogs, reference, guides, directories) should not be any harder to digest than the subject matter itself — the whole point of nonfiction writing is to convey information as simply as possible. If you spend a substantial amount of time reading qua reading, you should either practice your reading technique more or find better material to read.

It should be clearly I agree with Kevin whole-heartedly, and also consider many "books" to be a "scourge" upon the modern mind. The book form doesn’t automatically guarantee quality, it guarantees length and price, often to the detriment of quality. Here are some examples:

  • quasi-journalism books that "recreate" dialogue based on the author’s supposition (like Bob Woodward’s recent fare);
  • expanded doctoral theses made into book form by little more than chapter headings (a style that’s a plague upon the academic non-fiction world);
  • self-help "books" that could easily have been pamphlet or blogs (even the folks at Lifehacker couldn’t pull that off in a way that didn’t seem stale);

I completely understand the inclination non-traditional authors have to convert their work into book form. It’s prestigious and it pays.

But let’s not pretend that it’s better for people to read 300 printed pages from one author, at least half of which is filler, rather than 10 online pages from 30 different authors. It’s usually worse.

In response to shareholder upheaval, billions in losses, and a 60% fall in stock price, CitiGroup completely revamps its Board of Directors:

Board member John Deutch, who previously held no chairmanships, has been named to lead the audit and risk committee, Citigroup said in a July 22 press release. Richard Parsons, former chair of the compensation committee, will head the nomination committee, while former nomination panel chair Alain Belda will lead the compensation committee.

Whoa, there, slow down. That’s a lot of change for just a year of failure.

Thank goodness they’ll wait another year or two and see how it goes before rocking the boat again.

That’s why "I still believe there will be a continuing move to private equity, [with] a corresponding rise in intra-company commercial litigation and arbitration there, as I wrote before."

“Schiess’s basic document design for lawyers” at Legalwriting.net.

Although I agree in principle, I don’t think it works in practice.

For example, I don’t think it is practical to use more than one font in a given document, since too many readers will not expect it and will be momentarily confused when they see it, making skimming harder, not easier.

The same goes for using hyphenation with the justification of text. If you are not expecting that, it takes a minute for your brain to connect the single word split across the end of one line and the beginning of another.

By and large, if you follow Schiess’ advice, you’ll end up with work that looks a lot like a formal appellate court opinion, with a professional appearance that rewards speedreaders (particularly when you use wide margins and single spacing). Problem is, while lawyers (especially appellate lawyers) may be used to reading that, judges themselves are not — they are used to reading what lawyers submit to them, which usually defaults to Times New Roman 12-point, double spacing, full justification without hyphens. Most of us are stuck only making subtle changes to that framework.

As an aside: I completely agree with underlining, italics and boldface. I particularly dislike underlining case names, which causes the eye to focus on a bunch of irrelevant proper nouns in the citation rather than the real focus of the document, which is the argument presented. Yet, very few judges expect bold in briefs and many believe that case names must be underlined. So, without a formal order (most local rules require only 12-point font and double spacing), we carry on…