(1) MOTION FOR CLASS CERTIFICATION MUST BE TIMELY FILED.

Rule 23(c)(1) of the Rhode Island Superior Court Rules of Civil Procedure governs the timeliness of a motion for class certification in a class action case. The rule provides that “[a]s soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.” R.I. Super. Ct. R. 23(c)(1). Looking to federal cases on the issue of timeliness of requests for class certification, the Rhode Island Supreme Court has long recognized that each motion for certification must be reviewed on the facts and circumstances of the particular case and there is no set deadline by which the court must act. Zarrella v. Minnesota Mutual Life Insurance, Co., 824 A.2d 1249, 1263 n.16 (R.I. 2003).

This term, the Rhode Island Supreme Court reminded litigants that it has not adopted the 2003 amendments to Federal Rule 23 or its more liberal timeliness requirement. Long v. Dell, Inc., No. 2012-248-Appeal at 11-12. Compare R.I. Super. R. Civ. P. 23(c)(1) (“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.”) with Fed. R. Civ. P. 23(c)(1)(A) (“At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.”).

(2) PLAINTIFF CLASS MUST BE TREATED AS CERTIFIED FOR PURPOSES OF A PRECERTIFICATION MOTION FOR SUMMARY JUDGMENT.

The Rhode Island Supreme Court held this term that when a defendant files a motion for summary judgment before the plaintiff class is certified, the court must treat the case as though it were certified as a class action. Long v. Dell, Inc., No. 2012-248-Appeal at 10-11. Such a rule is consistent with the Court’s summary judgment jurisprudence, which requires the court to view the evidence in the light most favorable to the non-moving party. Id.   By treating a case as a certified class action at the motion for summary judgment stage, the court may consider the injury or damages sustained by the class, and is not restricted to considering only the injury or damages of the named plaintiff. Id. at 11 (noting that “if the class is treated as certified, for purposes of viewing the evidence in the light most favorable to the nonmoving party on summary judgment, an inference of class-wide injury should be drawn when competent evidence permits”).

(3) AN INJUNCTION IS NOT A CAUSE OF ACTION.

In Long, the Rhode Island Supreme Court for the first time made clear that “[a]n injunction is a remedy, not a cause of action.” Long v. Dell, Inc., No. 12-248-Appeal at 23-24 (holding that the Superior Court justice properly dismissed the plaintiff’s request for injunctive relief). In so holding, the Court recognized authority from other jurisdictions holding that injunctive relief is not a cause of action. See Thompson v. JPMorgan Chase Bank, N.A., No. 13-2230, 2014 WL 1586992, at *1 n.1 (6th Cir. Apr. 22, 2014); Koufos v. U.S. Bank, N.A., 939 F. Supp. 2d 40, 46 (D. Mass. 2013)). The Supreme Court’s ruling is consistent with the Superior Court’s recognition in State v. Lead Ind. Assn., Inc. that injunctive relief is not a standalone cause of action. See State v. Lead Ind. Assn., Inc., C.A. No. 99-5226, 2001 R.I. Super. LEXIS 37 (R.I. Super. Ct. Apr. 2, 2001) (concluding that “absent controlling case law establishing that a request for injunctive relief constitutes an independent cause of action, injunctive relief is a remedy and, can not, in itself, be recognized as a substantive claim.”).

(4) MOTIONS TO STRIKE REVIEWED FOR ABUSE OF DISCRETION.

Addressing another issue of first impression, the Rhode Island Supreme Court held this term that a trial justice’s decision on a motion to strike brought pursuant to Rule 12(f) of the Rhode Island Superior Court Rules of Civil Procedure is reviewed for abuse of discretion. Long v. Dell, Inc., No. 2012-248-Appeal at 24-25. In so holding, the Court reviewed case law interpreting the substantially similar Rule 12(f) of the Federal Rules of Civil Procedure and concluded that because a the trial court enjoys liberal discretion when ruling on a motion to strike, the trial justice’s decision should be reviewed only for an abuse of discretion. Id.

(5) DID YOU KNOW?

To prove that a trade practice is deceptive under the Deceptive Trade Practices Act, R.I. Gen. Laws § 6-13.1-1 et seq., a plaintiff must demonstrate three elements “[1] a representation, omission, or practice, that [2] is likely to mislead consumers acting reasonably under the circumstances, and [3], the representation, omission, or practice is material.” Long v. Dell, Inc., No. 2012-248-Appeal at 21 (adopting the FTC’s interpretation of § 5(a) of the Federal Trade Commission Act).

RWU Law Review Publishes 2013 Survey of Rhode Island Law

In its 19th edition, the Roger Williams University Law Review has published its 2013 Survey of Rhode Island law, providing comprehensive review and analysis of 20 recent Rhode Island Supreme Court decisions. The law review’s annual survey is a valuable read for Rhode Island practitioners.

Also in that edition is an article I co-authored with Michael W. Field, Esq. titled “Roger Williams University School of Law: The First Twenty Years – The Rise of Rhode Island’s Law School,” which highlights the law school’s many accomplishments during its first two decades.

Appellate Practice for Trial Lawyers

If you plan to be at today’s Rhode Island Bar Association Annual Meeting, please join us at 1:30 p.m. in Ballroom C/D for a presentation on Appellate Practice for Trial Lawyers. You will hear my top five appellate practice tips based on decisions from the last two Rhode Island Supreme Court terms, as well as presentations from Rhode Island Supreme Court Chief Justice Frank J. Williams (Ret.), Lauren Jones, Christopher Bush and Kara Maguire. I hope to see you there!

