In Vivos Therapeutics. v. Ortho-Tain, No. 24-1061 (10th Cir. July 8, 2025), the panel suggests in dicta that “orders denying absolute immunity under the litigation privilege” may not be subject to interlocutory appeal under the collateral order doctrine, though it ultimately dismisses the appeal on other grounds. Colorado state law recognizes an absolute litigation privilegeContinue reading “Tenth Circuit Expresses Doubt About Whether An Order Denying Absolute Litigation Privilege Is Appealable Under the Collateral Order Doctrine”
Tag Archives: Tenth Circuit
Tenth Circuit Holds That Federal Claim Preclusion Applies to Supplemental State-Law Claim Dismissed Without Prejudice in First Federal Action, If Plaintiff Could Have Originally Asserted Diversity Jurisdiction Over That Claim
In Markley v. U.S. Bank NA, No. 24-1163 (10th Cir. June 24, 2025), the Tenth Circuit opens up a potential trap for the unwary, holding that if “a party could have litigated a claim in a prior lawsuit by asserting diversity jurisdiction but fails to do so,” then that claim is precluded in a secondContinue reading “Tenth Circuit Holds That Federal Claim Preclusion Applies to Supplemental State-Law Claim Dismissed Without Prejudice in First Federal Action, If Plaintiff Could Have Originally Asserted Diversity Jurisdiction Over That Claim”
Second Circuit Splits from Tenth in Holding That Supplemental Jurisdiction under 28 U.S.C. § 1367(a) Requires A Separate Analysis from Intervention Under Fed. R. Civ. P. 24(a)(2)
The Second Circuit – in Hamilton Reserve Bank v. Sri Lanka, No. 24-1459-cv (2d Cir. April 10, 2025) – rejects a widely-recognized presumption that “a court necessarily possesses supplemental jurisdiction [under 28 U.S.C. § 1367(a)] over intervention claims when the requirements for intervention as of right under Fed. R. Civ. P. 24(a)(2) are met,” holdingContinue reading “Second Circuit Splits from Tenth in Holding That Supplemental Jurisdiction under 28 U.S.C. § 1367(a) Requires A Separate Analysis from Intervention Under Fed. R. Civ. P. 24(a)(2)”
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”
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”
Grant of Preliminary Injunction by One Judge in the District Moots Appeal of Denial of Preliminary Injuction by Another Judge, Holds Tenth Circuit
In We the Patriots, et al. v. Grisham, No. 23-2066 (10th Cir. Oct. 28, 2024), the Tenth Circuit dismisses an appeal of the denial of preliminary injunction where, in a different case in the same district, another judge granted the same relief. This is important for cases governed by “prevailing party” fee-shifting statutes, because ifContinue reading “Grant of Preliminary Injunction by One Judge in the District Moots Appeal of Denial of Preliminary Injuction by Another Judge, Holds Tenth Circuit”
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”
Denial of Anti-SLAPP Motion to Dismiss Not Appealable Under Collateral-Order Doctrine Holds Tenth Circuit, Noting Split in Circuits
In Coomer v. Make Your Life Epic LLC, No. 23-1109 (10th Cir. Apr. 23, 2024), the Tenth Circuit dismissed an attempted appeal of an order denying a “special motion to dismiss” under a state anti-SLAPP statue, holding that it did not fit within the confines of the collateral-order doctrine. Many jurisdictions have anti-SLAPP (Strategic LawsuitContinue reading “Denial of Anti-SLAPP Motion to Dismiss Not Appealable Under Collateral-Order Doctrine Holds Tenth Circuit, Noting Split in Circuits”
Tenth Circuit Grants Sua Sponte, Initial En Banc Hearing in Direct Federal Criminal Appeal, Prompting A “Dissental” by Two Judges
In an order published today, United States v. Hohn, No. 22-3009 (10th Cir. Jan. 31, 2024), a majority of the active judges of the Tenth Circuit order an en banc initial hearing in a direct federal criminal appeal, raising the prospect of overruling a 1995 panel decision. Two judges, in a separate opinion, express concernContinue reading “Tenth Circuit Grants Sua Sponte, Initial En Banc Hearing in Direct Federal Criminal Appeal, Prompting A “Dissental” by Two Judges”
Tenth Circuit Holds That District Court Did Not Err in Treating Summary Judgment Facts as Admitted During Trial Under Fed. R. Civ. P. 56(g), But Cautions Against Overuse of This Approach
In Watchous Enterprises v. Mournes, No. 22-3071 (10th Cir. Nov. 30, 2023), the Tenth Circuit holds that the district court did not abuse its discretion by using Fed. R. Civ. P. 56(g) to deem facts submitted on summary judgment as established for purposes of trial, although the panel suggests that it might have ruled otherwiseContinue reading “Tenth Circuit Holds That District Court Did Not Err in Treating Summary Judgment Facts as Admitted During Trial Under Fed. R. Civ. P. 56(g), But Cautions Against Overuse of This Approach”
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