Here’s an interesting Howard Bashman’s column that explores the phenomenon of third justices who “concur in the result” without further comment on the majority opinion. NOTE: Somehow this post got marked “private,” so I’m not sure it ever showed up on the blog before. But it’s possible it was posted for a while befopre it got marked “private,” in case you’re looking for an explanation for any deja vu you’re experiencing.)
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“Restyled” Federal Rules of Civil Procedure Take Effect Today
The new Federal Rules of Civil Procedure go into effect today. Previous posts (here, here and here) have linked to articles about whether the changes, intended merely to “restyle” the rules without substantively changing them, will accomplish that purpose. I guess we’ll find out soon enough if they don’t. In the meantime, AbsTracked has a post with some useful links regarding the changes, including an advisory committee report and a change comparison chart. Thanks to Legal Writing Prof Blog for the link.
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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…
- Appellate Jurisdiction, Appellate Procedure, Attorney Fees, Costs, Federal Courts, Federal Procedure, Removal
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…
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Kozinski Doesn’t Want Hard Work Wasted — Dissents from Order Dismissing Petition for Rehearing
In Suntharalinkam v. Keisler, case no. 04-70258 (9th Cir. Oct. 18, 2007), the Ninth dismisses a petition for rehearing en banc in an immigration case on the motion of the petitioner, whose counsel requested dismissal after being questioned at oral argument regarding the petitioner’s relocation to Canada and seeking of asylum there. Judge Kozinski will have none of it. In a dissent joined by three other judges, he argues against the ability of the petitioner to waste all the hard work of the court: My colleagues dismiss the petition for review based on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing…
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State Law in a Federal Court
In Ryman v. Sears, Roebuck and Co., case no. 06-35630 (9th Cir. Oct. 12, 2007), the Ninth Circuit reiterates some very basic rules for a federal court to interpret state law. The district court refused to apply state law precedent to a matter of state law because (1) the precedent was from the state’s intermediate appellate court rather than the state’s highest court, and (2) the intermediate court’s opinion had been criticized by other federal courts. The Ninth reminds us that neither reason justifies ignoring relevant precedent from a state’s intermediate appellate court. In the absence of a relevant decision from the state’s highest court on a matter of state…
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“Opacity and Unaccountability”
Legal Writing Prof Blog links to and posts the abstract of a law review article in which the author contends that the “opacity and unaccountability” resulting from non-publication of district court opinions creates serious problems by preventing the true state of the law from being known, subjecting it to manipulation, and distorting its development.
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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…
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Federal District Court and Bankruptcy Court Transcripts to be Available Online via PACER.
The Judicial Conference of the United States has voted to make transcripts of federal district and bankruptcy court proceedings available online through the PACER system. Transcripts will be available for the same $0.08/page rate as other documents, but there’s a catch: they won’t be available on PACER until 90 days after they have been delivered to the clerk. Until then, you’ll have to view the transcript at the clerk’s office or order a copy from the reporter. The press release doesn’t say when this policy goes into effect. Nor does it say whether the transcripts will be in scanned PDF format like other documents or will instead be text-searchable files.…
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Ninth Circuit Holds that the Political Question Doctrine is a Jurisdictional Limitation
The Ninth Circuit holds that the political question inherent in Corrie v. Caterpillar, Inc., case no 05-36210 (9th Cir. Sept. 17, 2007) precludes the exercise of Article III jurisdiction. Until Corrie, the Ninth Circuit has not clearly decided whether the political question doctrine is a jurisdictional limitation or merely a self-imposed prudential restraint. The court evaluates competing cases on the issue, and even finds that the six factors used in evaluating whether the case concerns a political question, enumerated in Baker v. Carr, 369 U.S. 186 (1962), are themselves divided into jurisdictional and prudential considerations. It reconciles this dichotomy by deciding that the doctrine’s prudential concerns can help define the…
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Why the Ninth Was Reluctant to Depart from Sister Circuits on Patent Question
If you’re a federal circuit judge, and you and your colleagues on the panel are convinced the court should come out one way, but all other circuits to consider the question have come out the other way, what do you do? “Circuit splits arise all the time,” you tell yourself. “We should decide this the way we see it.” Well, maybe that’s what you do most of the time. But in Zila, Inc. v. Tunnell, case no. 05-15031 (9th Cir. Sept. 5, 2007), the Ninth Circuit shows deference to the other circuits’ interpretation of Supreme Court precedent because the issue involves an inventor’s right to royalty payments after expiration of…
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Ninth Circuit Website Kudos
Howard Bashman’s latest column at Law.com is about the need for more free internet access to federal court case information. Acknowledging that access to published and unpublished decisions is very good, he laments the general lack of access to information about cases pending rehearing en banc. The Ninth Circuit is one of two he praises. Specifically, he lauds the Ninth for providing free access at its website to a list of cases pending rehearing en banc, the issues as to which rehearing has been granted, the rehearing petitions and oppositions. Indeed, he calls it “a wonderful example of what the other federal appellate courts should be doing.” Now I feel…
- Appellate Procedure, California Procedure, California Supreme Court, Federal Courts, Federal Procedure, Ninth Circuit, Standard of Review
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…
- Appellate Jurisdiction, Appellate Procedure, Criminal Procedure, Federal Courts, Ninth Circuit, Waiver of Issues
