Randy Barnhart

Recall: Power X Bike Chain Defect - Product Liability

The U.S. Consumer Product Safety Commission, in cooperation with the firm named below, today announced a voluntary recall of the following consumer product. Consumers should stop using recalled products immediately unless otherwise instructed.  It is illegal to resell or attempt to resell a recalled consumer product.

Hazard: The bicycle chain can break, causing a rider to lose control and fall.

Incidents/Injuries: The firm is aware of 11 reports of incidents, including 9 reports of injuries, including lacerations and contusions.

Description: This recall involves “NEXT”-branded men’s 26-inch hybrid bicycles. The bicycles are red or orange. “Power X” and “Suspension” are printed on the frame. Model numbers LBH2611M and LBH2611M2 are included in this recall. The model number is located on the frame between the pedals.

Sold at Walmart from February 2011 through July 2011 for about $100.

Stop using the recalled bicycle and contact the company for a free repair.

Consumer Contact: Bridgeway International at (877) 934-3228 - or visit the firm’s website at www.powerxbike.com.

 

 

NEXT BRANDED BICYCLES SOLD AT WAL-MART

 

The 26-inch bicycles are red or orange and “Power X” and “Suspension” are printed on the frame. 

 

Model Numbers:  LBH2611M and LBH2611M2

 

Bicycles were sold from February 2011 through approximately July 2011 with manufacturing Date Codes between 20110101 to 20110420 (January 1, 2011 and April 20, 2011)

 

 

 

 

Stop using the NEXT Power X bicycle immediately.  Inspect the manufacturing label on the bottom of the bicycle frame. If you have a bicycle that was manufactured between January 1, 2011 and April 20, 2011, please contact Bridgeway International for a free repair.

Appellate Alert: New 10th Circuit Local Rule with Deadline

The following proposed rule may be adopted December 1, 2011, effective January 1, 2012. Note the deadline, which is not a multiple of 7!

10th Cir. R. 5.1 Reply briefs.

A party seeking to file a reply in support of a petition may file a motion to that effect. Replies may be no longer than six pages in length in a 13 point font. The motion must include the proposed reply. Motions filed under this rule must be submitted within 5 business days of service of the response.

Rule 60 Motions in the Trial Court After Filing a Notice of Appeal? Part 2

Following up on the firm's post, Rule 60 Motions in the Trial Court After Filing a Notice of Appeal? Part 1, there are timeliness issues which counsel must appreciate.

Even on remand from the court of appeals, the timeliness of a Rule 60(b) motion is governed by the 6 months period in teh rule. The Colorado Supreme Court’s decision in Se. Colorado Water Conservancy Dist. v. Cache Creek Min. Trust, 854 P.2d 167, 171 (Colo. 1993), explains, although there the proceedings there were highly convoluted.

In essence, the party seeking relief in Cache Creek argued that its Rule 60(b)(2) motion was timely filed because it was directed against the denial of a previously filed Rule 60(b)(5) motion, and not against the original judgment. Had it been directed against the former, the motion would have been timely. However, the court rejected this argument based on the face of the Rule 60(b)(2) motion, finding that the argument “lacked any substantial factual basis.”

The court reiterated that finding: “the factual basis” of the argument “is wholly insubstantial and contrary to the clear intent of” the Rule 60(b)(2) motion. 854 P.2d at 177. In effect, the court found that the Rule 60(b)(2) motion was in fact expressly directed at relief from the original judgment, and not from any “alleged fraud [which] somehow tainted the discretion of the court in denying the 60(b)(5) motion.” 854 P.2d at 171.

The court found that the Rule 60(b)(2) motion “could be timely only if it were truly directed at” the Rule 60(b)(5) motion and not at the original judgment. The case  suggests that a Rule 60(b)(2) motion can attack an “order” subsequent to the “judgment” entered on a jury verdict!

After all, Rule 60(b) provides that a motion is timely if is filed “no more than six months after the judgment, order, or proceeding was taken.” Since “judgment” and “order” are separately-listed items in the rule, there is no reason to conflate the two and make judgment and order one and the same thing.

As the Cache Creek court stated: the “standard” which must be met in order to make a Rule 60 motion timely filed is whether it in fact seeks relief from an order issued within the last 6 months, and in which case, to prevail, the further standard that “the alleged fraud somehow tainted the discretion of the court” in denying the motion for JNOV.

In this regard, note that according to Molitor,

A request for a remand to permit the trial court to rule on a motion to vacate judgment does not require the appellate court to determine the merits of the motion, but only to determine whether the motion contains sufficient allegations to satisfy the requirements of C.R.C.P. 60(b). 

795 P.2d at 269. 

Oh No - Not Rocky Ford Melons!

The U.S. Food and Drug Administration is working closely with the Centers for Disease Control and Prevention and state health agencies to investigate a multi-state outbreak of listeriosis.

At least 15 people infected with the outbreak strain of Listeria monocytogenes have been reported in Colorado, Nebraska, Oklahoma and Texas.

State and local public health officials have interviewed most of the patients and discovered that the majority of them consumed whole cantaloupes, most likely marketed from the Rocky Ford growing region of Colorado.

via www.fda.gov

"whole cantaloupes"? as opposed to what?

