“This case is about the mattress and a pen”

by: Peter J. Gallagher (LinkedIn)

Maybe it is because I was a journalism major in college, but I am a sucker for a good lede. The district court’s decision in West v. Emig has a great one. It begins:

Christopher H. West is an inmate who has frequently ingested inedible objects. During his incarceration, he has eaten the foam from inside his mattress, and he has also swallowed writing instruments, including pens. This case is about the mattress and a pen.

I was hooked, but then it got even more interesting.

Plaintiff claimed that, at two different prisons, employees removed the mattress from his cell “after he ingested foam from inside [the] mattresses.” Instead of following the grievance policy, which is typically required before an inmate can sue, West sued two former prison employees in federal court in Delaware, seeking $5 million in damages from each. He argued that he could not pursue his administrative remedies because, you guessed it, “the prisons denied him a pen needed to complete the prison grievance form – albeit for his own safety.” In other words, they removed his mattress because he ate the mattress foam, but he could not file a grievance about that because they previously removed his pen because he had a habit of eating his pens.

When plaintiff sued, defendants moved for summary judgment. They raised four defenses, including failure to exhaust administrative remedies. The district court only addressed that defense, and granted defendants’ motion based on it. Plaintiff appealed, and the Third Circuit reversed.

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Third Circuit Answers The Question: Can a Texan Living In Georgia Sue Two Dozen Florida Defendants In New Jersey Federal Court?

by: Peter J. Gallagher (LinkedIn)

I don’t usually write about personal jurisdiction because it is . . . well . . . a little boring. But I do enjoy creative legal arguments (including creative arguments about jurisdiction), so I am going to make an exception here.

The Third Circuit recently issued its decision in in Robinson v. Section 23 Property Owner’s Association, Inc., which is the latest in what appears to be a running battle between plaintiff and more than two dozen defendants arising out of the foreclosure of defendant’s mother’s home. The district court described the various lawsuits plaintiff filed as follows:

The subject of all of [plaintiff’s] cases, including this case, arises out of his residence at his mother’s home in Florida. Beginning with disputes over the enforcement of deed restrictions, such as parking and property maintenance, Plaintiff’s cases have evolved into claims against essentially every person or entity that has been involved either directly or indirectly in the ultimate foreclosure of the . . . house and his resulting eviction from the property. The main thrust of Plaintiff’s claims is that all the Defendants have conspired to illegally purchase his mother’s home and steal all of his personal and intellectual property inside. Plaintiff alleges that Defendants have done so to quash his investigation of their international money laundering and fraud scheme.

If this sounds like a Florida-centric dispute, it is. None of the defendants had any meaningful connection to New Jersey, so they all moved to dismiss plaintiff’s lawsuit for lack of jurisdiction. In response, plaintiff made several, traditional jurisdictional arguments, including that defendants were subject to jurisdiction in New Jersey because his mother currently lived in New Jersey and because she had filed for Chapter 7 bankruptcy in New Jersey and listed the Florida property as an asset in her bankruptcy petition.

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Supreme Court : Classwide Arbitration Unavailable Under Ambiguous Agreement

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Keith Richards once said: “I look for ambiguity when I’m writing because life is ambiguous.” This would probably be number one on the list of things a lawyer would never say. Lawyers generally do not like ambiguity. Courts don’t like it either, including the U.S. Supreme Court, and including when it evaluates the availability of class arbitration under an arbitration agreement. Several years ago, in Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., the Supreme Court held that courts could not compel class arbitration when the underlying agreement was “silent” on the issue. In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court extended this holding to ambiguous agreements, holding that class arbitration is not available under an arbitration agreement that is ambiguous about the availability of such arbitration.

Plaintiff in Lamps Plus was a company that sold, you guessed it, “lighting fixtures and related products.” In 2016, the company suffered a data breach that revealed the tax information of approximately 1,300 of its employees. Soon after, a fraudulent tax return was filed in defendant’s name. He sued in California federal court on behalf of himself and a putative class of employees whose tax information had been compromised. But, like most of plaintiff’s employees, defendant had signed a broad arbitration agreement when he started working at the company. Thus, in response to defendant’s complaint, plaintiff moved to compel arbitration on an individual, not classwide, basis. The district court granted the motion to compel arbitration, but rejected plaintiff’s request for individual arbitration. The U.S. Court of Appeals for the Ninth Circuit affirmed.