Defendant’s Waiver of Right to Appeal Does Not Deprive Ninth Circuit of Appellate Jurisdiction
Ninth Circuit Blog has a pretty good write-up on last Wednesday’s Ninth Circuit en banc decision in United States v. Castillo, case no. 05-30401 (July 25, 2007), in which the court vacates the panel opinion and holds that it has jurisdiction to hear a criminal defendant’s appeal based on a pre-plea motion where the defendant waived appeal of pre-plea issues as part of his guilty plea. Federal Rules of Criminal Procedure cannot expand or contract subject matter jurisdiction, and it cannot be waived. In my observation, the tendency to confuse jurisdiction with procedure is way too common. I recently posted, for example, about confusion between forum selection and jurisdiction in…
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Ninth Circuit’s Annual Judicial Conference Convenes Under Cloud of More “Split the Circuit” Controversy
This article at Law.com starts: While a bill to split the nation’s largest federal appeals court lies dormant in Congress, that didn’t prevent grumbling at the opening of the 9th Circuit’s annual judicial conference over repeated efforts to divide the circuit. There are several quotes from judges on their views — and fears — about a potential circuit split, including Chief Judge Schroeder’s reaction to the L.A. Times opinion piece arguing that the Ninth Circuit has a high reversal rate because its size makes it more likely that two “extremist” judges will be assigned to any given panel. My coverage of the L.A. Times piece, with links to coverage by…
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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. Technorati Tags: Federal Procedure, Federal Rules…
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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…
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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…
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End Life Tenure for Supreme Court Justices?
This post at Law.com previews a book and corresponding law review article arguing for 18-year fixed terms for U.S. Supreme Court justices. The premise seems to be that the founders could never have contemplated the long durations of most recent justices’ tenures, which arise from increases in life expectancy and retirement age. The post has lots of links and some tidbits of info about the service of Supreme Court justices.
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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. Technorati Tags: Federal Rules of Ciivl Procedure, Federal Procedure
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Reduce Reversals by Splitting the Ninth Circuit?
If you’ve followed any of the debate about splitting the Ninth Circuit into two circuits, check out incoming Vanderbilt law professor Brian Fitzpatrick’s op-ed piece in the Los Angeles Times from Wednesday, in which he asserts that the Ninth Circuit’s size is partly to blame for its high reversal rate because it makes it more likely that two “extreme” judges will be assigned to the same panel: Proponents of splitting the 9th Circuit largely have been unable, however, to connect the colossal court’s size to its high rate of reversal. But there is a connection. Indeed, it can be shown mathematically that, as a court grows larger, it is increasingly…
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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…
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A Trip Down a “Dark Corridor”
In Linear Technology Corp v. Applied Materials, Inc., case no. H028343 (June 18, 2007), the Sixth District Court of Appeal offers a primer on determining whether a case is one “arising under any Act of Congress relating to patents” within the meaning of that language in Title 28 United States Code section 1338(a). Linear purchased equipment from the three defendants and was sued for patent infringement by a third party, with whom it settled. Linear alleged its use of the equipment led to the patent infringement suit and sought indemnity from the sellers by suing them in state court on multiple causes of action. The superior court dismissed the case…
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A Conundrum on Federal Court Determinations of State Law Issues
In my legal research class, I recently went over the general principle for how a federal court sitting in diversity should determine state law issues. The federal court looks first to see if the issue has been decided by the applicable state court of last resort. In the absence of an opinion from the state court of last resort, it must predict how that court would decide the issue based on input that would be considered by that court. I came up with a “hypo” for my students: You are a federal district judge presiding over a diversity case. You are presented with a question of state law on which…
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Claim Challenging Removal of Cross from County Seal Fails in Ninth Circuit
In 2004, under legal threat from the American Civil Liberties Union, Los Angeles County removed from its official seal an image of a cross (which shared the seal with the Roman goddess Pamona, engineering instruments, a Spanish galleon, a tuna, a cow, oil derricks, the Hollywood Bowl, and two stars representing the area’s motion picture and television industries). It replaced the cross with a depiction of the first Spanish mission established in the county (which depiction did not include a cross), and made other changes to the seal. Plaintiff Ernesto R. Vasquez, an employee of the County of Los Angeles, filed suit in federal court under 42 U.S.C. § 1983,…
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Blogs First – Wikis Next?
Its old news that courts have cited blogs in their opinions. A compilation of such opinions is posted here by Law Blog Metrics. That list is more than nine months old and lists citations to 27 cases citing blogs a total of 32 times. (I’m having trouble finding anything more recent. If anyone knows of a more current compilation, email the link to me me and I will post it.) Citations to blogs should not be too surprising. Most are, after all, commentary. While not as formal or thorough as a law review article (to put it mildly), the principle behind citing a blog is not, to my mind, much…
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Is it Futile to Cite Federal District Court Opinions? (Updated)
At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion. Bashman appears to doubt lawyers will heed this advice: The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited. I think he’s right. And…