Docket – March 21, 2019

NOTE: Evening Docket will be on hiatus on March 22, 2019.

4th U.S. Circuit Court of Appeals

No. 18-1677, Mar. 21, 2019. 4th Cir. (King) from EDVA at Alexandria (Brinkema).

After three-and-a-half years of protracted preliminary litigation — including multiple amendments to the complaint — the district court properly dismissed the plaintiffs’ claims for alleged illegal intrusions into the plaintiffs’ electronic devices to conduct unlawful surveillance.

The complaint alleges that in early 2011, the plaintiff worked on the CBS News investigation into “Operation Fast and Furious,” an ill-fated sting operation of the Bureau of Alcohol, Tobacco, and Firearms. The plaintiff’s highly critical report of the Operation aired on CBS on February 22, 2011. Over the course of that year, Attkisson continued reporting on Operation Fast and Furious in the face of efforts by government entities to stymie her reporting. Later in 2011, the plaintiffs noticed “anomalies” in several electronic devices at their home in Leesburg, Virginia, including computers, telephones, televisions, and the house alarm. The problems with those devices continued through 2012, despite their internet service provider’s attempts to cure them.

The district court did not err in dismissing the plaintiffs’ Fourth Amendment Bivens claim against the Attorney General and Postmaster for failure to state a claim. These defendants held much higher ranks than the line-level FBI agents sued in Bivens. Moreover, a claim based on unlawful electronic surveillance presents wildly different facts and a vastly different statutory framework from a warrantless search and arrest. And the plaintiffs seek to hold high-level officials accountable for what they themselves frame as policy-level decisions to target internal leaks to the media. Congress’s omission of a damages remedy for Fourth Amendment violations in similar factual circumstances is more than inadvertent and strongly counsels this court’s hesitation before creating such a remedy itself.

The district court also didn’t err in dismissing their Electronic Communications Privacy Act claim because the Attorney General and Postmaster are entitled to qualified immunity. To the extent that they procured any wrongful interception, use, or disclosure of the plaintiffs’ electronic communications, they did not violate a clearly established right.

Finally, the district court properly dismissed John Doe agents and Verizon defendants on procedural grounds and denied leave to further amend the complaint. Put simply, the court was dissatisfied with the plaintiffs’ lack of progress in pursuing their claims after more than three years of litigation, and their lack of respect for court orders. Moreover, the Amended Complaint contravened the court’s prior orders and the Federal Rules of Civil Procedure in multiple ways. Those circumstances support the dismissal with prejudice of their claims under Rule 41(b).

Affirmed. Judge Wynn wrote an opinion concurring in part and dissenting in part.

Brundle v. Wilmington Trust NA (P), 4th Cir. (Motz) from EDVA at Alexandria (Brinkema).

After owners of a closely held corporation sold the company to its Employee Stock Ownership Plan, a participant in the Plan brought this action contending that the trustee chosen for the Plan by the corporation breached its fiduciary duties and overpaid for the stock — improperly enriching the corporation’s owners at the expense of its employees. The district court properly concluded that the trustee had indeed breached its fiduciary duties, causing the Plan to overpay for the corporation’s stock by more than $29 million. The court entered judgment for the Plan in that amount and awarded attorneys’ fees to the participant’s counsel.

Only equity provides any possible basis for a fee award in addition to the statutory fees awarded. Here, scores of unnamed Plan participants benefited substantially from this lawsuit, while counsel bore the entirety of the costs and risks. Equity thus demands that the enriched participants pay a proportional share of reasonable attorneys’ fees.

This court agrees with the Second, Eighth, and Ninth Circuits that a statutory fee-shifting provision (or an award of fees under such a provision) does not, as a matter of law, automatically preclude an award under the common fund doctrine. Thus, the district court retained discretion to award supplemental attorneys’ fees from the common fund.


Supreme Court of Virginia

Anderson v. Dillman (P), SCV (Kelsey) from Powhatan (Cella).

