August 19, 2019

Archives for November 5, 2013

IAALS: Recipe for Rules Change Success: An Update on Colorado’s Pilot Project Evaluation

Corina_GeretyBy Corina Gerety

This post originally appeared on IAALS Online on October 29, 2013.

IAALS follows a four-step framework for continuous improvement of the American civil justice system. Within our Rule One Initiative, we gather research on existing court processes, convene stakeholder groups to develop recommended models aimed at increasing efficiency and access while reducing costs and delays, facilitate the implementation of those models, and support measurement of their outcomes. This process provides a feedback loop for crafting civil procedures that make a real and positive difference for all who use our courts, on both sides of the “v”. IAALS works with courts, judges, lawyers, and other stakeholders to shepherd these changes, so together we can create a better system.

Currently, many of the rules projects implemented around the countryare in a measurement phase, and the resulting evaluations will provide valuable information to decision-makers on whether the projects fulfill their goals when put in practice. Although the timing can vary, the lapse of a few years between implementation and the final evaluation results is not uncommon. It takes some time for enough cases to work their way through the system to the point where it is appropriate to draw empirical conclusions about the implemented rule changes.

This kind of evaluation is a bit like baking. Even with quality ingredients and the temperature set just right, taking the dish out of the oven before the timer goes off will not provide a fair basis for judging the recipe. In the meantime, however, everyone is hungry. Without the ability to see the progress being made, it is quite tempting to grab an oven mitt and have a taste.

In the spirit of turning on the oven light so that all may have a look inside, this short Update on the Colorado Civil Access Pilot Project Evaluation provides information on the specifics and timing of the evaluation that IAALS is conducting in Colorado.

Hopefully, this information will provide some reassurance to the Colorado legal community on what to expect in the coming year, while also providing some insight into other evaluation processes that are going on around the country. Though the recipe for each evaluation differs, the time devoted to gathering data is always critical.

Stay tuned!  We will keep you informed of all of the results as they come out.

Corina Gerety directs long-term research and evaluation projects for IAALS. Her work involves legal and empirical research, analysis, and writing, as well as research-related collaboration and presentation. She conducts research for all IAALS initiatives on an as-needed basis. Gerety came to IAALS in the Spring of 2009 from the public sector, having worked for a number of years in the Office of the Colorado Attorney General and in clerkships at the Colorado Supreme Court, Colorado’s Second Judicial District Court, and the Office of the Presiding Disciplinary Judge.

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.

Tenth Circuit: Entry of Superceding Judgment Pursuant to F.R.C.P. 50(b) on Fraud Claims Affirmed

The Tenth Circuit Court of Appeals published its opinion in Myklatun v. Flotek Industries on Tuesday, November 5, 2013.

Defendant Chemical Equipment and Specialties, Inc. (CESI) manufactures chemicals used in oil and gas production, including microemulsion products used in the water-pressure fracturing (“fracking”) process. In December 2004, CESI and Plaintiff Bjorn Myklatun entered into a distributorship agreement. Among other things, CESI agreed it would not during the period of the Agreement enter into any agreement of a similar nature with any other party to market, sell, distribute, provide or otherwise deal in the sale or provision of products competing with Plaintiff in the Territory, except with the prior written consent of Plaintiff.  “The “Territory” was oil companies active in Norway and Denmark.

CESI and Mr. Myklatun decided that Plaintiffs’ efforts would be focused on a product called MAD-4. Plaintiffs began seeking environmental approval of MAD-4 in Norway and Denmark. Although Defendants dispute whether Plaintiffs obtained valid environmental approval, the facts taken in the light most favorable to Plaintiffs indicate they were successful, at least in Norway. However, Plaintiffs had made no sales of MAD-4 by October 2006, when Defendants informed them they were terminating the agreement.

While the distributorship agreement with Mr. Myklatun was in force, CESI began developing a proprietary microemulsion product for Halliburton Energy Services. CESI never sold any microemulsion products in Norway or Denmark.

In December 2006, CESI filed a petition for declaratory judgment against Mr. Myklatun in Oklahoma state court, requesting a finding as to whether Mr. Myklatun had received public approval of MAD-4 in the North Sea region. Mr. Myklatun and his company, Plaintiff Oil Innovation, brought claims of tortious interference, fraud, and civil conspiracy against the four Defendants involved in this appeal: CESI; its parent company, Flotek Industries; Flotek president Todd Sanner; and former Flotek CEO Jerry Dumas.

Following a trial, the district court granted Defendants’ renewed motion for judgment as a matter of law under Rule 50(b) and entered a superceding judgment in favor of all Defendants on all claims. Plaintiffs appealed this decision.

Plaintiffs first argued that the district court erred in granting judgment as a matter of law because CESI was not included in Defendants’ Rule 50(a) motion made during the trial and was not specifically mentioned in Defendants’ post-trial Rule 50(b) motion. The court’s review of the record persuaded the court that both Rule 50 motions were made on behalf of all Defendants, including CESI. To the extent Plaintiffs challenged the specificity of Defendants’ Rule 50(a) motion, the Tenth Circuit agreed with the district court that the argument was waived by Plaintiffs’ failure to raise it in their response.

