Civil Procedure

Defendant moved for summary judgment, then made a Rule 68 offer of judgment in the amount of $50,000.  Less than 14 days later, the court granted the summary judgment motion but didn't immediately enter judgment for defendant.  Plaintiff accepted the Rule 68 offer.  Held, the acceptance was effective.  Under Rule 68, an offer of judgment remains open for 14 days. … Read More

A wrongful death claim under federal maritime law accrues on or after the date of death, not earlier when the victim (soon-to-be deceased) learns of his illness or injury.  The statute accrues on date of discovery of the illness, however, on claims under survival statutes that abrogate the common law rule that tort claims died with the plaintiff.  Where the… Read More

Four federal statutes bar discrimination on the basis of race, gender, disability or other protected characteristics by recipients of federal financial assistance; namely Title VI and IX of the 1964 Civil Rights Act, the Rehabilitation Act and the Affordable Care Act.  None of these acts expressly grant private rights of action to victims of discrimination that violates those Acts' provisions. … Read More

Following Roes, 1-2  v. SFBSC Management, LLC (9th Cir. 2019) 944 F.3d 1035, this decision holds that when a class action settles before class certification, the district court may not apply a presumption of fairness to the settlement based on arms-length negotiation between experienced counsel.  Instead, the court mus employ extra caution and more rigorous scrutiny in evaluating a pre-certification… Read More

Under the Madrid Protocol implemented in 15 USC 1141 et seq, and under 15 USC 1057, the holder of a trademark registered in a foreign country can obtain registration of the trademark in the United States as well, and obtain the benefit of a constructive use date pegged to the date of the foreign registration or application for US registration. … Read More

If a foreign sovereign entity is subject to suit under one of the exceptions to immunity otherwise conferred by the Foreign Sovereign Immunities Act, the Act does not affect the substantive law governing the entity's liability.  Instead, 28 USC 1606 provides that when not entitled to immunity, "the foreign state shall be liable in the same manner and to the… Read More

If a statute prescribes a time limit within which a petition, appeal or other pleading must be filed, it will be treated as jurisdictional only if Congress clearly states that the time limit is jurisdictional.  Jurisdictional time limits cannot be waived or forfeited, must be raised by courts sua sponte, and do not allow for equitable exceptions.  Here, the Court… Read More

Defendant residential care facility's arbitration clause was procedurally unconscionable as (i) it was a contract of adhesion, (ii) it incorporated the AAA rules but no copy of them was provided, and (iii) the facility required a patient undergoing an acute psychotic incident, who could not concentrate for more than 10-20 seconds to sign the clause.  The clause was substantively unconscionable… Read More

An apex deposition of the head of a governmental department is allowed only with the agency head is shown to have direct personal factual (as opposed to legal) knowledge of information pertinent to material issues in litigation and the agency head's information is not available through another source.  Here, an apex deposition of the former district attorney was not allowed… Read More

On remand from the US Supreme Court for reconsideration in light of Van Buren v. United States (2021) 141 S.Ct. 1648, the Ninth Circuit reaffirms its holding that the district court did not abuse its discretion in entering a preliminary injunction barring LinkedIn from preventing HiQ from "scraping" data from public LinkedIn posts by threats of suit or technological blocking… Read More