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

Articles Posted in Civil Procedure
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Nexus Pharmaceuticals, Inc. (Nexus) developed the trademarked and FDA-approved drug Emerphed, ready-to-use ephedrine sulfate in a vial. Drug compounding by “outsourcing facilities” is permitted without FDA approval, but 21 U.S.C. Section  353b, a part of the Food, Drug, and Cosmetic Act, excludes from this exception compounded drugs that are “essentially a copy of one or more approved drugs.” To avoid the Act’s bar on private enforcement, Nexus alleged violation of state laws that prohibit the sale of drugs not approved by the FDA.   The Ninth Circuit affirmed the district court’s dismissal, for failure to state a claim, of state law claims brought by Nexus against Central Admixture Pharmacy Services, Inc., operator of a network of compounding pharmacies that sold the drug ephedrine sulfate pre-loaded into ready-to-use syringes without FDA approval.   The panel affirmed the district court’s conclusion that, under the implied preemption doctrine, Nexus’s state law claims were barred because they were contrary to the Food, Drug, and Cosmetic Act’s exclusive enforcement provision, which states that proceedings to enforce or restrain violations of the Act, including the compounding statute, must be by and in the name of the United States, not a private party. The panel held that all of Nexus’s claims depended on a determination of whether Central Admixture’s ephedrine sulphate was “essentially a copy” of Nexus’s Emerphed, and the plain text of the Food, Drug, and Cosmetic Act left that determination in the first instance to the FDA and its enforcement process. View "NEXUS PHARMACEUTICALS, INC. V. CAPS, ET AL" on Justia Law

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Various parties appealed the dismissal of their action challenging Reclamation’s current operating procedures, which were adopted in consultation with other relevant federal agencies to maintain specific lake levels and instream flows to comply with the Endangered Species Act (“ESA”) and to safeguard the federal reserved water and fishing rights of the Hoopa Valley and Klamath Tribes (the “Tribes”). The Tribes intervened as of right but then moved to dismiss the action on the ground that they were required parties who could not be joined due to their tribal sovereign immunity   The Ninth Circuit affirmed the district court’s dismissal, due to a lack of a required party under Fed. R. Civ. P. 19. The panel held that the district court properly recognized that a declaration that Reclamation’s operating procedures were unlawful would imperil the Tribes’ reserved water and fishing rights. The panel affirmed the district court’s conclusion that the Tribes were required parties who could not be joined due to sovereign immunity, and that in equity and good conscience, the action should be dismissed.   The panel disagreed with Plaintiffs’ argument that the Tribes were not required parties to this suit because the Tribes’ interests were adequately represented by Reclamation. Because Reclamation is not an adequate representative of the Tribes, the Tribes are required parties under Rule 19. The court explained that The McCarran Amendment waives the United States’ sovereign immunity in certain suits. 43 U.S.C. Section 666(a). The panel held that even if the McCarran Amendment’s waiver of sovereign immunity extends to tribes as parties, the Amendment does not waive sovereign immunity in every case that implicates water rights. View "KLAMATH IRRIGATION DISTRICT, ET AL V. U.S. BUREAU OF RECLAMATION, ET AL" on Justia Law

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The Ninth Circuit certified the following questions to the Hawaii Supreme Court: 1. May a Hawaii court assert personal jurisdiction over an out-of-state corporate defendant if the plaintiff’s injury “relates to,” but does not “arise from,” the defendant’s instate acts enumerated in Hawaii’s general long-arm statute? Compare Ford Motor Co. v. Montana Eighth Judicial District Court, 141 S. Ct. 1017 (2021), with Haw. Rev. Stat. Section 634-35. 2. In light of Ford Motor Co. v. Montana Eighth Judicial District Court, does Hawaii’s general long-arm statute, Haw. Rev. Stat. Section 634-35, permit a Hawaii court to assert personal jurisdiction to the full extent permitted by the Due Process Clause of the Fourteenth Amendment? View "MATT YAMASHITA V. LG CHEM, LTD., ET AL" on Justia Law

