Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Articles Posted in Civil Procedure
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The Ninth Circuit reversed the district court's order remanding a removed action to state court, vacated the district court's award of attorneys' fees to plaintiff under 28 U.S.C. 1447(c); and remanded for further proceedings. This appeal stemmed from plaintiff's suit against Boeing and others in state court, alleging causes of action based on her exposure to asbestos that her family members brought home from work.The panel held that it had jurisdiction over the remand order under 28 U.S.C. 1447(d), explaining that even though the district court remanded pursuant to section 1446(b), under BP P.L.C. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532 (2021), the panel had jurisdiction to review the remand order because the case was removed under section 1442.The panel explained that 28 U.S.C. 1446(b) lays out two pathways for removal. Because plaintiff's initial complaint does not set forth a ground for removal, the first pathway does not apply. Applying the "unequivocally clear and certain" standard, the panel concluded that an amended pleading, motion, order, or other paper must make a ground for removal unequivocally clear and certain before the removal clock begins under the second pathway of section 1446(b)(3). In this case, Boeing's removal was timely because no ground for removal was unequivocally clear and certain until service of plaintiff's amended discovery requests. View "Dietrich v. The Boeing Company" on Justia Law

Posted in: Civil Procedure
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The Defendants, Ohana Military Communities, LLC and Forest City Residential Management, began a major housing construction project on Marine Corps Base Hawaii (MCBH) in 2006. MCBH was widely contaminated with pesticides potentially impacting human health. Defendants developed and implemented a Pesticide Soil Management Plan but allegedly never informed residential tenants of the Plan, the decade-long remediation efforts, or known pesticide contamination. Plaintiffs, military servicemember families, filed suit in Hawaii state court alleging 11 different claims under state law. Defendants removed the case to federal court.The Ninth Circuit reversed the denial of the Plaintiffs’ motion to remand. Federal jurisdiction did not exist because, under the Hawaii Admission Act, 73 Stat. 4 (1959), Hawaii had concurrent legislative or political jurisdiction over MCBH, so state law had not been assimilated into federal law. The court rejected an argument that, regardless of any concurrent state jurisdiction, federal jurisdiction exists where federally owned or controlled land is involved, and a substantial federal interest exists. There was no federal officer or agency jurisdiction because there was no causal nexus between the Navy and Ohana under 28 U.S.C. 1442, and Ohana was not a federal agency for purposes of federal jurisdiction. Under the Gunn test, no federal issue was “necessarily raised.” View "Lake v. Ohana Military Communities, LLC" on Justia Law

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Alliance alleged that County and City policies and inaction have created a dangerous environment in the Skid Row area, claiming that the County violated its mandatory duty to provide medically necessary care and that the municipalities have facilitated public nuisance violations by failing to clear encampments, violated disability access laws by failing to clear sidewalks of encampments, and violated constitutional rights by providing disparate services to those within the Skid Row area and by enacting policies resulting in a state-created danger to area residents and businesses. The district court issued a preliminary injunction, ordering the escrow of $1 billion to address homelessness, offers of shelter to all unhoused individuals in Skid Row within 180 days, and numerous reports. The court found that structural racism was behind Los Angeles’s homelessness crisis and its disproportionate impact on the Black community.The Ninth Circuit vacated. The plaintiffs lacked standing on all but their ADA claim; no claims were based on racial discrimination. The district court impermissibly resorted to independent research and extra-record evidence. There was no allegation that any individual plaintiff was Black nor that there was a special relationship between the City and unhoused residents nor that any individual plaintiff was deprived of medically necessary care or general assistance. Two plaintiffs who use wheelchairs and cannot traverse Skid Row sidewalks because of homeless encampments had standing to bring ADA claims but had not shown a likelihood of success on the merits. View "LA Alliance for Human Rights v. County of Los Angeles" on Justia Law

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The Ninth Circuit affirmed the district court's orders holding the Company and the Law Firm in contempt for failure to comply with grand jury subpoenas related to a criminal investigation, in a case in which the district court ruled that certain dual-purpose communications were not privileged because the "primary purpose" of the documents was to obtain tax advice, not legal advice. The panel concluded that the primary-purpose test governs in assessing attorney-client privilege for dual-purpose communications.The panel stated that district courts in its circuit have applied both the "primary purpose" and "because of" tests for attorney-client privilege claims for dual-purpose communications; the primary-purpose test applies to dual-purpose communications in the attorney-client privilege context; and the panel left open whether "a primary purpose test" should apply rather than "the primary purpose" test. The panel addressed remaining issues in a concurrently filed, sealed memorandum disposition. View "In re Grand Jury" on Justia Law

