Trial Practice and Procedure - Philip W. Savrin and W. Mark Weaver

• Publication year: 2003

Trial Practice and Procedureby Philip W. Savrin^* and

W. Mark Weaver^**

I. Introduction

This Article surveys the year 2002 decisions of the United States Court of Appeals for the Eleventh Circuit that have a significant impact on issues relating to federal trial practice and procedure.

II. Federal Civil Procedure

In Chrysler Financial Corp. v. Powe,¹ the court considered a matter of first impression: Does Federal Rule of Civil Procedure 23(f) allow parties to petition the court of appeals for direct review of a bankruptcy judge's order granting class certification?² Chrysler Financial Corporation, First Union Mortgage Corporation, and PNC Mortgage Corporation (the "corporations") were defendants in separate bankruptcy cases before the United States Bankruptcy Court for the Southern District of Alabama. Plaintiffs in each case were bankruptcy debtors who claimed the corporations violated the bankruptcy code by collecting attorney fees from them and other debtors. The bankruptcy judge granted class certification in each case. The corporations responded by petitioning the court of appeals to review the class certification pursuant to Federal Rule of Civil Procedure 23(f) and Federal Rule of Bankruptcy Procedure 7023(f).³

The corporations argued that the court of appeals was authorized to review the bankruptcy court's class certification because the bankruptcy rules adopted Federal Rule of Civil Procedure 23(f)⁴ through Federal Rule of Bankruptcy Procedure 9032.⁵ "Bankruptcy Rule 9002 provides that [the terms] . . . '[d]istrict court,' 'trial court,' 'court,' 'district judge,' [and] 'judge' mean[] 'bankruptcy judge' if the case or proceeding is pending before a 'bankruptcy judge.'"⁶ Therefore, the corporations argued that Bankruptcy Rule 7023(f) should be read as follows:

A court of appeals may in its discretion permit an appeal from an order of a bankruptcy judge granting or denying class action certification under this rule if application is made to it within ten days after the entry of the order. An appeal does not stay proceedings in the bankruptcy court unless the bankruptcy judge or the court of appeals so orders.⁷

The court of appeals began its analysis of the corporations' interpretation by examining the advisory committee's note to Rule 23(f).⁸ The court found that Rule 23 was adopted pursuant to the power conferred upon the Supreme Court by 28 U.S.C. Sec. 1292(e).⁹ Section 1292 empowers the Supreme Court to provide interlocutory appeals to the courts of appeals "in accordance with [Sec.] 2072."¹⁰ Pursuant to 28 U.S.C. Sec. 2072,¹¹ the Supreme Court establishes rules of practice and procedure in the courts of appeals and the district courts.¹² A different provision, 28 U.S.C. Sec. 2075,¹³ empowers the Supreme Court to prescribe rules for the bankruptcy courts.¹⁴ As a result, the court of appeals determined that "[a] reading of Sec. 2072 to grant authority to prescribe bankruptcy rules would make the entirety of Sec. 2075 irrelevant."¹⁵ The court found that such a reading would be "inconsistent with the canons of statutory construction."¹⁶

In addition, the Eleventh Circuit found that the purpose behind Rule 23(f) would not be thwarted if a class certification order by a bankruptcy court could not be appealed directly to the court of appeals.¹⁷ District courts already possess "discretion to entertain an interlocutory appeal from the bankruptcy court . . . [thus], the appellate avenue addressed by Rule 23(f) is already available to petitioners through an interlocutory appeal to the district court."¹⁸

The court also determined that allowing an appeal to the court of appeals for class certifications would create jurisdictional uncertainty because a defendant could petition the court ofappeals for review under Rule 23(f) or a district court under 28 U.S.C. Sec. 158(a).¹⁹ Based on the above considerations, the Eleventh Circuit dismissed the corporations' petition and held that Federal Rule of Civil Procedure 23(f) did not create a basis for interlocutory jurisdiction in the court of appeals for a bankruptcy court's order granting class certification.²⁰

III. Civil Rights

In Williams v. Motorola, Inc.,²¹ the Eleventh Circuit addressed another matter of first impression: Whether individuals can maintain a claim under the Americans with Disabilities Act ("ADA")²² without proving they are actually disabled.²³ This case arose after Motorola terminated the employment of Melanie Williams. Williams responded by filing a lawsuit, alleging Motorola violated the ADA as well as other federal and state statutes.²⁴ Williams's ADA claim alleged that Motorola "perceived" that she had a disability and terminated her based on that perception.²⁵ The district court held that Williams did not establish her "perception" claim and therefore granted Motorola's motion for judgment as a matter of law on the ADA claim.²⁶