The circuit court properly dismissed a Virginia inmate’s due process suit asserted under 42 U.S.C. § 1983, claiming that prison officials had violated his rights during a prison disciplinary proceeding that resulted in a $10 fine.

Contrary to the plaintiff’s contention, his due process rights were not violated when a hearing officer failed to produce the requested chain-of-custody report and list of medications prior to or during the disciplinary hearing. In a criminal trial in which the issue to be decided is a defendant’s guilt or innocence, the defendant has no general constitutional right to discovery. All the more this must be true in the lesser context of a prison disciplinary proceeding. Moreover, the erroneous exclusion of evidence during a criminal trial implicates due process principles only when the error is of such magnitude as to deny fundamental fairness. Any lesser standard would risk equating erroneous evidentiary rulings with constitutional violations and would turn every decision to deny a pretrial discovery request or to sustain an objection to evidence at trial — if later determined to be mistaken — into a due process violation. The same conclusion must be true where, as here, an inmate challenges a prison disciplinary sanction.

Here, at no point has the plaintiff proffered what the chain-of-custody report or list of medications would have proven. Even so, the hearing officer independently investigated to confirm with prison medical staff that the plaintiff’s prescribed medications, either alone or in combination, could not have created a false-positive drug test result. Even if the plaintiff had a due process right to receive the requested documents, he has offered no factual basis to believe that their nondisclosure rendered his disciplinary hearing fundamentally unfair or, for that matter, prejudiced him in any way.


U.S. District Court – Virginia Eastern

New Venture Holdings LLC v. Verdi, EDVA at Norfolk (Davis).

The plaintiff’s contract suit against its advertising company must be dismissed for lack of personal jurisdiction.

The defendant, a New York ad agency, had been soliciting the plaintiff’s business for several years before the parties reached an agreement. The plaintiff put a negotiated agreement on its letterhead and sent it to the defendant in New York City, where the defendant executed it.

The parties’ contract doesn’t itself create a sufficient connection between the defendant and Virginia to justify the exercise of specific personal jurisdiction. The parties reached an oral agreement in Illinois, and the written contract was executed in New York. Virginia’s choice-of-law provisions say that either Illinois or New York law would govern questions about the nature, validity, and interpretation of the contract, rather than Virginia law. Thus, the Defendant didn’t avail itself of Virginia law.

The defendant’s various communications via phone and email – soliciting the plaintiff’s business and negotiating the terms of the contract – do not constitute sufficient minimum contacts. While the plaintiff had to approve the advertisements, book travel, pay the defendant its monthly fee, and accept ownership of work product – all from its headquarters in Virginia, the plaintiff cannot be the only link between the defendant and the forum. Rather, the defendant’s conduct must form the necessary connection with the forum State that is the basis for its jurisdiction over him. It’s also not evident from the contract that the parties contemplated activity in Virginia. And the defendant hasn’t engaged in any physical contacts with Virginia.

Because nothing about the performance of the contract on the facts and allegations before the Court created a link betweenDefendant and Virginia, it is also an insufficient basis alone forpersonal jurisdiction.

Finally, viewing all of the defendant’s contacts cumulatively here also isn’t a basis for specific personal jurisdiction in this case. The defendant’s contacts with Virginia are limited to the solicitation of the plaintiff’s business prior to the contract and communications following the contract. The plaintiff hasn’t demonstrated that the defendant availed itself of the privilege of conducting activities in Virginia. It also can’t be said that any unfairness results to the plaintiff, which clearly availed itself of foreign states’ laws. The plaintiff is a sophisticated corporation and can afford to bring a lawsuit in another state.

To hold that this situation is sufficient for personal jurisdiction over the defendant suggests would subject professional service firms to suits in a state merely because their clients do business there. The court isn’t aware of any case that has permitted such an expansive view of personal jurisdiction.

Motion to dismiss granted.

Categories: Daily Dockets

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