August 15, 2018

Archives for December 11, 2012

New IAALS Study Asks and Answers “What Has Happened with Rule 16.1 in Colorado?”

IAALS has just released a Rule One Initiative research report entitled Measuring Rule 16.1: Colorado’s Simplified Procedure Experiment. In 2004, the Colorado Supreme Court put in place Rule 16.1, a voluntary pretrial process for smaller dollar-volume civil cases, with the hope of providing a more efficient path to resolution. This new report sets forth the results of an empirical study of Rule 16.1, including its role and impact. With growing interest in streamlined pretrial procedures, case differentiation, and optional processes, we felt it was important to examine one such rule that has existed for some time. Through this study, IAALS attempts to answer the question: What has happened with Rule 16.1 in Colorado?

Rule 16.1 is the default pretrial procedure in Colorado district court for typical types of civil actions with less than $100,000 in controversy between any two parties, although any party may “opt out” and elect to use the standard pretrial process instead. This “simplified” procedure generally replaces discovery with mandated disclosures, along with assurances of a faster route to trial. Recovery under Rule 16.1, including attorney fees but excluding costs, cannot exceed the $100,000 limit.

The study documented the highest rate of Rule 16.1 cases in consumer credit collection actions (95%) and other straightforward contract actions in which damages are fixed or liquidated. In 70% of cases proceeding under Rule 16.1, there is no appearance by any defendant, and more than half resolve by entry of default judgment. Overall, the perception among interviewed attorneys and judges is that the cap on damages and inflexible limits on discovery have discouraged attorneys from using the procedure. In other words, given the choice of opting out, many attorneys do just that.

In the 30% of Rule 16.1 cases that were contested and therefore invoked the provisions of the procedure, there is mixed evidence on the rule’s impact. With respect to time to disposition, the county in which the case is filed appears to play a larger role than Rule 16.1. In addition, Rule 16.1 cases have not been shown to have a higher trial rate. However, Rule 16.1 is associated with a decrease in the number of motions filed. It is not possible to know whether the results would have been different if the rule was more frequently applied in actively litigated cases.

Colorado’s experience may contain insight for other jurisdictions as they experiment with formulating sets of rules to more effectively secure the “just, speedy, and inexpensive” resolution of civil cases. Click here to read the full report.

Corina Gerety is Manager of Research for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver. IAALS is a national, independent research center dedicated to continuous improvement of the process and culture of the civil justice system. This post originally appeared on IAALS Online, the IAALS blog, on November 28, 2012.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Governor Hickenlooper Signed Amendment 64 Proclamation – Marijuana Legal in Colorado for Private, Personal Use

On Monday, December 10, 2012, Governor Hickenlooper signed an Executive Order that formalizes Amendment 64 as part of the Colorado Constitution. The Executive Order makes legal personal use and possession of small quantities of marijuana, as well as limited home-growing. It is still illegal to buy or sell marijuana, use it in public, or use it in a way that endangers others.

In addition to the Executive Order formalizing Amendment 64, Governor Hickenlooper signed another Executive Order to create a task force on the implementation of Amendment 64. The task force will create and enforce a regulatory structure. There will be 24 members of the task force, who were named by the governor in the Executive Order. The task force will be chaird by Jack Finlaw, the governor’s chief legal counsel, and Barbara Brohl, the Executive Director of the Colorado Department of Revenue.

The task force will address many issues related to the continuing regulation of marijuana, such as amending current laws regarding marijuana possession, sale, and distribution to reflect its legality; creating laws regarding security and labeling requirements for marijuana establishments; education efforts to address long-term health consequences of marijuana use; and the impact of Amendment 64 on employers and employees. The task force is expected to report back to the governor, the General Assembly, and the Attorney General by February 28, 2013.

The task force will also attempt to reconcile Colorado law with federal law so that the Colorado government and its employees will not be subject to prosecution. Governor Hickenlooper and Attorney General John Suthers wrote a letter to Eric Holder, the United States Attorney General, regarding the federal government’s position on Amendment 64, but the state has not yet received a response. Governor Hickenlooper stressed that he will attempt to retain as much flexibility as possible in order comply with federal laws.

For the governor’s complete press release, click here. To hear a panel discussion about the implications of Amendment 64 for Colorado, come to the live CLE program on December 18.

CLE Program: Marijuana and Hemp Law in Colorado – Amendment 64

This CLE presentation will take place on Tuesday, December 18, at 9:00 a.m. Click here to register or call (303) 860-0608. Can’t make the live program? Click here to register for the webcast.

 

Tenth Circuit: Dismissal For Lack Of Personal Jurisdiction in Product Liability Case Affirmed

The Tenth Circuit issued its opinion in Monge v. RG Petro Machinery on Friday, December 7, 2012.

Employees of Richard Energy, an Oklahoma company, traveled to China and purchased rigs that are used to repair oil wells from RG Petro, a Chinese manufacturer. Richard Energy took possession of the rigs in China and exported them to the United States. The rigs were consigned to Eagle Well Service, Inc. (EWS), a Kansas corporation, and delivered in Kansas. EWS later moved one of the rigs to Oklahoma, where Joel Monge, an EWS employee covered by workers’ compensation, was seriously injured during an accident involving the rig.

Monge filed a diversity action against EWS under Oklahoma’s intentional tort exception to the exclusive remedy of Oklahoma’s Workers’ Compensation Act and against Richard Energy and RG Petro under Oklahoma’s manufacturers’ products liability laws. RG Petro filed a motion to dismiss based on lack of personal jurisdiction, and EWS filed a motion for summary judgment contending the intentional tort exception does not apply. The district court granted both motions.

To come under the intentional tort exception to Oklahoma’s Workers’ Compensation Act, Monge would have to prove that EWS “acted with the knowledge that [Monge’s] injury was substantially certain to result from [its] conduct.” Showing a high probability of injury was not enough. EWS’s failure to follow the industry safety standard was also not enough to give rise to an intentional tort. The Tenth Circuit affirmed summary judgment for EWS.

Monge had filed a motion under FRCP 59(e) to alter or amend the court’s summary judgment order, which the district court denied except for a request to fix a date in the order. The motion was based on the deposition testimony of an EWS employee that Monge argued constituted newly discovered evidence. The Tenth Circuit agreed with the district court that the evidence was not newly discovered. Monge’s counsel knew about the employee several months before EWS filed its motion for summary judgment and deposed him before the court granted summary judgment. Minge could have asked the court to defer consideration of the summary judgment motion or supplemented his response to the motion after taking the deposition.

The Tenth Circuit found that the district court lacked personal jurisdiction over the Chinese company RG Petro. Specific jurisdiction did not exist because Monge’s injuries did not arise out of or relate to activities that RG Petro purposefully directed at residents of Oklahoma. Although an Oklahoma company bought the rig, RG Petro knew it was consigned to EWS, a Kansas company, and shipped to Kansas. The rig’s presence in Oklahoma was due to the unilateral act of EWS in moving it there, not to RG Petro’s acts. General personal jurisdiction also did not exist because a limited number of emails and limited number of sales to Oklahoma residents did not constitute “continuous and systematic general business contacts” with Oklahoma.

Tenth Circuit: Unpublished Opinions, 12/10/12

On Monday, December 10, 2012, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Collins v. Jones

United States v. Frazier

Amartey v. Holder

Calbart v. Denver Sheriff Department

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.