The district court may certify an otherwise non-final order to permit an interlocutory appeal under 28 U.S.C. § 1292(b) when its decision (1) involves a controlling question of law, (2) there is a substantial ground for difference of opinion about the controlling question, and (3) an immediate appeal would materially advance the ultimate termination of the litigati ...

There is some inconsistency in the caselaw as to whether, or when, judicial criticism of counsel is appealable. Generally, harsh judicial appraisal of attorney behavior, alone, does not constitute a sanction and is not appealable. To be appealable, the uncomplimentary judicial words must be expressly identified as a reprimand. See, generally, Joseph, Sanctions: T ...

There is now a clear and vibrant Circuit split as to whether American Pipe permits tolling for a plaintiff who files a separate action pending class certification, in light of the Ninth Circuit’s decision on Tuesday in In re Hanford Nuclear Reservation Litig., 2007 U.S. App. LEXIS 19291 (9th Cir. Aug. 14, 2007). Without citing the Second Circuit’s ...

The sanctions motion served by the defendants in Nisus Corp. v. Perma-Chink Sys., 2007 U.S. Dist. LEXIS 58363 (E.D. Tenn. Aug. 9, 2007) — more precisely, the second sanctions motion — sought sanctions pursuant to the court’s inherent power against the plaintiff and against ‛[plaintiff’s] counsel,“ but it did not ‛specifically identify which of p ...

Plaintiff files suit against defendant. One year later, plaintiff moves for dismissal for lack of federal jurisdiction. Defendant opposes the motion and cross-moves for summary judgment. Not a typical procedural setting facing the court in Ayenu v. Chevy Chase Bank, 2007 U.S. Dist. LEXIS 56405 (D. MD. July 31, 2007). The issue: diversity jurisdiction. T ...

The plain error doctrine applies to rulings at trial. It may be invoked on appeal with respect to (1) evidentiary rulings under Federal Rule of Evidence 103(d) (‛ Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court“), and (2) jury instructions under Federal Rule o ...

The December 2006 electronic discovery amendments to the Federal Rules of Civil Procedure added a safe harbor in Rule 37(f) (soon to be renumbered 37(e)), which reads: Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the ro ...

Is it permissible to copy notes left by jurors in plain sight after they have been discharged? Plaintiffs lost a products liability trial against Ford, in Thomas v. Ford Motor Co., 2007 U.S. App. LEXIS 18723 (4th Cir. Aug. 7, 2007). After the jury was discharged, the courtroom clerk asked counsel for both parties to assist in removing exhibits from the jury ...

Removal. Wife and Husband sue defendant in state court for injuries to wife and loss of consortium by husband. Time for removal expires. Husband then sues defendant in state court for injuries to himself arising out of the same events. State court consolidates the two actions. Defendant removes the consolidated action in a timely manner as to the second ...

Who owns the copyright for Superboy was the issue in Siegel v. Time Warner, Inc., 2007 U.S. Dist. LEXIS 56910 (C.D. Cal. July 27, 2007), and the answer turned on the preclusive effect to be given to findings of fact and conclusions of law made in 1948 by a referee appointed by the New York State Supreme Court, Westchester County in a contractual dispute betw ...