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September 19, 2017

Plaintiffs do not always know the names of all defendants when the complaint is filed. They name “John Doe,” hoping to amend when the defendants become known. In Heglund v. City of Grand Rapids, No. 16-3063 (8th Cir. Sept. 7, 2017), Jennifer Heglund and her husband sued cities and counties, state officials, and hundreds of John and Jane Does, alleging that officers had improperly accessed their private information in a driver’s license database. They amended their complaint to replace a John Doe with a former assistant chief of police. The district court granted summary judgment on the ground that the claim was barred by the statute of limitations. The...

August 23, 2017

The Eighth Circuit Court of Appeals, in Kuhns v. Scottrade, Inc., No. 16-3426 (8th Cir. Aug. 21, 2017), just issued a decision, addressing an issue that is being raised more and more frequently by defendants in class actions in federal court, Article III standing or lack thereof. Citing Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), the Eighth Circuit explained:

Constitutional standing (as opposed to statutory standing) is a threshold question that determines whether a federal court has jurisdiction over a plaintiff’s claims. Article III extends judicial power only to “cases” and “controversies.” This limitation imposes as an “irreducible constit...

May 23, 2017

With all of the rainfall that has hit Missouri lately, you might have a leaky basement. Sometimes sellers of homes know that the basement has leaked during heavy rainfall but hide that information from the buyers. Typical causes of action asserted in failure-to-disclose litigation are breach of contract, negligence, and violation of the Missouri’s consumer protection statute, the Merchandising Practices Act (MPA), Mo. Rev. Stat. § 407.010, et seq. The fact that a sale has been designated “as is” might defeat a contract claim but probably not a claim under the MPA.

The MPA can be a defendant’s nightmare in a failure-to-disclose case. It covers residentia...

1. You did not timely answer and now you have a default judgment against you. If a defendant does not answer or otherwise respond to a petition in a timely manner (usually within 30 days of service for a Missouri Circuit Court case), the plaintiff may take a default judgment. Missouri Supreme Court Rule 74.05(a) provides: (a) Entry of Default Judgment. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, upon proof of damages or entitlement to other relief, a judgment may be entered against the defaulting party. The entry of an interlocutory order of default is not a c...

April 5, 2017

Can I file a lawsuit . . . ? Do I have a case?

We are frequently contacted by potential clients inquiring whether they “have a case” or “can file suit” over a fact situation. The answers to these questions are generally more practical than legal in nature but are extremely important in making an informed decision.

1. Anyone can sue anyone for anything and seek any amount.

Although you can sue, should you.  Anyone can sue anyone for anything. All you have to do is type or handwrite a petition, pay the filing fee, and file it with the court clerk. Years ago I saw a federal court lawsuit from a frequent pro se filer who sued a pharmacy for ONE BILLION DOLLAR...

March 24, 2017

If you are an out-of-state party sued in Missouri, one of the first things you should do in deciding how to defend the case is to determine whether to file a motion to dismiss for lack of personal jurisdiction.  If you go ahead and file an answer to the allegations in the petition without challenging personal jurisdiction, you may waive the right to argue the issue later.

Missouri Supreme Court Rule 55.27(a)(2)

Every defense, in law or fact, to a claim in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that several defenses may at the option of...

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