Garbage truck in operation whether moving or not, COA says

In Strozier v. Flint Community Schools, et al., the Michigan Court of Appeals allowed a case to get to a jury, in which the plaintiff alleged she was injured when a school bus hit a garbage truck.

Witness testimony conflicted as to whether the garbage truck was in motion as the school bus passed it on a two-lane highway in Flint. The bus apparently swerved back into the lane quickly to avoid oncoming traffic, and clipped the garbage truck. At the time of the incident, Flint sanitation workers were collecting garbage along the road.

The Michigan Court of Appeals said it didn’t matter if the truck was in motion or not, because it was “in operation” for the purposes of the motor vehicle exception to the Michigan Governmental Tort Liability Act, MCL 691.1405.

The panel said, even if the truck wasn’t moving, it was still in operation under the Supreme Court’s decision in Chandler v. County of Muskegon because it was being operated as a motor vehicle and “encompasse[d] activities that are directly associated with the driving of a motor vehicle.” It compared the facts favorably to another case in which the Supreme Court issued an order only, Martin v. Rapid Inter-Urban Transit Partnership, while distinguishing it from a case in which a city truck was parked on the side of the road, Poppen v. Tovey. The Martin case involved a bus passenger was injured when she slipped on icy bus steps while exiting. The order said “[t]he loading and unloading of passengers is an action within the ‘operation’ of a shuttle bus.”

This case is factually similar to Martin and distinct from Chandler and Poppen. In Poppen, the defendant parked the truck on the road, with its hazard lights on, for about five minutes, in a way that indicated it was not currently in use as a vehicle. Similarly, in Chandler, the bus was parked in a maintenance garage as the driver exited the vehicle, indicating that use of the bus as a vehicle had ended. Here, even if the garbage truck were stopped, it was stopped because it was carrying out its intended function of picking up garbage. As it is impossible for a garbage truck to perform the function for which it was designed without periodically stopping to pick up garbage, we conclude that stopping to pick up garbage is necessarily included within the “operation” of a garbage truck. Therefore, we conclude that summary disposition under MCR 2.116(C)(7) was not warranted where the motor vehicle exception to governmental immunity would apply regardless of whether the facts are as plaintiff contends, or as defendant contends.


Western District proposes local court amendments

Beginning June 1, 2012, the U.S. District Court for the Western District of Michigan will require electronic filing of civil complaints under a proposed amendment to the court’s local rules.

W.D. Mich. LCivR 5.7(c) and (d)(i) currently allow for, but do not require, electronic filing of complaints and other initial pleadings. According to Administrative Order 11-126:

Over 70% of initial pleadings are now filed electronically, and only a few attorneys are not making use of electronic filing of complaints.

The Court has concluded that electronic filing of complaints should be made mandatory for all attorneys, for cases filed on and after April 1, 2012.

Exceptions will be made on a showing of hardship or other good cause and for cases that are sealed in their entirety, such as qui tam actions.

Unrepresented litigants will continue to file their complaints — and all other documents — on paper.

Under the proposed changes, W.D. Mich. LCrimR 9 would be repealed.

Local Criminal Rule 9.1 (requiring delivery of original arrest warrants to the Marshal) is hereby REPEALED. The rule is no longer necessary, in light of W.D. Mich. LCrimR 49.10(h)(i) which allows the Court to issue and to transmit warrants in electronic form.

Under proposed W.D. Mich LCivR 5.7(d)(ii)(F) and (d)(vii), a 5 MB filing restriction would be lifted.

The Local Rules presently prohibit the electronic filing of any document over 5 MB in size.

Technological changes now allow the filer to divide such oversized documents into parts, each smaller than 5MB, for purposes of electronic filing.

The Local Criminal and Civil Rules are therefore amended to remove this restriction and to require appropriate division of oversized documents.

The Western District has tenatively approved the amendments but is seeking comments on the proposed changes.

All comments should be in writing and must be received by the Court no later than January 27, 2012. Comments should be addressed to:

Tracey Cordes, Clerk
United States District Court
399 Ford Federal Building
110 Michigan, N.W.
Grand Rapids, MI 49503

or submitted electronically to The Court will consider all comments at its March 2012 meeting before promulgating a final version of the proposed rules.

What’s in a name?

When Michigan Lawyers Weekly put together its last special “Bar Passers” section, our Cracker Jack editors combed through the list of the names of Michigan’s newest lawyers, looking for any obvious typographical errors or names that may be misspelled.

And one of the names on the list was one Samuel J. Bernstein. We wondered if this guy is related to the other Samuel Bernstein.

The younger Bernstein (pronounced “Bern-stine,” not “Bern-steen“) has known since he was in elementary school that he wanted to be a lawyer. So somewhere around the time he entered the fifth grade, he was often asked if he’s related to the personal-injury lawyer who has advertised his way into being a household name.

He’s not. But he might not have minded if he found out that there is some family connection, especially if it means he could go into the family business.

