Category Archives: Federal Procedure

November 26, 2007

Is a Sentence within the Range Stipulated in a Plea Agreement Appealable?

UPDATE (4/23/08): The holding described in this post was changed by the court’s amended opinion of April 17, 2008).  See my coverage.

The Ninth Circuit rejects such a challenge in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007), at least where the plea agreement was not contingent on the sentencing guidelines and the only error asserted was a miscalculation of the guidelines or failure to properly consider the factors in Title 18 United States Code section 3553.

The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines and its failure to consider all section 3553 factors led it to impose higher sentences than it otherwise should have, and thus the sentences, even though they were within the ranges stipulated in the plea agreements, were “in violation of law,” which would make them appealable under Title 18 United States Code section 3742(a)(1).

The Ninth disagrees, holding that even if the trial court miscalculated the guidelines or erred in applying section 3553, section 3742 does not confer appellate jurisdiction over an appeal from a sentence that is within the range stipulated in a Rule 11 plea agreement. The court points out that the agreements permitted the trial court “full discretion to impose a sentence” within the stipulated range, and thus the defendants received the benefit of their bargains regardless of where in that range they were sentenced.

The Ninth has previously held that a sentence within the statutory guidelines may be reviewed if it is challenged as “unreasonable” under application of section 3553 factors. However, the court refuses to apply the same rule to sentences within the stipulated guidelines of a plea agreement, effectively holding that section 3553 does not apply to stipulated sentencing ranges, at least where the plea agreement does not explicitly require it.

Garcia leaves open the possibility of getting around its holding with a properly crafted plea agreement. If the plea agreement makes a properly calculated guideline or application of section 3553 an explicit condition of the plea, a defendant may be able to appeal a sentence even if it is within the range stipulated in the agreement. The Ninth Circuit Blog post referenced below offers this advice, along with this caution: “Of course, good luck getting another 11(c)(1)(C) deal that doesn’t include explicit appellate waivers.”

The “Case o’ the Week” post at Ninth Circuit Blog starts by discussing Garcia but transitions to a discussion of the “mess” in the Ninth Circuit regarding jurisdiction to hear sentencing appeals and links to a number of helpful posts on other recent decisions on this topic. Follow the links, and by the time you’re done, you will be eagerly awaiting the Ninth’s en banc opinion in U.S. v. Carty.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Federal Procedure, Sentencing

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November 26, 2007

Appeal from Non-Appealable Order Does not Deprive District Court of Jurisdiction

Nasciemento v. Dummer, case no. 06-35062 (9th Cir. Nov. 21, 2007) presents a host of jurisdictional issues in a concise opinion. I recommend you read the entire opinion and will concentrate on just one of the issues here, since most of the principles in the opinion are well-established.

Nasciemento purported to appeal from a non-appealable order of the Nevada district court that dismissed some, but not all, defendants and transfered the case to the Montana district court (the “transfer order”). After his appeal was dismissed, but nine days before the mandate issued, the Montana district court entered a discovery scheduling order.

When the Montana court refused to extend time for discovery, Nasciemento filed an appeal from that order (the “discovery order”), which is likewise unappealable. A week later, the Montana Court dismissed Nasciemento’s complaint as a sanction for his failure to appear at a pretrial conference and his lack of preparation for trial (the “dismisssal order”).

Nasciemento claimed that the district court lacked jurisdiction to enter the discovery schedule or dismiss his complaint as a sanction during the appeals pending respectively at the time of each order.

The Ninth disagrees. It holds that since it never had jurisdiction over either appeal, the Montana court, as the transferee court, had jurisdiction to take further action in the case.

Litigants would be wise to assume this rule will apply even where the question of jurisdiction over the appeal is a close call or where it is a question of first impression, because the court draws no distinction between the timing of the two district court orders. When the discovery order was entered, the appeal from the transfer order had already been dismissed (though mandate had not yet issued), so the lack of appellate jurisdiction had been definitely established. The dismissal order, however, was entered just a week after Nasciemento filed his notice of appeal from the discovery order, and thus presumably before that appeal was dismissed for lack of jurisdiction.

The timing of the determination of non-appealability would not appear to affect the outcome. But where appellate jurisdiction may be an open question, might more cautious district judges defer exercising jurisdiction until the issue of appealability is resolved?

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Posted in: Appellate Jurisdiction, Appellate Procedure, Federal Courts, Federal Procedure, Jurisdiction

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November 20, 2007

Appeal after Remand to State Court: Was Removal Reasonable?

The Ninth Circuit reminds us in Gardner v. MEGA Life & Health Ins. Co., case no. 06-55045 (9th Cir. Nov. 19, 2007), that even though no appeal lies from an order remanding a removed action to state court, the removing defendant may appeal an order to pay costs and fees imposed in connection with the remand under 28 U.S.C. § 1447(c). Here, it pays off.

MEGA was ordered to pay costs and fees when the action was remanded. It claimed the only non-diverse defendant, an individual, had been fraudulently joined for the purpose of defeating diversity jurisdiction because the statute of limitations had run as to that defendant.

Applying the rule that fees and costs should ordinarily not be awarded where the removing defendant had an objectively reasonable basis for removing, the Ninth Circuit reverses the award of fees and costs. Interestingly, it finds that MEGA had a reasonable basis for removal purely on its own analysis of whether the claim against the non-diverse defendant was barred under California law and without considering one of the reasons MEGA cited for the reasonableness of removal — that on remand, the California court sustained MEGA’s demurrer.

That makes sense, in a way, since reasonableness should be measured as of the time of removal. On the other hand, it seems like the state court dismissal is pretty solid evidence of the objective reasonableness of MEGA’s fraudulent joinder contention.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Attorney Fees, Costs, Federal Courts, Federal Procedure, Removal

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November 19, 2007

Potentially Void Judgment Reversed on the Merits

Here’s a post I’ve been saving for a time where I’m too busy to spend much time on new content. I may get a post up later in the day, but in the meantime, I’ll get on my soapbox about why I think the Court of Appeal blew it on a jurisdictional question in Holland v. Union Pacific Railroad Co., case no. C052833 (3d Dist. July 30, 2007, certified for publication August 29, 2007).

