Appellate Law & Practice

CA1: The District Court acted just too jerky in dismissing the complaint

Linares v. U.S., No. 08-1548.  This is an FTCA case.  However, it degenerated into a fight over ECF.  For some reason some (perhaps most) courts require that the parties provide the court with paper copies of electronic filings.  I never understood this.  ECF was supposed to reduce paper.  Anyway, the plaintiff filed a paper complaint.  There was a standing order in place that says that all documents filed in paper form should be filed electronically. 

The District Court, on its own motion dismissed the complaint and sanctioned the plaintiff $150.  Counsel filed a motion for reconsideration, and included an electronic copy, coming up with a good excuse (that his computer was broken).  Not good enough for the District Court.  The Plaintiff docketed a notice of appeal, the District Court started to realize that it was looking bad and issued an order saying that now the reason that the complaint was booted was because he waited too long to cure it.  

The First points to the "standing order" which does not even specify a timeframe for filing electronic copies.  It also points out that dismissal is the harshest of sanctions, there were no aggravating circumstances, and the defendant wasn't prejudiced.

The District Court is looking pretty jerky.  The First says so as well.  

CA1: District Court made all sorts of errors in awarding sanctions

Jensen v. Phillips Screw, No. 07-2766 vacates sanctions under 28 U.S.C. § 1927 for vexatious litigation, because the District Court found the law firm in a class action had not completely investigated just what was up with the proposed class representatives (some wanted to settle, and some used a different kind of screw).  The District Court didn't hold an oral argument or an evidentiary hearing, despite being asked.  The First points out that "A sanctions order must be evaluated on appeal in light of the record that was before the district court at the time the order issued."  But that there is no entitlement to oral argument.

Whatever the case, this seems like a typical case where a District Court got its hate on for a lawyer. 

The First then holds that sanctions under 28 USC 1927, were not available for whatever is in a complaint.

On the other sanctions counts, the First says it was an abuse of discretion for the District Court to reject one party's view of event because it is hearsay, but credit another hearsay account.  Likewise, the First says that the District Court erred by considering that a declaring that the law firm conceded an issue when in fact it was only responding to the opposing argument's specific accusations.  Then, the First rejects another sanctions count that was based on those sanctions counts.

CA1: does everyone get Brady wrong?

US v. Aviles-Colon, Nos. 05-1384, 05-2039, 05-2040.  In this Puerto Rican drug distribution case, the First remands on a Brady v. Maryland, 373 U.S. 83 (1963) issue as to one defendant.  [Update: SL&P, with guest-bloggers, lives up to its ethical duty to read all cases and comments here in a post entitled First Circuit Affirms Sentences of 35 and 55 Years Imposed Due to Murder Proven by Preponderance Standard]

A year after the trial in this case, a DEA report was obtained which the defendant says is Brady material.  But, the District Court used the wrong standard in denying the motion for a new trial.  t said that the suppressed evidence "does not rise to the level of materiality that would be likely to cause a different result at a new trial."  That isn’t the standard.   The standard is “was a reasonable probability of a different outcome, which is "shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" But, the First says that none of this matters because the information in the reports on their own, could have been used for impeachment since it details a lot of the motives of the various players.

The First also goes through what needs to be shown to admit co-conspirator testimony.  The First explains that under its law 1) government agents are conspirators; and 2) “informing co-conspirators of the activities of the conspiracy's members furthers the conspiracy.” 

As always, the First says that prosecutors should not “appeal to the "jury's emotions and role as the conscience of the community."  But, as always, it really means “go ahead and do it.”  So, it finds that the prosecutor’s comments were not that bad.  That is the usual stuff.  Some of the other claims of prosecutorial misconduct don’t have merit (i.e. saying that they are “fortunate” to have a gang member testify). 

There are a lot of other typical issues, but they don’t really create any new law.  But, for those that practice in this area, this case will be of interest.  Otherwise, there is a spreadsheet at the end, explaining what is up with each case.

GA: Jefferson contempt coverage reversed

Detail-oriented real lawyers (i.e. our fans) will recall our coverage of Sherri Jefferson.   (Even more of our coverage here.)  Well, A Public Defender tells us that the contempt conviction of public defender, Sherri Jefferson was reversed by the George Supreme Court. As the real lawyers amongst us will recall, Ms. Jefferson, was a public defender in a fairly new office in a jurisdiction which has not really worked out what it is like to have a static public defender agency.  Strangely, rather than just telling the trial court to stop being so petty (or at least stop using the power of contempt to fight its political battles), the George supremes lay out some guidelines (and provide an overview of the substance of the law of contempt) for when trial courts can hold lawyers in contempt.

 

...And Russians take a break from producing spam and pretending they have a democracy to make this cool video of Gmail.

CA1: Two issues, two courts of appeal, two trials, two notices of appeal and no sanctions

Cytologix Corp v. Ventana Medical, No. 07-2629.  Okay, we got a couple of large law firms fighting it out over some fairly minor procedural issues.  My guess is that they spent lots of billable hours on this, so if you ever have a similar issue, you can get the briefs.  Anyway, there were two lawsuits filed.  There was no formal order of consolidation, but “After two trials, both combining claims from each action, the district court entered final judgment on all claims....the district court later entered an order stating that, in actuality, the cases were consolidated for trial and ordering that they be consolidated, nunc pro tunc, as of the commencement of the first trial.” 

