Category Archives: Uncategorized

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”

Tenth Circuit Holds That Fed. R. Civ. P. 27 Depositions Are Only to Perpetuate Testimony, Not to Conduct a Pre-Filing Investigation

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”

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”