In United States v. Holmes, No. 22-10312 (9th Cir. Feb. 24, 2025), the Theranos/Elizabeth Holmes fraud prosecution, the Ninth Circuit affirms the convictions and sentences. It acknowledges the defense argument that a former Theranos scientist should not have been allowed to offer Fed. R. Evid. 702 expert testimony as an occurrence witness, without being qualified,Continue reading “There Is No “On-The-Job” Exception to Expert Witness Qualification Under Fed. R. Evid. 702, Holds the Ninth Circuit”
Monthly Archives: February 2025
Concurring Judge Suggests That Seventh Circuit Reconsider De Novo Review of Orders Denying Arbitration
In Al-Nahhas v 777 Partners LLC, No. 23-2723 (7th Cir. Feb. 19, 2025), the Seventh Circuit affirms a district court order denying arbitration on account of waiver. One concurring judge, though, suggests that the de novo standard of review of such orders – the law of the circuit for over three decades – may beContinue reading “Concurring Judge Suggests That Seventh Circuit Reconsider De Novo Review of Orders Denying Arbitration”
Eleventh Circuit Splits with Fifth in Holding That Non-Party Removal of a Case to Federal Court Is a Waivable Procedural Defect Subject to the 30-Day Limit Under § 1447(c)
In Wilson v. Hearos, LLC, No. 23-12550 (11th Cir. Feb. 18, 2025), the Eleventh Circuit holds that a plaintiff who failed to challenge a non-party’s removal of an action to federal court under the general removal statute, 28 U.S.C. § 1441(a), within the 30 days provided by 28 U.S.C. § 1447(c) waived his objection. TheContinue reading “Eleventh Circuit Splits with Fifth in Holding That Non-Party Removal of a Case to Federal Court Is a Waivable Procedural Defect Subject to the 30-Day Limit Under § 1447(c)”
Is There a Standard of Judicial Review Lower Than “Arbitrary and Capricious”? Yes, Holds the Fourth Circuit
In Dorado-Ocasio v. Averill, No. 24-1360 (4th Cir. Feb. 13, 2025), the Fourth Circuit holds that for review of an administrative action by an agency of the uniformed armed services, judicial review is merely for “a discernible path for its determination.” Plaintiff Dorado-Ocasio is a captain in the United States Army. She challenged an adverseContinue reading “Is There a Standard of Judicial Review Lower Than “Arbitrary and Capricious”? Yes, Holds the Fourth Circuit”
Second Circuit Clarifies Standards for Entry of Sanctions Under Fed. R. Civ. P. 37(e)(2), Noting a Possible Conflict with the Fifth Circuit
In Hoffer v. Tellone, No. 22-1377 (2d Cir. Feb. 13, 2025), the Second Circuit disaffirms the use of a “culpable state of mind” standard to impose discovery sanctions under Fed. R. Civ. P. 37(e)(2), requiring a specific “intent to deprive” standard, though it also reduces the burden of proof to preponderance of the evidence. TheContinue reading “Second Circuit Clarifies Standards for Entry of Sanctions Under Fed. R. Civ. P. 37(e)(2), Noting a Possible Conflict with the Fifth Circuit”
Fourth Circuit Panel Holds 2-1 That Defendants Won the Race to the Courthouse Under 28 U.S.C. § 1447, Filing a Notice of Appeal That Stayed the District Court’s Authority to Remand a Removed Case Back to State Court
In City of Martinsville, Va. v. Express Scripts, Inc., No. 24-1912 (4th Cir. Feb. 10, 2025), a 2-1 panel holds that because the defendant filed its appeal before the district court physically mailed a remand order to state court under 28 U.S.C. § 1447, the order had no legal effect. The panel judges differ overContinue reading “Fourth Circuit Panel Holds 2-1 That Defendants Won the Race to the Courthouse Under 28 U.S.C. § 1447, Filing a Notice of Appeal That Stayed the District Court’s Authority to Remand a Removed Case Back to State Court”
En Banc Eighth Circuit Realigns Itself with Other Courts of Appeals, Overrules “Clear Statement” Pleading Rule for Official Capacity § 1983 Complaints
The en banc Eighth Circuit in S.A.A. v. Geisler, No. 23-3119 (8th Cir. Feb. 7, 2025), holds (9-2) that a plaintiff need not expressly allege in a 42 U.S.C. § 1983 complaint whether they are suing a named defendant in their individual capacity (the “clear statement rule”). The circuit adopts the “course of proceedings test”Continue reading “En Banc Eighth Circuit Realigns Itself with Other Courts of Appeals, Overrules “Clear Statement” Pleading Rule for Official Capacity § 1983 Complaints”
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