The case came up on appeal from a summary judgment granted on the ground that the plaintiff’s administrative complaint was untimely. The timeliness of the administrative complaint turned on whether the Department of Fair Employment and Housing caused plaintiff to miss his filing deadline for filing a verified administrative complaint (thus equitably tolling the limitations period) rather than whether there was a triable issue on the substantive allegations of his complaint against his employer. (Thus, the Court of Appeal deemed the substantive allegations of the complaint “largely irrelevant,” so we needn’t discuss them here.) The court found that equitable tolling applied, the summary judgment on timeliness grounds was error, and remanded to the trial court to consider the remaining issues

The most interesting aspect of the case (at least for this jurisdiction geek) is how the court addressed the plaintiff’s contention that the court commissioner lacked jurisdiction to decide the motion. After evaluating the competing evidence over whether plaintiff had consented to the commissioner and the legal positions of the parties, the court says that it is “immaterial” which side is right on the jurisdictional question.

Wow. The existence of jurisdiction is, in the eyes of this panel and in this particular case, immaterial. I think this is wrong, wrong, wrong.

The court deems the trial court’s jurisdiction immaterial because it figures that if it remands, the case will just come up on appeal again on the exact same papers, so remanding would waste judicial resources:

Even if we were to concur that the judge pro tem lacked jurisdiction to hear the motion, there would not be any purpose in reversing the judgment and remanding the matter, only to exercise de novo review of the same materials on appeal from a ruling of a judge of the trial court (as our remittitur would not authorize reopening the motion), if we believe the outcome would be the same on the substantive timeliness issue. This only wastes scarce judicial resources and causes needless expense to the parties. We therefore proceed to the matter of whether the plaintiff’s failure to file a timely administrative complaint is excusable.

I don’t think I’ve ever seen the potential lack of jurisdiction treated so casually. If jurisdiction is lacking, the grant of summary judgment is void. So the court of appeal is analyzing the merits of a potentially void judgment. That is a big deal, and hardly consistent with the court of appeal’s usually zealous protection of its jurisdiction.

I think the court should have been more diligent in determining whether there was jurisdiction. Had it determined a lack of jurisdiction by the commissioner, it should have reversed and remanded without an examination on the merits. The reasons the court offers for the immateriality of jurisdiction don’t stand up well to scrutiny.

First, the court’s position that it would be reviewing “the same materials” on a subsequent appeal seems misguided. It rests on an anticipated remittitur that “would not authorize reopening the motion.” While it might be appropriate to preclude new declarations in support or opposition to the summary judgment motion, there seems no reason to restrict the scope of review by the new trial judge on legal issues. Suppose the new judge hearing the motion sees a legal point that the commissioner missed and wants to ask for additional briefing on an issue? Would the remittitur also preclude that?

A second problem with the “same materials” rationale is that even if the summary judgment papers are unchanged, a second appeal would afford the parties an opportunity to revise their appellate briefs. One of the briefs might be substantially more persuasive, cite additional authority, or otherwise differ from the briefs on this appeal, potentially leading the court of appeal to a different result.

Even more obviously, it is uncertain whether the Court of Appeal would ever see the case again. Suppose the superior court judge on remand disagreed with the commissioner’s disposition and denied the motion. The defendant would have to file a petition for writ of mandamus (which has a 90% + chance of not being heard on the merits) or await final judgment before appealing on the ground that the motion was improperly denied. The case would have a decent chance of settling with a trial on the horizon, so the court of appeal might not see the case again.

All of these possibilities argue against what the Court of Appeal did here.

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Posted in: California Procedure, Judgment, Judgment, Jurisdiction, Summary Judgment, Summary Judgment

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November 14, 2007

A Technology-Induced Rush to Dismiss?

The Ninth Circuit has some unkind words for the district judge in Calderon v. IBEW Local 47, case no. 05-56937 (November 13, 2007). The district court dismissed the case for lack of prosecution because plaintiff’s counsel did not show up at a hearing on an order to show cause re dismissal for failure to serve one of the defendants.

Problem: the district court only gave notice of the OSC re dismissal via e-mail. Since plaintiff’s counsel did not consent to electronic notice (Fed. R. Civ. P. 5(b)(2)(D)) and did not regularly check his e-mail (and, given his lack of consent to electronic notice, had no obligation to do so), he missed the hearing. Putting aside the issue of whether a dismissal sanction is an abuse of discretion when it is imposed for missing a single hearing — an issue raised very briefly by the court — the notice was ineffective. Notwithstanding the attorney’s reasonable excuse for missing the hearing, the trial court denied plaintiff’s motion to vacate the dismissal, and did so without a hearing.

This easily meets the standard for “abuse of discretion,” says the Ninth. Indeed, the court takes the unusual step of apologizing to the parties. In the same sentence, it admonishes the district judge to “exercise more care and patience in the future.”

The district judge in question is Manuel Real of the Central District of California. Two prominent bloggers used the Calderon opinion to opine on Judge Real; both California Appellate Report and Decision of the Day do so in language that suggests they don’t plan to appear before Judge Real any time soon. More of Judge Real’s colorful history is memorialized in this Law.com judicial profile.

Anyway, on to the point reflected in the title of this post.

I wonder if Judge Real wasn’t made impatient because of the electronic notice. With electronic this and electronic that, we (as a society) expect everything to happen now.

By the time I was admitted to the bar in 1992, faxes were common. Car phones were widespread (though handheld cell phones were not), though somewhat pricey. My first firm (more than 1200 lawyers strong at the time) was still using Wang word processing in its LA office and e-mail had not yet been implemented firm-wide, if I recall correctly. Portable computers were heavy and hugely expensive. So things have accelerated greatly in the 15 short years since I became a lawyer.

I recall a partner at one of my BigLaw firms reminiscing in the mid-90’s about the “good old days” before fax machines. She thought the practice of law was much more civil before faxes. Fax machines, in her mind, were a leading cause of threatening letters sent by opposing counsel on Friday afternoons demanding detailed responses by Monday morning . . . or sooner. The same partner usually made a point of being totally incommunicado when on vacation.

My favorite anecdote regarding the impatience that technology breeds came from an an associate at Baker & McKenzie (where I spent my 2L summer in 1991), who once saw two attorneys in Los Angeles pacing back and forth impatiently outside the firm’s mailroom, cursing under their breath. When he asked why, they responded that they were faxing a contract and “it’s taking three minutes per page for this contract to get to Tokyo!”

