• Appellate Jurisdiction,  Federal Procedure,  Removal

    Review of Remand Orders: One Man’s Obsession

    And I mean obsession in a good way. I never thought I’d get out-geeked on the subject of jurisdiction, and especially not on the subject of appellate jurisdiction, but I think Jones Day partner Mark Herrmann pulled it off today at his Drug & Device Law blog. In a long joint post there regarding when an appellate court may review an order remanding a case back to the state court from which it was removed, Herrmann and his blog partner Jim Beck of Dechert LLP not only chronicle the history of Supreme Court jurisprudence in this area and propose sensible reform, they start their discussion by citing Herrmann’s 22-year-old law review article on the…

  • Appellate Procedure,  Attorney Fees,  Federal Procedure,  Standard of Review

    Lawyers Must Eat — Getting Your Attorney Fees on Appeal

    You’d be hard pressed to find a better overview of federal appellate review of attorney fee awards than Moreno v. City of Sacramento, case no. 06-15021 (9th Cir. .July 28, 2008). Judge Kozinski’s analysis begins with the truism “lawyers must eat,” then goes on to analyze the district court’s attorney fee award under 42 U.S.C.§ 1988, and thus looks at the issue from the perspective of the policies underlying attorney fee awards in civil rights cases. Of particular interest is the section on fees for the appeal. Here’s a two-question quiz. Do you know the proper forum for making your application for fees on appeal? If you said the court…

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure,  Removal

    Appealing a Remand Order, and Intra-Circuit Stare Decisis

    When I was in BigLaw, removing a case to federal court seemed a virtually automatic response to any suit that we believed implicated federal jurisdiction. If the federal district court refuses to exercise supplemental jurisdiction and remands the case back to the state court, how do you contest that ruling? That was the question facing the court in California Dept. of Water v. Powerex, case no. 06-15285 (9th Cir. July 22, 2008), and the answer required it to answer two jurisdictional questions. First, does 28 USC §1447(d) preclude the court from exercising jurisdiction to review the remand order in any fashion? If not, then what is the method by which…

  • Appellate Procedure,  Federal Procedure,  Notice of Appeal

    Everyone Got It Wrong on the Deadline to Appeal

    It is a critical question, and one that can occasionally confound: what is the deadline to appeal?  In Hearns v. San Bernardino Police Department, case no 05-56214 (9th Cir. July 1, 2008), neither the parties nor the trial court got it right. Believing his deadline to appeal an order dismissing his compaint had already passed, Plaintiff filed a Rule 60(b)(6) motion for relief from the order.  The district court denied the motion, but granted a 10-day extension of time to appeal.  After plaintiff appealed, defendants cross-appealed the order granting the extension. Clearly, all of the parties and the district court thought that the extension was necessary. It wasn’t! Plaintiff’s appeal was…

  • Appellate Procedure,  Attorney Fees,  Federal Procedure,  Preemption,  Waiver of Issues

    California Attorney Fee Recovery Preempted by ADA – and a Note on Missed Issues

    It’s quite common for plaintiffs to sue under similar state and federal provisions.  The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no. 06-56870 (9th Cir. June 27, 2008) did themselves a favor by doing so, as the court finds that the prevailing defendant’s right to attorney fees under the CDPA is preempted by the more stringent fee provision in the ADA. The ADA fee provision makes fees discretionary, but that has led to a practice of awarding fees to defendants only where the plaintiff’s case is frivolous.  The CDPA, on the other hand,…

  • Appellate Jurisdiction,  Appellate Procedure,  Bankruptcy,  Federal Procedure

    Order Removing Trustee in Ongoing Bankruptcy Proceeding is Appealable

    As my first substantive post on this blog pointed out, determining whether a bankruptcy order is appealable can be tricky.  28 U.S.C. § 158(d) gives the Courts of Appeals jurisdiction over appeals from “final decisions, judgments, orders, and decrees entered” either by the district courts or the Bankruptcy Appellate Panel. In In re AFI Holding, Inc., case no. 06-56621 (9th Cir. June 17, 2008), the Ninth faces for the first time the issue of whether an order removing a trustee in an ongoing bankruptcy case is appealable, and, joining several other circuits, concludes that it is because it conclusively resolves a “discrete issue”: Although the bankruptcy proceedings may continue, and here, in fact they…

  • Appellate Jurisdiction,  Appellate Procedure,  Criminal Procedure,  Federal Procedure,  Plea Bargains,  Sentencing,  Waiver of Issues

    Waiver of Appeal Rights in Plea Agreements

    Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v. Cope, case no. 06-50441 (9th Cir. June 4, 2008). Cope pled guilty to a single count of possession of child pornography and was sentenced to 120 months imprisonment and lifetime supervised release. His plea agreement stated that he waived appeal of his sentence so long as it met three criteria. On appeal, he challenged the length of his…

  • Federal Procedure,  Habeas Corpus,  Writ Practice

    Successive or Amended Habeas Petition?

