In Graber v. Boresky, No. 21-1407 (3d Cir. Feb. 10, 2023), a 2-1 panel holds that there is no automatic interlocutory appeal under the collateral order doctrine of a district court decision on a Fed. R. Civ. P. 12(b)(6) motion that there is a cause of action under Bivens v. Six Unknown Agents of FederalContinue reading “Third Circuit Panel Divides Over Whether a Federal Agent Can Take an Interlocutory Appeal Under the Collateral Order Doctrine of an Order Denying Dismissal of a Bivens Cause of Action”
Author Archives: pwmollica1961
Eighth Circuit Holds That Non-Conclusory Allegations “On Information And Belief” May Be Considered Among the Well-Pleaded Allegations of a Civil Complaint Under Twombly
In Ahern Rentals, Inc. v. EquipmentShare.com, Inc., No. 22-1399 (8th Cir. Feb. 7, 2023), the Eight Circuit joins other circuits in holding that “allegations pled on information and belief are not categorically insufficient to state a claim for relief where the proof supporting the allegation is within the sole possession and control of the defendantContinue reading “Eighth Circuit Holds That Non-Conclusory Allegations “On Information And Belief” May Be Considered Among the Well-Pleaded Allegations of a Civil Complaint Under Twombly”
Eleventh Circuit Splits with Second and Holds That Contempt Order Without Sanctions Is Not An Appealable Final Order
Declaring a split with the Second Circuit, the Eleventh Circuit in In re Grand Jury Subpoena, FGJ-21-01-MIA, No. 21-13651 (11th Cir Jan. 31, 2023) holds that when a district court holds a party in civil contempt for failing to comply with a subpoena but enters no sanctions, the order is not an appealable final order.Continue reading “Eleventh Circuit Splits with Second and Holds That Contempt Order Without Sanctions Is Not An Appealable Final Order”
Seventh Circuit Maneuvers a Jurisdictional Puzzle Box About Whether a Chinese Defendant May Be a Partnership, Corporation, or Foreign State for Diversity Purposes
In Yancheng Shanda Yuanfeng Equity Investment Partner v. Wan, No. 22-1199 (7th Cir. Jan. 31, 2023), the Seventh Circuit hits a jurisdictional snag with how to determine the citizenship of a “hybrid” entity with characteristics of a partnership, a corporation, and a foreign state, each of which commands different treatment under the diversity jurisdiction statute,Continue reading “Seventh Circuit Maneuvers a Jurisdictional Puzzle Box About Whether a Chinese Defendant May Be a Partnership, Corporation, or Foreign State for Diversity Purposes”
Second Circuit Vacates Conviction Because the District Court Did Not Permit Adequate Inquiry Into Juror Anti-Gang Bias
In United States v. Nieves, No. 21-1901 (2d Cir. Jan. 26, 2023), the Second Circuit took the rare step of tossing a criminal conviction because “the district court abused its discretion by failing to take any of several possible steps that could have effectively screened prospective jurors for [anti-gang] bias.” Defendant Nieves was charged withContinue reading “Second Circuit Vacates Conviction Because the District Court Did Not Permit Adequate Inquiry Into Juror Anti-Gang Bias”
Plaintiff Should Not Have Rested on Complaint Allegations to Establish Amount in Controversy in Diversity Case, Holds First Circuit
In Andersen v. Vagaro, Inc., No. 22-1471 (1st Cir. Jan. 3, 2022), The First Circuit affirms dismissal for lack of subject matter jurisdiction where the plaintiff, though duly warned, failed to allege facts or present evidence to support that amount in controversy exceeded $75,000 was required by 28 U.S.C. § 1332(a). “Andersen owned and operatedContinue reading “Plaintiff Should Not Have Rested on Complaint Allegations to Establish Amount in Controversy in Diversity Case, Holds First Circuit”
Split Second Circuit Panel Debates Judicial Deference to Prosecutorial Discretion to Dismiss a Prosecution That Has Already Been Tried to Verdict
In United States v. v. Blaszczak, No. 18-2811 (2d Cir. Dec. 28, 2022), the panelists disagree about whether a federal court owes deference to the Justice Department’s decision to abandon prosecution on a claim at the appeal stage. “This appeal returns to us on remand from the United States Supreme Court for further consideration, inContinue reading “Split Second Circuit Panel Debates Judicial Deference to Prosecutorial Discretion to Dismiss a Prosecution That Has Already Been Tried to Verdict”
Once District Court Enters Remand Order Under 28 U.S.C. § 1447(c), It Cannot Revisit That Decision Under Fed. R. Civ. P. 59, Holds Eighth Circuit
In Stone v. J&M Securities, LLC, No. 21-3422 (8th Cir. Dec. 19, 2022), the Eighth Circuit vacates an amended judgment entered in response to a motion for reconsideration under Fed. R. Civ. P 59(e). The panel holds that the order dismissing the plaintiffs’ state-law claims on the merits, though erroneous, could not be corrected post-judgmentContinue reading “Once District Court Enters Remand Order Under 28 U.S.C. § 1447(c), It Cannot Revisit That Decision Under Fed. R. Civ. P. 59, Holds Eighth Circuit”
New Jersey District Court Scores TKO in Epic Fight with Fifth Circuit Over Venue of Gun-Rights Case
In a gun-rights case that’s generated a succession of Fifth Circuit decisions (see blog entries of August 20, 2020, April 2, 2022, and September 19, 2022), the Fifth Circuit finally throws in the towel with a decision holding that it lacks jurisdiction, owing to the failure of a transferee court to return a case toContinue reading “New Jersey District Court Scores TKO in Epic Fight with Fifth Circuit Over Venue of Gun-Rights Case”
Surviving Family Members Who Do Not Represent a Decedent Party’s Estate Need Not Be Served with A Suggestion of Death Under Fed. R. Civ. P. 25(a), Eleventh Circuit Holds
In Silas v. Sheriff of Broward Cnty., Fla., No. 21-13946 (11th Cir. Dec. 14, 2022), the Eleventh Circuit holds that a defendant’s survivors who do not formally represent the decedent’s estate are not “nonparties” for purposes of Fed. R. Civ. P. 25(a)(3), and thus suggestion of death need not be served on them to triggerContinue reading “Surviving Family Members Who Do Not Represent a Decedent Party’s Estate Need Not Be Served with A Suggestion of Death Under Fed. R. Civ. P. 25(a), Eleventh Circuit Holds”
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