McKinney Rule for Removal To Federal Court Rejected by Fourth Circuit

McKinney rule

The Fourth Circuit has now joined the Sixth, Eighth and Eleventh Circuits in adopting a last served defendant rule to govern the timing of filing a petition for removal from state court to federal court in cases involving multiple defendants. The case is Barbour v. International Union, 1:08-cv-01076-AMD, decided on February 4, 2010. The statutory authority for removal to federal court is found in 28 U.S.C. § 1446(b) which states: “The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by…

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Fourth Circuit affirms enforceability of “pay-when-paid” clause


In its February 19 ruling in Universal Concrete Products Corp. v. Turner Const. Co., the Fourth Circuit once again confirmed the well-established Virginia rule that “pay-when-paid” clauses are enforceable in construction agreements in the absence of clear contractual ambiguity. In Universal Concrete, the Subcontractor unsuccessfully argued to the District Court on summary judgment that an ambiguity existed regarding payment by virtue of language in the AIA contract between the Owner and Turner. The District Court disagreed and the Fourth Circuit affirmed. The Fourth Court found that Turner had no obligation…

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Proposed HB 465

Proposed HB

A rather surprising bill made early strides before the House this session. The House Courts of Justice Civil Subcommittee recommended approval of HB 465. The Bill as introduced was as follows: Jury verdict; excess damages; amendment of pleadings. Allows a court, in the event a jury returns a verdict for damages in excess of the amount requested, to amend the pleadings to conform them to the amount awarded and enter a judgment for such damages Such a bill would have dramatically changed the state of law in Virginia. Not only…

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Remora Shows Court on Consistent Path

Virginia Supreme Court11

In a recent decision by the Virginia Supreme Court, the Court continues to limit the assertion of claims for breach of fiduciary duty. The Court in Remora Investments, LLC v. Orr, 277 Va. 316, 673 S.E. 2d 845 (2009) held that managers have no fiduciary duty to members of an LLC; only to the LLC itself. This appears to be a consistent trend the Court has followed in legal malpractice cases beginning with O’Conner v. Bean, 263 Va. 176, 556 S.E. 2d 741 (2002) determining that an attorney malpractice action…

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Social Media: Who Owns The Rights?

Social Media

It is no surprise that companies today actively encourage their employees to engage in marketing and business development through use of social media outlets like Twitter and LinkedIn. But when an employee decides or is asked to leave the company, a dispute can, and with increasing frequency likely will, ensue over who owns these social media accounts. They were created and developed on company time with company resources, seemingly making them a company asset. The followers (or connections in the case of LinkedIn) of such accounts are, however, unique to…

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Will Spear Stick?

Washington Airport Authority

In the months following Judge Chamblin’s August 2009 ruling in Spear v. Metropolitan Washington Airports Authority, defense counsel across the Commonwealth jumped on the Spear bandwagon, arguing as the Court ruled in Spear that changes in suits re-filed by a plaintiff after taking a voluntary nonsuit, such as to the ad damnum, create a different action and the plaintiff accordingly loses the benefit of the tolling of the statute of limitations provided by Va. Code § 8.01-229(E)(3). But so far, no other court has followed Spear. Now, the Supreme Court…

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