Notice of Appeal

Eleventh Circuit today

There was one lonely Eleventh Circuit opinion today: it reversed the district court's dismissal for lack of personal jurisdiction in an intellectual property case. Vax-D Medical Technologies v. Texas Spine Medical Center. The procedural history is tangled: the plaintiff, Vax-D, first served an individual, David Boudreau, as the defendant, properly serving him. It then amended its complaint, naming Texas Spine (a Texas resident, as you might have guessed), and David Boudreau as an officer of Texas Spine. Again, Vax-D properly served the amended complaint. Boudreau answered without raising a defense based on lack of personal jurisdiction, and participated in the litigation and discovery. Only when Vax-D served a second amended complaint, alleging that Texas Spine was a fictitious name under which Boudreau did business, did a personal jurisdiction issue suddenly arise. Having already served both defendants, Vax-D this time only mailed the second amended complaint to Boudreau's last known address, and the defendants contended they had not received it, and did not participate further in the litigation. The district court dismissed for lack of personal jurisdiction due to improper service.

Not so fast, says the Eleventh Circuit. Boudreau and Texas Spine had already been properly served (or if they weren't, they had waived their defense), and filing a second amended complaint that actually alleged Texas Spine as a fictitious name did not invalidate the already-proper service of the complaint and amended complaint.

Eleventh Circuit in the past week...

Published opinions have slowed down somewhat after the post-spring break rush. Six opinions have issued since Thursday, on a variety of issues, none of which is groundbreaking, but each contains an interesting tidbit or two. We have two criminal cases (one drug case and one white collar case), two civil rights cases, a tort case (based on Florida law) with a small federal procedural issue, and a habeas case.

1915(g)-plus?

Apologies for the delay in updating you on recent cases -- in part this is because I was preparing for oral argument yesterday in the 11th Circuit, before Judges Tjoflat, Black and visiting Judge Ebel from the 10th Circuit, in the case of Miller v. Donald.

The issues on appeal:

• whether the Southern District of Georgia's "sec. 1915(g)-plus" rule barring super-frequent-filers from filing anything IFP, even if they allege imminent danger of serious physical injury (the exception provided under 28 U.S.C. 1915(g)), unless they pay all prior filing fee debts (which, in my client's case, amounted to over $1300); and
• whether the district court could properly determine that a facially valid claim of imminent danger was actually frivolous, based on the plaintiff's prior filing history.

See Barber v. Attorney General, 458 F.Supp. 2d 1378 (S.D. Ga. 2006), for more details about the rule (as well as the 1915(g)-plus-plus rule and the 1915(g)-plus-plus-plus rule).

By way of background: the Eleventh Circuit previously found, in another case Miller brought, that his sec. 1983 and ADA injunctive relief claims survived summary judgment. It ultimately vacated the prior opinion and remanded the case so that Miller could file an amended complaint in light of the companion case of Goodman v. Georgia, which went up to the Supreme Court and reversed the Eleventh Circuit's holding that the 11th Amendment barred his ADA damages claims. (Disclaimer -- BME represented Miller in that 11th Circuit case, and I now represent Miller in the district court. Some good folks at Hunton & Williams now represent Goodman.)

Stay tuned for the outcome of this case...

Eleventh Circuit Decisions This Week

The Eleventh Circuit issued four opinions in the last two days, one yesterday and three today.  All four are civil cases that arise in a variety of contexts -- labor, civil procedure, bankruptcy, and an Alabama contract/tort case.

April 12 -- 11th Circuit Decisions

A somewhat less momentous day for the 11th Circuit Court of Appeals, as it finishes off the post-spring break rush of opinions -- the Court affirmed a district court's grant of summary judgment against a Section 1983 plaintiff (Porter v. White), affirmed a district court's dismissal of a subsequent criminal case against a defendant on the ground that the government was collaterally estopped by an acquittal on a different charge in a prior case (U.S. v. Ohayon), and issued a revised opinion in a case involving Florida insurance law reconsidering its earlier grant of attorneys' fees under the statute (Dadeland Depot v. St. Paul Fire & Marine).

Reversals abound today in the Eleventh Circuit

The Eleventh Circuit issued three additional decisions since noon today, and all of today's opinions reverse the trial court at least in part.

