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”

Federal Magistrate Judge Lacked Subject-Matter Jurisdiction to Dismiss Plaintiff’s Complaint Where Defendants Had Not Yet Appeared and Consented, Holds Third Circuit

In Burton v. Schamp, No. 18-1174 (3d Cir. Feb. 3, 2022), the Third Circuit—hearing two consolidated prisoner appeals—holds that the failure of unserved defendants to consent to a U.S. federal magistrate judge (magistrate) before the complaint is dismissed deprives the magistrate of subject-matter jurisdiction under 28 U.S.C. § 636(c)(1). The panel rejects defendants’ arguments in supportContinue reading “Federal Magistrate Judge Lacked Subject-Matter Jurisdiction to Dismiss Plaintiff’s Complaint Where Defendants Had Not Yet Appeared and Consented, Holds Third Circuit”

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”

No Deference to Litigation-Conduct Waiver Holding Based on “Conclusory Assertions,” Holds Fifth Circuit

In Int’l Energy Ventures Mgt. v. United Energy Grp., No. 20-20221 (5th Cir. May 28, 2021), the Fifth Circuit reverses – on the case’s second appearance in that court – an order compelling arbitration, based on the plaintiff’s three-year “persistent pursuit of litigation.” “International Energy Ventures Management (‘IEVM’) sued United Energy Group (‘UEG’) more thanContinue reading “No Deference to Litigation-Conduct Waiver Holding Based on “Conclusory Assertions,” Holds Fifth Circuit”

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”

Plaintiff That Let Fed. R. Civ. P. 12(b)(1) Procedural Error Slip Forfeits Subject-Matter Jurisdiction Under Doctrine of Party Presentation, Holds Eleventh Circuit

In PDVSA US Litig. Trust v. Lukoil Pan Americas, LLC,.No. 19-10950 (11th Cir. Oct. 18, 2021), the plaintiff-appellant failed to raise its best argument on appeal – that the district court decided the central legal issue on the merits on a Fed. R. Civ. P. 12(b)(1) motion to dismiss – and thus loses under theContinue reading “Plaintiff That Let Fed. R. Civ. P. 12(b)(1) Procedural Error Slip Forfeits Subject-Matter Jurisdiction Under Doctrine of Party Presentation, Holds Eleventh Circuit”

Defendant Did Not Forfeit Affirmative Defenses by Failing to Answer Second Amended Complaint, Holds Ninth Circuit

In KST Data, Inc. V. Enterprise Servs. LLC, No. 19-55422 (9th Cir. Nov. 17, 2020), the Ninth Circuit holds that the district court erred in granting summary judgment sua sponte in a contact case when it denied the defendant the opportunity to argue its affirmative defenses. “Defendant Enterprise Services, LLC (‘ES’) entered into a contractContinue reading “Defendant Did Not Forfeit Affirmative Defenses by Failing to Answer Second Amended Complaint, Holds Ninth Circuit”