Posted on by Stephen Tuck

Louisiana Sportsmen Alliance LLC v Vilsack (2014) H&FLR 2014-60

Louisiana Sportsmen Alliance LLC v Tom Vilsack and Ors (2014) H&FLR 2014-60

United States Court of Appeal (Fifth Circuit)

28 October 2014

Coram: Prado, Elrod and Graves JJ.

Appearing for the Plaintiff: Charles D Elliott (of Vilar & Elliott)*
Appearing for the Defendant: Jennifer Frederick, Courtney Joiner and Katherine Vincent (of the US Attorneys Office)*

Catchwords: Louisiana – hunting – hunting with dogs prohibited – standing to sue

Facts:  For many years the US Forest Service allowed the use of dogs in deer hunting in Kisatchie National Forest (forest).  In 2009 the Service proposed banning hunting deer with dogs, and after significant consultation the ban was adopted in 2012.

The Plaintiff – an organisation representing the interests of deer hunters using dogs – challenged the decision and issued proceedings in the US District Court.  It was asserted that the Service’s decision was arbitrary and capricious pursuant to 5 USC §§702 and 706 of the Administrative Procedures Act.  The application was dismissed: Louisiana Sportsmen Alliance LLC v Vilsack, 984 F.Supp.2d 600 (W.D. La. 2013).  The plaintiff appealed.  On appeal the defendant for the first time raised an argument that the plaintiff lacked standing to sue.

Held: Per curiam, allowing the appeal –

1.  Standing to sue is a jurisdictional requirement which cannot be waived and which may be raised by the parties or Court at any time.

NAACP v City of Kyle, Texas, 626 F.3d 233 (5th Cir., 2010) and MCG Inc v Great Western Energy Corp., 896 F.2d 170 (5th cir., 1990), followed.

2.  For an organisation to have standing to sue, it must show that –

(a) Its asserted legally protected interest is relevant to its purposes.

(b) One of its members would have standing to sue in their own right.  To satisfy this requirement, one of the organisation’s members must show that –

(i) They have suffered (or will imminently suffer) a specific identifiable invasion of a legally protected interest.
(ii) The defendant’s challenged action is fairly identifiable as the cause of the injury.
(iii) It is likely (viz., not speculative) that a favourable decision will redress the injury.

(c) Participation of individual members in the proceeding is not required.

Hunt v Washington State Apple Advertising Commission, 432 US 333 (1977) and Lujan v Defenders of Wildlife, 504 US 555 (1992), followed.

3.  The plaintiff had neither alleged nor established any details regarding its nature or purpose, nor that any of its members had suffered a specific injury.  Accordingly it had failed to establish standing and so the Court of Appeals lacked jurisdiction to consider the matter.

Judgment

The Court’s judgment is available here.

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* I have not been able to confirm the involvement of these practitioners, who appeared in the matter at first instance; I have assumed that parties retained the same counsel on appeal.

Posted on by Stephen Tuck

Verdugo v Target Corporation (2014) H&FLR 2014-59

Michael Verdugo and Anor v Target Corporation (2014) H&FLR 2014-59

United States Court of Appeal (Ninth Circuit)

28 October 2014

Coram: Pregerson, Graber and Berzon JJ.

Appearing for the Plaintiff: Robert A Roth (of Tarkington, O’Neill, Barrack & Chong) and David G Eisenstein (of Law Offices of David G Eisenstein)
Appearing for the Defendant: Ryan Moore Craig and Benjamin R Trachtman (of Trachtman & Trachtman) and Richard Caldarone and Donald Falk (of Mayer Brown).

Catchwords: California – cardiac arrest in store – AED not available – negligence – duty of care – claim dismissed – moral obligation.

Facts:  On 31 August 2008 one Mary Verdugo (the deceased), aged 49 years, suffered a cardiac arrest at the Target store in Pico Rivera.  There was no automated external defibrillator (AED) in the store.  Paramedics were called and attended within minutes.  They were unable to revive the deceased.

The deceased’s mother and brother issued proceedings in the Los Angeles County Superior Court against the defendant on the basis that it been negligent in not having an AED available for use in an emergency.  On the defendant’s application the matter was transferred to the Federal District Court, which then granted the defendant’s application to dismiss the matter on the basis that Target was not obliged to make an AED available for use by customers.  The plaintiff appealed to the Court of Appeals for the Ninth Circuit, which referred a question of law to the Supreme Court of California: Verdugo v Target Corp., 704 F.3d 1044 (9th Cir., 2012).  The referred question was expressed as follows –

“Whether, under California law, the common law duty of reasonable care that defendant Target Corporation … owes to its business customers includes an obligation to obtain and make available on its business premises an … AED … for use in a medical emergency”.

The Supreme Court of California responded that the defendant’s common law duty of care to its cutomers did not include a duty to acquire and make available an AED for use in a medical emergency: Verdugo v Target Corp., (2014) H&FLR 2014-55; 59 Cal.4th 312 (2014).

Held: Per curiam, dismissing the appeal, that the District Court’s decision that Target did not have a relevant common law duty of care was consistent with the Supreme Court’s statement of Californian law and so the decision was affirmed.

Per Pregerson J, obiter, that stores like Target have a moral obligation to provide AEDs for use in a medical emergency.  If that moral obligation is not recognised by the stores, it would be appropriate for the matter to be considered by the legislature.

Judgment

The Court’s judgment is available here.