Court Management of High Profile Civil and Criminal Trials and Appeals

On June 7, 2014, I had the privilege of presenting at the American College of Trial Lawyers’ New England Regional Meeting, along with Retired Rhode Island Supreme Court Chief Justice Frank J. Williams, on the Court’s Management of High Profile Civil and Criminal Cases.  Our presentation highlighted the trial court’s management of high profile cases through the lens of the Block Island rape case of the late 1990s, which commonly was known as the Yellow Kittens Case and the appellate court’s management of high profile cases through the lens of the Lead Paint case, which came before the Rhode Island Supreme Court in 2008 after the longest civil trial in the state’s history.

(1) NOTICES OF APPEAL MUST BE FILED WITHIN 20 DAYS.

As a general matter, a notice of appeal must be filed within 20 days of “the date of the entry of the judgment, order, or decree appealed from.”  R.I. Sup. Ct. R. App. P. 4(a).  The notice must be filed with the trial court’s clerk’s office, not the Supreme Court’s clerk’s office.  Id.  The form for filing a notice of appeal may be found in the trial court’s clerk’s office.  If there is information that does not fit within the allocated space on the form, it is common practice to attach an addendum to the notice form.  See Miller v. Metropolitan Property and Casualty Ins. Co., No. 2013-63-Appeal at 3 (party attached an exhibit to its notice of appeal identifying additional parties).

(2) PARTIES ALSO MAY APPEAL WITHIN 20 DAYS OF THE FILING OF A NOTICE OF APPEAL ADVERSE TO ITS INTERESTS.

ID-100215167 by Stuart Miles

Image courtesy of Stuart Miles at FreeDigitalPhotos.net

In addition to the initial 20 day period for filing an appeal, Rule 4(a) of the Rhode Island Supreme Court Rules of Appellate Procedure provides in relevant part:  “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within twenty (20) days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.”  R.I. Sup. Ct. R. App. P. 4(a).

In Miller v. Metropolitan Property and Casualty Ins. Co., No. 2013-63-Appeal, the Supreme Court held that pursuant to Rule 4(a), when a party files a notice of appeal, any party adverse to that appeal may file a notice of appeal within 20 days of the filing of that notice of appeal.  This is true even if the party seeking to invoke the rule has already filed a notice of appeal in the case.  Id. at 8-9.

In Miller, judgment had entered in favor of the plaintiff, David Miller (“Miller”), and against Defendants Metropolitan Property and Casualty Insurance Co. (“Metropolitan”) and Amica Mutual Insurance Co. (“Amica”) on May 31, 2012.  Id. at 2-3.  Thereafter, Metropolitan and Amica filed renewed motions for judgment as a matter of law and motions for a new trial.  Id. at 3.  The trial justice denied Metropolitan’s motions but granted Amica’s motion for judgment as a matter of law.  Id.  The trial justice also conditionally granted Amica’s motion for a new trial.  Id.  An order reflecting the decision as to Metropolitan’s motions and a separate order reflecting the decision as to Amica’s motions entered on August 20, 2012.  Id. at 3.

On August 27, 2012, Miller filed a timely notice of appeal, listing Amica as the only defendant and citing the August 20, 2012 order in favor of Amica as the subject of his appeal.  Id.  On August 31, 2012, Metropolitan filed a timely notice of appeal from the May 31, 2012 judgment and the August 20, 2012 order denying its motions.  Id.  Metropolitan identified itself, Amica and a third defendant, Allstate Insurance Company, on its notice of appeal.  Id.  Thereafter, on September 18, 2012, Miller filed a cross-appeal from the May 31, 2012 judgment.  Id.

Metropolitan moved to dismiss Miller’s cross-appeal as untimely on the basis that it was not filed within the initial 20-day appeal period that began to run after entry of the August 20, 2012 orders.  Id.   However, the trial justice denied Metropolitan’s motion, reasoning that Miller’s cross-appeal was timely because it was filed within 20 days of Metropolitan’s August 31, 2012 notice of appeal.  Id. at 4.  Metropolitan appealed that ruling to the Supreme Court.  Id.

On appeal, Metropolitan argued that Miller could not invoke Rule 4(a) to file an appeal within 20 days of another party’s filing of an appeal because Miller had already filed his own appeal.  Id. at 5.  The Supreme Court disagreed.  Id. at 6-9.

Instead, the Supreme Court held that Rule 4(a) “should be interpreted to provide a twenty-day appeal period after the first timely notice of appeal from an adverse party.”  Id. at 6.  According to the Court, Rule 4 was designed to “‘allow all parties an opportunity to see and respond to the actions of their adversaries.’”  Id. at 6 (quoting Lee v. Coahoma County Mississippi, 937 F.2d 220, 223 (5th Cir. 1991)).

At the time Miller filed his initial appeal, he did not know that Metropolitan would file an appeal.  It was not until Metropolitan filed its appeal on August 31, 2012 that Miller had notice of an appeal from an adverse party.  Thus, Miller could invoke Rule 4(a) and file his cross-appeal within 20 days of Metropolitan’s notice of appeal. Id. at 8-9.  Miller’s cross-appeal was therefore timely.  Id. at 9.