Author Archives: pwmollica1961

Corporation Counsel of the City of New York Draws A Rebuke from the Second Circuit for Waiting Two Years to Raise Jurisdictional Standing Issue

In Bochner v. City of New York, No. 23-683 (2d Cir. Oct. 7, 2024), while adopting the city defendants’ argument that the plaintiffs lacked jurisdictional standing, the Second Circuit twits the city’s corporation counsel for waiting two years to raise the issue and—for “failure to exercise reasonable diligence in identifying and raising jurisdictional questions earlyContinue reading “Corporation Counsel of the City of New York Draws A Rebuke from the Second Circuit for Waiting Two Years to Raise Jurisdictional Standing Issue”

Document Created 19 Days Before Trial Was Not A “Business Record” For Purposes of Hearsay Exception Fed. R. Evid. 803(6), Holds Tenth Circuit

In United States v. Harper, No. 23-5091 (10th Cir. Oct. 3, 2024), the Tenth Circuit reverses the kidnapping conviction where the only record of an essential jurisdictional element was a verification letter generated shortly before trial that the panel holds cannot thereby stand as a business record under Fed. R. Evid. 803(6). The defendant wasContinue reading “Document Created 19 Days Before Trial Was Not A “Business Record” For Purposes of Hearsay Exception Fed. R. Evid. 803(6), Holds Tenth Circuit”

Removal of Case from State to Federal Court Does Not Affect Application of First-Filed Rule, Split Eighth Circuit Panel Holds

In Beber v. NavSav Holdings, LLC, No. 23-2965 (8th Cir. Oct. 1, 2024), a 2-1 panel holds, in dueling lawsuits over noncompete and nonsolicitation covenants, that a first-filed case commenced in Nebraska state court remained first-filed even when removed to federal district court. Judge Kelly dissents in part. On June 16, 2023, employees Beber, Roach,Continue reading “Removal of Case from State to Federal Court Does Not Affect Application of First-Filed Rule, Split Eighth Circuit Panel Holds”

State of Texas Has No Seventh Amendment Right to a Jury Trial for Border Barrier Defense, Holds Fifth Circuit

In In re Greg Abbott, No. 24-50620 (5th Cir. Sept. 20, 2024), the Fifth Circuit denies mandamus in a case where Texas unsuccessfully demanded for a jury trial in a suit by the United States to remove a 1000-foot border obstruction. The panel holds that the state has no demonstrated Seventh Amendment right to aContinue reading “State of Texas Has No Seventh Amendment Right to a Jury Trial for Border Barrier Defense, Holds Fifth Circuit”

Federal Judge Who Spoke Over 80% of Defendant’s Allocution Did Not Commit Plain Error, Split Seventh Circuit Panel Holds

In United States v. Bowyer, No. 23-3169 (7th Cir. Sept. 18, 2024), a 2-1 panel upheld a conviction over an argument that a district court judge effectively deprived the defendant of his right to allocution, dominating the procedure by his own bench comments. Judge Jackson-Akiwumi files a dissent. “Andre Bowyer, a national of Jamaica, pleadedContinue reading “Federal Judge Who Spoke Over 80% of Defendant’s Allocution Did Not Commit Plain Error, Split Seventh Circuit Panel Holds”

Attorney’s Fee Award Only Became Final When the District Court “Quantifi[ed]” It, Leading to Partial Dismissal of Appeal by Eighth Circuit

In Deering v. Lockheed Martin Corp., No. 23-2853 (8th Cir. Sept. 17, 2024), the Eighth Circuit dismisses in part an appeal of sanctions against an employment-discrimination plaintiff because she filed the notice of appeal before the judge below calculated the attorney’s fees, then failed to amend the notice to appeal the fee award. According toContinue reading “Attorney’s Fee Award Only Became Final When the District Court “Quantifi[ed]” It, Leading to Partial Dismissal of Appeal by Eighth Circuit”

Second Circuit Holds That Late Filing Under Fed. R. App. P. 4(a)(4)(A) Is Not Subject to Equitable Exceptions, Overruling Prior Circuit Authority

In Malek v. Feigenbaum, No. 23-992 (2d Cir. Sept. 11, 2024), the Second Circuit dismisses an appeal filed belatedly under Fed. R. App. P. 4(a)(4)(A), and further holds under the intervening authority of Nutraceutical Corp. v. Lambert, 586 U.S. 188 (2019), negates prior circuit authority that might have recognized equitable exceptions to the 30-day deadline.Continue reading “Second Circuit Holds That Late Filing Under Fed. R. App. P. 4(a)(4)(A) Is Not Subject to Equitable Exceptions, Overruling Prior Circuit Authority”

Say It (Over and Over Again): Fifth Circuit Orders District Court to Consider Diversity of Citizenship a Second Time

In J.A. Masters v. Beltramini, No. 23-20292 (5th Cir. Sept. 9, 2024), the Fifth Circuit finds itself returning a fully-tried case to the district court – for a second time – to adjudicate whether it had diversity jurisdiction. Judge Haynes files a dissent. “This appeal comes to us following a five-day jury trial. Plaintiffs J.A.Continue reading “Say It (Over and Over Again): Fifth Circuit Orders District Court to Consider Diversity of Citizenship a Second Time”

Second Circuit Panel Divides Over Whether Unconsented Felony Trial to a Jury of Eleven Constitutes a Structural Error, Creating Split with the Fourth Circuit

In United States v. Johnson, No. 22-1289 (2d Cir. Sept. 6, 2024), while that panel agrees that the district court erred under Federal Rule of Criminal Procedure 23(b) by allowing the case to go to deliberation with just eleven jurors, it splits over the impact of the error. The panel majority holds that the ruleContinue reading “Second Circuit Panel Divides Over Whether Unconsented Felony Trial to a Jury of Eleven Constitutes a Structural Error, Creating Split with the Fourth Circuit”

No Championship Season for Sectarian Football Team Seeking Injunction to Commandeer the PA System for Prayer, Holds Eleventh Circuit

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., 22-11222 (11th Cir. Sept. 3, 2024), a Free Exercise case brought on behalf of a Christian-school football team, the panel holds that the plaintiff had no standing for declaratory or injunctive relief to use the stadium public-address system for group prayer, where itContinue reading “No Championship Season for Sectarian Football Team Seeking Injunction to Commandeer the PA System for Prayer, Holds Eleventh Circuit”