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Birmingham Bar Association Bulletin - Summer 2014

Civil Law Brent Grainger & Alexandra Shulman; Scott Dukes & Geisler P.C. Overview of the Fifth Amendment and Adverse Inferences in Civil Cases, continued from page 15 verse inference.17 However, even in states that do not permit an adverse inference, there may be other consequences. For instance, in California, the court may impose a preclusion order on a party who asserts the privilege pretrial “to prevent a litigant claiming his constitutional privilege against self-incrimination in discovery and then waiving the privilege and testifying at trial.”18 Conclusion Whether or not to assert the privilege against self-incrimination in a civil proceeding is a strategic matter that attorneys should weigh carefully in jurisdictions that permit the trier of fact to draw an adverse inference. Given the potential high stakes, attorneys should carefully consider the pros and cons of asserting the privilege against self-incrimination in a civil proceeding, as well as any and all possible alternatives. G ENDNOTES 1 266 U.S. 34, 40 (1924). 2 Hoffman v. United States, 341 U.S. 479, 486 (1951). 3 Griffin v. California, 380 U.S. 609 (1965). 4 425 U.S. 308, 318 (1976). 5 See, e.g., United States v. Rylander, 460 U.S. 752, 761 (1983); Lefkowitz v. Cunningham, 431 U.S. 801, 808 (1977). 6 Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1087 (5th Cir. 1979). 7 RAD Servs., Inc. v. Aetna Casualty & Sur. Co., 808 F.2d 271, 275 (3d Cir.1986). 8 107 F.3d 110, 123-24 (2d Cir. 1997). 9 Ex parte Baugh, 530 So. 2d 238, 241 (Ala. 1988). 10 See Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Hatas, 252 So. 2d 7, 21-22 (Ala. 1971) (citing Morris v. McClellan, 45 So. 641 (Ala. 1908); McElroy’s The Law of Evidence in Alabama, 2d Ed., Vol. 3, § 373.01) (The privilege against self-incrimination afforded by Article I, § 6 of the Alabama Constitution of 1901 has been held to be available to a party in a civil proceeding)). 11 See Ex parte Ebbers, 871 So. 2d 776 (Ala. Northern District’s System of Referring Cases to Magistrate Judges, continued from page 23. district judge under Local Rule 72.1(c). 5. Referral Order ¶ 1. 6. All prisoner cases under 42 U.S.C. § 1983 continue to be referred to magistrate judges. 7. Referral Order ¶ 3. 8. Referral Order ¶ 4. 9. Id. 10. Referral Order ¶ 5. 11. Id. 12. Rule 72(a) governs review of magistrate judge decisions concerning “nondispositive matters” and provides that the district judge reviewing the decision “must … set aside any part of the order that is clearly erroneous or is contrary to law.” Various other courts have held that motions to remand are dispositive motions and must be reviewed de novo under 28 U.S.C. § 636(b)(1) and Rule 72(b). Williams v. Beemiller, Inc., 527 F.3d 259, 266 (2d Cir. 2008); Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 516 (6th Cir. 2001); First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000); In re U.S. Healthcare, 159 F.3d 142, 146 (3d Cir. 1998); Davison v. Lefever, 2013 WL 4012654, at *1 (S.D. Ala. 2013); Vaughn v. 21st Century Sec. Ins. Co., 2012 WL 5904324, at *1 n.1 (N.D. Fla. 2012). Consistent with the Referral Order’s treatment of review of remand orders, the Northern District of Alabama has twice held that remand orders are nondispositive and subject to review under Rule 72(a). Franklin v. City of Homewood, 2007 WL 1804411, at *2 (N.D. Ala. 2007); Johnson v. Wyeth, 313 F. Supp. 2d 1272, 1275 (N.D. Ala. 2004). The Eleventh Circuit has not addressed this issue. 13. Id. 14. Referral Order ¶ 6. 15. 28 U.S.C. § 636 (b)(1)(A). 16. In addition to addressing motions to remand, Paragraph 5 of the Referral Order states that “the magistrate judge may deny 2003); Gardner v. State, 17 So. 3d 223 (Ala. 2009); Ivey v. King, No. 1111626, 2013 WL 4294345 (Ala. Aug. 16, 2013). 12 Ala. R. Evid. 512A(a). 13 Ex parte Ebbers, 871 So. 2d at 795 (citing Baxter, 425 U.S. 308 (1976) (there is no constitutional bar to a juror’s drawing an adverse inference against a party in a civil action who invokes the Fifth Amendment and refuses to testify)). See also Gardner, 17 So. 3d at 228-29 (Alabama Supreme Court acknowledged that Baxter permits the trier of fact in a civil case to draw an adverse inference against the party asserting the Fifth Amendment privilege against self-incrimination); Ivey, 2013 WL 4294345 (affirming the trial court’s judgment citing Baxter and holding that “the silence of a respondent does create a civil inference of guilt.”). 14 Morris v. McClellan, 45 So. 641, 645-46 (Ala. 1908). 15 Ala. R. Evid. 512A(b) 16 Akers v. Prime Succession of Tennessee, Inc., 387 S.W.3d 495, 506 (Tenn. 2012). 17 See Cal. Evid. Code § 913. 18 See A & M Records, Inc. v. Heilman, 75 Cal. App. 3d 554, 566 (Cal. Ct. App. 1977). motions to dismiss,” indicating a magistrate judge’s denial of a motion to dismiss is effective on its own and is not subject to the report and recommendation procedure in Rule 72(b) for dispositive motions. Paragraph 6 also appears to carve out motions to dismiss from the procedures for dispositive motions: “Upon the filing of a case-dispositive motion, except those specified in the preceding paragraph i.e., motions to dismiss and remand per Paragraph 5, the magistrate judge shall conduct such proceedings and enter such orders as are necessary to bring the motion under submission.” The Court’s precedents indicate that magistrate judges prepare reports and recommendations if they recommend granting Rule 12(b)(6) motions to dismiss, e.g., Frazer v. CNA Ins. Co., No. 7:02-cv-1684-UWCPWG, 374 F. Supp. 2d 1067 (N.D. Ala. 2005), and do not do so if they deny such motions, because denial is not dispositive of a claim or defense, e.g., Ramirez v. James, No. 7:11-cv- 2789-WMA-PWG (N.D. Ala. 2013). 24 Birmingham Bar Association


Birmingham Bar Association Bulletin - Summer 2014
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