Federal Appeals

Federal Appeals

CEB has my article about the 9th Cir. criticism of LAUSD’s belated reversal of its Covid-19 vaccine mandate, and distinguishing SCOTUS vaccine-mandate holding

Last updated on August 14, 2024 by Tim Kowal

CEB has published my article, “Criticizing belated policy reversal, 9th Cir. holds fight over LAUSD Covid-19 vaccine mandate is not moot and distinguishes SCOTUS Jacobson ruling.” The article is a cautionary tale about being completely forthcoming at oral argument. And it suggests that theories attempting to distinguish a century-old SCOTUS opinion affirming a state vaccine...Read More >>

Criticizing belated policy reversal, 9th Cir. holds fight over LAUSD Covid-19 vaccine mandate is not moot and distinguishes SCOTUS Jacobson ruling

Last updated on June 12, 2024 by Tim Kowal

When the 9th Circuit panel asked counsel at oral argument whether LAUSD was going to reverse its Covid-19 vaccine mandate, counsel did not give a straightforward answer. Then walking out of the courthouse, LAUSD’s counsel turned to plaintiff’s counsel and said, “what are you going to do when we rescind the mandate?” And a few...Read More >>

CEB has my article, “Super snap removals’ not permitted in Ninth Circuit”

Last updated on May 2, 2024 by Tim Kowal

CEB DailyNews has published my article, “Super snap removals’ not permitted in Ninth Circuit.” Where federal jurisdiction is based on diversity as in Casola v. Dexcom, Inc., No. 23-55403 (9th Cir. Apr. 10, 2024), a home-state defendant cannot remove. 28 U.S.C. § 1441(b)(2). But that defect is deemed waived if the plaintiff does not seek...Read More >>

“Super snap removals” not permitted in Ninth Circuit

Last updated on April 16, 2024 by Tim Kowal

Here’s a first-year civ pro question with a twist: Plaintiff files a complaint in state court. But before court processes it for filing, defendant—who, not even served yet, gets wind of the complaint through an efile-watcher service—files a notice of removal in federal court. Question: Is this “super-snap removal” effective? The answer is important because,...Read More >>

Panel rejects 9th Cir. precedent by saying it was overruled—even though it wasn’t

Last updated on January 25, 2024 by Tim Kowal

One big limitation in the 9th Circuit is that a three-judge panel is absolutely bound by a prior panel decision. Just see, for example, the recent panel decision in Martinez v. ZoomInfo Techs.: even though a majority of the panel disagreed with the precedent that anti-SLAPP denials are appealable, they had to go along with the precedent...Read More >>

Cert on Homeless Encampments and En Banc on SLAPPs

Last updated on January 24, 2024 by Tim Kowal

The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable. Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published...Read More >>

Is raising a right generally at trial enough to preserve more specific arguments for appeal?

Last updated on by Tim Kowal

The FBI, growing frustrated in an investigation into a company that furnishes private lockboxes, got a warrant to search entire “nests” of lockboxes. Including lockboxes held by perfectly law-abiding plaintiffs, which are the subject of Snitko v. United States, No. 22-56050 (9th Cir. Jan. 23, 2024). When the FBI got the warrant, they told the...Read More >>

Doing a double-take after Supreme Court’s Jack Daniel’s holding, 9th Cir. reverses itself in Punchbowl News trademark case

Last updated on January 18, 2024 by Tim Kowal

The 9th Circuit was bound by its trademark precedent holding an exception to the Lanham Act for expressive works, which was why in Punchbowl, Inc. v. AJ Press, LLC, No. 21-55881 (9th Cir. Jan. 12, 2024) it affirmed a summary judgment against plaintiff greeting-card maker in favor of a news website—both going by the name...Read More >>

In San Fran homelessness case in 9th Cir., two stark opinions about waiver

Last updated on January 15, 2024 by Tim Kowal

San Francisco—responding to a surge in homelessness—enacted time-and-place anti-vagrancy ordinances restricting sleeping in public places. But the district court enjoined the laws, and in Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024), the 9th Circuit affirmed. Following two recent 9th Circuit cases, the court held that the city violated the...Read More >>

CEB has my article “Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent”

Last updated on December 15, 2023 by Tim Kowal

CEB DailyNews has published my article, “Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent.” The article is about Impossible Foods Inc. v. Impossible X LLC, No. 21-16977 (9th Cir. Sep. 12, 2023), where the district court had ruled that, in a lawsuit involving trademark enforcement,...Read More >>

How Appellate Lawyers Debate Gun Control and Abortion

Last updated on October 24, 2023 by Tim Kowal

Ninth Circuit correspondent Cory Webster joins us to discuss the court’s unusually busy en banc docket and its own species of “shadow docket.” We discuss how parties and judges are moving a few hot-button cases into procedural positions that may suggest what the merits decision will be—but without really touching the merits. We discuss: ...Read More >>

CM/ECF Is Outdated So Get Ready for the 9th Circuit’s ACMS, with Susan Gelmis

Last updated on October 18, 2023 by Tim Kowal

Have you ever had trouble e-file something and had someone tell you to try a different web browser? When it comes to the CM/ECF system used by federal courts, that problem has to do with aging technology reliant on “java” plugins, which have security problems. Susan Gelmis, the Chief Deputy Clerk for Operations, explains why...Read More >>

Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent

Last updated on October 2, 2023 by Tim Kowal

If you set out to achieve the “impossible,” you are ambitious, but not alone. Impossible Foods, creator of the “Impossible Burger,” learned that another company, Impossible X, was also using the “Impossible” brand on some personal fitness and lifestyle websites, an Amazon platform, and a YouTube channel. But its sole owner-operator, Joel Runyon, lived in...Read More >>

Cory Webster’s 9th Circuit Dispatches

Last updated on July 4, 2023 by Tim Kowal

9th Circuit expert Cory Webster joins us to discuss several recent decisions out of the 9th Circuit. On this episode, we discuss: Cory Webster’s biography and LinkedIn profile. Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page. Sign up for Not...Read More >>

Gorsuch on Covid policies and other Legal News for Week Ending May 26, 2023

Last updated on May 26, 2023 by Tim Kowal

Here are some legal trends and trivia from this week: Justice Neil Gorsuch called COVID emergency orders among “the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale,” referencing orders, sometimes backed by criminal enforcement, requiring home quarantine, shuttering schools,...Read More >>

Preparing the Excerpts of Record for Federal Appeals

Last updated on November 13, 2022 by Tim Kowal

“NALA has published” Tim Kowal (Presenter), “Preparing the Excerpts of Record for Federal Appeals,” NALA (Mar. 24, 2022), This course provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals. Preparing the record is critically important to success on appeal, but is often overlooked by attorneys, who...Read More >>

About That Cheeky Concurrence by Judge VanDyke

Last updated on March 31, 2022 by Tim Kowal

Legal commentators were taken aback by Judge VanDyke’s concurring opinion mocking the 9th Circuit’s inevitable en banc review of the majority opinion—also authored by Judge VanDyke. But Second Amendment litigator Sean Brady explains why he thinks Judge VanDyke will be vindicated in his criticism of the 9th Circuit’s trend of late on Second Amendment cases. And Jeff Lewis and...Read More >>

$1 Billion LA Homelessness Injunction Reversed by 9th Circuit: Judge's Independent Factual Investigation Was Improper

Last updated on September 24, 2021 by Tim Kowal

Judge David O. Carter of the Central District of California made national news when he ordered Los Angeles to put up $1 billion to address its homelessness crisis. But that order was based on claims the plaintiffs did not allege, relief the plaintiffs did not request, and evidence the plaintiffs did not adduce. While trial...Read More >>

Wesson Oil Class Settlement Reversed: 9th Cir. Holds Trial Court Abused Discretion in Assuming Post-Cert. Settlement Was Not Collusive

Last updated on June 3, 2021 by Tim Kowal

Class actions only very loosely resemble the practice of law as most attorneys know it. Yes, they involve plaintiffs suing defendants in court before a judge. But most of the class members don't even know they're in the case, and wouldn't know their attorney if he showed up and their doorstep delivering their settlement check...Read More >>

There Are Few Requirements for a Notice of Appeal, But This 9th Cir. Appeal Is Dismissed for Failing Nearly All of Them

Last updated on May 12, 2021 by Tim Kowal

Filing an appeal is not hard. There are only a few basic requirements. But in Ditech Financial LLC v. Talasera and Vicanto Homeowners' Association, 2021 WL 1718214 (9th Cir. Apr. 30, 2021), appellant failed all of them. To prepare a valid notice of appeal, the notice simply needs to “specify the party or parties taking the...Read More >>

Important Differences in Federal and State Appeals, with Cory Webster

Last updated on April 1, 2021 by Tim Kowal

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals. We discuss: Pitfalls in failing to make crucial posttrial motions (FRCP 50). The vastly different approaches to oral arguments in federal court. The impact of amicus...Read More >>

9th Cir. Reverses $1.8B Summary Judgment Against Discovery Abuser, Suggests District Court Impose Terminating Sanctions Instead

Last updated on March 31, 2021 by Tim Kowal

The Good News for Defendant: The Ninth Circuit reversed plaintiff's summary judgment on its breathtaking $1.8 billion Lanham Act claim. The Bad News: In light of all defendant's discovery abuses, the Ninth Circuit wonders aloud whether the district court, when reconsidering the matter, might simply enter a default judgment against it on remand. In AECOM Energy and Construction...Read More >>

Dismissal of Voluminous "Shotgun Complaint" Affirmed by 11th Circuit, Even Though Containing Some Valid Claims

Last updated on February 10, 2021 by Tim Kowal

"Shotgun pleading," the practice of overpleading a complaint with vague and irrelevant facts, and so annoying a lot of people who never did the plaintiff any harm, is prohibited in federal court, where a "short and plain statement" is required. Often, the rule is relaxed in practice, due to the difficulty of enforcing it. Too...Read More >>

"A judge is a law student who grades his own papers."

— H.L. Mencken

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

Categories

"A judge is a law student who grades his own papers." — H.L. Mencken

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia