Legislative and Regulatory Update
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In This Issue [No.107] December 20, 2004
International CBDT RBI Telecom Regulatory Authority of India(TRAI) Ministry of Home Affairs Ministry of Urban Development Press Information Bureau Supreme Court High Courts
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Cases
Source: Westlawinternational.com
Removal: Conversion of state law claims into federal claims made case removable based on federal question jurisdiction
The Federal Insecticide, Fungicide, and Rodenticide Act preempted state law claims for strict products liability, negligence, and misrepresentation, in a removed action against the product's manufacturer by the parents of children who were either killed or seriously burned in a vehicle fire allegedly caused when a swimming pool chlorination product spontaneously ignited as they were riding in their vehicle. Therefore, after the conversion of the state law claims into federal claims arising under the FIFRA, the case was properly removed based on federal question jurisdiction.
Davidson v. Arch Chemicals Specialty Products, Inc.
Arbitration: Buyer of allegedly defective motor home failed to show arbitration agreement was procedurally unconscionable
The buyer of an allegedly defective used motor home failed to show that the arbitration agreement in his contract with the seller was procedurally unconscionable. The buyer failed to introduce evidence of the circumstances surrounding the execution of the agreement, so he could not show inequality of bargaining power, lack of negotiation, or lack of meaningful choice, nor did the form of the document itself show procedural unconscionability, inasmuch as the arbitration addendum was not set in small type or hidden in a prolix form, but was printed on a separate page, signed separately by the buyer.
Crippen v. Central Valley RV Outlet, Inc.
Judgment: Default judgment against store in slip and fall case was result of mistake and excusable neglect
In the context of a grocery store's motion to vacate a default judgment against it in an injured shopper's personal injury action, the store demonstrated that its failure to timely answer the shopper's complaint was a mistake, the result of misunderstanding, and excusable neglect, rather than a willful intent to ignore the lawsuit. Declarations of the store's paralegal and safety risk manager indicated that the manager misunderstood the paralegal's request to forward the summons and complaint to the internal claims administrator, which was a request contrary to the store's customary business practice, and consequently, the outside claims administrator did not hire counsel to defend against the shopper's lawsuit.
Showalter v. Wild Oats
Appeals: Circuit court's erroneous order striking notice of appeal was final
A circuit court order striking a county's notice of appeal to the Court of Special Appeals was unauthorized, erroneous, and appealable, even though the circuit court decision on appeal from a district court judgment in a zoning enforcement action was not appealable by the county to the Court of Special Appeals. However, the order was not void and, therefore, was not subject to collateral attack, even though the county had noted its appeal to the Court of Special Appeals. The county had notice. Although the circuit court erred in the manner in which it exercised its power, it acted within its general authority to strike notices of appeal and thus within its fundamental jurisdiction. The erroneous order thus became final when the county failed to challenge it within thirty days.
County Com'rs of Carroll County v. Carroll Craft Retail, Inc.
Witnesses: Testimonial disqualification statute did not prohibit children from testifying against father
The statute setting forth a testimonial disqualification for minor children did not prohibit or disqualify the children from testifying against their father, where the children did not live with the father at time when the children's testimony was sought. The phrase "living with a parent" in the statute was not ambiguous, and under the statute, only unemancipated, minor children who actually resided with the accused parent could invoke the disqualification. The children lived with their mother in the marital home in and did not live with their father on date they were summonsed to testify before the grand jury.
In re Grand Jury Investigation
Removal: Court of Appeals lacked jurisdiction to review remand order
A district court's reasons for a remand were allowable under the statute providing for remands on the basis of a defect in removal procedure or a lack of subject matter jurisdiction, and, thus, the Court of Appeals lacked jurisdiction to review the remand order. The reasons stated by the district court were that the removal petition was untimely and that the party seeking removal could not base a removal petition on an intervenor's federal claim. Furthermore, the fact that the district court based its remand order on reasons not asserted in the motion for remand did not preclude the Court of Appeals from having jurisdiction over the remand order.
Schexnayder v. Entergy Louisiana, Inc.
Dismissal: Sanction of dismissal was warranted as a sanction under involuntary dismissal rule
The dismissal of plaintiff's complaint, but not entry of a default judgment on the defendants' counterclaims, was warranted as a sanction under the involuntary dismissal rule. The plaintiff had serially failed to comply with orders issued by the court and by magistrate judge, thus impeding defendants' attempts to take discovery to the point that the court had been required to stay all discovery pending determination of sanctions, and where monetary sanctions were ineffective to spur the plaintiff to obey the court's orders.
Cannon Partners, Ltd. v. Cape Cod Biolab Corp.
News
Interviewing pupils and parents during admissions valid
Last October, a ban had been imposed on interviews conducted as part of school admission procedures. In a recent ruling, the Governors of a Roman Catholic School have won the right to continue interviewing future pupils and parents during admissions. This has been primarily allowed on the ground that such a ban could undermine “essential Catholic ethos” of the school. Further, a new code of practice on school admissions says that, in future, the only schools retaining the interviews of parents and children would be boarding schools.
Increased risk of heart attacks and strokes by use of Anti-Arthritis drug
Recently, the users of anti-arthritis drug “Celebrex”, manufactured by the US drug giant Pfizer have been asked not to panic, due to the side effects being caused by the use of the drug. The side effects include an increased risk of heart attacks and strokes. In addition, recent studies conducted by the US National Cancer Institute (NCI), have revealed that patients in the clinical trial taking 800 mg of Celebrex had a 3.4 times greater risk of cardiovascular disease compared to those taking a placebo. Further, for patients in the trial taking 400 mg of Celebrex, the risk was 2.5 times greater. The UK Department of Health has asked patients to consult their doctors before taking any further action.
Controversial Legislation on Abortion
In a recent move, President Bush is expected to sign a controversial new piece of legislation on abortion, which has just been approved by Congress. The anti-abortion groups are supporting the legislation as a much-needed protection for hospitals and other health care providers, who do not want to conduct abortions. But other pro-choice groups describe it as a major new restriction on abortion and further evidence of a trend towards the erosion of abortion rights. The Hyde-Weldon Abortion Non-Discrimination Act already allows health care providers, including hospitals and insurance companies, to opt out of providing or paying for abortion services without the threat of penalty, such as having their access to public funds restricted or stopped.
Stiffer sentence for domestic violence perpetrators
A petition has been filed urging stiffer sentences for domestic violence perpetrators. The said petition, being hand signed by more than 50,000 campaigners would be handed over to the Northern Ireland Secretary soon. This has been a consequence of various sentences handed down in a number of cases, where men had killed their partners. The handing over of the petition has been organized by one of the members of the Alliance Party East Antrim Assembly and is being supported by various members of the same party. The move follows the case of a Belfast man who murdered his ex-girlfriend two years ago and had his jail term increased from 10 to 15 years.
Barrister's Resignation in protest of Government’s Anti-Terror law
The House of Lords had passed a ruling, which found the British legislation on indefinite detention of foreign terror suspects to be unlawful. A senior barrister, Ian MacDonald QC, given special security clearance to act for suspected terrorists, is all set to resign in protest of the government's anti-terror laws. According to sources, he has resigned “for reasons of conscience” because such “odious” laws were a “blot on the legal landscape”. Foreign Secretary Jack Straw has attacked the decision by Britain's Highest Court, saying that the right to life was the "most important liberty" and the government had a duty to protect people from terrorism. Further he said that the Law Lords were "simply wrong" to imply that men were being held arbitrarily.
Investigative hearing begin for Saddam's aides
For alleged war crimes during Saddam's three-decade (1968-2003) rule, Iraqi judges have begun an investigative pre-trial hearing for Sultan Hashim Ahmad, Saddam Hussein's last Defense Chief, and Ali Hassan-al-Majid (Chemical Ali), another former Defense Minister in Saddam’s Government. In addition, eleven other deputies of his government would also be tried. The role of the judges during these hearings would be to interrogate the detainees and gather evidence for possible charges to be laid against them, including Saddam, which would be followed by eventual criminal trials.
Income-tax (20th Amendment) Rules, 2004
Notification No. 294/2004 Dated 08.12.2004: With this notification the Central Board of Direct Taxes, has amended Form 49B consisting of application for allotment of tax deduction and collection account number under section 203A of the Income-tax Act, 1961.
Income-tax (19th Amendment) Rules, 2004
Notification No. 291/2004 Dated 07.12.2004: The Central Board of Direct Taxes vide this notification, has made further amendments relating to approval of any hospital for Indian system of medicine and homoeopathic treatment, in Rule 3A of the Income-tax Rules, 1962.
Compulsory Quoting of PAN/TAN on Challans from 01.01.2005
Circular No. DGBA.GAD.NO.H-2532-65/42.01.034/2004-05 Dated 14.12.2004: In order to ensure correct and prompt credit to taxpayers, the Central Board of Direct Taxes (CBDT) has decided to implement the provisions for mandatory quoting of PAN/TAN on prescribed Challans from January 1, 2005. Therefore, via this circular, the RBI has guided all its agency banks to advise their authorized branches, on this regard.
Enhancement of Housing Loan Ceiling for UCBs
Circular No. UBD.BPD(PCB).Cir.29/09.09.01/04-05 Dated 14.12.2004: In order to further improve flow of credit to the housing sector, it has been decided that banks with the approval of their Boards, may now extend direct finance to housing sector up to Rs.15 lakh, irrespective of location, as part of their priority sector lending.
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