The D.C. Law Report

U.S. Senate Confirms Nomination of Roy W. McLeese III to Court of Appeals

Douglas Melcher — Sat, 26 May 2012 15:23:46 +0000

On May 24, 2012, the United States Senate confirmed Roy W. McLeese III to be an Associate Judge of the District of Columbia Court of Appeals. President Obama nominated Mr. McLeese on November 17, 2011, to fill a vacancy due to the retirement of Judge Vanessa Ruiz. The U.S. Senate Committee on Homeland Security and Governmental Affairs held a confirmation hearing on the nomination on March 6, 2012, and favorably reported the nomination on April 25, 2012. Mr. McLeese is currently an Assistant U.S. Attorney. He serves as the Chief of the Appellate Division of the U.S. Attorney’s Office for the District of Columbia where he is responsible for supervising appeals in criminal cases in the D.C. Court of Appeals and the U.S. Court of Appeals for the D.C. Circuit. Upon taking the oath of office, Mr. McLeese will become President Obama’s third appointee to the D.C. Court of Appeals.

About the Author: Douglas C. Melcher is a licensed attorney and an active member of the District of Columbia Bar with more than a decade of experience practicing law in the District of Columbia. Mr. Melcher may be contacted by e-mail at dmelcher@DCLaw.net or by telephone at (202) 521-0603. To learn more about Mr. Melcher, click here.

Public Hearing Scheduled on Legislation to Provide Alternative Method for Effecting Service of Process in Motor Vehicle Cases

Douglas Melcher — Sat, 26 May 2012 15:08:56 +0000

On June 22, 2012, the D.C. Council’s Committee on the Judiciary will hold a public hearing on the Alternative Service of Process Amendment Act of 2012 (B19-752), which was introduced on April 17, 2012, by the Committee’s Chairman, Councilmember Phil Mendelson. The legislation, if enacted, would provide an alternative method for effecting service of process on nonresidents who are involved in motor vehicle incidents in the District of Columbia. It would specifically provide that the operation by a nonresident (or a nonresident’s agent) of a motor vehicle on the District’s roads constitutes consent to the appointment of the Mayor to accept service of process on behalf of the nonresident. The legislation specifies procedures for effecting service of process through the Mayor, and includes safeguards to reduce the risk of abuse of this alternative method for effecting service of process. Interested persons are invited by the Committee to testify. To retrieve an electronic copy of the public notice for this hearing which provides further details, click here.

Public Hearing Held on Wrongful Death Act of 2012

Douglas Melcher — Sat, 26 May 2012 15:01:07 +0000

On May 18, 2012, the D.C. Council’s Committee on the Judiciary held a public hearing on the Wrongful Death Act of 2012 (B19-717) which would permanently amend the District of Columbia’s Wrongful Death Act, D.C. Code §§ 16-2701 to -2703, by changing the limitations period applicable to wrongful death claims from one year to two years. The hearing was presided over by the Chairman of the Judiciary Committee, Councilmember Phil Mendelson, who, together with Councilmember Marion Barry, sponsored the legislation. Councilmember Mendelson and Councilmember Barry made introductory statements in support of the legislation. Each noted that the District is one of only four jurisdictions that still has a one-year statute of limitations for wrongful death while other jurisdictions have a longer limitations period. Only one witness testified at the hearing; specifically, George Valentine who is Deputy Attorney General of the Civil Litigation Division of the Office of Attorney General of the District of Columbia. Mr. Valentine stated that the Executive supports the legislation. He stated that the legislation does not have any “legal sufficiency issues” and that the new limitations period “will better align” D.C. law with the laws of other jurisdictions. Emergency and temporary legislation changing the limitations period for wrongful death claims from one year to two years was enacted earlier this year. To read a prior post about the emergency and temporary legislation, click here. To watch a video the hearing, click here.

Court of Appeals Rules that Medical Malpractice Action Was Filed One Day Too Late

Douglas Melcher — Fri, 18 May 2012 22:48:43 +0000

On May 17, 2012, the District of Columbia Court of Appeals decided Atiba v. Washington Hospital Center, No. 10-CV-622 (D.C. May 17, 2012) (“Slip op.”) in which it considered whether a medical malpractice claim was timely filed. By way of background, pursuant to statute, medical malpractice claims are subject to a three-year limitations period. Slip op. at 2-3 (citing D.C. Code § 12-301(8)). Additionally, “[b]efore filing a medical malpractice action, a plaintiff must give ‘not less than’ ninety days’ advance notice to the intended defendants.” Id. at 2 (quoting D.C. Code § 16-2802). “If . . . such notice is given within ninety days prior to the expiration of the applicable statute of limitations, the time for the commencement of the action is ‘extended 90 days from the date of the service of the notice.’” Id. (quoting D.C. Code § 16-2803). In this case, the relevant medical services were provided to the plaintiff during the period October 27 to November 2, 2006. Id. at 1-2. The plaintiff served the required notice on October 27, 2009, and filed her complaint on January 26, 2012 — the ninety-first day after giving notice. Id. at 2. The trial court dismissed the plaintiff’s complaint on the grounds that the plaintiff filed one day too late, and the Court of Appeals affirmed. Id. In affirming, the Court specifically rejected the plaintiff’s argument that the notice statute required the plaintiff to wait until ninety “clear days” had passed prior to filing the complaint. Id. at 5. The Court further stated that “[i]t may be true that filing the complaint on any date prior to January 25 would have violated the 90-day notice requirement . . ., and any date after January 25 was untimely,” but that such an interpretation of the relevant statutes was reasonable and consistent with legislative intent. Id. at 8. In light of the foregoing, a plaintiff in a medical malpractice case should beware of giving notice within ninety days of the expiration of the limitations period and relying on the 90-day extension of the limitations period as doing so would have the effect of giving the plaintiff only a one-day window for timely filing a complaint. In any instance, great care should be taken in determining the required filing date. To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

