District Court May Not Look Behind a State Court’s Application of Its Own Procedural Law on Motion to Remand Under 28 U.S.C. § 1446, Holds Fifth Circuit

In Turner v. GoAuto Insurance, No. 22-30103 (5th Cir. May 2, 2022), the Fifth Circuit holds that a district court properly remanded a class action to state court under 28 U.S.C. § 1446 when it accepted an amended complaint, filed two days before the removal petition, as the operative complaint that limited the class solelyContinue reading “District Court May Not Look Behind a State Court’s Application of Its Own Procedural Law on Motion to Remand Under 28 U.S.C. § 1446, Holds Fifth Circuit”

Fifth Circuit Judges Clash in Gun “Free Speech” Case About Whether Mandamus Was Appropriate Relief to Vacate Joint Severance and Transfer Order

In Defense Distributed v. Bruck, No. 21-50327 (5th Cir. Apr. 1, 2022), a 2-1 panel of the Fifth Circuit issues a writ of mandamus directing a federal judge in the Western District of Texas to vacate an order severing and transferring part of a case to the District of New Jersey, and to request thatContinue reading “Fifth Circuit Judges Clash in Gun “Free Speech” Case About Whether Mandamus Was Appropriate Relief to Vacate Joint Severance and Transfer Order”

Fifth Circuit Orders Hearing Into Whether Criminal Defendant Was Denied Sixth Amendment Rights When Her Lawyer Also Represented “Government’s Star Witness” Against Her

In United States v. Sheperd, No. 19-20073 (5th Cir. Mar. 8, 2022), the Fifth Circuit remands a case for a hearing about whether the defendant’s Sixth Amendment rights were violated when “her pretrial lawyer—who represented her until days before trial—also represented one of the Government’s star witnesses.” “Ann Sheperd owned and operated a home-health agency.Continue reading “Fifth Circuit Orders Hearing Into Whether Criminal Defendant Was Denied Sixth Amendment Rights When Her Lawyer Also Represented “Government’s Star Witness” Against Her”

District Court Judge Confused Prudential and Subject-Matter Jurisdiction Leading to Premature Dismissal, Holds Fifth Circuit

In Abraugh v. Altimus, No. 21-30205 (5th Cir. Feb. 14, 2022), the Fifth Circuit holds that the district court cut short a plaintiff’s opportunity to proceed with her complaint by ruling erroneously that there was no subject-matter jurisdiction over the claim. “Karen Abraugh brought this suit over the wrongful death of her son Randall. AuthoritiesContinue reading “District Court Judge Confused Prudential and Subject-Matter Jurisdiction Leading to Premature Dismissal, Holds Fifth Circuit”

Fifth Circuit Offers Litigants A Primer About When They Need to Cross-Appeal Versus Urging Affirmance on Alternative Grounds

In Domain Protection LLC v. Sea Wasp LLC, No. 20-40411 (5th Cir. Jan 13, 2022), the panel uses the occasion of “three appeals arising from one lawsuit—one from the plaintiff, one from the defendant, one from [a] sanctioned lawyer— . . . to clarify when arguments should be made in responsive briefing and when theyContinue reading “Fifth Circuit Offers Litigants A Primer About When They Need to Cross-Appeal Versus Urging Affirmance on Alternative Grounds”

Fed. R. Evid. 103(b) Requires Renewal of Objection at Trial If Order on Motion in Limine Is Modified or Violated at Trial, Holds Fifth Circuit

In United States v. Lara, No. 20-50112 (5th Cir. Jan. 11, 2022), the Fifth Circuit grants only plain-error review on a claim of evidentiary error, when two criminal defendants – who won an exclusionary order in a pretrial motion in limine – failed to renew their objection when the government elicited the disputed testimony atContinue reading “Fed. R. Evid. 103(b) Requires Renewal of Objection at Trial If Order on Motion in Limine Is Modified or Violated at Trial, Holds Fifth Circuit”

Split Fifth Circuit Panel Rejects Eleventh Circuit’s “Fraudulent Misjoinder” Doctrine to Rescue Removed Case and Remands to State Court

In Williams v. Homeland Ins. Co., No. 20-30196 (5th Cir. Nov. 30, 2021), the panel split three ways in addressing whether there was full diversity in a removed action, with the majority holding that that no misjoinder doctrine could rescue the case from remand. The case had proceeded for over a decade in state andContinue reading “Split Fifth Circuit Panel Rejects Eleventh Circuit’s “Fraudulent Misjoinder” Doctrine to Rescue Removed Case and Remands to State Court”

Fifth Circuit Reverses Sua Sponte Dismissal with Prejudice of Section 1983 Damages Action That Named Officers in Official Rather Than Individual Capacity

In Carver v. Atwood, No. 21-40113 (5th Cir. Nov. 18, 2021), the Fifth Circuit reverses a district court’s decision to dismiss an action brought against three Texas state officers of the Texas Department of Criminal Justice (“TDCJ”) on sovereign immunity grounds under Fed. R. Civ. P. 12(b)(1) without leave to amend. The plaintiff “alleged theContinue reading “Fifth Circuit Reverses Sua Sponte Dismissal with Prejudice of Section 1983 Damages Action That Named Officers in Official Rather Than Individual Capacity”

Class Waiver of Appeals from Award Determinations Enforced by Fifth Circuit, Sidestepping the Issue of Who the Proper Appellee Might Be

In Frego v. Settlement Class Counsel, No. 20-30596 (5th Cir. Oct. 27, 2021), the panel sidesteps an “odd” question of who the proper appellee might be in a “closed” fund class settlement, holding instead that the plaintiff-appellants waived the right to appeal the award under the class settlement. “After ten years of litigation, a classContinue reading “Class Waiver of Appeals from Award Determinations Enforced by Fifth Circuit, Sidestepping the Issue of Who the Proper Appellee Might Be”

Government’s Appeal of CDC’s Eviction Moratorium Is Dismissed on Its Own Motion but the District Court’s Order Remains in Effect, Fifth Circuit Holds

In Terkel v. Centers for Disease Control, No. 21-40137 (5th Cir. Oct. 19, 2021), a published per curiam order of the Fifth Circuit, the court dismisses the federal government’s appeal of an order enjoining a national eviction moratorium but notably leaves the lower court order in effect. Subject to certain exceptions, when a federal caseContinue reading “Government’s Appeal of CDC’s Eviction Moratorium Is Dismissed on Its Own Motion but the District Court’s Order Remains in Effect, Fifth Circuit Holds”