    Sometimes, it’s nice to be pro se. I’m not sure the pro se habeas petitioner in Woods v. Carey, case no. 05-55302 (May 13, 2008) would have received the same relief if represented by counsel when he filed a second habeas petition under 28 U.S.C. § 2254 while his first was pending in the district court. Both petitions asserted deprivation of rights in connection with his parole eligibility and procedures, and the district court dismissed the second petition as an impermissible “successive” petition. The court of appeals reverses with instructions to contstrue the later petition as a motion for leave to amend the original petition. The Ninth first lays out…

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure,  Sentencing

    Ninth Circuit Amends Garcia on Appellate Jurisdiction

    According to Ninth Circuit Blog, the Ninth Circuit “came to its jurisdictional senses” with its amended opinion in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007, amended Apr. 17, 2008). While I might have said that a little more gently, I agree with the sentiment. I covered the relevant holding regarding appellate jurisdiction in my original coverage: 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…

  • Appellate Procedure,  Federal Procedure,  Waiver of Issues

    Preserve Your Sentencing Objections

    In United States v. Grissom, case no. 06-10688 (9th Cir. Apr. 15, 2008), the Ninth Circuit reviews what it calls “novel circumstances” and looks beyond the form of a sentencing objection to determine whether the government had preserved the issue for appeal. Whether you view the analysis as a more lenient test or simply the application of the old test in new circumstances, it seems likely to lead to more sentencing appeals. Grissom pled guilty to one drug distribution count involving 49 grams of cocaine base in exchange for dismissal of the remaining two counts, which involved a total of 56 grams of cocaine base. The government contended that the trial court erred…

  • Federal Procedure,  Ninth Circuit,  Rehearing

    En Bancs on the Upswing under Chief Judge Kozinski

    Image from Wikipedia In yesterday’s Daily Journal, Staff Reporter John Roemer has a front-page article about an apparent surge in en banc rehearings granted by the Ninth Circuit since Alex Kozinski became Chief Judge. (Full disclosure: yours truly is quoted in the article.) Are the two phenomena related? Not according to Judge Kozinski, whom the article quotes: “I’ve always been more en banc friendly than many of my colleagues,” he wrote in the e-mail. “But I frankly doubt that my being chief judge will have any effect on the process. I’ve had my share of successes as well as failures when calling for en banc review. “There are not –…

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure

    Appealing from an Order of Dismissal

    An order dismissing a complaint is not a “final decision,” so such an order is generally not appealable under 28 USC § 1291. A dismissal order may be appealable, however, when it appears that the district court intended the order to dispose of the action. What to make of the district court’s intent when its order dismissing a complaint does not specify whether or not leave to amend is granted? In Mendiondo v. Centinela Hospital, case no. 06-55981 (9th Cir. Apr. 1, 2008), the Ninth Circuit notes that failure to address amendment means that the court denied leave to amend. Accordingly, it infers that the district court intended the order…

  • Appellate Procedure,  Federal Procedure,  Rehearing

    Almost En Banc

    There’s a very unusual course of events leading up to the innocuous order dismissing the appeal in Foulon v. Klayman & Toskes, case no. 05-35383 (9th Cir. Mar. 24, 2008). For details on this strange tale of the unrequested en banc hearing that almost was (yes, you read that right), check out California Appellate Report, where Professor Martin calls what happened “sufficiently rare that it took me quite a while to figure out even what happened.” Then see why Appellate Law & Practice refers to at least one step in the procedure as “judicial activism.”

  • Constitutional Law,  Judgment,  Jury Trial,  Summary Judgment,  Summary Judgment

    Is Summary Judgment Unconstitutional?

