In Workman v. United States Postal Service, No. 24-2033 (10th Cir. Jan. 28, 2025), the Tenth Circuit addresses matters of first impression in the circuit under Fed. R. Civ. P. 27, affirming the district court’s denial of leave for a party to take pre-suit depositions. It holds that (1) Rule 27 does not authorize theContinue reading “Tenth Circuit Holds That Fed. R. Civ. P. 27 Depositions Are Only to Perpetuate Testimony, Not to Conduct a Pre-Filing Investigation”
Monthly Archives: January 2025
Fourth Circuit Provides Guidance on the Division of Bench and Jury Duties in an Eminent Domain Proceeding under Fed. R. Civ. P. 71.1(h), Noting a Split with the First Circuit
In Mountain Valley Pipeline, LLC v. 9.89 Acres of Land, No. 23-2129 (4th Cir. Jan. 27, 2025), the Fourth Circuit addresses an issue of apparent first impression about the division of bench and jury duties under Fed. R. Civ. P. 71.1(h), governing federal eminent domain proceedings. On the admissibility of expert testimony, the panel issuesContinue reading “Fourth Circuit Provides Guidance on the Division of Bench and Jury Duties in an Eminent Domain Proceeding under Fed. R. Civ. P. 71.1(h), Noting a Split with the First Circuit”
City’s Unexplained Failure to Name State as a Party Prevents Remand of Removed Case to State Court Under 28 U.S.C. § 1447, Holds Fifth Circuit
In New Orleans City v. Aspect Energy, LLC, No. 24-30199 (5th Cir. Jan. 23, 2025), the Fifth Circuit holds that the unexplained failure of the City of New Orleans to add the State of Louisiana as a party to its complaint meant that the federal court had diversity jurisdiction over the removed case. “Appellant, NewContinue reading “City’s Unexplained Failure to Name State as a Party Prevents Remand of Removed Case to State Court Under 28 U.S.C. § 1447, Holds Fifth Circuit”
Time to Remove Under 28 U.S.C. § 1446(b) Triggered by Date Acknowledged by the Parties on the Waiver of Service Rather Than When the Waiver Is Signed or Filed in Court, Holds Split Eighth Circuit Panel
In Monsanto Co. v. General Electric Co., No. 24-1230 (8th Cir. Jan. 22, 2025), an Eighth Circuit panel splits over when the 30 days begin to run for a removal petition to federal court under 28 U.S.C. § 1446(b) when the parties use a waiver-of-service procedure. The panel majority holds that the time runs fromContinue reading “Time to Remove Under 28 U.S.C. § 1446(b) Triggered by Date Acknowledged by the Parties on the Waiver of Service Rather Than When the Waiver Is Signed or Filed in Court, Holds Split Eighth Circuit Panel”
Attachment or Reference to an Exhibit in a Complaint Does Not Automatically Mean That a District Court May Consider It on a Rule 12(b)(6) Motion, Holds Second Circuit
In Pearson v. Gesner, No. 22-1227 (2d Cir. Jan. 13, 2025), the Second Circuit vacates and remands case where the district court erroneously considered materials outside the complaint. Even where a document is relied upon or cited in a complaint, the panel holds, it may not be appropriate in context to consider its contents. PlaintiffContinue reading “Attachment or Reference to an Exhibit in a Complaint Does Not Automatically Mean That a District Court May Consider It on a Rule 12(b)(6) Motion, Holds Second Circuit”
“Boilerplate” Prayer in Complaint for “Just and Proper” Relief Did Not Rescue a Declaratory Judgment Action from Mootness, Holds the Eleventh Circuit
In Warren v. DeSantis, No. 23-10459 (11th Cir. Jan. 10, 2025) (per curiam), the Eleventh Circuit dismisses on mootness grounds a declaratory action by a Florida officeholder seeking to be reinstated as a state attorney, because plaintiff’s term of office expired during the pendency of the case. It rejects plaintiff’s argument that a prayer forContinue reading ““Boilerplate” Prayer in Complaint for “Just and Proper” Relief Did Not Rescue a Declaratory Judgment Action from Mootness, Holds the Eleventh Circuit”
Federal Agencies Do Not Have An “Unfettered Right to Litigate in Federal Court” Under 28 U.S.C. § 1442, Holds Seventh Circuit
In Thompson v. Army and Air Force Exchange Service, No. 23-2447 (7th Cir. Jan. 8, 2025), the Seventh Circuit holds that a federal agency that removes an action from state court under 28 U.S.C. § 1442 is not entitled to dismissal in federal court on a finding that the federal court lacks subject-matter jurisdiction, andContinue reading “Federal Agencies Do Not Have An “Unfettered Right to Litigate in Federal Court” Under 28 U.S.C. § 1442, Holds Seventh Circuit”
Split Fifth Circuit Panel Holds That Damages Order Should Not Have Been Certified for Interlocutory Appeal Under § 1292(b), Dismissing Case for Lack of Jurisdiction
In Silverthorne v. Sterling Seismic Services, Ltd., No. 24-20006 (5th Cir. Jan. 3, 2025), a Fifth Circuit panel divides over whether the court should have accepted a 28 U.S.C. § 1292(b) interlocutory appeal from a certified order about a jury instruction addressing damages. Section § 1292(b) allows a district court to certify an order forContinue reading “Split Fifth Circuit Panel Holds That Damages Order Should Not Have Been Certified for Interlocutory Appeal Under § 1292(b), Dismissing Case for Lack of Jurisdiction”
Parties’ Mutual Mistake about Legal Basis of Restitutionary Remedy Did Not Overcome Express Waiver of Seventh Amendment Jury Right, Holds Ninth Circuit
In Consumer Financial Protection Bureau v. CashCall, Inc., No. 23-55259 (9th Cir. Jan. 3, 2025), the Ninth Circuit holds the defendant to its express waiver of a Seventh Amendment jury right, affirming an award of more than $134 million in legal restitution against it. The panel declines to excuse the jury waiver on the groundContinue reading “Parties’ Mutual Mistake about Legal Basis of Restitutionary Remedy Did Not Overcome Express Waiver of Seventh Amendment Jury Right, Holds Ninth Circuit”
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