Mustafa v. Bank of America, NA, Court of Appeals, 8th Circuit 2013 – Google Scholar.
The 8th Circuit has sanctioned a foreclosure defense lawyer named William Butler. Butler filed a number of cases against banks and mortgage servicing companies alleging that they did not have the right to foreclose because they did not own the promissory note.
Courts, including Illinois courts, have rejected this “show me the note” theory. Mr. Butler has continued to litigate this issue long after the courts ran out of patience with him. In the past year, I have seen numerous sanctions cases against Mr. Butler. I don’t understand why clients keep hiring him.
Edward X. Clinton, Jr.
Rother v. LUPENKO, Court of Appeals, 9th Circuit 2013 – Google Scholar.
In an unpublished ruling, the Ninth Circuit has reversed the dismissal of several plaintiffs claims. The plaintiffs were part of a labor case – a case in which a group of plaintiffs alleged that the defendant employer did not pay them for meal breaks. At trial several plaintiffs did not testify. The district court dismissed their claims as a sanction for failing to testify.
The Ninth Circuit reversed on the ground that there was sufficient evidence in the record to allow those claims to move forward even though the plaintiffs did not testify. Under Rule 50(a) there was sufficient evidence for those claims to go to the jury. Under Rule 50(a) the defendant can move for a directed finding at the close of plaintiff’s case if the plaintiff has not introduced sufficient evidence for a reasonable jury to find in his favor.
The standard under Rule 50(a) is essentially the same as the summary judgment standard. The only difference is that the Rule 50(a) test is applied at the close of plaintiff’s case.
In sum, because there was enough evidence in the record to support the claims of the non-testifying plaintiffs, dismissal for failure to testify was improper.
I can understand why the plaintiffs’ lawyers did not present all of their clients at trial. They felt (correctly) that there was no need for more cumulative testimony on the same topics. The irony of this case is that the plaintiffs were punished for getting the trial done rather than the more typical punishment for tedious delays and repetitive testimony. It is a shame that this decision was not published. It discusses an important issue in the law and could be useful precedent.
Edward X. Clinton, Jr.