Docket – April 29, 2019

4th U.S. Circuit Court of Appeals

Schwartz v. JJF Mgm’t Servs. Inc. (P), 4th Cir. (Duncan) from DMD at Baltimore (Messitte).

This appeal represents the latest salvo in the scorched-earth assault by the appellant and one of its franchisees. The district court properly denied the appellant’s third-party claim to funds in certain deposit accounts that the franchisee sought to garnish in his effort to satisfy a contempt award against the appellant’s subsidiary for engaging in a pattern of bad-faith conduct.

This court shares the district court’s concerns that at the end of the day, the appellant’s motion under Maryland Rule 2-643(e) is one more shameless attempt to avoid paying the contempt award owed to the appellee. The court will not allow the appellant – an insider of the subsidiary, whose attempts to frustrate the franchisee’s rights and collection of the contempt award have been well-documented – to jump the line of priorities that Maryland secured transactions law establishes without a clear showing that the appellant is actually entitled to the funds in the deposit accounts at issue.

Moreover, neither claim preclusion nor issue preclusion bars the appellee’s claims as franchisee. Accordingly, the debtor-in-possession financing order does not have preclusive effect under principles of res judicata. Otherwise, two related parties could strip a third party of his legitimate claims to assets by negotiating an insider financing agreement pursuant to a sham bankruptcy.

The district court is instructed to take whatever measures it deems appropriate to protect the judicial process with respect to its contempt orders.


U.S. District Court – Virginia Western

Riggleman v. Clarke, WDVA at Harrisonburg (Moon).

In this putative class action for Eighth Amendment violations, certification is inappropriate. The plaintiff, a Virginia inmate, is not an adequate class representative because his counsel is not adequate to handle this case as a class action.

Counsel initially failed to provide evidence about their qualifications, experience, or financial ability to litigate a class action, despite binding case law placing a meaningful evidentiary burden on the plaintiff to prove he has adequate counsel. Counsel’s filings also reveal a lack of substantive knowledge about class actions and a disregard for the privacy interests of their client.

Although counsel has almost a decade of civil rights litigation experience, including prisoner litigation, his declaration failed to list, let alone describe, cases in which he has served as class counsel or otherwise have experience in representing a class. The plaintiff’s first motion to certify was obviously deficient, neither citing nor attaching any evidence. This illustrates counsel’s lack of familiarity with basic class actions principles, as well as a lack of thoroughness in failing to uncover them.

More problematically, Federal Rule of Civil Procedure 5.2 requires a party to partially redact certain sensitive personal identifiers — like birth dates and social security numbers — from all filings. Counsel has violated this rule. These failures are especially troublesome given that the case at present involves only a single plaintiff. Counsel apparently cannot ensure protection of personal, sensitive information of even one plaintiff, let alone sensitive information they might encounter if litigating this case as a class action on behalf of hundreds or perhaps thousands of prisoners.

Lastly, counsel’s performance in other cases in this District evinces, among other things, a shortfall in legal acumen and an inability to comply with basic procedural rules.

Motion to certify class denied.

Categories: Daily Dockets

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