While properly leveraging technology can make your life easier, I have some sympathy for (and sometimes count myself among) those who believe that, in many respects, technology just makes us work harder!

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Posted in: Federal Procedure, Judges, Legal Technology

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November 9, 2007

Appellate Jurisdiction of a Non-Final Order: Denial of Eleventh Amendment Immunity

Everyone knows the general rule that an appeal lies only from a final judgment. But there are rare exceptions. State of Alaska v. EEOC, case no. 07-70174 (9th Cir. Nov. 8, 2007) illustrates one of them.

Plaintiffs were political appointees in the Alaska Governor’s Office who, after their discharge, filed claims with the EEOC against the Governor’s Office alleging various forms of harassment and/or discrimination. The Governor’s Office moved for summary judgment on Eleventh Amendment immunity. The Administrative Law Judge felt he lacked jurisdiction to decide the Eleventh Amendment issue and certified the question to the EEOC. The EEOC, holding that “an agency will not rule on the constitutionality of the statute that it is assigned to administer,” remanded back to the ALJ.

The Governor’s Office appealed from the remand order. The Ninth holds that it has jurisdiction to consider the appeal, even though the remand order is not a final judgment, because an “order denying a state’s claim to Eleventh Amendment immunity is an appealable collateral order.”

By the way, plaintiffs lose despite a federal statute purporting to abrogate state immunity from claims by persons holding government positions similar to those held by plaintiffs. The Ninth finds that the legislation does not meet the requirements for validity set by the Supreme Court because there are no findings of discrimination in such positions that required a remedy.

The merits earn three opinions from a three-judge panel, one in dissent.

UPDATE (11/9/07): Professor Martin gives a nice run-down of the merits and predicts the case is headed not only for en banc review but likely to the Supreme Court. Read why at California Appelate Report.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Constitutional Law, Federal Procedure

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October 12, 2007

No Cert for Sentencing Cases

Federal Public Defender Steve Sady has a thoughtful and detailed post at Ninth Circuit Blog on SCOTUS’s denial of certiorari in three important sentencing cases.

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Posted in: Constitutional Law, Federal Procedure, Sentencing

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October 10, 2007

Summary Rejection of Plea Agreement is Error

It’s not often that you see an opinion on a writ petition start with a statement that the trial court erred but the writ is denied. The reason for that sort of introduction in Morgan v. U.S. District Court (D.Ariz.), case no. 07-70201 (9th Cir. Oct. 9, 2007), is because the petitioner sought just a little more relief than he was entitled to.

Morgan accepted a plea agreement that included a sentencing term pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). So far, so good.

The stipulated sentence was near the upper limit of the guidelines but the district court opined that an upward departure may be appropriate. This led the district court to express its disdain for sentencing agreements because the inclusion of the sentence left nothing for the court to do:

Reasoning that acceptance of stipulated sentences as a general matter renders a district court’s entry of judgment a mere formality, the [district] court concluded: “I don’t think that’s what Article III federal court should be reduced to. So for that reason, we’re going to reject the Rule 11(c)(1)(C) stipulated term in this agreement as being unreasonable as a matter of law, not necessarily unreasonable as a matter of fact.”

Faced with the options of (1) withdrawing his plea and going to trial or (2) pleading guilty and leaving sentencing to a court that had already expressed its opinion that an upward departure might be appropriate, Morgan sought mandamus to compel the district court to accept the plea agreement, including the sentence.

The Ninth refuses to compel the district court to do so, but holds that the district court erred in rejecting the plea without a particularized analysis. The court’s summary rejection of the plea was a failure to exercise its discretion, so the Ninth remands for the district court to “make an individualized assessment of the propriety of Morgan’s stipulated sentence, in light of the factual circumstances specific to his case.”

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Posted in: Criminal Procedure, Federal Procedure, Plea Bargains, Sentencing

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September 26, 2007

Law Prof Seeks Postponement in Federal Rules Amendments

Civil Procedure Prof Blog links to a letter/white paper from Professor Jeff Parker of George Mason University School of Law, in which he asks Congress to delay implementation of the changes to the Federal Rules of Civil Procedure.  The amendments are intended largely as a “re-styling” of the rules without substantive change, but Professor Parker’s not so sure.  Here’s an excerpt from the abstract:

I recognize that this is an extraordinary request, but this year’s pending amendments also are extraordinary, as they will completely re-write each and every provision of the Civil Rules for the first time in their 70-year history. More fundamentally, they adopt a novel concept of rule interpretation – what one of the proponents calls “clarity without change” – that is antithetical to our jurisprudence and likely to produce disarray in the procedural system.

There is a substantial body of opinion, in which I join, that the proposed amendments are likely to produce a material degradation of civil justice in our federal courts by imposing enormous burdens of transitional cost, in exchange for little or no benefit. Perhaps more importantly, there is no indication that the judicial rulemaking committees have fully considered the potential consequences of these sweeping changes.

For some of that “substantial body of opinion,” see links in prior posts here and here.

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Posted in: Federal Courts, Federal Procedure

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September 25, 2007

Vindictive Prosecution Dismissal Gets De Novo Review

If you had been stopped twice at the U.S. – Mexican border trying to smuggle in illegal immigrants, told the customs officer both times that you had been paid to drive the vehicle across the border — and in one case admitted that you knew the compensation was for alien smuggling — and you weren’t prosecuted in either instance, you might figure that when you are prosecuted — this time, for trying to bring marijuana across the border — you’re better off explaining that you thought you were smuggling aliens instead of marijuana. That’s exactly how Sharon Ann Jenkins testified in her own defense at trial.

While the jury was deliberating on the drug smuggling charge, the government filed a complaint charging her with the prior two instances of alien smuggling, and she moved to dismiss the subsequent indictment on grounds of vindictive prosecution, claiming that the U.S. Attorney only prosecuted her for the alien smuggling because she exercised her right to testify in her defense on the drug charges. California Appellate Report has a nice write-up on that part of the case.

