An Attempt at Fax Filing a Petition is Sufficient to Interrupt Prescription

Plaintiff was injured on a city bus on May 1, 2013. He attempted to file suit on the one year anniversary by facsimile filing on May 1, 2014. Multiple attempts were made, but Plaintiff received an error code each time due to a busy signal. The Clerk of Court received the fax the following morning, and stamp filed the petition on May 2, 2014. Defendants filed an exception of prescription pointing out that the petition was filed more than one year after the alleged injury. Plaintiff opposed the exception, arguing that he first attempted to fax file the petition before the end of the business day on May 1, 2014 and that he continued to attempt to fax it until midnight. Plaintiff produced the communication reports and an affidavit in support of his position. The trial court denied the exception finding that because the Clerk of Court turned off the fax machine at the close of business, the Clerk’s action operated to shorten the prescriptive period, which was beyond the plaintiff’s control.

Defendants appealed arguing that prescription is interrupted only when the fax is received by the Clerk, not by any attempt to fax the petition. Defendants further argued that Plaintiff should have been more diligent and persistent with the filing efforts and been prepared for an alternate plan to complete the filing. Because electronic filing should be deemed proper even when receipt of the fax transmission occurs after business hours, the appellate court found that the clerk’s actual registry of the filing as a new suit record was not necessary on the same date as the electronic filing. The appellate court upheld the ruling because the electronic record supported the conclusion that interruption of prescription occurred timely due to Plaintiff’s efforts on the last day of the prescriptive period.

Lloyd v. Monroe Transit Authority, et. al

Maro Petkovich, Jr.
mpetkovich@mblb.com

Homeowners Not Liable for Grassy Hole Defect

Plaintiff, a Papa John’s delivery man, stepped into a grassy hole near the street curb in front of defendants’ home. He filed suit in the 24th Judicial District Court against Jefferson Parish and the homeowners who owned the house where the accident occurred. Defendant homeowners filed a motion for summary judgment contending (1) that the area where plaintiff fell was public property under the control of the Parish or City; (2) that they had not created the hole; and (3) they had no knowledge that the hole existed. Following a hearing, the judge granted summary judgment in the defendant homeowners’ favor. The plaintiff appealed.

The Louisiana Fifth Circuit Court of Appeal affirmed the decision of the lower court, noting that Louisiana jurisprudence states that a property owner is not generally liable for defects to public rights-of-way, such as sidewalks abutting private property, unless it is shown that the landowner caused or created the defect. The Court found prior jurisprudence persuasive and noted that while city or parish ordinances required homeowners to maintain public rights of way, the ordinances “merely create a legal relationship between the city and adjoining landowners; and that tort liability against the landowner results only from [the landowner’s] actions in creating or causing a defect.” Because there was no evidence that the defendant homeowners caused or created the hole into which plaintiff fell, the Fifth Circuit determined that the lower courts dismissal was appropriate.

Cusimano v. Estate of Edward J. Caillouet, et. al.

Simone H. Yoder
syoder@mblb.com

FMCSA Adopts Rule Regarding Electronic Logging Devices and Hours of Service Supporting Documents

The Federal Motor Carrier Safety Administration (“FMCSA”) recently announced a new rule mandating Electronic Logging Device (“ELD”) use for hour of service (“HOS”) compliance. The rule applies to most motor carriers and drivers who are currently required to prepare and retain paper records of duty status (“RODS”) to comply with HOS regulations under part 395. The rule allows limited exceptions to the ELD mandate, specifically, for drivers who operate using the timecard exception, drivers who use paper RODS for not more than 8 days during any 30 day period, drivers who conduct driveaway-towaway operations, where the vehicle being driven is the commodity being delivered, and drivers of vehicles manufactured before model year 2000.

This rule is designed to improve commercial motor vehicle (“CMV”) safety and reduce the overall paperwork burden for both motor carriers and drivers by increasing the use of ELDs within the motor carrier industry, which will, in turn, improve compliance with the applicable HOS rules. Specifically, this rule: (1) Requires new technical specifications for ELDs that address statutory requirements; (2) mandates ELDs for drivers currently using RODS; (3) clarifies supporting document requirements; and (4) adopts provisions aimed at ensuring that ELDs are not used to harass CMV operators.