Posted in: Civil Procedure
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Guam’s Department of Revenue concluded that Guerrero owes approximately $3.7 million in unpaid taxes because he did not pay his full tax liability for the tax years 1999, 2000, 2001, and 2002 after belatedly filing his returns for these years. The parties dispute when the Department assessed Guerrero’s taxes because the official records are missing, likely due to water, mold, and termite damage at the storage facility. Guam filed tax liens on real property that Guerrero owns with his former spouse in joint tenancy, then filed suit to collect Guerrero’s tax deficiencies through foreclosure. Guerrero argued that the Department cannot prove that it timely assessed his taxes, timely levied the tax liens, nor timely commenced its action, 26 U.S.C. 6501(a), 6502(a)(1). Guam invoked the presumption of regularity based on the Department’s standard procedure and internal documents to establish that Guam acted within the statute of limitations.The district court partially ruled in favor of Guam, on the issues of the presumption of regularity and the timeliness of the Department’s actions. The Ninth Circuit affirmed. The presumption of regularity applied and Guerrero failed to rebut it. Guam established the timeliness of its assessment of Guerrero’s unpaid taxes, its filing of the tax lien, and its commencement of this action through the internal documents and testimony from the Department’s employees. View "Government of Guam v. Guerrero" on Justia Law

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Zyszkiewicz, a prisoner and a medical cannabis patient, wrote a one-page letter to the DEA, seeking the rescheduling of marijuana under the Controlled Substances Act (CSA), 21 U.S.C. 801, which places federally-regulated substances into one of five schedules depending on “potential for abuse,” “medical use,” “safety,” and the likelihood of “dependence.” The DEA responded that the letter was not in the proper format for a petition but that it welcomed the opportunity to respond to his concerns. The DEA’s letter gave reasons for having denied an earlier rescheduling petition filed by Governors Chafee of Rhode Island and Gregoire of Washington State. Zyszkiewicz treated the DEA’s answer as a denial of his petition and unsuccessfully sought judicial review.Dr. Sisley, her associated institutions, and veterans (Petitioners) sought judicial review of the DEA’s response but did not seek to intervene in Zyszkiewicz’s petition before the DEA, nor have they filed a DEA petition of their own. The arguments Petitioners sought to raise were not made in Zyszkiewicz’s petition.The Ninth Circuit held that the Petitioners satisfy Article III standing requirements, but that they failed to exhaust their administrative remedies under the CSA and dismissed their petition for review. Petitioners alleged direct and particularized harms due to the misclassification of cannabis. Dr. Sisley and her associated institutions contend that the misclassification impedes their research efforts, and the veterans contend that it forecloses their access to medical treatment with cannabis through the VA. View "Sisley v. United States Drug Enforcement Agency" on Justia Law

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Ayla, a San Francisco-based brand, is the registered owner of trademarks for use of the “AYLA” word mark in connection with on-site beauty services, online retail beauty products, cosmetics services, and cosmetics. Alya Skin, an Australian company, sells and ships skincare products worldwide. Ayla sued in the Northern District of California, asserting trademark infringement and false designation of origin under the Lanham Act, 15 U.S.C. 1114, 1125(a).Alya Skin asserted that it has no retail stores, offices, officers, directors, employees, bank accounts, or real property in the U.S., does not sell products in U.S. retail stores, solicit business from Americans, nor direct advertising toward California; less than 10% of its sales have been to the U.S. and less than 2% of its sales have been to California. Alya Skin uses an Idaho company to fulfill shipments outside of Australia and New Zealand. Alya Skin filed a U.S. trademark registration application in 2018, and represented to potential customers that its products are FDA-approved; it ships from, and allows returns to, Idaho Alya Skin’s website listed U.S. dollars as the default currency and advertises four-day delivery to the U.S.The Ninth Circuit reversed the dismissal of the suit. Jurisdiction under Fed.R.Civ.P. 4(k)(2) comports with due process. Alya Skin had minimum contacts with the U.S., and subjecting it to an action in that forum would not offend traditional notions of fair play and substantial justice. The company purposefully directed its activities toward the U.S. The Lanham Act and unfair competition claims arose out of or resulted from Alya Skin’s intentional forum-related activities. View "Ayla, LLC v. Alya Skin Pty. Ltd." on Justia Law

