Alaska Employment Law

Rule 68: A defendant submitted a $1.00 Offer of Judgment a month after service of the Complaint, and before it filed a counterclaim.  While the Offer met the literal terms of Rule 68 (it was served “any time more than 10 days before the trial begins” and “no later than 60 days after” the disclosures date), the Alaska Supreme Court has rejected it as inconsistent with the settlement-fostering goal of the Rule:

Even though a purpose of Rule 68 is to encourage settlement and avoid protracted litigation, offers of judgment made without any chance or expectation of eliciting acceptance or negotiation do not accomplish the purposes behind the rule. The offers of judgment in this case were for one dollar. Most of the defendants served their individual offers of judgment before they asserted their counterclaims.   Their offers were nothing more than tactical demands that plaintiffs dismiss their claims to avoid exposure to Rule 68 fees awards. The amount offered was effectively zero in what appears to be a good faith dispute involving potentially substantial damages. In the context of this case, these offers could not be considered valid offers of settlement or compromise, or valid attempts to encourage negotiation. They do not satisfy the Beattie factors. We conclude that they were not valid Rule 68 offers of judgment, and therefore reverse the Rule 68 fees awards.

Beal v. McGuire, Op. No.  6418 (Alaska Sept. 25, 2009) (footnotes omitted)

Doug Pope represents the offerors.  Tim Petumenos and Roger Holmes represent the Rule 68 recipients.  All practice in Anchorage.

ANCSA shareholder preference:  In the litigation involving the NANA shareholder preference for work at the Red Dog Mine, the 9th Circuit has denied the plaintiff’s petition for rehearing and rehearing en banc.  The 3-judge panel, in August, held that the plaintiff had failed to present a prima facie case regarding qualifications.  Thus, the issue of ANCSA shareholder preference under Section 1981 remains unresolved by the 9th Circuit.

Conitz v. Teck Cominco, 2009 WL _______ (9th Cir. Sept. 25, 2009)

Ken Covell of Fairbanks represents the plaintiff.  Sean Halloran of Anchorage represents Cominco.  Tom Daniel represents intervenor NANA.  The case continues on other claims.

Fraudulent joinder and jurisdiction:  The 9th Circuit, this Monday morning, reversed Fairbanks District Judge Ralph Beistline, holding:

The question of the preemption of state law by federal tobacco legislation has been addressed numerous times.  Today, we address the preemption issue in the context of the doctrine of fraudulent joinder, which is invoked to achieve
diversity jurisdiction. We hold that the district court erroneously allowed the defendants-appellees to achieve diversity jurisdiction by its incorrect finding that the plaintiffsappellants’ state law claims were preempted and constituted
fraudulent joinder. Because the district court should have remanded the action to state court, we vacate the judgment and remand with instructions to remand the action to state court.

Hunter v. Philip Morris USA, ___ F.3d ___ (9th Cir. Sept. 28, 2009)

Don Bauermeister of Anchorage represents the plaintiff.  John Phillips of Seattle represents the manufacturer-defendant.