    That’s surely a heretical thought to many. And not one that would have popped into my head had reader Joe Norman not commented on my post regarding new trial motions following summary judgment by sending a link to an article by University of Cincinnati College of Law professor Suja Thomas entitled “Why Summary Judgment is Unconstitutional.” Before you laugh off that idea, you ought to read the abstract at that link. An excerpt: While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is…

  • California Procedure,  New Trials,  Summary Judgment,  Summary Judgment

    New Trial Motions after Summary Judgment

    Can you move for a new trial when your case was disposed of by summary judgment?  This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new trial when there was no trial? But the answer is “yes.” A reminder comes in the form of Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008).  After United successfully moved for summary judgment, Doe moved for a new trial on the ground of “newly discovered evidence” that purportedly raised a triable issue of fact precluding summary judgment. Not that it ultimately did her any good.  The court of appeal holds that the trial court abused its…

  • Appellate Procedure,  Federal Procedure,  Remittitur/Mandate

    Scope of Remand Limits District Court Authority

    In United States v. Davis, case no. 06-10527 (9th Cir. Mar. 19, 2008), we have a case where the district court either didn’t realize its limitations or just didn’t read the mandate right.  Whatever the cause, this case provides a succinct and to-the-point reminder of the point made in the title of this post. The Ninth originally remanded with instructions to strike a conviction and sentence on count four and for the court to determine if it would have imposed the same sentence if it had known that the sentencing guidelines were advisory rather than mandatory.  The district court struck the conviction and sentence on count four, declared it would…

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure,  Writ Practice

    Surprised by Jurisdiction

    It’s hard not to be a pessimist when filing a petition for writ of mandate.  Getting past a summary denial is always tough.  But it’s pretty easy In re Copley Press, case no. 07-72143 (9th Cir. Mar. 4, 2008), where the Ninth holds that it has appellate jurisdiction to review the order.  Thus, the court converts the writ proceedings into an appeal, then decides it on the merits. The order at issue is an order unsealing documents related to a plea agreement.  The order rather obviously meets both criteria for review under the collateral order doctrine because it “conclusively decides an issue” and “it is effectively unreviewable on appeal from…

  • Federal Procedure,  Legal Technology

    E-Filing in C.D. Cal Made Easy?

    As southern California federal practitioners know, e-filing became mandatory this year for nearly all civil cases in the Central District of California. Now comes a handy bit of information via Kimberly Kralowec at The UCL Practitioner, where she posts: “Attorney Martin W. Anderson has made our lives easier by creating ‘The Unofficial E-Filing Manual for the United States District Court, Central District of California,” available for free download at his site.'” For links to the guide and to the Daily Journal article from which Kimberly learned about it, see her post.

  • Appellate Procedure,  Damages,  Decision on Appeal,  Federal Procedure,  Judgment,  Remittitur/Mandate

    A “Cautionary Tale” on Post-Judgment Interest when Court of Appeals Directs Entry of Money Judgment

    It’s always frustrating when you have to litigate over issues stemming from a court’s failure to do something that it should have done or even was required to do. Just ask the Oakland Raiders, who saw their new trial order reversed because the trial judge’s order did not satisfy the Code of Civil Procedure. The issue also arises in California courts where the trial court fails to rule on objections to evidence in the context of a summary judgment motion. The consequences of such failure have been discussed on a number of blogs recently, and The Appellate Practitioner has an excellent post regarding the Supreme Court’s recent grant of review…

  • Appellate Jurisdiction,  Federal Procedure,  Standard of Review

    More on Appealable Denials of Summary Judgment

    Wow, who’d have thought two cases in two days involving interlocutory appeals from denial of summary judgment premised on qualified immunity grounds?  Bingue v. Prunchak, case no. 05-16388 (9th Cir. Jan. 15, 2008) actually came out a day earlier than the case in my immediately prior post, but I’m catching up in reverse chronological order, so I saw it second. Anyway, in my first post on the topic, I reminded you that one exception to the general rule against interlocutory appeals is that an order denying summary judgment sought on qualified immunity grounds may be appealed. In Bingue, the plaintiff complained that the court could not review the denial of…

  • Appellate Jurisdiction,  Federal Procedure

    Appeal from a Denial of Summary Judgment?

    Can’t do it, right? Petition for a writ of mandate, instead. Right? Not so fast, as we are reminded by today’s decision in KRL v. Aquaro, case no. 06-16282 (9th Cir. Jan. 16, 2008). The case is an appeal from the denial of summary judgment that was sought on qualified immunity grounds, and the court notes that interlocutory appeal is allowed in such cases. The rule dates back to Mitchell v. Forsyth, 472 U.S. 511 (1985), which applied as its starting point the general rule that a decision of a district court is appealable if it falls within “that small class which finally determine claims of right separable from, and…

  • Appellate Jurisdiction,  Appellate Procedure,  Federal Procedure

    Mootness with a Local Angle

    Feldman v. Bomar, case no. 06-55675 (9th Cir. Jan. 10, 2008) caught my eye because of its local angle (full disclosure: I may also know one of the appellants; I know a fellow Boat School-er named Bob Puddicombe, but I have no idea if it’s the same guy). The case involves a challenge to an environmental action regarding Santa Cruz Island, one of the five islands in the Channel Islands chain just off our coast here in Ventura (links to sites about the Channel Islands National Park, one of the appellees, are here, here and here; the link to Santa Cruz Island is from one of these sites). As luck…

