Monthly Archives: December 2023

Eighth Circuit Holds That Hospital’s Creation of Online Patient Portal Did Not Bring State-Law Privacy Claim Within the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1)

In Doe v. BJC Health Sys., No. 23-1107 (8th Cir. Dec. 28, 2023), the Eighth Circuit – rejecting the persuasive authority of two district court opinions – holds that a hospital’s adoption of a online patient portal under the 2009 Health Information Technology for Economic and Clinical Health (HITECH) Act did not bring a state-lawContinue reading “Eighth Circuit Holds That Hospital’s Creation of Online Patient Portal Did Not Bring State-Law Privacy Claim Within the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1)”

Second Circuit Adds to Split About Whether There is Appellate Jurisdiction Over Qualified Immunity Orders That Are Not Decided on the Merits

In Maye v. City of New Haven, No. 23-459 (2d Cir. Dec. 26, 2023), The Second Circuit joins the Fifth Circuit in holding that there is no appellate jurisdiction over the denial of summary judgment on a qualified immunity defense that is denied for reasons extrinsic to the merits. The First and Eleventh Circuits haveContinue reading “Second Circuit Adds to Split About Whether There is Appellate Jurisdiction Over Qualified Immunity Orders That Are Not Decided on the Merits”

After the Parties Settle All Claims, An Appeal From the Final Judgment Is Moot, Holds Eighth Circuit

In Folta v. Norfork Brewing Co., No. 22-3518 (8th Cir. Dec. 22, 2023), the Eighth Circuit dismisses an appeal from a case where all the claims settled, despite the defendant’s argument that it reserved the right to appeal in the settlement. “Norfork operates a small brewery in Arkansas. Folta was employed there from approximately MayContinue reading “After the Parties Settle All Claims, An Appeal From the Final Judgment Is Moot, Holds Eighth Circuit”

Split Ninth Circuit Panel Holds That It Is an Abuse of Discretion to Deny Voluntary Dismissal Without Prejudice Under Fed. R. Civ. P. 41(a)(2) Unless the Defendant Can Prove Legal Prejudice

In Kamal v. Eden Creamery, LLC, No. 21-56260 (9th Cir. Dec. 21, 2023), the panel holds that voluntary dismissal must, as a matter of course, be granted without prejudice under Fed. R. Civ. P. 41(a)(2) unless the defendant can establish that it would suffer legal prejudice, meaning “prejudice to some legal interest, some legal claim,Continue reading “Split Ninth Circuit Panel Holds That It Is an Abuse of Discretion to Deny Voluntary Dismissal Without Prejudice Under Fed. R. Civ. P. 41(a)(2) Unless the Defendant Can Prove Legal Prejudice”

Unanimous En Banc Second Circuit Holds That Female High-School Athletes Have Article III Standing to Challenge Inclusion of Transgender Girls in Competition Under Title IX, But Fracture Over How Such a Claim May Be Redressable

In Soule ex rel. Stanescu v. Connecticut Assoc. of Schools, Inc., No. 21-1365 (2d Cir. Dec. 15, 2023) (en banc), a rare full-court opinion by the Second Circuit, fifteen judges (thirteen active and two senior) concur that there is Article III standing for four female high-school athletes who alleged they are aggrieved by competition withContinue reading “Unanimous En Banc Second Circuit Holds That Female High-School Athletes Have Article III Standing to Challenge Inclusion of Transgender Girls in Competition Under Title IX, But Fracture Over How Such a Claim May Be Redressable”

Claim of Absolute Presidential Immunity Is Non-Jurisdictional and Waivable, Holds Second Circuit

In Carroll v. Trump, No. 23-1045(L) (2d Cir. Dec. 13, 2023), the Second Circuit holds, in “a vexing question of first impression,” that absolute presidential immunity from suit is not jurisdictional, and – in this case – was waived when the former president failed to allege it as an affirmative defense in his answer. InContinue reading “Claim of Absolute Presidential Immunity Is Non-Jurisdictional and Waivable, Holds Second Circuit”

Lack of “Adversity” Between Litigants Over a Constitutional Question Deprives Court of Article III Case or Controversy, Holds Fifth Circuit

In Pool v. City of Houston, No. 22-2049 (5th Cir. Dec. 11, 2023), the Fifth Circuit dismisses a four-year-old First Amendment case for lack of subject-matter jurisdiction, where the court determines that “all parties have agreed from the beginning . . . that Houston’s [challenged] voter registration provisions governing circulators” are unconstitutional, and thus theContinue reading “Lack of “Adversity” Between Litigants Over a Constitutional Question Deprives Court of Article III Case or Controversy, Holds Fifth Circuit”

Split Second Circuit Panel Holds That Curing a Pleading Deficiency Is Not “Mistake, Inadvertence, Surprise, Or Excusable Neglect” Under Fed. R. Civ. P. 60(b)(1), But the Catchall Rule 60(b)(6) Can Apply

In Mandala v. NTT Data, Inc., No. 22-4 (2d Cir. Dec. 8, 2023), a 2-1 panel holds that the district court erred as a matter of law in applying Rule 60(b)(1) for post-judgment relief to a plaintiff’s motion seeking to reopen a case to correct a pleading deficiency, and abused its discretion by not applyingContinue reading “Split Second Circuit Panel Holds That Curing a Pleading Deficiency Is Not “Mistake, Inadvertence, Surprise, Or Excusable Neglect” Under Fed. R. Civ. P. 60(b)(1), But the Catchall Rule 60(b)(6) Can Apply”