The court turned next to the merits of Defendants’ argument that Plaintiffs failed to present evidence of any affirmative misrepresentations or facts giving rise to a duty to disclose Halliburton’s development of a microemulsion product. The parties agreed that Oklahoma law governed. Plaintiffs argued their fraud claim was based on Defendants’ “omissions or failures to speak, i.e., constructive fraud.” After carefully reviewing the record, the Tenth Circuit concluded that none of the facts gave rise to a duty for Defendants to disclose the development of Halliburton’s microemulsion.  Neither the contract between the parties nor Oklahoma law imposes a duty on a manufacturer to disclose all planning and development activities that could potentially affect a current distributor. The court concluded the evidence was insufficient to support the conclusion that Defendants had the duty to make such a disclosure under Oklahoma law.

For the foregoing reasons, the Tenth Circuit AFFIRMED the district court’s entry of judgment as a matter of law in favor of Defendants.

Rule Change 2013(16) Amends Colorado Rules of Criminal Procedure

On Monday, November 4, 2013, the Colorado Supreme Court released Rule Change 2013(16). This rule change amends Rule 5 of the Colorado Rules of Criminal Procedure, “Preliminary Proceedings.” The rule change is effective January 1, 2014.

Rule Change 2013(16) amends Crim. P. 5 as follows:

(2) Appearance Before the Court. At the first appearance in the county court the defendant shall be advised in accordance with the provisions set forth in subparagraphs (a) (2) (I) through (VII) of this Rule, except that the defendant shall be advised that an application for the appointment of counsel shall not be made until after the prosecuting attorney has spoken with the defendant as provided in C.R.S. 16-7-301 (4) (a).

State Judicial also issued a corrective order to Rule Change 2013(14), regarding new Rule 37, “Discovery,” of the Colorado Rules of Probate Procedure. The corrective order amends a citation in subparagraph (b) and is issued nunc pro tunc for the original effective date, October 10, 2013.

For the complete text of Rule Change 2013(16), click here. For all of State Judicial’s rule changes, click here.

Tenth Circuit: Summary Judgment in Favor of IBM on Age Discrimination Claims Affirmed

The Tenth Circuit Court of Appeals published its opinion in Roberts v. International Business Machines Corporation on Tuesday, November 5, 2013.

George Roberts said IBM fired him because of his age. He argued an instant messaging conversation between two of the company’s human resources managers proved as much. The pair were discussing whether to eliminate Mr. Roberts’s position on the ground that he didn’t have enough billable work to justify the expense of paying him. By the conversation’s end, the two HR managers agreed to retain him, but also to reevaluate him a few months if his performance continued to decline. On the way to these conclusions, one of the managers asked about Mr. Roberts’s “shelf life.” And it was this question, Mr. Roberts contended, that showed age played a direct role in his eventual discharge.

Any fair reading of the conversation, though, reveals that the “shelf life” here had nothing to do with Mr. Roberts’s age and everything to do with his workload, just as the district court held when granting IBM’s motion for summary judgment.  Mr. Roberts appealed.

The Tenth Circuit held that the instant message conversation unmistakably suggested that “shelf life” was nothing worse than an inartful reference to Mr. Roberts’s queue of billable work. And that was more than enough to preclude it from amounting to direct evidence of discrimination in violation of the federal Age Discrimination in Employment Act. The “shelf life” comment, qualified at most, as circumstantial evidence of an ADEA violation. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (“[I]f the content and context of a statement allow it to be plausibly interpreted in two different ways — one discriminatory and the other benign — the statement does not qualify as direct evidence.”)

Nor could Mr. Roberts amass sufficient circumstantial evidence to suggest IBM fired him on account of his age. When a plaintiff seeks to prove age discrimination under the ADEA using circumstantial rather than direct evidence, the court  evaluates the claim using the McDonnell Douglas burden-shifting approach: If a terminated employee can make a prima facie case of discrimination, the burden shifts to the employer to articulate a nondiscriminatory reason for firing the employee. If the employer can do that, the employee picks up the burden once more and can survive summary judgment by identifying evidence that could support a reasonable jury’s concluding that the employer’s proffered rationale is a mere pretext for discrimination. Tabor, 703 F.3d at 1216-17 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Mr. Roberts alleged that IBM’s stated reason for firing him — poor performance — was implausible because the company didn’t consistently express negative views of his job performance: even though it criticized his work on occasion, at other times it told him he was improving. But changes in an employer’s estimation of its employee’s job performance, without more, cannot establish pretext as a matter of law. To suggest pretext, Mr. Roberts would have had to advance evidence that IBM’s changed evaluation of his performance wasn’t honestly arrived at. That he did not do, and the Tenth Circuit concluded he could not do with this record.

Mr. Roberts made state law claims based on Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989). First, the court concluded there were simply no facts in the record to support the conclusion that age was either a significantly motivating or a but-for factor behind Mr. Roberts’s discharge. Second, Roberts argued his termination came about as retaliation for his decision to voice concerns about his supervisors’ attitude toward his age. Even assuming for argument’s sake a retaliation claim under Burk is not in some way preempted by federal law, the Tenth Circuit saw no evidence in the record that could persuade a rational trier of fact that Mr. Roberts should prevail. Finally, nothing in the record suggested IBM’s conduct came anywhere close to conduct that met Oklahoma’s requirements for intentional infliction of emotional distress.

The district court’s grant of summary judgment was AFFIRMED.

Tenth Circuit: Unpublished Opinions, 11/5/13

On Tuesday, November 5, 2013, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

Mascio v. Gronewoller

Glynn v. Heimgartner

Morales v. Holder

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.