But before the Ninth Circuit could reach the merits in U.S. v. Jenkins, case no. 06-50049 (9th Cir. July 17, 2007, amended Sept. 25, 2007), it was faced with the unsettled issue of the appropriate standard of review:

The standard of review of a district court’s decision whether to dismiss an indictment for vindictive prosecution is unsettled in this circuit. [Citation.] We have reviewed vindictive prosecution cases de novo, for abuse of discretion, and for clear error. [Citation]

We conclude that the district court’s decision should be reviewed de novo because the issue presents a mixed question of law and fact. The trial court first determines whether the prosecutor’s course of conduct appears motivated by a desire to punish the defendant for exercising a legal right. The court then decides whether the prosecutor has come forth with sufficient evidence to dispel any appearance of vindictiveness. Because our review of these determinations “requires us to consider legal concepts in the mix of fact and law,” de novo review is appropriate. [Citations.]

Two points.

First, note how specifically the court identifies the issue for purposes of assigning a standard of review. The court doesn’t describe the decision under review merely as the dismissal of an indictment, but as the dismissal of an indictment for vindictive prosecution. Lesson: research and apply the standard for the most specific issue that has been previously articulated. And if the court has only identified the general issue before, perhaps you have an argument for a better standard of review to apply to your specific circumstance.

Second, note how succinctly the court settled this issue, compared to its recent resolution in U.S. v. Larson of a similar 3-way split on the standard of review to apply in confrontation clause challenges based on limitations on cross-examination, which I blogged about here and here. Both cases involved an unsettled question regarding the standard of review in a criminal matter. Perhaps the weight of the issue in Larson, where the defendant had already been convicted, seemed greater to the court than the mere dismissal of an indictment.

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Posted in: Appellate Procedure, Criminal Procedure, Federal Procedure, Standard of Review

September 25, 2007

An Attorney’s Individual Right to Appeal Court Criticism

This post at Split Circuits excerpts a recent Federal Circuit case noting a split among the circuits as to when an attorney in a federal case has a right to appeal separately from his or her client. That decision, Nisus Corp. v. Perma-Chink Systems, Inc., case no. 06-1592 (Fed. Cir. August 23, 2007) notes that while the Seventh Circuit requires the imposition of monetary sanctions before an attorney may appeal a court order critical of the attorney, other circuits, including the Ninth, “permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is itself an appealable sanction.”

Thus in United States v. Talao, 222 F.3d 1133, 1137 (9th Cir. 2000), the Ninth Circuit held that it had jurisdiction to hear the appeal of an Assistant United States Attorney whom the District Court had found violated rule 2-100 of the California Rules of Professional Conduct. The issue in such cases is whether the order constitutes a “sanction.” In Talao, the court holds that a finding that an attorney violated a governing ethical rule is per se a sanction, and thus the attorney may separately appeal it.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Ethics, Federal Procedure, Sanctions

September 24, 2007

Federal Judicial Review of Arbitration Decisions

I’m pretty sure that Judge Bea didn’t intend to give me a chuckle in the first paragraph of his opinion in Collins v. D. R. Horton, Inc., case no. 05-15737 (9th Cir. Sept. 24, 2007). But he did.

Appellants contend their motion [for summary judgment] should have been granted because the arbitrators manifestly disregarded the law when deciding not to apply offensive non-mutual collateral estoppel because judicial review of an arbitration award under the Federal Arbitration Act (“FAA”) is more limited than judicial review of a district court judgment. We hold the arbitrators did not manifestly disregard the law because no “well defined, explicit, and clearly applicable” law existed to be disregarded. [Citation.] Accordingly, we affirm.

(Footnote omitted.) At the very mention of the term “offensive non-mutual collateral estoppel,” I couldn’t help but think of the characters ordering coffee in rapid-fire succession in the movie L.A. Story:

Tom: I’ll have a decaf coffee.
Trudi: I’ll have a decaf espresso.
Morris Frost: I’ll have a double decaf cappuccino.
Ted: Give me decaffeinated coffee ice cream.
Harris: I’ll have a half double decaffeinated half-caf, with a twist of lemon.

Thus, I found it amusing that this tangle of words — “offensive non-mutual collateral estoppel” — would have no “well defined, explicit, and clearly applicable” in the context of this case. But maybe that’s just me.

On the merits, this decision is useful for its exposition on what constitutes an arbitrator’s “manifest disregard for the law” sufficient to justify vacating an arbitration award. For such “manifest disregard” to exist, mere error is insufficient; the arbitrator(s) must have understood and correctly stated the law but ignored it. A proper identification and statement of the law requires, in turn, that it be “well defined, explicit and clearly applicable.” Here, since there was no well-settled law on the issue of whether the arbitrator(s) were bound to apply collateral estopppel on the facts before it, they cannot be said to have ignored it.

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Posted in: ADR, Arbitration, Federal Procedure, Judgment

September 20, 2007

IDEA Rights not Enforceable under Section 1983

In Blanchard v. Morton School District, case no. 06-35388 (9th Cir. Sept. 20, 2007), the Ninth Circuit becomes the fifth federal appellate circuit to hold that rights under the Individuals with Disabilities Education Act (IDEA) are not enforceable by an action under 42 U.S.C. section 1983.  The court acknowledges that two circuits have gone the other way and that the Eighth Circuit has an intra-circuit split on the issue.

The case arose when the mother of a disabled child sued to recover damages for lost earnings and suffering endured during her eventually successful drive to obtain benefits for her son under the IDEA.  The district court granted summary judgment, finding that the mother had no individual rights under the IDEA ad that the IDEA did not contemplate the damages she sought. 

While the appeal was pending, the Supreme Court decided Winkelman ex rel. Winkelman v. Parma City Sch. Dist., (2007) 127 S.Ct. 1994, which held that parents do have individually enforceable substantive rights under the IDEA.  In light of this, the court stated that “[t]he question before us now is whether 42 U.S.C. § 1983 creates a cause of action for money damages under the IDEA for the lost earnings and suffering of a parent pursuing IDEA relief.”

