Fourth Circuit holds that it can dismiss an untimely criminal appeal sua sponte, but should do so only in very limited circumstances.
In United States v. Oliver, the Fourth Circuit recently held that the Court has the inherent authority to dismiss an untimely criminal appeal sua sponte. As a general rule, the Court said, it will not use that authority; instead, it will rely on the government to raise an objection based on untimeliness. In rare cases, however, an untimely appeal can implicate judicial interests to such an extent that not intervening would harm the court as an institution. Only in such circumstances will the Fourth Circuit exercise its authority to dismiss a criminal appeal where the government has forfeited or waived its objection. Read More…
SCOTUS vindicates 2008 Judge Wilner opinion on tolling of limitations
By Steve Klepper (Twitter: @MDAppeal)
On Monday, in Artis v. District of Columbia, the Supreme Court of the United States resolved a division of authority on the meaning of 28 U.S.C. § 1367(d). Under § 1367(d), when a federal court exercises supplemental jurisdiction over a state-law claim, the limitations period on that claim “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.”
Justice Ginsburg, writing for the five-justice majority, noted a division of authority on the application of the statute:
The high courts of Maryland and Minnesota, along with the Sixth Circuit, have held that §1367(d)’s tolling rule pauses the clock on the statute of limitations until 30 days after the state-law claim is dismissed. See In re Vertrue Inc. Marketing & Sales Practices Litigation, 719 F. 3d 474, 481 (CA6 2013); Goodman v. Best Buy, Inc., 777 N. W. 2d 755, 759–760 (Minn. 2010); Turner v. Kight, 406 Md. 167, 180–182, 957 A. 2d 984, 992–993 (2008). In addition to the D. C. Court of Appeals, the high courts of California and the Northern Mariana Islands have held that §1367(d) provides only a 30-day grace period for the refiling of otherwise time-barred claims. See Los Angeles v. County of Kern, 59 Cal. 4th 618, 622, 328 P. 3d 56, 58 (2014); Juan v. Commonwealth, 2001 MP 18, 6 N. Mar. I. 322, 327 (2001).
Maryland found itself on the winning side of that division of authority, Read More…
Schneider Electric in the Court of Appeals – So Much for Efficient Resolution of Surety Bond Disputes and Policies Favoring Arbitration over Litigation
Deciding in favor of litigation over arbitration, the Court of Appeals, in Schneider Elec. Bldgs. Critical Systems, Inc. v. Western Surety Co., 454 Md. 698, 165 A.3d 485 (2017) (“Schneider Electric”), affirmed a decision of the Court of Specials Appeals, discussed in this blog on June 26, 2017.
Schneider Electric Buildings Critical Systems, Inc. (“Schneider”), a contractor, had been given a performance bond by NCS, its subcontractor. Despite their Master Subcontractor Agreement requiring dispute resolution by arbitration, and the performance bond, issued by Western Surety Company (“Surety”), binding NCS and the Surety “jointly and severally . . . to [Schneider] for the performance of the Construction Contract, which is incorporated herein by reference[,]” the Court of Appeals followed the intermediate appellate court in ruling that the Surety could choose litigation and need not participate with NCS in the arbitration that Schneider brought. Read More…
Why The Baltimore City Circuit Court May Transfer More Tort Cases in 2018
By Derek Stikeleather
A recent Court of Appeals opinion has shaken one of the main pillars that plaintiffs have rested on when resisting transfers to a more convenient forum—deference to the plaintiff’s chosen venue. Univ. of Maryland Med. Sys. Corp. v. Kerrigan, — A.3d —-, 2017 WL 5711857 (Md. Nov. 28, 2017). By expressly holding that trial judges owe little deference to a plaintiff’s chosen venue when no plaintiff resides there, the Kerrigan opinion significantly weakens plaintiffs’ ability to secure the most plaintiff-friendly venues in any case that involves multiple venues. Read More…
Death of adult with Down syndrome shows difference between federal and Maryland interlocutory appeals
By Michael Wein
A Washington Post article dated September 13, 2017, discussed the upcoming oral arguments and the expectation was that it could “takes months” for a decision, in the death of Robert Ethan Saylor, an adult with Down Syndrome, who after refusing to leave a movie theater, to watch a second showing of Zero Dark Thirty, lead to his tragic death by sheriff deputies in Frederick, Maryland. The Fourth Circuit didn’t think months were necessary, and in a one-page opinion, two weeks later, affirmed Federal Judge William Nickerson’s 65-page decision finding genuine disputes of material facts. Read More…
