In United States v. Cabrera, No. 19-3363 (2d Cir. Sept. 8, 2021), the panel majority holds that the jury in a criminal prosecution should not have heard officer testimony that the defendant, “unlike the ‘average drug dealer,’ appeared to be ‘experienced’ because he had employed countersurveillance driving techniques (which consisted of really bad driving).” TheContinue reading “Split Second Circuit Panel Holds That District Court Erred by Admitting “Opinion” Testimony that Defendant “Employed Countersurveillance Driving Techniques,” Ordering New Trial”
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Seventh Circuit Discusses “Nerve Center” Test for Diversity Jurisdiction as Applied to Corporate Subsidiaries
In Big Shoulders Capital LLC v. San Luis & Rio Grande Rd., No. 20-1503 (7th Cir. Sept. 3, 2021), the court remands a diversity action to determine whether the subsidiaries of a railroad – under the “nerve center” test – are citizens (1) of Illinois where the parent is headquartered, or (2) of Oregon, Delaware,Continue reading “Seventh Circuit Discusses “Nerve Center” Test for Diversity Jurisdiction as Applied to Corporate Subsidiaries”
Expert Report Proffered by a Party in a Prior Case Is Not Automatically a “Party Admission” for Purposes of Fed. R. Evid. 801(d)(2)(C), Holds Fifth Circuit
In HTC Corp. v. Telefonaktiebolaget LM Ericsson, No. 19-40566 (5th Cir. Aug. 31, 2021), the Fifth Circuit affirms exclusion of an expert report from a valuation expert who the defendant had used in prior litigation, holding that the prior expert’s testimony is inadmissible hearsay and not admissible as a party admission under Fed. R. Evid.Continue reading “Expert Report Proffered by a Party in a Prior Case Is Not Automatically a “Party Admission” for Purposes of Fed. R. Evid. 801(d)(2)(C), Holds Fifth Circuit”
Fourth Circuit Judge Decries Proliferation of “Advisory” Dissents from Denial of Rehearing En Banc
In Doe v. Fairfax Cnty. Sch. Bd., No. 19-2203 (4th Cir. Aug. 30, 2021) (order), denying rehearing en banc of a Title IX case involving sexual harassment, a Fourth Circuit judge calls for curtailing separate dissenting opinions that signal “disrespect for the hard work of the panel and for the full court’s decision not toContinue reading “Fourth Circuit Judge Decries Proliferation of “Advisory” Dissents from Denial of Rehearing En Banc”
Ninth Circuit Affirms Issuance of Arrest Warrant for Defendant Under Recalcitrant Witness Statute Who Failed to Respond to Paper Discovery
In Invesco High Yield Fund v. Jecklin, No. 21-15809 (9th Cir. Aug. 25, 2021), the Ninth Circuit affirms contempt sanctions against a foreign defendant under 28 U.S.C. § 1826(a), the federal recalcitrant witness statute. The statute provides that when a witness refuses to testify or provide other information, the court “may summarily order his confinementContinue reading “Ninth Circuit Affirms Issuance of Arrest Warrant for Defendant Under Recalcitrant Witness Statute Who Failed to Respond to Paper Discovery”
“Home State” Exception to Class Action Fairness Act Jurisdiction Does Not Apply Where the “Primary Thrust” of the Case Is Liability Against an Out-of-State Defendant, Fifth Circuit Holds
In Madison v. ADT LLC, No. 21-90028 (5th Cir. Aug. 24, 2021), the panel holds that the district court should have disregarded the nominal in-state defendant when evaluating the “home state” exception to the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(4)(B). It holds that primary defendants include those at whom a lawsuit isContinue reading ““Home State” Exception to Class Action Fairness Act Jurisdiction Does Not Apply Where the “Primary Thrust” of the Case Is Liability Against an Out-of-State Defendant, Fifth Circuit Holds”
Eleventh Circuit Regrets Having Invented a New Burden of Proof for Fourth Amendment Exception, So It Rules En Banc to Wipe “Reasonable Probability” From Books
In United States v. Watkins, No. 18-14336 (11th Cir. Aug. 20, 2021), the en banc Eleventh Circuit unanimously overrules the “reasonable probability” standard it had used since the 1980s to evaluate claims by police under the Fourth Amendment “inevitable discovery” exception, Nix v. Williams, 467 U.S. 431 (1984). It holds that the correct standard, consistentContinue reading “Eleventh Circuit Regrets Having Invented a New Burden of Proof for Fourth Amendment Exception, So It Rules En Banc to Wipe “Reasonable Probability” From Books”
Tenth Circuit Holds That a Single Phone Call That the Debtor Didn’t Even Answer Created Standing Under the FDCPA, Breaking with the Seventh Circuit
In a blog entry dated December 16, 2020, I summarized five decisions by the Seventh Circuit that dramatically crimped Article III standing in Fair Debt Collection Practices Act (FDCPA) cases. In yesterday’s decision, Lupia v. Medicredit, No. 20-1294 (10th Cir. Aug. 17, 2021), the Tenth Circuit expressly rejects the Seventh Circuit’s approach and holds thatContinue reading “Tenth Circuit Holds That a Single Phone Call That the Debtor Didn’t Even Answer Created Standing Under the FDCPA, Breaking with the Seventh Circuit”
Eleventh Circuit Criticizes Expansion of Rooker-Feldman by Lower Courts as “One-Size-Fits-All Preclusion Doctrine”
In Behr v. Campbell, No. 18-12842 (11th Cir. Aug. 12, 2021), the Eleventh Circuit reverses a sua sponte dismissal of a 30-count federal civil-rights complaint arising out of events from a state-court domestic relations dispute. “That kind of sweeping dismissal is not at all unusual—but it is also at odds with the Supreme Court’s clearlyContinue reading “Eleventh Circuit Criticizes Expansion of Rooker-Feldman by Lower Courts as “One-Size-Fits-All Preclusion Doctrine””
Fifth Circuit Affirms Summary Judgment Where Plaintiff’s Lawyer Did Not Get an Electronic Notification of the Motion
In Rollins v. Home Depot USA, No. 20-50736 (5th Cir. Aug. 9, 2021), the Fifth Circuit affirms summary judgment in “a cautionary tale for every attorney who litigates in the era of e-filing.” The plaintiff’s lawyer missed the filing of a dispositive motion because “his computer’s email system placed that notification in a folder thatContinue reading “Fifth Circuit Affirms Summary Judgment Where Plaintiff’s Lawyer Did Not Get an Electronic Notification of the Motion”
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