Given that so many circuits have already decided the availability of Section 1983 relief one way or another, I would have thought that the Ninth’s opinion would include an extensive analysis of the issue, comparing the merits of each side and the reasoning of the other circuits.  Instead, in a very short opinion, the Ninth is satisfied to say that:

We are persuaded by the recent thoughtful, well-reasoned opinion of the Third Circuit. See A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 797-803 (3d Cir. 2007) (en banc) (surveying the existing circuit split and analyzing recent Supreme Court precedent on the availability of § 1983 as a remedy for violation of a federal statute).  In A.W., the Third Circuit overruled its prior authority to the contrary and held:     

The IDEA includes a judicial remedy for violations of any right “relating to the identification, evaluation, or educational placement of [a] child, or the provision of a free appropriate public education to such child.” § 1415(b)(6). Given this comprehensive scheme, Congress did not intend § 1983 to be available to remedy violations of the IDEA . . . .     

Id. at 803 (alteration in original). We now join the First, Third, Fourth, and Tenth Circuits and hold that the comprehensive enforcement scheme of the IDEA evidences Congress’ intent to preclude a § 1983 claim for the violation of rights under the IDEA.

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Posted in: Civil Rights, Education, Federal Procedure

September 20, 2007

FRAP 4(a)(7)’s 150-day Period Sets Time of Entry of Judgment, not Time to Appeal

Sometimes, the rules seem rather tangled.  But go through them slowly, and they usually  all “come together.”

Such is the case in Menken v. Emm, case no. 05-164637 (9th Cir. Sept. 19, 2007), in which the appellees argued that the notice of appeal was not timely.  The district court granted a motion to dismiss for lack of personal jurisdiction but never entered a separate order.  The issue thus became when the 30-day deadline for filing the notice of appeal was triggered.

The analysis is rather straightforward.

The date of entry of a judgment triggers a 30-day deadline to appeal from it.  (Fed. R. App. P. (“FRAP”) 4(a)(1).)  For this purpose, the date of entry is defined by FRAP 4(a)(7), which sets forth two different standards depending on whether the judgment or order requires a separate document under the Federal Rules of Civil Procedure:

(A) A judgment or order is entered for purposes of this Rule 4(a):

(i) if Federal Rule of Civil Procedure 58(a)(1) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or

(ii) if Federal Rule of Civil Procedure 58(a)(1) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs: the judgment or order is set forth on a separate document, or 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a).

So, determining the deadline for the notice of appeal from any given judgment involves two steps once the judgment is identified: (1) determine when — according to the definition of “entry” in FRAP 4(a)(7) — the judgment was entered for purposes of FRAP 4(a); and (2) add thirty days.  Simple, right?

The appellees in Menkem didn’t think so.  The order appealed from in that case fell under FRAP 4(a)(7)(A)(ii) because it required a separate document, which was never filed.  The court makes quick work of the appellees’ argument that FRAP 4(a)(7) sets the deadline for filing the notice of appeal:

[Appellees argue] that if more than 150 days have passed from the entry of the order, the time to appeal that order has expired.  [Appellant] correctly asserts that under Federal Rule of Appellate Procedure 4(a)(7)’s plain language, judgment was entered after 150 days, which then started the Federal Rule of Appellate Procedure 4(a)(1)(A) 30-day appeals period. In other words, Menken had 180 (150 days plus 30 days) from entry of the order on January 27, 2005 in which to appeal.

[Appellant] filed his notice of appeal on July 22, which is 176 days from the entry of the January 27, Order.  [Appellant's] notice of appeal is therefore timely.

It’s surprising appellees would want to get started on the wrong foot with this argument.  As the court notes, the result is evident from the plain language of the rule.

Turning to the merits of the appeal, the Ninth applies a straightforward personal jurisdiction analysis and reverses the district court’s order dismissing the case for lack of personal jurisdiction.  Professor Martin at California Appellate Report calls this a “wonderful” opinion for schooling students on personal jurisdiction.  He also evaluates Judge Bybee’s concurring opinion, which advocates an abbreviated test for personal jurisdiction.  He gives high praise to Judge Bybee for his willingness to buck doctrine and think outside the box but finds his argument unpersuasive.

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Posted in: Appellate Procedure, Federal Procedure, Jurisdiction, Notice of Appeal

September 10, 2007

Bankruptcy Court Order Enjoining Arbitration is Appealable

In Solidus Networks, Inc. v.  Excel Innovations, Inc., case no. 06-17288 (9th Cir. Sept. 7, 2001), the Ninth Circuit holds that an injunction issued pursuant to  11 U.S.C. § 105(a) to stay arbitration to which the debtor is not a party is an appealable order.  The court reasons that the injunction is effectively an extension of the automatic stay (11 U.S.C. § 362).  Since the automatic stay itself is effectively an injunction issuing from the bankruptcy court,and orders denying or granting relief from the automatic stay are appealable, the Ninth saw “no reason to treat the instant injunction differently.”

The court took up the jurisdictional issue on its own, demonstrating yet again how carefully it guards access to its jurisdiction.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Bankruptcy, Federal Procedure

September 10, 2007

Qui Tam Relator May Not Proceed Pre Se on Behalf of Government

The False Claims Act allows an individual (called a “relator”) to bring a civil action (a qui tam action) “for the person and for the United States Government” against persons who have defrauded the government.  31 U.S.C. § 3730(b)(1).  In Stoner v. Santa Clara Office of Education, case no.  04-15984 (9th Cir. Sept. 7, 2007), the Ninth holds that a relator may not proceed pro se on behalf of the United States, anf thus the district court correctly dismissed the claim.

The general pro se statute (28 U.S.C. § 1654 [emphasis added]) provides that “parties may plead and conduct their own cases personally,” which the court notes grants only a right personal to Stoner.  Standing to sue on behalf of the government does not convert the claim into a personal one, says the court, and absent statutory authority to proceed pro se on the government’s behalf, a relator may not do so.  The absence of such a provision from the False Claims Act suggests that Congress intended qui tam cases to be subject to normal procedural restrictions that prohibit a non-lawyer from representing anyone but himself.

Ironically, Stoner, the relator in this case, is an attorney.  He just isn’t admitted in California or before the federal district court in California, where he brought suit.  On remand, the Ninth directs that he be granted time to obtain counsel or obtain pro hac vice admission to the district court.  He could have saved himself a lot of trouble by applying for pro hac vice admission in the first place.

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Posted in: Federal Procedure

September 4, 2007

Expansive Congressional Authorization for Government Appeals in Criminal Cases

In U.S. v. Stanton, case. no. 06-10519 (9th Cir. August 31, 2007), Stanton was convicted by a U. S. Magistrate Judge in a bench trial.  He appealed to the District Court, which reversed his conviction.