Posted in: Civil Procedure
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The appeal was brought in the name of purported clients of the law firms of Gallo LLP and Wynne Law Firm (“Gallo/Wynne”). Gallo/Wynne originally sought to represent a putative class of Walgreen’s store managers in the San Francisco Superior Court in a wage and hour action (the Morales action). A different group of attorneys from the firms of Miller Shah LLP and Edgar Law Firm LLC (“Miller/Edgar”) filed a substantially similar wage and hour action on behalf of Walgreen’s store managers in the Eastern District of California (the Caves action). Gallo/Wynne sought to encourage putative class members in the Caves action to instead join a separate “mass action” to be filed by Gallo/Wynne as Gallo/Wynne clients.The district court issued an order granting Miller/Edgar’s ex parte application for Corrective Notice to the allegedly misleading Letter and invalidated all Gallo/Wynne procured opt-outs from the Caves action. The district court issued a second order granting Walgreen’s motion to modify the scope of the Corrective Notice to be sent to all Gallo/Wynne procured Caves opt-outs. Appellants are purported clients of Gallo/Wynne, and they appealed these two orders.The Ninth Circuit dismissed the appeal for lack of jurisdiction and denied Appellants’ request for mandamus relief. The panel held that the two orders were amenable to review after final judgment, and this placed them outside of the third collateral order requirement: effective unreviewability. The panel held that the dispositive third factor–that the district court order is clearly erroneous as a matter of law– was not met here. View "RAQUEL AGUILAR, ET AL V. WALGREEN CO." on Justia Law

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Will Co. Ltd., a Japanese adult entertainment producer, brought a copyright infringement action against the owners and operators of ThisAV.com, a video-hosting site based in Hong Kong, alleging that the site was displaying without authorization several of its copyrighted works. The district court found that it lacked specific personal jurisdiction over ThisAV.com’s owners and operators because Will Co. could not establish that they “expressly aimed” ThisAV.com’s content at the United States market, or that it was foreseeable that operating the site would cause jurisdictionally significant harm in the United States. Defendants were Youhaha Marketing and Promotion Limited (“YMP”) and Ka Yeung Lee.The Ninth Circuit reversed the district court’s dismissal of a copyright suit for lack of specific personal jurisdiction and remanded for further proceedings. The panel concluded that both YMP and Lee committed at least one intentional act by operating ThisAV.com and purchasing its domain name and domain privacy services. As to the second element, both Defendants did “something more” than mere passive operation of the website. As to the third element, Defendants’ conduct caused harm in the United States because there were almost 1.3 million visits to their website in the United States during the relevant period, and that harm was foreseeable. View "WILL CO., LTD. V. KA LEE" on Justia Law

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At issue were several statements in articles published by Morgan Simon on Forbes.com that connected CoreCivic to the detention of separated families at the U.S. border and characterized its lobbying efforts as pushing for punitive criminal and immigration laws. Simon’s firm is Candide Group. CoreCivic filed suit against Simon and Candide Group (collectively “Candide”) for defamation and defamation by implication. Candide made a special motion to strike CoreCivic’s complaint under California’s antiSLAPP Act, Cal. Civ. Proc. Code Section 425.16.   The Ninth Circuit held that the special motion provision of California’s anti-SLAPP statute applied in federal court, and affirmed in part the district court’s order granting Candide Group, LLC’s motion to strike the defamation complaint. The panel held that the court’s prior precedents control. In United States ex rel. v. Lockheed Missiles &Space Co., the court held that California’s anti-SLAPP statute applied in federal diversity actions because there was “no ‘direct collision’” between the statute and the relevant rules, and the twin purposes of Erie favored its application.   The panel turned to the merits of Candide’s anti-SLAPP motion. Because CoreCivic did not contest on appeal that the suit implicated Candide’s First Amendment rights, the panel needed only to determine–applying the 12(b)(6) standard–whether CoreCivic stated a claim for defamation under California law. The panel concluded that CoreCivic failed to plausibly plead a defamation or a defamation by implication claim based on statements about its connection to the separation of immigrant families at the U.S. border, and affirmed the district court’s dismissal of those claims. View "CORECIVIC, INC. V. CANDIDE GROUP, LLC" on Justia Law

