Legal Commentary

What No Client or Lawyer Wants to See in a Court Decision

By Eugene Volokh

From Ware v. South Texas Family Planning & Health Corp. (S.D. Tex. Jan. 26), a case in which a father sued a clinic for giving a ?morning-after? contraceptive pill to his 14-year-old daughter without the parents? permission:

Plaintiff contends that Defendants are a public nuisance because the ?activity? that Defendants engage in interferes with a ?parent?s right to guide his child in a moral fashion? and interferes with ?the moral standards of the community.? Under Texas law, a public nuisance ?is maintained by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare.? Neither in his complaint nor during the initial pretrial conference was Plaintiff?s counsel able to allege the factual basis on which Defendants? activities could be said to constitute a public nuisance. In fact, Plaintiff?s counsel, when asked during the initial pretrial conference to explain his public nuisance claim, was unable to name the elements of a public nuisance....

Plaintiff bases his third cause of action, his parental rights claim, on the grounds that Defendants failed to obtain parental consent before allegedly providing the morning-after pill to Plaintiff?s daughter. Plaintiff offers no other factual basis for this claim. Further, Plaintiff provides no legal basis for this claim. Indeed, when Plaintiff?s counsel was asked at the initial pretrial conference to provide authority for this cause of action, he stated, ?I thought it was so basic I didn?t bother to do research.? Plaintiff has thus failed to state a claim for which relief can be granted for each of the three causes of action asserted, pursuant to Federal Rule of Civil Procedure 12(b)(6).

Not good.

Full post as published by The Volokh Conspiracy on February 08, 2010 (boomark / email).