Court of Appeals Affirms Summary Judgment for Defendants on Age Discrimination Claim Brought Under DCHRA

Douglas Melcher — Fri, 18 May 2012 22:27:42 +0000

On May 10, 2012, the District of Columbia Court of Appeals decided Cain v. Reinoso, No. 11-CV-249 (D.C. May 10, 2012) (“Slip op.”) in which it considered an age discrimination claim brought under the District of Columbia Human Rights Act (“DCHRA”). The plaintiff in this case was terminated from her employment, at the age of 62, by a Deputy Mayor of the District of Columbia who allegedly terminated her due to her age. Slip op. at 1-2. She then brought an age discrimination claim under the DCHRA against the Deputy Mayor and the District of Columbia. Id. The trial court granted summary judgment for the defendants. Id. at 2. On appeal, the Court assumed for the sake of argument that the plaintiff had presented sufficient evidence to establish a prima facie case of discrimination under the DCHRA. Id. at 9. Specifically, it assumed that her evidence was sufficient to show “(1) that she was a member of a protected class, (2) that she was qualified for the job from which she was terminated, (3) that her termination occurred despite her employment qualifications, and (4) that a substantial factor in her termination was her membership in the protected class.” Id. at 4 (internal brackets and quotation marks omitted). The Court then proceeded to consider whether the defendants had “articulated a ‘legitimate, nondiscriminatory basis’ for terminating [the plaintiff's] employment.” Id. at 9. The Court reviewed the defendants’ evidence regarding an internal reorganization and downsizing, an evaluation of the plaintiff’s work performance, and the superiority of another employee, and concluded that the defendants had presented “a legitimate, nondiscriminatory explanation” for the Deputy Mayor’s decision to terminate her employment. Id. at 19. The Court then considered whether the plaintiff could overcome that explanation by showing that it was “pretextual.” Id. at 19-29. The Court concluded that the plaintiff had not presented any specific evidence showing that the explanation was pretextual. Id. Notably, the plaintiff had acknowledged during her deposition that neither the Deputy Mayor nor his chief of staff had “ever made any age-related or discriminatory remark to her.” Id. at 13. Accordingly, the Court affirmed the trial court’s grant of summary judgment for the defendants. Id. at 29-30. To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

Court of Appeals Rejects Claims for False Imprisonment, Malicious Prosecution, and Unjust Imprisonment Brought by Former Prisoner Whose Conviction Was Vacated

Douglas Melcher — Fri, 18 May 2012 22:27:15 +0000

On May 10, 2012, the District of Columbia Court of Appeals decided DeWitt v. District of Columbia, No. 10-CV-510 (D.C. May 10, 2012) (“Slip op.”) in which it considered common law claims for false imprisonment and malicious prosecution and a statutory claim for unjust imprisonment under the District of Columbia’s Unjust Imprisonment Act, D.C. Code §§ 2-421 to -424. The plaintiff in this case was convicted in the Superior Court of the District of Columbia of various criminal charges and subject to a lengthy prison sentence. Slip op. at 2. More than a decade later, he submitted a motion to vacate his conviction on the grounds of newly discovered exculpatory evidence that substantially undermined the government’s case against him. Id. The Superior Court vacated the conviction and ordered a new trial based on its findings that the evidence showed that it was more likely than not that the plaintiff was innocent but that the evidence fell short of clearly and convincingly showing his innocence. Id. The government declined to re-try the case and the plaintiff was released from prison. Id. The plaintiff then filed a civil action against the District of Columbia and four officers of the Metropolitan Police Department alleging claims for false imprisonment, malicious prosecution, and unjust imprisonment arising from his prosecution and imprisonment. Id. at 3. The trial court granted summary judgment for the defendants. Id. at 3. On appeal, the key issue with respect to the false imprisonment and malicious prosecution claims was whether there was probable cause to arrest and prosecute the plaintiff. Id. at 4-10. The Court ruled that, even setting aside any evidence that the plaintiff alleged had been manipulated or otherwise corrupted by the defendants, there was sufficient evidence during the relevant time period to show probable cause, including several witness identifications of the plaintiff. Id. at 7-9. It further found that there was no basis for concluding that the plaintiff was prosecuted maliciously because practically all of the exculpatory evidence that served as the basis for vacating the plaintiff’s conviction was discovered after he had already been tried. Id. at 9-10. With respect to the unjust imprisonment claim, the issue on appeal was whether the claim was barred by the doctrine of collateral estoppel. Id. at 10-17. The Court ruled that it was barred because the Superior Court in vacating the plaintiff’s conviction explicitly found that the evidence fell short of clearly and convincingly showing the plaintiff’s innocence. Id. The Court ruled that this finding precluded the plaintiff from proving an essential element of his unjust imprisonment claim; specifically, “that, based on clear and convincing evidence, he did not commit any of the acts charged.” Id. at 10 (quoting D.C. Code § 2-412). Accordingly, the Court affirmed the trial court’s grant of summary judgment to the defendants. Id. at 17. To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.