Per the rule, a motor carrier required to use an ELD must use only an ELD that is listed on the FMCSA’s registered ELDs list, accessible through the Administration’s website, www.fmcsa.dot.gov/devices. The rule also specifies how the ELD is to be used, including a requirement that the ELD support a user account structure. The ELD must further allow a motor carrier to configure an ELD for a driver who may be exempt from the use of the ELD, for example, a driver operating under the short-haul exemption (100 air-mile radius driver and non-CDL 150-air mile radius driver).

The rule is effective February 16, 2016, though the compliance date is December 18, 2017. An ELD used after December 18, 2017 must meet the requirements of the rule.

Eric Winder Sella
esella@mblb.com

2016 Louisiana Judicial Interest Rate

In Louisiana, the rate of judicial interest in 2016 remains four percent (4.00%). The rate has been set at 4.00% since 2011. The following is a historical list of judicial interest rates for the past seventeen years:

  • 2000  –  7.285%
  • 2001  –  8.241%
  • 2002  –  5.75%
  • 2003  –  4.50%
  • 2004  –  5.25%
  • 2005  –  6.00%
  • 2006  –  8.00%
  • 2007  –  9.50%
  • 2008  –  8.50%
  • 2009  –  5.50%
  • 2010  –  3.75%
  • 2011  –  4.00%
  • 2012  –  4.00%
  • 2013  –  4.00%
  • 2014  –  4.00%
  • 2015  –  4.00%
  • 2016  –  4.00%

Adam P. Sanderson
asanderson@mblb.com

FMCSA Adopts Rule Prohibiting Coercion of Commercial Motor Vehicle Drivers

The Federal Motor Carrier Safety Administration (“FMCSA”) has adopted regulations that prohibit motor carriers, shippers, receivers, or transportation intermediaries from coercing drivers to operate commercial motor vehicles (“CMVs”) in violation of certain provisions of the Federal Motor Carrier Safety Regulations (“FMCSRs”)—including drivers’ hours-of-service limits; the commercial driver’s license (“CDL”) regulations; drug and alcohol testing rules; and the Hazardous Materials Regulations (“HMRs”). In addition, the rule prohibits anyone who operates a CMV in interstate commerce from coercing a driver to violate the commercial regulations. Independent owner-operators employed by a motor carrier are statutorily defined as employees of that carrier for purpose of the FMCSRs, including this final rule.

The major provisions of this rule include the prohibitions of coercion, procedures for drivers to report incidents of coercion to FMCSA, and rules of practice that the Administration will follow in response to reports of coercion. “Coercion,” as defined by the regulation, includes actual or threatened adverse employment action, such as withholding work, in order to induce a violation of specified regulations. Of note, a driver alleging a violation of this rule must file a written complaint with the FMCSA stating the substance of the alleged coercion no later than 90 days after the event.

The rule is effective January 29, 2016.

Eric Winder Sella
esella@mblb.com

IRS Sets 2016 Mileage Rate

The Internal Revenue Service set the 2016 mileage rate for business purposes at 54 cents per mile, a decrease of three and a half cents from the 2015 rate. The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. This rate became effective Jan. 1, 2016.

Adam P. Sanderson
asanderson@mblb.com

And the “Drone Slayer” Fires On

A shot fired by William H. Merideth, also known to the media as the “drone slayer,” may have set a precedent in favor of shooting down trespasser-drones; well, at least a precedent under Kentucky law. It’s not a new concept that with new technology comes new legal issues. The aberrant advancements in the fields of artificial intelligence, autonomous vehicles, and unmanned drones, have thrust these technologies into the general public and ignited a flurry of legal debate. The rights of property owners to take actions against drones flying overhead are among these hot-button areas of unsettled law. In an effort to improve the accountability of drone users, the U.S. DOT and FAA have joined forces to establish registration requirements for units weighing between 0.55 pounds and 590 pounds. As announced by the FAA in early December, owners of these drones must register them by February 19, 2016, or face civil penalties up to $27,500 in fines and/or criminal penalties as high as $250,000 and up to three years in jail. With regard to specific state laws, Kentucky appears to be at the forefront of these legal developments in establishing a citizen’s right to take arms against drowns hovering over private property.