Then Cytologix filed identical notices of appeal in the First Circuit and Federal Circuit (since there were patent cases).  Okay, covering all the bases.  Not bad.  Ventana moves to dismiss and, of course, asks for sanctions. 

CytoLogix suggests that the patent issues be transferred to the Federal Circuit. But, the First says that this isn’t necessary because they already filed a notice of appeal there, and therefore “However, because an identical appeal is already pending there, we will simply dismiss the appeal mistakenly filed here, without prejudice.” 

The First then adds that this wasn’t frivolous, so no sanctions are in order.

CA1: notices of appeal can be born nullities and blossom into things that means something

Malloy v. WM Specialty Mortgage, No. 07-1026.  This case is the height of appellate practice nerdery.  After not responding to discovery requests or complying with various motions to compel, the District Court entered a really long order, which said “the court grants the present motion to the extent that it seeks dismissal of this action. This order is an interlocutory one; it will become final on December 8, 2006, unless, on or before that date, the plaintiffs show cause why this case should not be dismissed.”  Essentially, it put the clerk on autopilot.  But, the clerk entered a judgment, anyway.  The plaintiffs moved to vacate it, arguing that it was premature.  Before a ruling came out on the motion to vacate the plaintiffs filed a notice of appeal.  After the notice was filed the District Court denied the motion to vacate without comment.

The First concludes that although the notice of appeal was premature when filed, it became effective when the court denied the motion to vacate.  Therefore, the First has juriscition.

Anyway, on the merits, the First says that the discovery violations were “relatively severe” and there was no good excuse for them.   There was not much prejudice to the defendant, but that doesn’t matter: they were not honoring court orders.  Finally, 1) the First notes that the District court had tried everything, so lesser sanctions don’t matter; and 2) the plaintiffs had plenty of notice.

The 10th Circuit in Oliver

Decision of the Day reported on Committee on the Conduct of Attorneys v. Oliver, 07-4097 (10th Cir.,  Dec. 18, 2007).  In this case, ex-Judge Cassell "filed a sealed complaint referring Oliver for professional disciplin because Oliver had missed deadlines and violated court orders in twenty-seven cases."  For those of you that don't have first-hand knowledge of the inner workings of any court, many judges usually look down upon counsel, expecting them to not only comply with every order in the way they expect, but also expecting them to supply facts that they would expect.  And those are the good judges.  Truth be told, this is probably human.  We all like to feel superior and lawyers are no exception.  Lawyers bash for being "bad" each other like there is no tomorrow.  Law clerks, the kind that have no experience, seem to delight in saying how they would do a better job than any lawyer regardless of the facts, law, resources, or clients.  (Yes folks, sometimes there are bad facts, bad law, limited resources, and just plain uncooperative clients. Oh by the way, witnesses (including cops) lie, too.)               

CA1: is there any procedural justice in CDP hearings?

Drake v. CIR, No. 06-2507.  Oh good.  A Tax case.  The earlier proceedings were important to tax practitioners because they involved the extent to which Appeals Officers could engage in ex parte contacts with other parts of the service.  There was a remand by the Tax Court to the IRS.  He attempts to raise these issues again, but the First says that the remand purged the taint.

Starting with the worst part of the opinion: The First holds, without any real analysis that “the circuits that have all agree that a prevailing party must prevail in the final outcome of the case.”  Therefore, he doesn’t get attorneys fees.  Pathetically the First cites three cases.  One isn’t even under the Internal Revenue Code (which has its own fee-shifting provision), and the two are not directly on point with the petitioner’s argument – that he was entitled to fees for the initial tainted proceedings that the IRS botched. Instead, they deal fee issues relating to whether someone “substantially prevailed.”  I don’t know why the First dropped the ball on this.

You should like totally read on.

CA1: First vacates jury award for lost leg

Vazquez-Fillippetti v. Banco Popular, Nos. 05-2372, 06-1432. Let me start with the more interesting issue?  Okay?  Good.  Your permission is important to me.

The First holds that pursuant to Puerto Rico’s rules of civil procedure allowing for an award of attorneys fees when one party acts frivolously or badly, when the prevailing party below, by virtue of the appeal becomes no longer the prevailing party they are not entitled to such fees, anyway.  Since the non-appealing (and losing) co-defendants didn’t engage in that same behavior, he still loses his fees.

Okay, on to the substance.  Oh wait.  I want you to look below the fold.

CA1: First really bends to affirm a disciplinary proceeding

In Re: Alexander Zeno, Nos.07-8017, 07-2065.  After not doing anything for awhile, the First slowly stirs.  This first case is a reciprocal disciplinary matter.  The lawyer was punished (though not disbarred) by the District Court.

But, the underlying facts don’t seem too egregious.  He seems to have bashed the prosecutors and judges in a motion.  He accused them of laughing at his legal arguments.  The District Court said he had a “chronic tendency” to use "belligerent and insulting prose in addressing members of this court," which amounted to a violation of Rule 3.5(d) of the ABA Model Rules of Professional Conduct.