The government appealed from the District Court order.  Stanton makes a two-pronged challenge to the government’s right to appeal.

First, he contends that jurisdiction is lacking because the government may appeal only where authorized by Congress and the Criminal Appeals Act, 18 USC §3731, does not explicitly authorize the government to appeal from a district court order reversing a conviction entered by a magistrate and ordering an entry of acquittal.  Right on both counts, says the court, but immaterial.  Section 3731 is expansive, not restrictive, and essentially authorizes appeal by the government so long as it does not violate the Double Jeopardy Clause.  Since reversing the district court here would reinstate Stanton’s conviction without the need for a retrial, the Double Jeopardy Clause is not violated.

Second, Stanton contends that Section 3731 does not authorize an appeal in his case because it only authorizes appeals from the dismissal of an indictment or information, and he was charged by way of criminal complaint.  Once again, the liberal construction of Section 3731 comes to the government’s rescue.  Section 3731 itself provides that “[t]he provisions of this section shall be liberally construed to effectuate its purposes.”  Since the Supreme Court has identified the section’s purpose as “avoiding the creation of nonconstitutional barriers to appeal,” and Stanton identifies no constitutional reason why Section 3731 should not apply in cases where the defendant is charged by criminal complaint, the distinction does not prevent appeal.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Constitutional Law, Criminal Procedure, Double Jeopardy, Federal Procedure

August 22, 2007

Review for Abuse of Discretion Impossible when Record Fails to Disclose Reasons for Decision

Gomez v. Gonzales, case no. 06-70941 (9th Cir. August 22, 2007) demonstrates how the abuse of discretion standard of review can be undermined by a weak record.  The weak record in this case results in remand instead of a decision on the merits.

The Board of Immigration Appeals denied a motion by the Garcias for leave to file a late brief.  The grant or denial of such a motion is within the BIA’s discretion.

Here, however, the BIA’s order offered no “reasoned explanation” for its denial of the motion:

Denying the Garcias’ motion, the BIA conclusorily reasoned: “We find the reason stated by the respondents insufficient for us to accept the untimely brief in our exercise of discretion.”

This left the Ninth Circuit without any means to conduct a meaningful review for abuse of discretion:

We are similarly “unable to determine from the BIA’s conclusory statement whether it abused its discretion by refusing to accept [the Garcias’] late brief.”  [Citation.]  We therefore remand the petition to the BIA.

Because the BIA could reach a different conclusion on its hardship determination if it considers the Garcias’ brief on remand, we do not reach the Garcias’ other legal or constitutional claims.

Remanded.

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Posted in: Appellate Procedure, Federal Procedure, Standard of Review

August 22, 2007

Pre-Opinion Settlement Disclosed after Publication of Opinion Requires Vacation of Opinion and Dismissal for Mootness

On June 29, the Ninth Circuit reversed a preliminary injunction order that prohibited National Beverage Corporation “from selling or marketing its line of ‘Freek’ energy drinks in their current containers or containers confusingly similar to” the trade dress of plaintiff Hansen Beverage Company’s “Monster” energy drink. 

The decision gathered significant attention from blogs in the Ninth Circuit.  Seattle Trademark Lawyer and IP Law Observer gave rather objective analyses.  California Appellate Report and Appealing in Nevada were more opinionated about the result, appearing to come down on opposite sides.  (Readers curious to see the packaging of the products can see the appendix to the opinion or, better yet, see the sharp color pictures at the Appealing in Nevada post.)

On July 11, National Beverage issued a press release about the case, in which it trumpeted the Ninth Circuit’s reversal of a preliminary injunction that “’stopped’ the most dynamic product launch over the past several decades!”

So, this seems pretty significant . . . but it appears the court’s effort was for naught. Hansen’s moved just 4 days later (from what I can make out from the docket on PACER) to vacate the opinion. It seems that the parties had settled the case three weeks prior to the court’s filing of its opinion, and the settlement made permanent the injunction that was the subject of the appeal.  Thus, in an August 17, 2007 order, the Ninth Circuit vacates its opinion because it lacked jurisdiction.

Our mandate has not yet issued. It has now been made known to us that, on June 8, 2007, the parties had executed a settlement agreement that, among other things, stipulated that the preliminary injunction that was the subject of the appeal was made permanent.  As a consequence, there was no longer a controversy between the parties over the preliminary injunction at the time we issued our opinion, and the case was moot.

We lacked jurisdiction to decide a moot case. [Citation.]  We accordingly VACATE our opinion and decision of June 29, 2007, and DISMISS this appeal. [Citation.]

From what I can make out of the PACER docket, National Beverage not only opposed Hansen’s motion to vacate but also filed a motion of its own. Though filed under seal, this excerpt from an August 17, 2007 entry in the PACER case summary discloses something about the nature of the motion:

The motion of National “To Preserve This Court’s Jurisdiction and to Quash Order of District Court” is DENIED. The appeal of a preliminary injunction does not deprive the district court of jurisdiction to enter a permanent injunction.

This is certainly an odd situation. This excerpt makes you wonder whether National Beverage entered into the settlement with the intent that the injunction provision would be unenforceable. Also, I’ve tried to figure out why Hansen didn’t move to dismiss the appeal before the opinion was published. Any ideas?

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Posted in: Appellate Jurisdiction, Appellate Procedure, Federal Procedure

August 20, 2007

Putative Class Members Lack Standing to Appeal after Dismissal of Uncertified Class Action

The appeal in Employers-Teamsters v. Watson Pharmaceuticals, case no. 04-56791 (9th Cir. August 16, 200) was from four consolidated actions brought by investment advisor Anchor Capital against Watson Pharmaceuticals, alleging violation of the securities laws.  The trial court considered motions for the appointment of lead plaintiff pursuant to the Private Securities Litigation Reform Act (the “PSLRA”), 15 U.S.C. § 78u-4(a), including a motion from the appellants.  Anchor Capital was appointed lead plaintiff.  After Watson Pharmaceuticals successfully moved to dismiss on Rule 9(b) grounds (insufficiently specific pleading of fraud, Fed. R. Civ. P. 9(b)), the court granted Anchor Capital’s request to dismiss all four actions with prejudice.  The appellants never filed a complaint, moved to intervene, or objected to the requested dismissal.  On appeal, appellants challenged the lead plaintiff ruling.