Bullitt County Judge, Rebecca Ward dismissed the case against Mr. Merideth, who admittedly shot down a drone allegedly hovering over his home and invading his privacy. Mr. Merideth, 47, was enjoying the afternoon at his Hillview residence on July 26, 2015, when his daughter informed him of the drone flying above their house. Understandably unamused by the invasion, Mr. Merideth went out to his back porch with his 12-gauge, short-barreled shotgun and shot the drone down. Shortly thereafter, police arrested and charged him with first-degree criminal mischief. After hearing the facts, Judge Ward agreed with Mr. Merideth’s position that “the drone was trespassing.” In her decision, the Judge stated:

“I think it’s credible testimony that his drone was hovering from anywhere, for two or three times over these people’s property, that it was an invasion of their privacy and that they had the right to shoot this drone, [a]nd I’m going to dismiss his charge.”

The drone’s owner, 41-year-old roofing contractor and former pastor, John Boggs, was reportedly less than pleased. Despite the video evidence of the drone’s final flight, the Judge was not persuaded by Boggs’ testimony that his drone never hovered above Mr. Merideth’s Hillview property, but instead sailed past at an altitude of over 200 feet.

A number of states have passed laws restricting areas where drones can be flown, as well as laws making it illegal to use recreational drones to harass. We are sure to see a rise in ownership of drowns as prices continue to decrease, and it should be interesting to see how different states tackle these technological concerns.

Commonwealth v. Merideth, William

Michael P. Shlansky
mshlansky@mblb.com

Face It, Defaulting Student Debtors: You’re Eternally Indebted

Student loan debtors everywhere might be disappointed by a recent Ninth Circuit decision, further bolstering the government’s right to collect on federally guaranteed student loans without heeding to a statute of limitations period, thus perhaps creating “eternal indebtedness.” Not only is student loan debt nondischargeable in bankruptcy, absent a showing of undue hardship, but in another blow to student loan debtors, courts continue to uphold Congress’ elimination of statutes of limitation to collect upon certain student loans.

Recently, in U.S. v. Falcon, the Ninth Circuit evaluated whether Congress’ elimination of the statutes of limitation on actions to recover defaulted federally guaranteed student loans violated the debtor’s due process rights. By way of background, Mark J. Falcon signed promissory notes approximately thirty years ago to secure guaranteed student loans, which Falcon later defaulted on. Years later, the government filed suit against Falcon to recover the principal and interest on his defaulted loans. Appealing the district court’s summary judgment in favor of the United States, Falcon argued that his due process rights had been violated by application of the Higher Education Technical Amendments of 1991 (“HETA”), which eliminates all statutes of limitations on actions to recover on defaulted federally guaranteed student loans. Specifically, Falcon argued that HETA created eternal indebtedness for a class of borrowers, generated oppressive effects, and created a special hardship.

Ultimately, the Ninth Circuit turned to the decisions of other circuits and followed suit, holding that HETA’s retroactive abrogation of statutes of limitation does not violate a student loan debtor’s due process rights. In their opinion, the Ninth Circuit reasoned that, because HETA did not resuscitate an otherwise time-barred action to collect on Falcon’s debt, and because the government’s action would have been timely even under the prior six-year statute of limitations period, Falcon’s due process rights were not violated.

Bottom line, amidst the ever-increasing student loan debt and looming federal student loan crisis, courts are not willing to fix a problem they didn’t create. If and when, similar to the housing crisis, the “bubble bursts,” all those high-priced, educated eyes will likely be turned towards legislation.