Honda Pilot Recall - Defective Seat Belts

Honda has issued a press release stating that it will recall 310,773 Pilot vehicles from the 2009 through 2011 model years in the U.S. "to inspect and potentially replace the driver’s and/or front passenger’s seat belt."

Apparently, the recall is due to what Honda is calline a "manufacturing error" on a number of the front seat belts. The term "error" is a euphemism for "defect." The defect is in bad or missing stitching which connects the lap portion of the belt to the anchor webbing, thus increasing the risk of serious injury.

The firm urges all affected Honda owners to have a specific inspection conducted by an authorized dealer. Honda states that the inspection - "and any necessary seat belt replacement" - will be free.

Check online at www.recalls.honda.com.

Federal Courts Must Limit Civil Cases Which Are Sealed

This past week, the Judicial Conference of the United States adopted a policy which seeks to limit the civil cases which federal courts put under seal. The Conference is composed of Senior Circuit Judges and was created by Congress in 1922 to serve as the top policy-maker for the administration of the federal courts.

According to the new policy, "an entire civil case file should only be sealed when . . . sealing . . . is required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort." An order which seals a civil case in its entirety should include findings which justify the seal, and any seal should be lifted upon a determination that the initial reason is no longer operative.

September 11 - Ten Years Ago & Today

Memory Honor Fortitude

Colorado - Rule 60 Motions in the Trial Court After Filing a Notice of Appeal?

Once you have filed a notice of appeal in a Colorado case, jurisdiction over most matters is transferred out of the trial court and into the court of appeals.

Hence, a motion to remand the case filed in the court of appeals is necessary if grounds for a Rule 60(b)(2) motion and/or a Rule 60(b)(5) motion for an independent action arise after filing the notice of appeal. That can happen more often what one would think given the rampant unethical conduct by big, corporate defendants and their equally well-heeled defense attorneys.

The pole star case is Molitor v. Anderson, 795 P.2d 266, 267 (Colo. 1990), which addressed the following issue:

“whether, after an appeal of a trial court’s final judgment has been perfected by the filing of a notice of appeal, the trial court retains jurisdiction to consider and deny a C.R.C.P. 60(b) motion to vacate that judgment.”

The Molitor court answered: NO. Needless to say, neither does the trial court retain jurisdiction to grant a Rule 60(b) motion.

According to Molitor:

“Once a judgment is final, . . . , trial court proceedings concerning the substance of that judgment are concluded and the appellate court assumes control over all matters pertaining to the propriety thereof. The appellate process would indeed become a quagmire of uncertainty if parties could obtain trial court alteration of rulings subject to an appeal during the pendency of that appeal.”

795 P.2d at 268.

Thus, “a trial court may not determine matters affecting the substance of a judgment once an appeal of that judgment has been perfected unless the appellate court issues an order remanding the judgment to the trial court for that purpose. Such policy emphasizes the central responsibility of appellate courts to control the course of an appeal.” Molitor, 795 P.2d at 269 (underscoring added).

Hence, once a notice of appeal is filed, a litigant must move the court of appeals for a remand first. As the Molitor court found:

While an appellate court must endure some measure of inconvenience when required to consider a motion to remand a case for trial court action, it seems appropriate that such court be informed of so significant a development as the determination by a party to an appeal that grounds exist to justify setting aside all or part of the judgment. In the absence of such information, the appellate court might determine the merits of an appeal at the same time the trial court is determining the results of a motion to vacate the judgment that forms the basis of the appeal. It must also be noted that while a trial court may be better equipped than an appellate court to evaluate quickly the merits of a motion to vacate judgment, that fact does not justify the conclusion that no remand need be required to permit a trial court to deny such a motion. 

795 P.2d at 268-69.

There is a possible exception to the requirement of a remand, namely, asking the court of appeals to grant relief as a matter of law. In the very recent opinion in In re C.L.S., 252 P.3d 556, 561 (Colo. App. 2011) cert. denied, 11 SC 261, 2011 WL 2535031 (Colo. June 27, 2011), the court found:

Where the relevant facts are undisputed, an appellate court may make an independent determination as a matter of law. See People v. Miranda–Olivas, 41 P.3d 658, 661 (Colo. 2001). Here, the undisputed facts establish such fraud as a matter of law. See Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)(“A ‘fraud upon the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense.”). Thus, father was also entitled to relief under the “fraud upon the court” provision of Rule 60(b).

Next, Part 2: Timeliness Issues

Case of Interest to Colorado Attorneys Who Co-counsel on Contingent Fee Basis

Recently, the Colorado Supreme Court granted certiorari review in the following case which may be of interest to contingent fee attorneys who co-counsel.

Petitioner: Melat, Pressman & Higbie, L.L.P., 
v.
Respondent: The Hannon Law Firm, L.L.C..

Summary of Issues:

Whether the court of appeals erred in holding that when an attorney withdraws from a contingent fee case, the attorney’s quantum meruit claim does not accrue until there is a recovery in the underlying lawsuit.

Whether the court of appeals erred in holding that, when a withdrawing attorney is barred from recovering quantum meruit from the client, the attorney may nevertheless recover quantum meruit from former co-counsel.