This trend seems remarkable given that by far, most appeals result in an affirmance -- but since the opinions mentioned here are only the published opinions (representing only 10% of the court's caseload in 2006), it perhaps makes sense that a high(er) percentage of the published cases are reversals. 6 out of 6 opinions reversing at least some aspect of the case is still interesting, though, particularly because several of the cases reverse the district court on issues where the Eleventh Circuit does not have a reputation for being to be especially "activist" (to use a loaded term) -- e.g. sufficiency of the evidence in a criminal case, the right to counsel in a criminal case, and here, civil rights. Evidence, perhaps, to counter the cynical jurisprudential realists out there...

Eleventh Circuit -- three more cases

In Chaney v. City of Orlando, a Section 1983 excessive force and malicious prosecution case against the city and one Officer Cute (whose name could inspire several jokes), a jury had found in the plaintiff's favor on a special verdict form. The Eleventh Circuit ruled that the trial court improperly granted the defendant's Rule 50(b) motion on the basis of the jury's findings on the special verdict form, rather than based purely on whether there was sufficient evidence to support imposition of liability.

In another Section 1983 wrongful arrest case, McClish v. Nugent, the Eleventh Circuit held that an officer violated the Fourth Amendment when (without a warrant) he knocked on the door, and upon the suspect's opening the door, reached into an open doorway to grab the suspect, pull him out onto the porch, and arrest him -- distinguishing this case from precedent where the suspect was already standing in an open doorway when police arrived, and the home was used for drug sales. (Judge Anderson disagreed with Judge Marcus and visiting Judge Altonaga, finding the precedent indistinguishable.)

Eleventh Circuit -- class action removal (CAFA), and right to counsel

The Eleventh Circuit is busy today, already posting three opinions this morning -- an extensive opinion on the Class Action Fairness Act (CAFA), a ruling on the right to counsel, and an opinion reviewing a number of matters in a criminal case.

First, the Eleventh Circuit (Judge Tjoflat writing) issued an extensive (77 page) opinion in Lowery v. Alabama Power, an air pollution tort case, interpreting diversity jurisdiction removal requirements in the context of the Class Action Fairness Act (CAFA).

Eleventh Circuit Decisions -- April 10, 2007

The Eleventh Circuit posted two decisions today:  In Usmani v. U.S. Attorney General (a "screener" or nonargument case), the Eleventh Circuit decided a statutory immigration issue -- and a question of first impression in this circuit -- ruling, perhaps unsurprisingly, in favor of the government's discretion under 8 U.S.C. 1255(i) and against the Pakistani citizen seeking to avoid removal.

Also, the Court sua sponte vacated its previous opinion in C.P. v. Leon County School Board, a case interpreting the Individuals With Disabilities Education Act (IDEA), substituting a new opinion in its place. Usually this happens when other members of the Court have reviewed an opinion and internally requested the panel to modify the opinion -- and unlike motions for reconsideration by a party, there is no real hard and fast deadline for such a modification.  Here, it appears that the Court was not comfortable with the original opinion's discussion of the fact-intensive question of whether the school board provided "free appropriate public education" (FAPE) during the time in question, and preferred to rely solely on the fact that the school board was obligated to maintain the status quo during that time period in any event. (Compare opinions starting at page 15.) Nevertheless, this should not be a rude surprise for either party, because the bottom line remains the same: affirmed.

11th Circuit - New Rules Effective April, 2007

For those who practice in the Eleventh Circuit, the Court has implemented a newly amended rule 26.1-2 regarding the Certificate of Interested Persons/Corporate Disclosure Statement, which the Court relies on to screen for conflicts.

The primary changes are to require the certificate to be filed within 10 days after filing the notice of appeal (instead of simply including it in the first brief), and to require the parties to fill out a web-based certificate (which I could not locate on the website -- call the clerk's office to inquire) in addition to filing the paper certificate, but there are several changes making the whole amended rule worth a read if your case was docketed after April 1, 2007.

Also, while you're looking at requirements that come up at the beginning of an appeal, note that, as of today, the appeal docketing fee is now $450 (or $455 if you include the $5 district court fee). See the announcement on the Eleventh Circuit website.