He’s drawn to the idea of working on personal-injury cases or medical malpractice, but will consider just about anything. The MSU Law School grad is staying busy and sharpening his skills by working as a solo guy for now. He’s helping friends and friends of friends to form LLCs and operating agreements, and answering questions about trademarks and logos.

All that’s just fine, but what he really wants, he said: “I want to find a job with a firm.”

He’s not sure if his recognizable name will work for him or against him. But he’s never considered trying to capitalize on it, nor has he ever considered changing it.

Though that would make things easier to market himself on the internet, as some newly minted professionals do. He could certainly set up a webpage, or launch a blog, but when he ran a Google search on his own name, the first 10 pages were occupied by the other better known Bernstein.

“Yeah,” he said casually. “That’s got to be a pretty common name.” Maybe it is. But among lawyers in Michigan, there are just two. And I do hope the younger will stay in touch and let us know where he lands. With a name like that, I’m hoping for something interesting.

Bankruptcy and prepetition credit counseling: flexible requirement

Before an individual can seek bankruptcy relief, 11 U.S.C. § 109(h) requires the would-be debtor to participate in credit counseling:

[A]n individual may not be a debtor under this title unless such individual has, during the 180-day period preceding the date of filing of the petition by such individual, received from an approved nonprofit budget and credit counseling agency described in section 111(a) an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis.

So, what happens if you don’t and file the petition anyway?

The Bankruptcy Code doesn’t expressly state what you’d think would be the obvious answer: the case should be dismissed.

Federal courts addressing the issue have broken into two camps. Some view the requirement as jurisdictional, so non-compliance requires dismissal. Others view the requirement as one of eligibility, which vests a bankruptcy court with discretion to waive the requirement under the proper circumstances.

Most courts faced with debtors who use their noncompliance strategically — for example, not moving for dismissal until after the trustee has uncovered assets that can be sold for the estate’s benefit — don’t hesitate to waive the debtor’s compliance. Gaming the system is frowned upon. The Bankruptcy Appellate Panel for the Sixth Circuit, in In re Amir, illustrates this point nicely.

But what about debtors who simply, and without any ulterior motive, don’t finish up the required counseling until after the petition is filed. What should become of their bankruptcy cases?

Up until late last week, the Sixth Circuit BAP had not addressed the issue. Now, under In re Ingram, the prepetition credit counseling requirement is a matter of eligibility, not jurisdiction, and decisions to enforce the requirement are reviewed for an abuse of discretion.

In William Ingram’s case, his prepetition counseling had two components: an online portion which he completed the day he filed his petition, and a telephone component, which he completed a day later. The bankruptcy court dismissed the petition without prejudice because both components hadn’t been completed prepetition.

The court turned aside Ingram’s argument that the counseling provider led him to believe that the Internet component was sufficient. The court ruled that if that was the case, Ingram could ask the counseling provider for his money back, but it didn’t provide a reason to excuse compliance with the counseling requirement.

The BAP affirmed:

The requirements of § 109(h) are clear and unambiguous. As such, the bankruptcy court, except in the limited circumstances set forth in § 109(h)(2), (3), and (4) which were not present here, did not have discretion to ignore, modify, or defer the requirements of § 109(h)(1).

Compliance with § 109(h) is a prerequisite to obtaining relief under the Bankruptcy Code. By definition, an individual may not be a debtor who is eligible for bankruptcy relief unless he has complied with § 109(h). …

Because the Debtor did not comply with the requirements of § 109(h), or qualify for a deferral of the credit counseling requirement, he is not eligible to be a debtor. Therefore, the bankruptcy court properly dismissed the Debtor’s case.

What’s going on with the SBM president these days?

We’re almost at the point when we can write a headline saying “State Bar of Michigan President Julie Fershtman: The First 100 Days,” but we’ll jump the gun a bit here.

Over a cup of Earl Grey tea at a Starbucks near her Foster, Swift, Collins & Smith, P.C. office, the 2011-12 SBM president reflected on all the things she’s either worked on, witnessed, or simply felt good about since her Sept. 15 inauguration.

First is the task force Fershtman formed to enhance the SBM’s Practice Management Resource Center (PMRC). Headed by Rebecca Simkins, it’s working on coming up with recommendations by April — some of which could be instilled immediately, others may be long-term goals.

But it’s been getting the word out about the PMRC overall that Fershtman said has given her the greatest satisfaction. Meeting with bar associations across the state, she said practitioners have been receptive to taking advantage of the service, which offers bar members training and hands-on assistance with legal technology and management components. She noted that many of the bar members she’s met haven’t known much about the PMRC, and she hopes the task force helps to change that.

That leads to hearing from bar members directly. Fershtman did say in her incoming speech that she wants to be the most accessible SBM president in history — complete with a presidential blog — and has kept her word by taking emails and calls from practitioners, spending upwards of an hour on the phone listening to what they have to say.

“I’m encouraged that they are comfortable enough to make the call,” she said.