The End of Frye-Reed
Maryland’s Frye-Reed era appears to be ending. Last month, in Savage v. State,[1] the Court of Appeals handed down a significant decision on “the proper scope for the threshold evaluation of expert scientific evidence” under Maryland’s “Frye–Reed” test. Although the Frye-Reed test, as originally envisioned, would preclude only opinions based on novel scientific methodologies that were not “generally accepted as reliable within the expert’s particular scientific field,”[2] its scope has greatly expanded in recent decades. The Savage opinion highlights that Frye-Reed now precludes opinions, even those based on methodologies that are both (1) not novel and (2) generally accepted, if the reasoning behind the opinion is simply unreliable. Under Savage, the Frye-Reed inquiry requires trial judges—regardless of whether the expert’s underlying methodology is well-established and valid—to examine “whether the expert bridged the ‘analytical gap’ between accepted science and his ultimate conclusion in a particular case.”
How did we get here and where are we headed? Read More…
Benisek v. Lamone – an End Run for No Gain in Redistricting Challenges?
A three-judge panel of the federal district court for Maryland recently concluded another round in the longstanding legal fight over the state’s 2011 congressional redistricting plan and, in particular, the plan’s restructuring of Maryland’s Sixth Congressional District. In a 2-1 decision, the panel denied plaintiffs’ motion for a preliminary injunction against use of the redistricting plan in the upcoming 2018 midterm congressional elections. Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (Aug. 24, 2017) (“Benisek II”).[1] In Benisek v. Lamone sub nom. Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (“Benisek I”), the same district court panel denied defendants’ motion to dismiss plaintiffs’ second amended complaint. Read More…
Clear and present danger: An abused spouse can hire a contract killer and argue imperfect self-defense.
When is a threat of mortal harm so imminent that a preemptive attack is justified or at least understandable? No, this is not a discussion of the nuclear threat posed by North Korea and the possibility of preemptive military action by the Trump administration. Instead, this is a look at the recent decision of the Court of Appeals in Porter v. State, No. 88, Sept. Term, 2016 (Md. Aug. 7, 2017), a murder case involving battered spouse syndrome and imperfect self-defense. This is a very interesting case, made even more interesting by how the members of the Court split. We sometimes see appellate courts split along liberal versus conservative lines, or between Democratic appointees and Republican appointees. But here, the Court split along gender lines, with the four female judges forming the majority and the three male judges in dissent. And that split reflected diametrically opposed views of what constitutes a threat of imminent harm. To the majority, a threat of inevitable harm can constitute a threat of imminent harm. But to the dissent, only a contemporaneous threat can constitute imminent harm. Read More…
Judge Niemeyer’s dissent is the real headline in Maryland political gerrymandering case
By Steve Klepper (Twitter: @MDAppeal)
Today, a three-judge panel of the U.S. District Court for the District of Maryland stayed proceedings in Maryland’s political gerrymandering case, Benisek v. Lamone, pending the Supreme Court’s decision in the Wisconsin political gerrymandering case, Gill v. Whitford. The real headline, though, is Fourth Circuit Judge Paul Niemeyer’s dissent, which could have real implications for Gill. Read More…
A Procedurally Unusual En Banc Opinion from the Fourth Circuit
By Steve Klepper (Twitter: @MDAppeal)
Last Friday, in United States v. Chamberlain, the Fourth Circuit issued a unanimous en banc opinion overruling its precedents on “the pretrial restraint of a defendant’s innocent property pursuant to the federal criminal forfeiture statute.” The ruling was not a surprise, in light of the Supreme Court’s ruling in Luis v. United States, 136 S. Ct. 1083 (2016).
But the ruling was a procedural oddity. Read More…
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