Paul W. Mollica

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In Bristol Regional Women’s Center, PC v. Slatery, No. 20-6267 (6th Cir. Apr. 9, 2021), the Sixth Circuit took the unusual step under Fed. R. App. P. 35(a) of granting initial hearing en banc of a challenge to Tennessee’s abortion waiting period law. A prior three-judge panel had denied the state’s motion for a stay pending appeal. See blog entry for February 22, 2021. Judge Moore (joined by Judge White) signed the majority…
In Circuitronix, LLC v. Kinwong Electronic (Hong Kong) Co., Ltd., No. 19-12547 (11th Cir. Apr. 8, 2021) – an appeal from the trial of a breach of contract claim – the Eleventh Circuit holds that a motion for judgment as a matter of law was timely under Fed. R. Civ. P. 6(a), because the courthouse was closed for a holiday on the due date. Judgment for plaintiff Circuitronix was filed on June 6, 2019. “Under…
In Harden v. Hillman, No. 20-5056 (6th Cir. Apr. 6, 2021), a split panel vacates and remands a defense verdict in a § 1983 case, where a juror testified post-trial that other jurors engaged in racial stereotyping during deliberations. The plaintiff, who is Black, claimed excessive force against Officer Hillman, who allegedly roughed him up during an arrest at a convenience store. (A variety of other claims were dismissed on summary judgment.) The jury…
In City of New York v. Chevron Corp., No. 18-2188 (2d Cir. Apr. 1, 2021), the Second Circuit affirms a decision dismissing, on federal common law grounds, a tort action brought by New York City against five major international oil companies (Chevron, ConocoPhillips, ExxonMobil, Royal Dutch Shell, and BP, collectively “Producers”) for the harms caused by global warming. “In 2018, the City sued the Producers in federal court, asserting causes of action for (1)…
In Maine Community Health Options v. Albertsons Cos., Inc., No. 20-35931 (9th Cir. Mar. 31, 2021), deciding an issue of first impression for the circuit, the judges – following different routes – holds that there is diversity jurisdiction over an action under Section 7 of the Federal Arbitration Act (FAA), 9 U.S.C. § 7, seeking enforcement of a third-party subpoena issued by arbitrators. “Maine Community Health Options (Health Options), an insurer, is engaged in arbitration…
In Frank v. Crawley Petroleum Corp., No. 20-6018 (10th Cir. Mar. 29, 2021), the Tenth Circuit holds that a plaintiff’s class-action lawyer has standing to challenge restrictions on his practice that a district court imposed in a Rule 41(a)(2) voluntary dismissal. The class action, removed to federal court under the Class Action Fairness Act, concerned underpayment of royalties on natural-gas-producing wells. Five years into the case, before class certification was decided, the plaintiff moved…
In Marcure v. Lynn, No. 19-2978 (7th Cir. Mar. 25, 2021), the panel addresses two unresolved issues in the circuit, holding that (1) the striking of unsigned briefs is mandatory under Fed. R. Civ. P. 11(a), but (2) even if a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) is unopposed, the court may not simply grant it by default. “Marcure, a pro se litigant, alleged §…
In Lyngaas v. Curaden AG, No. 20-1199 (6th Cir. Mar. 24, 2021), a Telephone Consumer Protection Act (TCPA) class action, the court affirms the district court’s orders concerning the admissibility of a summary-report log that purportedly identified the class members who were called. The class action alleged that the defendants faxed unsolicited ads to thousands of dentists for the Curaprox Ultra Soft CS 5460 toothbrush. At the class certification stage, to establish the “predominance”…
In Conboy v. United States Small Business Admin., No. 20-1726 (3d Cir. Mar. 19, 2021), the Third Circuit issues a Fed. R. App. P. 38 sanction against a lawyer whose appellate brief “was essentially a copy of the one he filed in the District Court.” To underscore the point, the panel attaches a red-lined copy of the briefs as appendixes. Plaintiffs’ counsel’s “opening brief begins with a proper introductory sentence arguing that the District…
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 the “principle of party presentation.” PDVSA, the Venezuelan state-owned oil company, alleged a “multi-billion-dollar conspiracy to defraud” the business out…