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The district court entered a $38,489,055 judgment against Jecklin, a Swiss citizen, and two businesses he controls, also awarding post-judgment interest, costs, and attorney’s fees. Plaintiffs propounded post-judgment interrogatories and requests for the production of documents pursuant to Federal Rules of Civil Procedure 69(A)(2), which authorizes a judgment creditor to obtain discovery from a judgment debtor to aid in the execution of a judgment. When the Jecklin Defendants failed to produce the requested discovery, the court granted a motion to compel responses under Rule 37. The Defendants did not comply. At a status conference, they advised the court, through counsel, that “they are not going to comply with the Court order compelling discovery because they do not accept jurisdiction of this Court and they consider Your Honor’s decision not to be enforceable in Switzerland.” Plaintiffs moved for sanctions. Plaintiffs sought the issuance of an arrest warrant.The district court held the Defendants in civil contempt, imposed a daily fine, and found that their “pattern of disregarding the Court’s Order supports the coercive sanction of arrest.” The Ninth Circuit affirmed; 28 U.S.C. 1826(a), which provides that when a witness refuses to testify or provide other information, including documentary evidence, the court “may summarily order his confinement ... until ... the witness is willing to give such testimony or provide such information,” applies to an individual who refuses to comply with a court order compelling responses to post-judgment written discovery requests. View "Invesco High Yield Fund v. Jecklin" on Justia Law

Posted in: Civil Procedure
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The Bureau of Land Management (BLM) published the 2012 Integrated Action Plan/Environmental Impact Statement (IAP/EIS) for the Petroleum Reserve-Alaska. In 2014, BLM granted ConocoPhillips permission to construct a drill pad in the Greater Moose Tooth (GMT) Unit within the Reserve and issued a GMT supplemental EIS, relying on the 2012 IAP/EIS. In 2018, BLM granted ConocoPhillips permission to construct another GMT drill pad, issuing a second GMT supplemental EIS. In 2018, ConocoPhillips applied to drill in another Unit. BLM published an environmental assessment that purportedly incorporated the 2012 IAP/EIS and the two GMT supplemental EISs. BLM did not issue an EIS but found no new significant impact. ConocoPhillips completed the program in April 2019. In March 2019, objectors sued, citing the National Environmental Policy Act.The Ninth Circuit concluded that the case was moot because neither court could grant any relief. The only lasting physical features of the drilling were capped wells; there was no indication that ConocoPhillips could undo the drilling of those wells. The “capable of repetition, yet evading review” exception to mootness did not apply. Although a case generally will not be moot when the environmental report at issue will be used by the agency in approving a future project, the legal landscape has changed. The Council of Environmental Quality has issued new NEPA regulations. BLM issued a 2020 IAP/EIS for the Reserve, Plaintiffs have not shown a “reasonable expectation” that they will be subjected to an EA tiering to the 2012 IAP/EIS again. View "Native Village of Nuiqsut v. Bureau of Land Management" on Justia Law

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The dating app Tinder offered reduced pricing for those under 29. Kim, in her thirties, paid more for her monthly subscription than those in their twenties. Kim filed suit, citing California’s Unruh Civil Rights Act and its unfair competition statute. The parties reached a settlement, before class certification, that applied to a putative class, including all California-based Tinder users who were at least 29 years old when they subscribed. Tinder agreed to eliminate age-based pricing in California for new subscribers. Class members with Tinder accounts would automatically receive 50 “Super Likes” for which Tinder would ordinarily have charged $50. Class members who submitted a valid claim form would also receive their choice of $25 in cash, 25 Super Likes, or a one-month free subscription.Class members, whose attorneys represent the lead plaintiff in a competing age discrimination class action against Tinder in California state court, objected to the proposed settlement. The district court certified the class, granted final approval of the proposed settlement, and awarded Kim a $5,000 incentive payment and awarded $1.2 million in attorneys’ fees. The Ninth Circuit reversed. While the district court correctly recited the fairness factors under Fed. R. Civ. P. 23(e)(2), it materially underrated the strength of the plaintiff’s claims, substantially overstated the settlement’s worth, and failed to take the required hard look at indicia of collusion, including a request for attorneys’ fees that dwarfed the anticipated monetary payout to the class. View "Allison v. Tinder, Inc." on Justia Law