Court of Appeals Upholds Enforcement of Pennsylvania Judgment Against Ralph Nader

Douglas Melcher — Wed, 16 May 2012 18:38:56 +0000

On May 10, 2012, the District of Columbia Court of Appeals decided Nader v. Serody, No. 09-CV-906 (D.C. May 10, 2012) in which it upheld a judgment of the Superior Court of the District of Columbia enforcing a Pennsylvania judgment entered against former presidential candidate Ralph Nader, his running mate, and their campaign organization.

By way of background, the Pennsylvania judgment awarded litigation costs to a group of voters who successfully challenged Nader’s nominating papers for the 2004 presidential election in Pennsylvania. The voters then initiated an action in the Superior Court to enforce the Pennsylvania judgment which resulted in the attachment of Nader’s assets in certain bank accounts. Nader moved for relief against enforcement pursuant to Sup. Ct. Civ. R. 60(b) contending that the Pennsylvania judgment was unlawfully procured; specifically, he alleged the existence of “newly discovered evidence” regarding certain “undisclosed ties and campaign contributions to members of the Supreme Court of Pennsylvania who voted to affirm” the judgment awarding litigation costs and the underlying judgment sustaining the challenge to his nominating papers. Slip op. at 4. He also moved pursuant to Sup. Ct. Civ. R. 41(b) to dismiss the enforcement action on the grounds that the action failed to comply with Sup. Ct. Civ. R. 62(a). The Superior Court denied both motions and Nader appealed. In denying the motions, the Superior Court took judicial notice that, after Nader had filed the Rule 60(b) motion, he unsuccessfully petitioned the trial court in Pennsylvania “to open the record or set aside its judgment directing him to pay litigation costs” on the grounds of alleged criminal misconduct relating to the challenge to his nominating papers. Slip op. at 4-5.

On appeal, the Court recognized that the enforcement action was subject to the District of Columbia’s Uniform Enforcement of Foreign Judgments Act, D.C. Code § 15-351 et seq. (2001) (the “Act”) “which sets out the procedures and standards for enforcement of foreign judgments in the Superior Court of the District of Columbia.” Slip op. at 7. The Court stated that the Act’s provisions “must be read in harmony with the constitutional mandate to accord full faith and credit to the judgments of sister states.” Id. at 8. Accordingly, “the rights and defenses preserved by the Act are only those which the debtor may constitutionally raise.” Id. (emphasis in original; internal brackets and quotation marks omitted). The Court stated that “[w]e join the consensus of courts in jurisdictions that have adopted the [Uniform Enforcement of Foreign Judgments Act] and have held that a foreign judgment does not have to be accepted for enforcement in the receiving jurisdiction if the court rendering the judgment lacked jurisdiction or if the foreign judgment resulted from proceedings lacking in essential due process safeguards or was procured by fraud on the court.” Id. at 10. A collateral challenge to a judgment, however, may be precluded by the doctrine of res judicata because the constitutional mandate of full faith and credit “‘generally requires every State to give a judgment at least the res judicata effect which the judgment would be accorded in the State which rendered it.’” Id. at 14 (quoting Durfee v. Duke, 375 U.S. 106, 109 (1963)).

Applying the foregoing principles, the Court of Appeals ruled that res judicata precluded all of the arguments raised in Nader’s Rule 60(b) motion because the motion “challenged the validity of a judgment on the basis of claims that were either fully litigated — and rejected — in the Pennsylvania courts, or that could have been brought in those courts.” Id. at 13. That litigation included the litigation leading to the judgment for litigation costs and Nader’s subsequent unsuccessful petition requesting the Pennsylvania trial court to open the record or set aside the judgment for litigation costs. The Court recognized that a foreign judgment may be challenged on the grounds of fraud but concluded that the doctrine of res judicata precluded the arguments in Nader’s Rule 60(b) motion. Accordingly, the Court did not address the merits of those arguments. With respect to Nader’s Rule 41(b) motion, the Court ruled that Nader’s arguments therein were either moot, facially incorrect, or defeated by the Court’s ruling on the Rule 60(b) motion. The Court therefore upheld enforcement of the Pennsylvania judgment.

To retrieve an electronic copy of the Court of Appeals’ opinion from its website, click here.