Docket – January 23, 2019

4th U.S. Circuit Court of Appeals

Save Our Sound OBX Inc. v. N.C. Dep’t of Transp. (P), 4th Cir. (Duncan) from EDNC at Elizabeth City (Flanagan).

State and federal agencies didn’t violate the National Environmental Policy Act or the Department of Transportation Act in deciding to replace a highway segment with the “Jug-Handle Bridge” across the Pamlico Sound in North Carolina.

The agencies weren’t required to prepare an environmental impact study to consider either the alignment of the bridge or beach nourishment alternatives. Further, the agencies adequately considered the effects of construction traffic caused by the bridge and didn’t rely on the bridge as a choice predetermined among alternatives.


Pinilla v. United States (U), 4th Cir. (per curiam) from DSC at Columbia (Anderson). 

A tort claim for a minor child’s birth injury accrued when physicians could have identified the cause of the injury, not when the parents – laypersons – suspected medical malpractice.

Three and a half years after the birth, the child’s guardian ad litem initiated this suit. Because the attending physician’s then-employer received federal grant money, he was a federal employee for purposes of the Federal Tort Claims Act. The district court erroneously defined “knowing” in this case as mere suspicions by a layperson, unaided by an expert-provided diagnosis. This decision inappropriately credited the suspicions of a concerned parent who lacked medical training to trigger claim accrual under the Act. According to unrebutted reports from several experts, physicians could not have identified the cause of injury until he was two years old. This suit was filed within two years of that time and thus is not time-barred.

Reversed and remanded.

U.S. District Court – Virginia Western

Painter v. Blue Ridge Reg’l Jail Auth., WDVA at Lynchburg (Moon).

Due to improper service, the court will vacate a default judgment granted against the defendant for over $700,000 in damages for sexual assault. But the plaintiff will have an extension of time to serve.

Credible testimony shows that service was not posted at the defendant’s usual place of abode and, therefore, that the plaintiff’s service was invalid.

However, the defendant had actual notice of the suit. This notice doesn’t prevent him from asserting a personal jurisdiction defense. But it does support granting the plaintiff additional time to serve under Federal Rule of Civil Procedure 4(m). The plaintiff made diligent efforts to serve process properly, and there’s no indication that she had any control over the failure of process servers to do so. The plaintiff was given the impression that the defendant might reside in Florida, which suggests that the defendant was attempting to evade service. And it’s unlikely that the defendant will suffer prejudice from an additional extension of time.

Judgment vacated.

Virginia Circuit Courts

Commonwealth v. Davis, Fairfax (Oblon).

The crime of aiding in unlawfully obtaining documents from the Department of Motor Vehicles when not entitled thereto under Code § 46.2-105.2(B) contains an implied mens rea element.

In contrast to § 46.2-105.2(A)’s strict liability, it’s logical to apply the common law meaning of “aid” to a defendant charged under subsection (B). If an “aider” under subsection (B) were to be held strictly liable, ridiculous results might ensue. For example, an actor who simply assists another — such as by filling out paperwork on the principal’s behalf — could be held liable without any knowledge he assisted with a criminal venture.

Thus, the court holds that, to be liable under Code § 46.2-105.2(B), a defendant must knowingly aid another person obtain the listed documents with the knowledge the principal has not satisfied all legal and procedural DMV requirements or is otherwise not legally entitled to the document obtained. The court improperly instructed the jury to the contrary and, accordingly, grants the defendant’s motion to set aside the verdict.

Farmville Group LLC v. Shapiro Brown & Alt LLP, Fairfax (Oblon).

A non-lawyer former member of a dissolved limited liability company may not engage in litigation on behalf of the dissolved LLC. Only a lawyer may represent a dissolved LLC.

In this case, a non-lawyer signed and filed the complaint on the dissolved LLC’s behalf. Since the complaint was improperly signed and filed, the defendant’s demurrer is sustained without leave to amend

One may argue it is unfair to effectively compel an owner of a single-member LLC to hire an attorney to prosecute a claim belonging to the LLC. However, this is a public policy determination set forth in the rules of the Supreme Court of Virginia. Of course, one need not organize his business as an LLC. There is no requirement sole proprietors use lawyers to represent their enterprises. However, under current law, businesspeople forgo the ability to bring legal action pro se to protect their business interests in exchange for benefits, such as limited liability, conferred to them by the formation of an LLC.

Case dismissed.

Categories: Daily Dockets

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