The Eleventh Circuit reviewed the district court's grant of Motorola's motion "'in the light most favorable to [Williams].'"²⁷ In a matter of first impression, the court agreed with Williams's contention that she did not actually need to be disabled to raise an ADA claim and held that "a plaintiff may maintain a claim under the ADA of being perceived as disabled without proof of actually being disabled."²⁸ The Eleventh Circuit found that this decision was consistent with results reached in other circuits.²⁹

However, the court also held that plaintiffs still must make a prima facie case of discrimination by "show[ing] a disability (whether real or perceived), that she was otherwise qualified to perform the essential functions of the job, and she was discriminated against based upon the (real or perceived) disability."³⁰ The Eleventh Circuit found that the record clearly showed that Motorola terminated Williams "because of her inability to work with others," not because of any perceived disability.³¹ Therefore, the court affirmed the district court's grant for a judgment as a matter of law on her ADA claims.³² Thus, the Eleventh Circuit determined that while an actual disability is not required for an ADA claim, the claimant still must make a prima facie case of discrimination.³³

IV. LEAVE TO AMEND

In Wagner v. Daewoo Heavy Industries America Corp.,³⁴ the Eleventh Circuit held that "[a] district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the district court."³⁵ This en banc decision overruled Bank v. Pitt,³⁶ and the court held that the new rule applied prospectively only.³⁷

Wagner came to the Eleventh Circuit after plaintiff Andrew J. Wagner appealed the district court's dismissal of his case for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).³⁸ An Eleventh Circuit panel vacated the dismissal and held that the district court should have given Wagner an opportunity to amend his complaint based on precedent established in Bank.³⁹ In Bank the court held that " '[w]here a more carefully drafted complaint might state a claim, a plaintiff must be given at least one chance to amend the complaint before the district court dismisses the action with prejudice.'"⁴⁰ In Wagner the Eleventh Circuit determined that a new rule was needed to improve efficiency and the "concept of finality."⁴¹ The court therefore vacated the panel's decision and remanded the case to the district court with instructions to grant Wagner leave to amend his complaint.⁴²

The court found that the Bank rule gave plaintiffs "two bites at the apple."⁴³ If a district court granted a motion to dismiss under Rule 12(b)(6), the plaintiff faced no risk in appealing.⁴⁴ As the court observed, "If we reversed the district court, the plaintiff's appeal was successful. His appeal, however, also was successful if we affirmed the district court, because we would then remand the case to the district court and instruct the court to permit the plaintiff to amend his complaint."⁴⁵

The court in Bank intended to facilitate "the Federal Rules' fundamental goal that disputes be resolved on the merits, rather than on the pleadings."⁴⁶ Instead, the Bank rule effectively transformed Rule 12(b)(6) appeals into interlocutory appeals, as the district court would have to engage in additional proceedings after any court of appeals decision.⁴⁷ To avoid the additional litigation created by the Bank rule and to bring the Eleventh Circuit "in line with the majority of[its] sister circuits," the court overruled Bank and eliminated the requirement that district courts grant a represented plaintiff leave to amend sua sponte.⁴⁸

The court in Wagner then had to decide whether to apply the new rule retroactively or prospectively.⁴⁹ While the Eleventh Circuit generally applies new rules of law retroactively, the court found that this new rule satisfied the requirements for prospective application because it overruled clear past precedent.⁵⁰ The court also found that it would be inequitable to apply the new rule in the instant case because Wagner and other plaintiffs may have relied upon Bank; therefore, the court did not want to "punish those parties for following the clearly established precedent of this Circuit."⁵¹ Based on this analysis, the court held that its new rule "applies only to cases in which the notice of appeal was filed after the date of this decision [December 10, 2002]."⁵²

V. Private Right Of Action

A. Air Carrier Access Act of 1986

In Love v. Delta Air Lines,⁵³ the Eleventh Circuit announced a new standard for determining whether a private right of action exists under federal statutes.⁵⁴ The specific issue before the court was whether the Air Carrier Access Act of 1986 ("ACAA")⁵⁵ created a private right of action. Cynthia Love claimed Delta Air Lines violated the ACAA by not appropriately accommodating her needs as a wheelchair user.⁵⁶ The district court found that the ACAA implied a private...