Trial Practice and Procedure - Philip W. Savrin and Robyn L. Oliver

• Publication year: 1998

Trial Practice and Procedureby Philip W. Savrin^* and

Robyn L. Oliver^**

I. Introduction

This Article surveys the 1997 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

II. Judicial Notice and Supplementation of the Record

A party's ability to supplement the record was the issue in Shahar v. Bowers.¹ The court considered a decision by Georgia's Attorney General to revoke an offer of employment previously extended to Shahar because Shahar publicized her marriage to a person of the same sex. Shahar filed suit alleging the decision violated her constitutional rights to freedom of association, equal protection, and due process. The district court granted summary judgment in favor of Attorney General Bowers, and Shahar appealed.² Following an affirmance en banc by the Eleventh Circuit, Shahar petitioned for rehearing, seeking in part to supplement the record with two newspaper articles reporting that the Attorney General, who had made the employment decision, had admitted to having an adulterous affair in the past. Shahar requested that this information become part of the record by judicial notice or through remand to the district court for further discovery.³

Ruling again en banc, the court of appeals recognized that while it has the "inherent equitable power to supplement the record with information not reviewed by the district court," it is generally reluctant to do so.⁴ Indeed, to supplement the record "would be an especially extraordinary event and would require the clearest showing of just need to warrant the supplementation."⁵ In this case one factor that was found to weigh strongly against supplementation was an agreement by the parties early in the litigation not to propound discovery concerning the sexual history of the other party.⁶ The hearsay information contained in the newspaper articles concerning the adulterous affair was deemed to be encompassed by the terms of this agreement.⁷ Consequently, had it not been for the voluntary agreement, Shahar could have obtained the information contained in the articles through the normal course of discovery. As it stood, Shahar "did not diligently seek out this information when the information could have been regularly considered by the district court and then by the court of appeals."⁸ Accordingly, the court held that Shahar's request to supplement the record through remand was procedurally barred.⁹

The court also declined to supplement the record through judicial notice.¹⁰ The court recognized that "the taking of judicial notice bypasses the safeguards which are involved with the usual process of proving facts by competent evidence."¹¹ Consequently, while it is appropriate to take judicial notice of a person's official conduct, the court would not extend judicial notice to "the unofficial conduct of one person based upon newspaper accounts (or the person's campaign committee's press release) about that conduct."¹²

III. Statute of Limitations

In United States v. Banks,¹³ the Eleventh Circuit analyzed and addressed the procedure for determining the applicable statute of limitations when a substantive federal statute does not specify a limitations period. In Banks the Government brought a civil proceeding seeking to enjoin Banks (a landowner) from discharging waste material into United States waters under the Clean Water Act ("CWA"). The trial court entered judgment against Banks, and he appealed on several grounds including that the Government's equitable action was barred by the applicable statute of limitations.¹⁴

The court acknowledged that when a statute does not specify a limitations period, the default limitations provision of 28 U.S.C. Sec. 2462 would normally apply.¹⁵ This section provides: "Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued."

However, because the "plain language of [the default limitations provision] does not apply to equitable remedies," Banks argued that the "concurrent remedy rule" should apply instead.¹⁶ Under the concurrent remedy rule, "'equity will withhold its relief . . . where the applicable statute of limitations would bar the concurrent legal remedy.'"¹⁷ In this case the concurrent remedy, a legal action under the CWA, would arguably be covered by the default limitation provision, and the action would be time-barred.¹⁸

In support of his argument, Banks relied on United States v. Windward Properties, Inc.¹⁹ In Windward the district court applied the concurrent remedy rule to bar the Government's action for equitable relief and civil penalties under the CWA.²⁰ The court of appeals disagreed with the district court's analysis in Windward because it failed to address the general rule that '"an action on behalf of the United States in its governmental capacity ... is subject to no time limitation, in the absence of congressional enactment clearly imposing it.'"²¹ In addition, an application of the rule would run afoul of the "canon of statutory construction that 'any statute of limitations sought to be applied against the United States "must receive a strict construction in favor of the government.'""²²

