Tag Archives: Forfeiture

Noting Gap in Fed. R. Evid. 103, Tenth Circuit Holds That a Party Forfeited Appeal of a Conditional Evidence Ruling – Despite Objecting Four Separate Times – Because She Did Not Satisfy the Condition at Trial

In Culp v. Remington of Montrose Golf Club LLC, No. 24-1022 (10th Cir. Mar. 30, 2025), a district court’s conditional ruling to admit evidence is held unreviewable when the appellant chose strategically not to trigger the condition at trial. The panel notes that this forfeiture rule is not specifically anticipated by Federal Rule of EvidenceContinue reading “Noting Gap in Fed. R. Evid. 103, Tenth Circuit Holds That a Party Forfeited Appeal of a Conditional Evidence Ruling – Despite Objecting Four Separate Times – Because She Did Not Satisfy the Condition at Trial”

Never Say Die: D.C. Circuit Holds That Plaintiff Preserved Standing Argument by Raising It for the First Time in a Fed. R. Civ. P. 59(e) Motion After District Court’s Dismissal

In Tanner-Brown v. Haaland, No. 22-5302 (D.C. Cir. June 25, 2024), the D.C. Circuit reverses dismissal on Article III standing grounds of an action against the U.S. Department of Interior for an accounting, based on an argument only first raised by plaintiff after dismissal in a Fed. R. Civ. P. 59(e) motion to reconsider. “AppellantContinue reading “Never Say Die: D.C. Circuit Holds That Plaintiff Preserved Standing Argument by Raising It for the First Time in a Fed. R. Civ. P. 59(e) Motion After District Court’s Dismissal”

Party Waived Argument By Not Citing the Correct Circuit Authority in the District Court, Holds Split Eighth Circuit Panel

In Meinen v. Bi-State Development Agency, No. 231242 (8th Cir. May 16, 2024), a 2-1 Eighth Circuit panel held that the party’s failure to cite a favorable Eighth Circuit case in the district court thereby forfeited an legal argument based on that case. The dissent notes that this holding creates a split in the circuits.Continue reading “Party Waived Argument By Not Citing the Correct Circuit Authority in the District Court, Holds Split Eighth Circuit Panel”

Second Circuit Holds That a District Court Has No Duty to Consider a Belated Argument in Support of Subject-Matter Jurisdiction

In Behrens v. JPMorgan Chase Bank, N.A., No. 21-2603 (2d Cir. Mar. 13, 2024), the Second Circuit publishes an opinion  “to consider a question of first impression in this Circuit: whether the existence of subject-matter jurisdiction requires a district court to exercise it, even if it is invoked belatedly—on analogy to the rule that aContinue reading “Second Circuit Holds That a District Court Has No Duty to Consider a Belated Argument in Support of Subject-Matter Jurisdiction”

A Failure to Timely Cross-Appeal an Issue Is Not Jurisdictional and Thus Objection to Such an Omission Can Be Forfeited, Holds Sixth Circuit

In Georgia-Pacific Consumer Prods. v. NCR Corp., No.18-1806 (6th Cir. July 14, 2022), in an order denying rehearing en banc, the panel amends its original order with an appendix to hold that any objection to a party’s failure to timely cross-appeal from a final judgment does not go to subject-matter jurisdiction, and thus may beContinue reading “A Failure to Timely Cross-Appeal an Issue Is Not Jurisdictional and Thus Objection to Such an Omission Can Be Forfeited, Holds Sixth Circuit”

Sixth Circuit and En Banc Eleventh Circuit Each Forgive the Government’s Abandonment of Fourth Amendment Arguments, Finding Them Forfeited Rather Than Waived

Two courts issue decisions the same day considering Fourth Amendment arguments that the government forfeited, holding that federal courts of appeals have the power and can properly exercise their discretion to reach such issues. United States v. Campbell, No. 16-10128 (11th Cir. Feb. 16, 2022): Defendant Campbell was indicted for possessing a firearm as aContinue reading “Sixth Circuit and En Banc Eleventh Circuit Each Forgive the Government’s Abandonment of Fourth Amendment Arguments, Finding Them Forfeited Rather Than Waived”

Split Sixth Circuit Panel Holds that Government Did Not Forfeit Argument on Appeal That the Plaintiff Failed to State a Bivens Claim

In Elhady v. Unidentified CBP Agents, No.20-1339 (6th Cir. Nov. 19, 2021), the panel majority skips over the qualified immunity issue presented in the interlocutory appeal to hold that the plaintiff failed on the merits to state a Bivens claim against several border-patrol agents. The judges disagree about whether the government forfeited this merits argumentContinue reading “Split Sixth Circuit Panel Holds that Government Did Not Forfeit Argument on Appeal That the Plaintiff Failed to State a Bivens Claim”

Sixth Circuit Sorts Out Waiver, Forfeiture, and Invited Error in Criminal Sentence Appeal

In United States v. Montgomery, No. 20-1201 (6th Cir. May 24, 2021), a Sixth Circuit panel tries to bring clarity to the distinction between forfeiture and waiver in an appeal of a sentencing error. “The difference between waiver and forfeiture has long bedeviled lawyers and judges alike. Lawyers often split the difference, using the termsContinue reading “Sixth Circuit Sorts Out Waiver, Forfeiture, and Invited Error in Criminal Sentence Appeal”