The court dismisses the appeal.  The court finds that appellants lack standing to appeal because they were never parties in any of the underlying suits.  They were “merely potential class members in a potential class action suit.”  (Emphasis added.)  The court also finds the appeal moot because the cases were dismissed without a class ever being certified.

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Posted in: Appellate Jurisdiction, Appellate Procedure, Federal Procedure

August 8, 2007

Adult Bookstore Case Results in Certified Question to State Supreme Court

Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.”  Most lawyers are already familiar with this procedure, at least in principle.

What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026  (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to apply in the case.  Plaintiff, operator of an adult “arcade, bookstore, novelty shop, and video store,” challenged a county ordinance that required adult businesses to close between 2 a.m. and 6 a.m.  The question certified by the Ninth Circuit is very specific:

Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point.  It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).”  But they asked it nicely.

California Appellate Report offers some details on the “frenetic pace” at which the Ninth Circuit has been certifying questions to state supreme courts this year, as well as some tongue-in-cheek commentary on the wisdom of the ordinance challenged in this case.

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Posted in: Appellate Procedure, California Procedure, California Supreme Court, Federal Courts, Federal Procedure, Ninth Circuit, Standard of Review

August 7, 2007

Undue Delay Precludes Coram Nobis Relief Even Where No Prejudice Results from Delay

A petitioner for writ of coram nobis must satisfy a four-part test, one element of which is that  “valid reasons exist for not attacking the conviction earlier.”  Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987).  In United States v. Riedl, case no. 06-10424 (August 6, 2007), the petitioner argued to the Ninth Circuit that even if the court did not accept her reasons for delay as valid, the delay could not preclude relief unless the government asserted laches, i.e., that it would suffer prejudice from a grant of the writ in light of the delay.  The Ninth Circuit rejects the argument, finding that undue delay precludes relief even in the absence of prejudice:

We agree with the district court that Riedl’s petition must be denied. She has failed to provide any valid reasons for waiting so long to challenge her convictions on these grounds, and thus plainly does not satisfy the requirements for the highly unusual remedy of coram nobis relief. See Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) adopting four factors as predicates for coram nobis relief, including that “valid reasons exist for not attacking the conviction earlier”). Riedl attempts to overcome her unjustified delay by invoking the equitable doctrine of laches, arguing that the government has not been prejudiced by her tardiness. Cf. Telink, Inc. v. United States, 24 F.3d 42, 45 (9th Cir. 1994) (addressing laches in coram nobis context). We reject the notion that a petitioner can employ laches in such a fashion. To follow Riedl’s suggestion under the circumstances of this case would transform the extraordinary writ of coram nobis into a free pass for attacking criminal judgments long after they have become final.

Riedl was attempting to turn laches from a shield into a sword.  The Ninth Circuit finds offensive use of the doctrine . . . well, offensive:

Nevertheless, Riedl is incorrect that coram nobis relief is available as long as it is not barred by laches. Our decisions that have considered laches have done so only because the government invoked the doctrine as a supplemental defense.  Those decisions have not purported to overrule the Hirabayshi framework, which places the initial burden of justifying delay squarely on the petitioner, nor as three-judge opinions could they have done so.

(Emphasis in original.)

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Posted in: Coram Nobis, Criminal Procedure, Federal Procedure, Ninth Circuit, Writ Practice

July 25, 2007

More on the Restyled Federal Rules of Civil Procedure

University of Arkansas School of Law Assistant Professor Scott Dodson has a guest post at Civil Procedure Prof Blog about the pending “restyled” Federal Rules of Civil Procedure.  In addition to the article by Professor Dorf that I posted about last week, he links to a second article, in which he says the author “argues that the restyling creates more problems than solutions” and “illustrates the problems with a few key examples, including Rule 65.”  Visit his post for the link.

Professor Dodson is also soliciting thoughts from all comers on the restyling of the rules.  So if you have any, head over there.

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Posted in: Federal Courts, Federal Procedure

July 25, 2007

Procedural Maneuvering at its Finest and the Double Duty Judge

The Ninth Circuit’s decision in Vacation Village, Inc. v. Clark County, Nevada, case no. 05-16173 (July 23, 2007) delivers a “two-fer” of “bloggable” items.

First, the procedural maneuvering.  Landowners sued Clark County for inverse condemnation in Nevada state court.  While the action was pending, the Landowners filed a voluntary Chapter 11 bankruptcy petition, listing the inverse condemnation claim as a contingent and unliquidated claim of the estate. When the Landowners advised the state court judge that they were not ready to proceed with trial, the court advised them that there were no available trial dates between then and the expiration of the five-year limitations period under state law for bringing a claim to trial (which was about three months off) and that the case would be automatically dismissed when the limitations period ran.

What to do?

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Posted in: Federal Courts, Federal Procedure, Ninth Circuit

July 24, 2007

The Ninth Circuit’s Reversion to 11-Judge En Banc Panels

The Ninth Circuit reverted to 11-judge en banc panels at the beginning of this month after a brief experiment with 15-judge panels.  This short article at Law.com provides some limited background on the move, including comment from one circuit judge:

“It was pretty unanimous that we were not gaining anything by going from 11 to 15 judges,” said 9th Circuit Judge Diarmuid O’Scannlain, who is based in Portland, Ore. O’Scannlain, an appointee of President Ronald Reagan, said, “I would have preferred to wait until the two years were up because that is what we notified the bar we would do.”

The Ninth Circuit is the only circuit that does not have every judge sit on every en banc panel.  This has been one of the size-related criticisms leveled against it.  The Ninth Circuit’s unique en banc procedure has been defended by judges from the circuit in testimony to Congress, including Judge Thomas and Judge Kozinski, each in his capacity as the en banc coordinator for the court.

Judge Thomas’s testimony in 2005 included his view that the 15-judge panels would “ameliorate” the concern that the use of only 11 judges on en banc panels results in a decision by less than a majority of the court’s judges.