In light of these considerations, the court of appeals held that a statute of limitations "is enforced against the government only when the government is acting to vindicate private interests, not a sovereign or public interest."²³ Consequently, because the Government in this case sought "relief in its official enforcement capacity," the concurrent remedy rule could not properly be invoked, and the Government's action was not time-barred.²⁴

IV. Additur/Seventh Amendment

The right to a jury trial on the issue of damages was addressed by the Eleventh Circuit in EEOC v. Massey Yardley Chrysler Plymouth, Inc.²⁵ In that case the Equal Employment Opportunity Commission ("EEOC") alleged that defendant employer had unlawfully discriminated against a female employee "by subjecting her to a hostile work environment and harassing and constructively discharging her because of her age" in violation of the Age Discrimination in Employment Act ("ADEA").²⁶ A jury found that defendant had subjected the employee to a hostile work environment but that the discrimination was not willfull. Because the ADEA authorizes liquidated damages for willfull discrimination only, the employee was awarded back pay but did not receive liquidated damages. In addition, the back pay award was significantly less than the total amount of pay the employee would have received had she continued to work between the time of her constructive discharge and the employer's offer to reinstate her.²⁷ Not surprisingly, the EEOC moved to conform the damages to the evidence by increasing the award to match the actual amount of back pay due to the employee.²⁸

The court of appeals began by recognizing that "once liability for harassment and constructive discharge on the basis of age is established, the injured victim is presumptively entitled to back pay from the date of the discriminatory discharge until the date of judgment, unless the victim obtained or could have obtained substantially equivalent work before that time."²⁹ The Seventh Amendment generally prohibits a trial court from increasing a jury award except "where the jury has found the underlying liability and there is no genuine issue as to the correct amount of damages."³⁰ Because the jury found the defendant liable for discrimination and there was no dispute about the correct amount of back pay, the court determined the district court had the authority to adjust the back pay award without violating the Seventh Amendment.³¹ Accordingly, the court vacated the award and remanded the case with instructions to conform the damages to the evidence.³²

V. Jurisdictional Issues

A. Personal Jurisdiction Under RICO

In Republic of Panama v. BCCI Holdings (Luxembourg) S.A ,³³ the Republic of Panama ("Panama") brought suit in Florida under the Racketeer Influenced and Corrupt Organizations Act ("RICO")³⁴ against several foreign and domestic banking entities. In its complaint Panama alleged that these entities had assisted Manuel Noriega, a former military officer of Panama, in unlawfully obtaining money from Panama. One of the defendants had its principal place of business in the District of Columbia, and another had its principal place of business in New York City. The district court dismissed the complaint for lack of personal jurisdiction and in an alternative ruling held that Panama failed to state a claim under the RICO statute.³⁵

Panama appealed, claiming the district court had jurisdiction over defendants under RICO's nationwide service of process provision.³⁶ Under this provision "process may be served 'on any person in any judicial district in which such person resides, is found, has an agent, or transacts his affairs.'"³⁷ In response, defendants urged the court "to put aside the jurisdictional issue and first review the district court's alternative ruling under [rule 12(b)(6) of the Federal Rules of Civil Procedure] addressing the merits of Panama's RICO claim."³⁸

Before reaching the merits of Panama's RICO claim, the court recognized that it must first decide the personal jurisdiction issue because a "defendant that is not subject to the jurisdiction of the court cannot be bound by its rulings."³⁹ In addition, a dismissal on the merits would be with prejudice, whereas a dismissal based on personal jurisdiction would be without prejudice.⁴⁰ The court declined to adopt the approach utilized by some courts whereby the issue of personal jurisdiction is not decided "if the decision on the merits would favor the party challenging jurisdiction and the jurisdictional issue is difficult."⁴¹ Because the jurisdictional...