Fershtman added that she’s also encouraged by the SCAO report calling for the elimination of 45 judgeships across the state — per the SBM’s Judicial Crossroads Task Force’s report — which she said wasn’t met with the kind of resistance as expected, as it’s attrition-based, “which is what we were seeking.” As well, she said Gov. Rick Snyder’s recently formed Indigent Defense Advisory Commission looks promising.

Still to go at the bar, she said, is better educating the public on the unauthorized practice of law, as well as the “Solutions on Self-Help” project, meant to give in pro parties some direction as to the proper court forms they need, and thus not wasting judges’ time.

Not bad for 100 days. Or something close to that.

Is release of documents on Medal of Honor recipient related to his lawsuit against former employer?

In October 2011, a U.S. Marine named Dakota Meyer was awarded the Congressional Medal of Honor by President Barack Obama for his acts of heroism in Afghanistan. He was the first living Marine to receive such an honor since the Vietnam War.

According to Marines’ official website, Meyer and his unit were ambushed by more than 50 insurgents.

Over the course of a six-hour fire-fight, without regard for his own personal safety, Meyer entered the kill zone five separate times to evacuate the wounded, provide essential aid and, ultimately, saved the lives of 13 U.S. Marines and soldiers in addition to 23 Afghan soldiers. Meyer personally killed at least eight Taliban insurgents, while providing cover for his team to fight their way out and escape certain death.

Two years later, Meyer is in the middle of a controversy that has brought his credentials for the medal into question. He has filed a lawsuit against his ex-employer defense contractor BAE Systems for interfering with his ability to find work with another defense contractor. Meyer claims someone from BAE told the other contractor that he was mentally unstable and an alcoholic. Meyer worked for BAE after leaving active duty.

Soon after joining BAE, Sgt. Meyer learned it was trying to sell advanced thermal optic scopes to Pakistan, according to the suit. In an email to his supervisor, identified as Bobby McCreight, Sgt. Meyer voiced his objections to the sale, the lawsuit states.

“We are taking the best gear, the best technology on the market to date and giving it to guys known to stab us in the back,” Sgt. Meyer wrote to Mr. McCreight, according to the lawsuit. “These are the same people killing our guys.” …

In the suit, Sgt. Meyer said that after he voiced his criticism, Mr. McCreight began “berating and belittling” him. The supervisor criticized Sgt. Meyer for making a trip with their BAE division president and made sarcastic remarks about Sgt. Meyer’s nomination for the Medal of Honor, allegedly ridiculing his “pending star status,” the suit says.

At the end of May, Sgt. Meyer’s complaint said, he resigned from BAE over the proposed sale to Pakistan and attempted to get his old job back at Ausgar. In the suit, Sgt. Meyer said he was told that that company wanted to hire him back as did the Defense Department program officer who approves hiring for the optics program.

About the same time, Mr. McCreight contacted a Defense Department program manager and said that Sgt. Meyer was “mentally unstable” and “had a problem related to drinking in a social setting,” the lawsuit alleges.

In that  Dec. 3, 2011, Wall Street Journal story, a BAE representative said it didn’t want to “be seen denigrating a Medal of Honor recipient.” But, two weeks later, the denigration of a Medal of Honor recipient — from whatever source — has begun in earnest, as someone leaked a series of documents to McClatchy Newspapers that supposedly show that “crucial parts of the story … are untrue.” The article claims that statements show that “he didn’t save as many people, kill as many enemy fighters or lead the final push to retrieve his dead comrades, as the record says.” [Read the article if you care about the alleged discrepancy].

The Marine Corps released a statement defending Meyer and the MOH process:

Due to the distance and length of time the battle lasted and the fact that the majority of the participants were in a deadly fight for their lives and the lives of their comrades, the eyewitness accounts may vary in certain detail – variations that are expected. These Marines, Sailors, and Soldiers were engaged in a six-hour battle from the time the Coalition forces entered the Ganjgal Valley and were ambushed, until the time when the last of the Coalition forces left the valley. Many of the participants moved back and forth along the three kilometers of terraced valley floor on multiple occasions during the engagement. While a number of the witnesses were in close proximity to Cpl. Meyer and SSgt. Rodriguez-Chavez at various points in the battle, many other witnesses were farther away. The geography of this battle and the location of the participants meant that not every witness had equal and accurate visibility or situational clarity on every activity.

But, the same story says, the medal was awarded based on accurate information. So why release these documents at all? To discredit an American hero? It fails do to that, as even the same McClatchey story states that Meyer is a hero who had earned the medal. What would be the purpose of letting releasing the documents, and who would have done so? Could it possibly be to attack his credibility if the case ever went to trial?

State workers win battle over 3 percent contributions to retiree health fund

The Michigan Supreme Court today denied leave to appeal in the dispute between state employees and Michigan State Employees’ Retirement System.

The workers sued to stop the state from taking 3 percent from current workers’ paychecks to fund state retiree health care. In August, the Michigan Court of Appeals said that’s unconstitutional because state employee pay is fixed by the Michigan Civil Service Commission, which did not approve the contributions, which are in essence a reduction in pay, the employee unions argued.

The Court of Appeals opinion stands.