The Ninth Circuit determined that the arbitration agreement was ambiguous on the issue of classwide arbitration. So it applied the state law doctrine of contra proferentem – an equitable principle under which any ambiguities in a contract are construed against the drafter – and construed this ambiguity against plaintiff. The Ninth Circuit held that Stolt-Nielsen was not controlling because the arbitration agreement in that case was silent on classwide arbitration, while the arbitration agreement in Lamps Plus was ambiguous on the issue. The Ninth Circuit used contra proferentum to resolve that ambiguity.

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Segregated Swimming Pool Not Allowed, Even When Purportedly Necessary To Prevent Discrimination

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Some time ago, I wrote a blog post about a sign I saw at the beach, “Swimmers Only Between Flags.” It was a lighthearted post about the limitations of seemingly “plain” language. In Curto v. A County Place Condominium Association, the U.S. Circuit Court for the Third Circuit addressed a more serious issue involving swimming restrictions. Curto involved a challenge to a condo association’s policy of having gender-specific swimming hours at the community pool. The case presents an interesting intersection of discrimination — gender discrimination that was purportedly necessary to prevent religious discrimination. Read more about it below, and stay tuned because I am certain that the Curto decision will not be the last word on the issue.

In Curto, plaintiffs were residents of a condominium, A Country Place, which was governed by the defendant community association. A Country Place is a “55 and over,” age-restricted condominium located in Lakewood, New Jersey. As the Third Circuit noted, “Lakewood has a large and growing Orthodox Jewish population, and so does A Country Place.” Nearly two-thirds of defendant’s residents were Orthodox when the underlying events in Curto occurred. Defendant established single sex swimming hours for the community pool to accommodate “the Orthodox principle of tznius, or modesty, according to which it is improper for men and women to see each other in a state of undress – including bathing attire.”

Prior to 2016, defendant only had “a handful of sex-segregated swimming hours throughout the week.” But, “as the Orthodox membership at A Country Place increased, [defendant] increased the number of sex-segregated hours.” By 2016, over two-thirds of all swimming hours throughout the week were sex segregated.

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Lawsuit Challenging E-ZPass Administrative Fee Revived

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

The Appellate Division’s recent decision in Long v. New Jersey Turnpike Authority dealt with a topic that is likely familiar to many New Jersey residents — the administrative fee assessed when you (allegedly) go through an E-ZPass lane without paying the toll. In the interest of full disclosure, I am very much not neutral on this issue. I recently received three notices from E-ZPass claiming that I went through toll plazas without paying. The tolls I allegedly failed to pay amounted to $20.45, but the administrative fee for each is $50, so my $20.45 in allegedly unpaid tolls may now cost me $220.45. But I digress.

First, some background. New Jersey law allows the Turnpike Authority to establish procedures for addressing “violations of [its] toll collection monitoring systems” (i.e., E-ZPass). Among other things, the Turnpike Authority may send “an advisory and payment request” to alleged toll violators, providing them “with the opportunity to resolve the matter prior to the issuance of a summons and complaint that charges a violation of the toll collection monitoring system regulations.” As part of this “advisory and payment request,” the Authority may require that the alleged violator pay “the proper toll and a reasonable administrative fee established by the authority and based upon the actual cost of processing and collecting the violation.” This administrative fee was originally set at $25 but was later raised to $50.

In Long, petitioners were two “E-ZPass toll violators” who filed a petition with the New Jersey Turnpike Authority challenging the $50 administrative fee. Petitioners challenged both the constitutionality of the regulation establishing the administrative fee (arguing that the Authority violated its rule-making authority, violated due process, etc.), and the amount of the fee itself, arguing that $50 was excessive because it was “unrelated to the actual costs of enforcement.” The Authority denied their petition and petitioners appealed to the Appellate Division.

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