As Summer Nears Its End, the Third Circuit Cranks Out Opinions

This time of the year there are slim pickings in terms of published opinions of the Supreme Court of New Jersey or the Appellate Division.  Even unpublished Appellate Division opinions slow to a trickle.  And, of course, the Supreme Court of the United States is in its summer recess.  But this is a particularly fertile time for Third Circuit Court of Appeals opinions.  Perhaps the hot weather stimulates the judges of that court, perhaps the impending change of law clerks creates urgency to complete and issue opinions, or perhaps the steady flow of Third Circuit opinions at this time has nothing to do with any of that.  Regardless, in the past week, the Third Circuit has issued an unusually high number of published opinions.  Here are highlights of some of those rulings:

Murray v. City of Philadelphia, 901 F.3d 169 (3d Cir. 2018).  This opinion by Judge Chagares is one of the shortest of this court year.  In it, the panel dismissed an estate’s appeal on the grounds that “a non-attorney who is not a beneficiary of the estate may not conduct a case pro se on behalf of the estate.”

Encompass Ins. Co. v. Stone Mansion Restaurant, Inc., 902 F.3d 147 (3d Cir. 2018).  Judge Chagares wrote this opinion as well.  The court reversed the dismissal of a case brought under Pennsylvania’s Dram Shop law.  But the more interesting issue, and the one that consumed the bulk of Judge Chagares’s opinion, involved whether the defendant validly removed the case, which had been filed in state court originally, to federal court.  The issue arose under the “forum defendant rule,” which Judge Chagares observed provides that “a civil action otherwise removable solely on the basis of [diversity jurisdiction] may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”  Defendant’s counsel had agreed to accept service, but had not done so when the notice of removal was filed, so the forum defendant rule did not apply to it or make removal improper.

Kane v. Barger, 902 F.3d 185 (3d Cir. 2018).  This was a Civil Rights Act case.  After plaintiff reported that she might have been the victim of a sexual assault, she went to a police station where, she alleged, the defendant police officer used his cellphone to photograph intimate areas of plaintiff’s body, under the pretext of investigating the sexual assault.  Defendant also touched plaintiff’s “butt crack.”  Plaintiff brought a claim that defendant had violated her Fourteenth Amendment right to bodily integrity.  The District Court granted a defense motion for summary judgment based on qualified immunity.  On plaintiff’s appeal, the Third Circuit reversed in an opinion by Judge Fuentes.  The panel ruled that defendant had “acted for personal gratification rather than investigative ends, [and] that [his] conduct shocks the conscience and violated [plaintiff’s] right to bodily integrity,” a right that the court found to be “clearly established.”

Levins v. Healthcare Revenue Recovery Group, LLC, 902 F.3d 274 (3d Cir. 2018).  In this putative class action alleging multiple violations of the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”), the District Court granted a defense motion to dismiss.  Writing for the Third Circuit on plaintiffs’ appeal, Judge Jordan upheld the dismissal in part and reversed it in part, allowing plaintiffs to proceed on their claim that defendant had violated that part of the FDCPA that requires a debt collector to use its “true name” in its dealings with debtors.

Tanksley v. Daniels, 902 F.3d 165 (3d Cir. 2018).  Viewers of the popular television show “Empire” may be particularly interested in this opinion by Judge Fisher, which was issued today.  In it, the panel confronted a claim that “Empire” infringed on plaintiff’s copyright on a three-episode pilot called “Cream” that plaintiff developed in 2005.  The District Court “found no substantial similarity between the two shows” and dismissed the complaint.  Today, the Third Circuit affirmed that ruling.