Witasick v. Minnesota Mutual — civil — affirmed — Nygaard
Published Third Circuit opinions involving pro se litigants are fairly rare. Pro se civil litigants? Quite rare. Pro se civil litigants with felony records who are allowed to give oral argument?* New to me.
Now, if the pro se party won the case,that would be rarest of all, but it wasn’t to be. He did pick up some style points on a procedural issue, though.
Attorney Kevin Witasick had insurance coverage. After a coverage dispute, the parties settled and Witasick signed a covenant not to sue. At the same time, Witasick was prosecuted and convicted of fraud and related charges, and an insurer’s employee testified against him. Witasick then initiated the current case by suing the insurance companies. The district court dismissed the suit based on the settlement agreement, and today the Third Circuit affirmed.
Although the merits were a slam-dunk, there is an interesting procedural wrinkle that federal practitioners should note.
The court held that Witasick’s notice of appeal was timely, even though it was filed far more than 30 days after the district-court opinion dismissing his claims, because the district court did not set out the dismissal in a separate document, per FRCivP 58. While there was an ECF docket entry stating that the case terminated, and the court today agreed that ECF docket entries could satisfy Rule 58, the docket entry here did not because it did not give the basis for termination (and maybe because it was a mere clerical notation, although the opinion is less clear here). The court said that text orders usually would satisfy Rule 58, while utility events and minute entries cannot because they are not orders and are not signed by a judge. While that part looks like dicta, this is the first case I’ve seen grappling with how Rule 58 applies in the age of ECF.
* He was allowed to do oral argument, but then he didn’t show. I should know — I argued the case that was supposed to be up second that morning, but the panel had us go first in case he arrived late.
Maher Terminals v. Port Authority of NY & NJ — Tonnage Clause — affirmed — Fisher
Maybe I overslept the day we covered the Tonnage Clause in con law. If you’re as sadly uninformed as I, the Tonnage Clause of the US Constitution (article I, section 10, clause 3) bars states from “lay[ing] any Duty of Tonnage” without Congress’s say-so.
Today, a divided Third Circuit panel held that a marine terminal operator challenging its rent cannot state a claim under the Tonnage Clause because said clause’s zone of interests is limited to injuries to a vessel as a vehicle of commerce. To its great credit, the majority opinion smoothly uses both “unmoor” and “[a]nchoring,” without going overboard with nautical whimsy.
Joining Fisher were Shwartz in full and Jordan in part. Dissenting in part, Jordan disagreed that the plaintiff failed to state a Tonnage Act claim. Might be a plausible case for cert. Arguing counsel were former Coast Guard captain Lawrence Kiern of Winston & Strawn for the appellant and Peter Isakoff of Weil Gotshal for the appellees.