  • Appeals,  Appellate Procedure,  Federal Procedure,  Waiver of Issues

    Chutzpah on Appeal

    “Chutzpah” is about the most polite word I could come up with for the appellant’s audacity in United States v. Moreland,  case no. 05-30541 (9th Cir., Dec. 13, 2007). Moreland apparently swindled people out of $73 million, so I’m going to assume he had a little bit of money, legitimately earned, set aside for his defense.  Yet he fought tooth and nail to proceed pro se, which is where all his problems started. The decision is covered very well, and in some detail, in this post at Decision of the Day, which begins: In my line of work, I see all kinds of appellate arguments: brilliantly creative, colossally stupid, and…

  • Federal Procedure,  Jurisdiction,  Waiver of Issues

    Process Serving Gamesmanship

    It sometimes surprises me that in this information age, we are still required to make personal service of sumons. But, absent special circumstances, we are.  Even when the defendant is overseas. Which was the situation in SEC v. Shaw, case no. 06-15204 (9th Cir. Dec. 11, 2007). The SEC had summons personally served on Shaw in England. Shaw defaulted, then waited more than three years to move to set aside the default judgment on the ground of lack of personal jurisdiction. The Ninth holds that a defendant with actual notice of the proceedings, as Shaw had, bears the burden of proving he was not served with summons. Shaw can’t make…

  • Copyright,  Federal Procedure,  Internet Law

    Cyber Law Update

    Professor Eric Goldman has a post up at his Technology & Marketing Law Blog with an important update on Perfect 10 v. Amazon.com, which I blogged about last May.  Specifically, the Ninth Circuit issued an amended opinion Monday that reverses itself on the issue of which party has the burden of proof on a fair use defense in a copyright preliminary injunction context.  As Professor Goldman sums up: In the original Ninth Circuit Perfect 10 v. Amazon ruling, the court put the burden on the plaintiff to disprove fair use as part of its PI obligations. Now, in an amended opinion, the Ninth Circuit has put the burden on the…

  • Federal Courts,  Federal Procedure

    “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.

  • Appellate Procedure,  Articles by Greg May,  Confrontation Clause,  Constitutional Law,  Criminal Procedure,  Federal Procedure,  Standard of Review

    “Confronting Confrontation”

    That’s the title given by the Los Angeles Daily Journal to my article, which it published in its November 19, 2007 issue, regarding U.S. v. Larson, the en banc Ninth Circuit’s confusing “resolution” of the perceived split of authority on the standard of review in Confrontation Clause challenges based on limitations on cross-examination. The article (PDF link) grew out of this blog post giving my initial impressions about the case on the day it was published. I followed up that post with another providing links to some other blog coverage of the case.

  • Appellate Procedure,  Civil Rights,  Federal Procedure

    Sufficient Merit to Proceed

    When does an appeal or petition have “sufficient merit to proceed” so that a vexatious litigant subject to a pre-filing review order can move forward with it without counsel and without a certification of good faith from the district court? The Ninth realizes in In re Keith Thomas, case no. 01-80091 (9th Cir. Nov. 29, 2007) that it has never quite made it clear: Because our decisions pursuant to a pre-filing review order are rarely published, we have not yet clarified the standard for determining whether an appeal or petition has sufficient merit to proceed. We take the opportunity to do so now. The court examines standards in cases of…

  • Appellate Procedure,  Briefing,  Federal Procedure,  Sanctions

    Follow the Rules – A Lesson from the Ninth

    Today’s decision in Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) is a reminder that the dismissal sanction is lurking out there for any parties to an appeal that fail to follow the rules. The Ninth finds the appellant’s opening brief so deficient that it is “compelled to strike it in its entirety and dismiss the appeal.” The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all. The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to…

  • Federal Procedure,  Habeas Corpus,  Writ Practice

    Looking for Help re Anonymous Habeas Case

    Howard Bashman at How Appealing is looking for an explanation why the habeas petitioner in yesterday’s Doe v. Woodford, case no. 06-16054 (9th Cir. Nov. 27, 2007) opinion was kept anonymous despite the facts that (1) it appears to be a substitute opinion for an earlier opinion under the same case number, in which the petitioner was identified and (2) the PACER records for the case continue to identify the petitioner by name.  The opinion itself is silent on the reason for anonymity. Anyway, Bashman would appreciate it if you can e-mail him with any information that may help explain the anonymity of the habeas petitioner in yesterday’s opinion.