Archive

• Pleading Waiver of Governmental Immunity: What’s Enough?

  This entry was contributed by Trey Allen on November 17, 2017 at 9:00 am and is filed under Civil Practice, Civil Procedure-General.

  In lawsuits against units of local government, the general rule is that the trial court must throw out the plaintiff’s claims if the unit raises the defense of governmental immunity and the complaint fails to allege a waiver of that immunity.  This blog post looks at how detailed a waiver allegation must be for a complaint to survive an assertion of governmental immunity.

  The Concept of Waiver

  As I’ve explained in prior blog posts (here, here, and here), the defense of governmental immunity protects cities, counties, and other units of local government from civil liability for negligence and other claims – though not constitutional claims – that arise from the performance of governmental functions.  The courts have recognized that a unit may waive this immunity through any of the three actions described in the next section.  Essentially, by acting in any of those ways, a unit consents to be sued for any civil claims that fall within the scope of the waiver. Continue Reading

• More on Voluntary Dismissals: Consequences of Inadequate Pleading

  This entry was contributed by Ann Anderson on July 15, 2015 at 5:00 am and is filed under Civil Practice, Civil Procedure-General.

  In an earlier post, I talked about some of the deficiencies in a complaint that can prevent a party from taking advantage of the statute of limitations extension in Rule 41(a). In short, if a party voluntarily dismisses without prejudice a claim for which the underlying statute of limitations has expired, and—as it turns out—the complaint was never timely served or was not properly “commenced,” the refiled action is subject to dismissal with prejudice. Last week, the Court of Appeals expanded on this point, holding that Rule 41(a)’s savings provision does not extend the statute of limitations on a claim that failed to satisfy Rule 8(a)(1)’s notice pleading rule.

  Continue Reading