Another proud member of the irony-based community.
"Mysterious Jackson area lawyer's blog about history, literature, and whatever irks him." -- NMC
"Just a hypersensitive pantywaist probably of Gallic descent who still suffers nightmares over what Gaius Julius did to your people 2,000 years ago." -- Kingfish
And therefore, reader, I myself am the subject of my book; it is not reasonable that you should employ your leisure on a topic so frivolous and so vain.
-- Montaigne, Essays, "To the Reader.""I shall see myself, I shall read myself, I shall go into ecstacies, and I shall ask -- Is it possible that I have so much ésprit?"
-- Nietzsche, Twilight of the Idols.... the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.
-- Filártiga v. Peña-Irala, 630 F.2d 876, 890 (2d Cir. 1980)
One thing I got focused upon reading the opinion is how bizarre the language in cases about waiving statutes of limitations is.
ReplyDeleteThe court has stated (but not held) that s.o.l.'s can be waived even where preserved in the answer, and all-but-said that a defendant who, say, waits to assert s.o.l. at trial has likely waived it. So there's an obligation to file a dispositive motion? The court imports language from the arbitration cases (where waiver by choosing to litigate) makes perfect sense and service-of-process cases, where waiver makes even more sense.
This language seems the result of sloppiness to me and it's sloppiness that's either going to cause the court to have to trip over this issue every time a s.o.l. defense is raised, or, worse, will bite someone on the ass someday.
I've read through the majority and dissenting opinions. I guess I'm not as bothered by the contending positions as you are-- Graves does seem to have a circuit court opinion directly on point on his side, and is right that much of what the majority cites is pre-rules and not obviously controlling. Having not read the 10th circuit opinion, I'd probably vote with the majority if I had a vote but view this one as a close call. I don't love the way his opinion is written-- one early lesson I teach law student writers is to do an overall theory and discuss the cases in context of that, and not write here's-the-list-of-cases style opinions.
Yah, I don't really understand how an SOL can be waivable, instead of jurisdictional. I committed a tort against you 10 years ago, and you defend the case for a while to prove you did no such thing, and the court is supposed to waste its resources deciding a legally null issue because you don't or won't plead SOL?
ReplyDeleteIf that's the law, that's the law, but it seems odd to me.
... Re: Esposito, I think the majority is right to distinguish capacity from existence.
What should really appall anyone, of course, is, what the hell was the plaintiff's lawyer doing filing suit in a dead guy's name? Shouldn't the plaintiff have a legal malpractice claim here? And doesn't Graves's dissent have the effect of suggesting that the issue really was uncertain, thus assisting the lawyer's defense?