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Relator alleged that Defendants prevented generic drug competitors from entering the market. Relator alleged that this permitted defendants to charge Medicare inflated prices for the two drugs, in violation of the False Claims Act. The district court denied Defendants’ motion to dismiss based on the False Claims Act’s public disclosure bar, which prevents a relator from merely repackaging publicly disclosed information for personal profit by asserting a claim under the Act.The Ninth Circuit held that an ex parte patent prosecution is an “other 4 UNITED STATES EX REL. SILBERSHER V. ALLERGAN Federal . . . hearing” under 31 U.S.C. Sec. 3730(e)(4)(A)(ii). Thus, the public disclosure bar was triggered. The Ninth Circuit expressed no opinion on whether Relator still could bring his qui tam action because he was an “original source” of the information in his complaint. The court remanded to the district court for further proceedings. View "ZACHARY SILBERSHER V. ALLERGAN, INC." on Justia Law

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In March 2018, the officers were involved in the fatal shooting of a homeless man. The Oakland Police Department investigated the incident, concluding that the officers’ use of force was reasonable and complied with Police Department policy. The Chief of Police agreed. Separately, the Community Police Review Agency (CPRA), the investigative body of the City’s civilian oversight Police Commission, investigated the incident and determined that the use of force was objectively reasonable. The Compliance Director disagreed with the Chief of Police and the CPRA, instead recommending termination of the officers for unreasonable use of force. After their termination, the officers sought a writ of mandate and declaratory relief in state court.The Ninth Circuit vacated, for lack of subject matter jurisdiction, the district court’s judgment on the pleadings in favor of Defendants and remanded with instructions to remand this case to state court. The panel held that this was a case arising under state law that properly belonged in the state courts. Recognizing that under Section 1331, a case can “arise under” federal law in two ways, the panel determined that it lacked subject matter jurisdiction under both branches of federal question jurisdiction. First, the panel lacked subject matter jurisdiction under the federal cause of action branch because federal law did not create the causes of action asserted. The panel next held that it lacked subject matter jurisdiction under the substantial federal question branch. View "FRANCISCO NEGRETE V. CITY OF OAKLAND" on Justia Law

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The dispute at issue is between Jones Day and one of its former partners, a German national who was based in its Paris office until he left to join Orrick, Herrington & Sutcliffe (“Orrick”). Jones Day’s partnership agreement provides for mandatory arbitration of all disputes among partners, and that all such arbitration proceedings are governed by the FAA. The partnership dispute proceeded to arbitration in Washington D.C., the location designated in the arbitration agreement.   The Ninth Circuit reversed the district court’s order denying Jones Day’s petitions to compel Orrick to comply with an arbitrator’s subpoena. First, the court held that the district court had subject matter jurisdiction over the action to enforce arbitral summonses issued by the arbitrator in an ongoing international arbitration being conducted in Washington, D.C., under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, known as the New York Convention. The court further held that venue was proper in the Northern District of California. The court reversed and remanded with instructions to enforce Jones Day’s petitions to compel Orrick and its partners to comply with the arbitral summonses. View "JONES DAY V. ORRICK, HERRINGTON & SUTCLIFFE" on Justia Law

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Liberty Insurance Corporation (“Liberty”) sought to rely on a general coverage exclusion, it was aware that its policy also contained an exception to the general exclusion if the Defendant homeowners, could show that the all-terrain vehicle (ATV) was not subject to motor vehicle registration and was used to “service” their cabin. One of Defendant homeowners was the only witness who testified during a bench trial.   After the trial concluded, the district court (at Liberty’s request) imposed Rule 37(c)(1) sanctions on Defendants for failing to disclose a witness. The district court also excluded one of the homeowner’s testimony about whether the ATV was registered and used to service the cabin, based on the theory that he had not been properly disclosed as a witness. The district court ruled that ATV was used to service the cabin at any time,” and thus found that the Defendants were not entitled to coverage.   The Ninth Circuit reversed the district court’s order imposing sanctions and remanded for a new trial. The court held that because Defendants complied with Rule 26(a)(1)(A)(i)’s requirement to disclose “individuals likely to have discoverable information—along with the subjects of that information” for the purpose of identifying potential fact witnesses, sanctions under Rule 37(c)(1) were not justified. But even Defendants had not complied with Rule 26, the district court abused its discretion by imposing Rule 37(c)(1) sanctions without analyzing (1) whether the alleged defects in the disclosures were harmless and (2) whether the defects involved willfulness, fault, or bad faith. View "LIBERTY INSURANCE CORPORATION V. YVONNE BRODEUR" on Justia Law