United States v. Falcon

Michael P. Shlansky
mshlansky@mblb.com

Extra-Judicial Efforts to Informally Set Depositions Are Insufficient to Prevent Abandonment

In July 2001, plaintiff filed a lien against defendants. Defendant’s answered the lawsuit and discovery ensued. In 2005, plaintiff filed a motion and order to compel discovery. Thereafter, only limited action took place on the claim, mostly status and/or scheduling conferences, the last of which was filed by plaintiffs on June 4, 2014. On June 9, 2014, defendants filed a motion for dismissal, seeking to have the case dismissed as abandoned due to the fact that plainitff had taken no steps in the prosecution of the action in over three years. The record showed that discovery was served on plaintiff on May 17, 2011, and that subsequent to the service of discovery attempts were made in June and August 2011 to schedule depositions. Plaintiff alleged that the letters were attempts to set a deposition and should constitute active steps in the prosecution of the case. The trial court disagreed, and on June 16, 2014, issued an order dismissing the matter as abandoned. The plaintiff filed a motion to set aside the dismissal, which was denied.

On appeal, the Louisiana First Circuit Court of Appeal affirmed the trial court’s ruling, stating that “simply attempting to schedule” a discovery matter, such as a deposition, through informal correspondence without making or filing a formal notice of deposition, is not a step in the prosecution of the action for purposes of interrupting or waiving abandonment. The First Circuit noted that correspondence such as the attempts to schedule the depositions were extra-judicial efforts that were insufficient to interrupt abandonment, which occurs by operation of law after three years when plaintiff fails to prosecute his claim.

Hall and Associates, Inc. v. Brunt Construction, Inc.

Simone H. Yoder
syoder@mblb.com

Debtor not Entitled to § 1983 Relief Against Creditor’s Counsel

Debtor and her husband entered into a promissory note secured by a mortgage in the purchase of their home. In June 2004, they defaulted on the loan. Two months later, Debtor’s husband passed away. In November 2004, Creditor filed an executory proceeding to perfect the seizure and sale of the property. After filing the suit, Creditor’s Counsel received the original promissory note which was marked with an unsigned stamp indicating the note was paid and cancelled. He also received correspondence from Debtor’s counsel stating that the foreclosure was improperly supported, yet Creditor continued to move forward with the seizure. In December 2004, the sheriff’s office delivered a notice of seizure, and Debtor moved out of the dwelling. Debtor successfully sought injunctive relief, arguing that the promissory note and mortgage were not in authentic form as they were executed in front of only one witness. Creditor then filed an ordinary proceeding seeking enforcement of the note and mortgage.

Debtor filed incidental demands against Creditor, the mortgagee, and Creditor’s Counsel, and ultimately sought dismissal of Debtor’s claims. On appeal, the Louisiana Third Circuit reversed finding that Debtor’s allegations were sufficient to establish that Creditor and its Counsel were state actors subject to liability for seizure of Debtor’s home under 42 U.S.C. § 1983. Debtor settled with Creditor and the mortgagee, and amended her incidental demand against Creditor’s Counsel to include a claim under § 1983. Creditor’s Counsel filed for summary judgment which was granted. However, the Third Circuit again reversed, ruling that genuine issues of material fact existed as to whether Creditor’s Counsel intentionally took measures that resulted in an invasion of Debtor’s property rights as he was put on notice that the executory proceeding was improper.

Finally, on appeal to the Louisiana Supreme Court, the denial of summary judgment was reversed and the ruling reinstated, dismissing the Debtor’s § 1983 claim against Creditor’s Counsel. The Court found that there was a constitutional seizure of Debtor’s property as she was given sufficient opportunity to contest the seizure, and in fact was successful. The fact that the mortgage was not in authentic form was a latent defect, and not the fault of Creditor’s Counsel who merely petitioned for executory process. Finally, the Court found that no evidence existed indicating that Creditor’s Counsel acted with specific intent to harm Debtor, and any negligence on the part of Creditor’s Counsel was not grounds to make him liable to a non-client.

The Bank of New York Mellon v. Smith

Maro Petkovich, Jr.
mpetkovich@mblb.com