Due to the nature of this Motion, Defendants are not submitting a separate memorandum of authorities.
That’s probably a good idea since the “nature of this Motion” is Eddie Haskell. The title alone grates: Defendants’ Joint Motion to Require All Parties to File their Previously Submitted Respective Post-Hearing Briefs in the Record.
At the direction of Judge Senter, the Rigsby sisters and the State Farm defendants submitted briefs directly to Judge Senter following the recent qui tam hearing and this motion seeks to have all parties post their briefs on the record because:
Regardless of the ultimate outcome of this Action at the trial court level, there likely will be an appeal by one or more Parties and “[u]nder this Circuit’s general rule, arguments not raised before the district court are waived and will not be considered on appeal unless the party can demonstrate ‘extraordinary circumstances.’”
Further, as a general proposition, the Fifth Circuit “is barred from considering filings outside the record on appeal….” Accordingly, it is especially important to all Parties’ respective ability to prosecute a potential appeal to have all post-hearing summary judgment briefs in the record.
Think chalk scratching a blackboard and read on:
Defendants do not request the reopening of post-hearing briefing and specifically pray that the Parties be required to file in the record the exact post-hearing briefs previously e-mailed the Court, without any changes, additions or subtractions whatsoever.
The four exhibits are attached and one is particularly interesting – Exhibit A, four pages from the transcript of the hearing. Presumably, the point of including the selected pages was to document there was no direction from the Court to file the briefs directly, bypassing PACER, and, therefore, no related opportunity for discussion of establishing a record.
However, the Minute Entry from the Prehearing Status Conference provided direction:
Minute Entry for proceedings held before District Judge L. T. Senter, Jr: PrehearingStatus Conference held on 5/13/2009. Counsel to submit to Court, by 5:00 p.m. on Thursday, 5/14/09, a Final Witness and Exhibit list with objections, via email to [email protected], in Word Perfect format.
Likewise, the Minute Entry made following the Hearing also provided direction as well as an indication Judge Senter would establish the record once he made his decision:
Minute Entry for proceedings held before District Judge L. T. Senter, Jr: Motion Hearing held on 5/22/2009. Court Hearing adjourned with agreed upon stipulation of BRIEFING SCHEDULE for all parties as follows: Defendants have 10 working days to submit Brief to Court; Plaintiffs have 10 working days after receipt, to submit their Brief to Court; Defendants then allowed 5 days for Rebuttal. Court has reserved ruling as to admissibility of designated Exhibits, after which time, all exhibits will be filed in the Clerk of Court’s Office.
What made Exhibit A “particularly interesting” was it contained confirmation of Judge Senter’s purpose:
COURT: All right. You know, I’ve got before me some bench memoranda, two maybe from State Farm, perhaps one. Would y’all like to — keep in mind the purpose of this hearing. We’re dealing here with summary motions, we’re dealing here with is there a genuine issue of material fact that will justify this case going forward to a full-blown trial. Would y’all like to brief that for me in writing rather than come back this afternoon and argue? What about it, Plaintiff?
Exhibit A also included this “particularly interesting” exchange:
THE COURT: Okay. Law clerks, is there anything we need to — now, let me ask counsel for the relators, you’re not pursuing this retaliatory discharge count, are you?
MR. MATTEIS: Your Honor, at this time, we still are. I don’t believe it was ever set for a briefing schedule.
THE COURT: How do you — under what theory, when the Rigsbys weren’t employed by State Farm? They were employed by Renfroe.
MR. MATTEIS: Your Honor, we’d be happy to brief it. It’s on a joint employer theory that State Farm effectively was a joint employer. There is some law on that. I think there is enough testimony already in the record that State Farm was the one giving them direction from the beginning. They reported to State Farm employees throughout their career with Renfroe.
THE COURT: Who fired them?
MR. MATTEIS: State Farm locked them out of their building.
THE COURT: Did they? Who terminated their employment? Was it Renfroe or State Farm, or do you think they conspiratorially did it together?
MR. MATTEIS: I think they did it together, but there is no question the contract, the written contract was with Renfroe. There’s no question about that. But State Farm was really the one calling all the shots on everything, including the employment and what the Renfroe people did.
Why file this motion? If Judge Senter rules in favor of State Farm, logic would suggest the Company would not file an appeal or be concerned about having the record available to the Rigsby sisters. On the other hand, if the Rigsby’s prevail, there qould be an opportunity to request the full record for Appeal.
What is it State Farm has up their sleeve and in their brief?
2 thoughts on “up their sleeve or in their briefs – State Farm comes up with another Eddie Haskell motion in Rigsby qui tam”
To nowdoucit: Without actually reading the briefs to see what’s in them, one must speculate. Your post suggests that it has something to do with the retaliatory, or wrongful, discharge claim, but I can’t be sure. Over here in Louisiana we have something called the “single business enterprise” theory of recovery and liability, which allows the finder of fact to pierce what would ordinarily be a case of limited liability if one strictly followed the corporate structure. Clearly, the long-term relationship between Renfroe and State Farm might lend itself to a single business enterprise theory of recovery against State Farm notwithstanding the Rigsby Sisters being nominally employed by Renfroe. Another tack might be arguing that nothwithstanding their being nominally employed by Renfroe, the Rigsby Sisters became “borrowed servants” of State Farm due to the high level of control which State farm had over all employees of Renfroe. Mind you, I’m just “guessing” about this.
The point of the motion is to get the briefs on Pacer. The motion is and I’ve linked that. Good points. The relationship has always been explained as Renfroe “leasing” employees to State Farm.
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