Long before the court adopted the 15-judge panel, Judge Kozinski’s statement in 2003 claimed that the large size of the court was a benefit to en banc review because even though not all judges sit on the en banc panel, “[t]he fact that a large number of judges look at a decision to decide whether it should be taken en banc means that cases get a much more thorough review in a large circuit.”

As this testimony demonstrates, the debate over the size of the Ninth Circuit court has been going on for years.  And if this recent spike in blog posts about the size of the court is any indication, the debate isn’t going to end any time soon.

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Posted in: Federal Courts, Federal Procedure, Ninth Circuit

July 20, 2007

FRCP Amendments Not So “Stylistic” After All?

Back on May 14th, I noted that proposed amendments to the Federal Rules of Civil Procedure had been transmitted to Congress and noted that the vast majority of changes were intended to be “stylistic” only, i.e., not making any substantive change. I provided some links to advisory committee reports and other explanatory information.

But are the changes purely stylistic?  Adjunct Law Prof Blog points to an article by Columbia Law Professor Michael Dorf challenging that characterization, noting that despite the intent that the changes be stylistic only, some unintended ambiguities, and corresponding substantive changes, may result.

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Posted in: Federal Courts, Federal Procedure

July 16, 2007

Grandstanding Does Not Equal Intent

I watched the movie Minority Report last night.  It’s about a “precrime” department of the Washington, D.C. police department around 50 years in the future that, through the use of visions recorded from three gifted “precognitive” individuals, arrests persons for future murders they were going to commit.  The murder rate in D.C. drops to zero.  I recommend the movie, especially if you’re a sci-fi fan.

Coincidentally, today the Ninth Circuit issues United States v. Jimison, case no. 06-30417 (July 16, 2007), in which Judge Kozinski frames the issue as “when a defendant can be subject to a sentencing enhancement” under U.S. Sentencing Guidelines “for possessing a firearm in connection with an offense that he never commits.”  Specifically, the issue in this case is whether the evidence was sufficient to support an enhancement to felony firearms possession where the possession by the defendant is “with knowledge, intent, or reason to believe that [the firearms] would be used or possessed in connection with another felony offense.”  U.S.S.G. § 2K2.1(b)(6) (formerly § 2K2.1(b)(5)). 

The defendant, after beating up his girlfriend, stole her car.  He “stumbled upon” an unlocked ranch house from which he stole some guns, then went to a friend’s home.  Clearly distraught, he told is friend he thought he had killed his girlfriend and that he was “going to go Rambo.”  (Link added.)  Is this enough for the sentencing enhancement?

The Ninth Circuit (without benefit of precognitives, of course) says it is not enough.  The defendant’s “Rambo” remark is “an offhand comment” that “lacks sufficient specificity to establish that [defendant] formed a firm intent to shoot it out with the police.”  The court finds that lacking any evidence of context to the contrary, the defendant’s remark is the equivalent of a parent who says “I’m going to wring his neck” upon learning that is child his in trouble at school again.

It also didn’t hurt that the defendant called the owner of the guns, apologized and arranged to return them!  Why can’t all criminals be so polite?

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Posted in: Federal Procedure, Ninth Circuit, Sentencing

July 2, 2007

Ninth Circuit Rules Amendments Available

Amendments to the Ninth Circuit rules went into effect on July 1, 2007.  They are available for download as a PDF from the Ninth Circuit Court of Appeals website.  It’s a handy file, with a chart of the changes and revised or added language clearly highlighted.

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Posted in: Appellate Procedure, Federal Procedure, Ninth Circuit

June 28, 2007

Follow-Up to “A Conundrum on Federal Court Determinations of State Law Issues”

In this post last week, I noted that Howard Bashman (of the How Appealing blog) and I had nearly simultaneously (and quite independently) come up with similar questions on federal court determinations of state law.  I had pondered the question as a “hypo” for my legal research students; Bashman asked it in the context of a recent Third Circuit opinion, Jaworowski v. Ciasulli, case no. 05-1423 (June 18, 2007), in which the district court had followed a 19-year-old Third Circuit decision predicting how the state’s high court would decide the state law question.  On appeal, the Third Circuit reconsidered the state law question and decided that the state’s highest court would now decide the issue differently. 

The common question posed by me and Bashman (as stated by him):

It is interesting to consider whether it would have been appropriate, in the first instance, for the federal district court to ignore the earlier Third Circuit ruling if the federal district court were confident that the earlier Third Circuit ruling had incorrectly predicted how New Jersey’s highest court would rule on the issue presented, even though New Jersey’s highest court hadn’t yet ruled on the issue.

Bashman posed the question, and I offered my answer in last week’s post.  Bashman now offers his answer in his weekly law.com article.

In answering the question, Bashman sides with predictability, feeling that the best approach is for the district court to adhere to the circuit’s ruling until the circuit decides to alter its prediction of state law.  In my consideration of the issue, I opted for accuracy over predictability, suggesting that the district court should use the circuit opinion as a starting point and evaluate the prediction therein in light of subsequent developments in state law.

In his article, Bashman considers a second question: whether the Third Circuit was right to reconsider the question in the absence of en banc review.  He and I reach the same conclusion on this one, for similar reasons . . .

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Posted in: Federal Courts, Federal Procedure

June 26, 2007

Unitherm Precludes Plain Error Review, Too

Watch rule 50 of the Federal Rules of Civil Procedure!

In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. (2006) 546 U.S. 394, the Supreme Court held that a party who fails to renew a Rule 50(a) pre-verdict motion for judgment as a matter of law by moving under Rule 50(b) post-verdict waives any review of the sufficiency of the evidence.  Prior to Unitherm, an appellant in the Ninth Circuit likewise waived sufficiency of the evidence review in such circumstances, but the Court of Appeals could review for plain error on the face of the record that would result in a “manifest miscarriage of justice” if not corrected  See Patel v. Penman (1996) 103 F.3d 868, 878.

In Nitco Holding Corp. v. Boukijian, case no. 05-16438 (June 25, 2007), the Ninth Circuit holds that such plain error review is likewise precluded by Unitherm.  In the absence of both a Rule 50(a) motion and a post-verdict Rule 50(b) motion either for judgment as a matter of law or for a new trial, the Court of Appeals cannot review even for plain error.

So don’t forget those post-verdict motions.

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Posted in: Appellate Procedure, Federal Procedure, Post-Trial Practice, Waiver of Issues

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