Significant Decisions From the United States Court of Appeals for the

Significant Decisions From the United States Court of Appeals for the First Circuit and the District of Maine Office of the Maine Attorney General Continuing Legal Education Program August 1, 2013

Mead v. Independence Ass'n 684 F.3d 226 (1st Cir. 2012) Interference With Private Employment While the right to hold private employment free from unreasonable government interference is protected by the Due Process Clause, the right is generally implicated only by government interference that is direct and unambiguous.

Knowlton v. Shaw 704 F.3d 1 (1st Cir. 2013) Prosecutorial Immunity Negotiating and executing a consent agreement to resolve civil violations was prosecutorial in nature and warranted absolute prosecutorial immunity.

Clukey v. Town of Camden 717 F.3d 52 (1st Cir. 2013) Right to Recall to Employment A collective bargaining agreement may create a constitutionally protected right on the part of laid-off public employees to be recalled. -- If an employee has such a right, he cannot be deprived of it without sufficient due process.

Gove v. Career Sys. Dev. Corp. 689 F.3d 1 (1st Cir. 2012) Waiver Arguments not raised in an appellate brief, or adverted to in a perfunctory manner, are deemed waived.

Gove v. Career Sys. Dev. Corp. (cont.) Excerpt from Appellant’s Brief In Dialysis Access Center, LLC v. RMS Lifeline, Inc., 638 F.3d 367, 376 (1st Cir. 2011), this Court described the impact of the strong policies favoring arbitration on the determination of the scope of arbitration agreements: “When deciding whether the parties agreed to arbitrate a certain matter . . ., courts generally . . . should apply ordinary state law principles that govern the formation of contracts.” [First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995)]. In carrying out this endeavor, “’due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.’” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 62, 115 S. Ct. 1212, 131 L.Ed.2d 76 (1995) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. Of Leland Stanford Junior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). See also PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010) (noting that “federal law undeniably includes a policy favoring arbitration” (citing Volt, 489 U.S. at 475-76, 109 S.Ct. 1248)).

Gove v. Career Sys. Dev. Corp. (cont.) Excerpt from Appellant’s Brief As the Supreme Court recently clarified in Granite Rock, courts “discharge this duty by: (1) applying the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand; and (2) adhering to the presumption and ordering arbitration only where the presumption is not rebutted.” [Granite Rock of Chicago v. Int’l Brotherhood of Teamsters, 130 S.Ct. 2847, 2858-59 (2010)] ; see also IOM Corp. v. Brown Forman Corp., 627 F.3d 440, 450 (1st Cir. 2010) (“In evaluating the scope of . . . arbitration clauses, . . . arbitration will be ordered unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” (citation and internal quotation marks omitted)).

Gove v. Career Sys. Dev. Corp. (cont.) Excerpt from Appellant’s Brief On the other hand, “generally speaking, the presumption in favor of arbitration applies to the resolution of scope questions.” Paul Revere Variable Annuity Ins. Co. v. Kirschhofer, 226 F.3d 15, 25 (1st Cir. 2000); First Sealord Surety, Inc. v. TLT Const. Corp., 765 F. Supp.2d 66, 72 (D. Mass. 2010) (“Contra preferentem applies to questions such as whether a ‘party has entered an arbitration agreement or whether an arbitration agreement is enforceable vel non’ but the presumption in favor of arbitration applies to the resolution-of-scope questions.”).

Noveletsky v. Metropolitan Life Ins. Co. 2012 WL 4510964 (D. Me. 2012) Work Product Doctrine Even if document was prepared because party subjectively believed that litigation was likely, and even if that belief was objectively reasonable, work product protection does not apply if the document would have been created regardless of whether litigation was anticipated.

Friends of Merrymeeting Bay v. Nextera Energy Resources, LLC 2013 WL 1835379 (D. Me. 2013) Seeking Injunctive Relief A plaintiff’s “leisurely pursuit” of preliminary injunction motion undermines its claim of irreparable harm.

165 Park Row, Inc. v. JHR Dev., LLC 2013 WL 633403 (D. Me. 2013) Failure to Disclose Witnesses On summary judgment, party could not rely on affidavits from witnesses who party did not disclose during discovery.

Sebunya v. Holder 2012 WL 5993160 (D. Me. 2012) Answering Complaints In response to allegations regarding the content of documents, statutes, or regulations, may not be appropriate to plead that the document “speaks for itself.”