Emergency Appellate Motions Practice in the Fourth Circuit
By Steve Klepper (Twitter: @MDAppeal)
A federal district court’s order granting or denying an injunction, including a preliminary injunction, is immediately appealable under 28 U.S.C. § 1292(a)(1). The appellant may move under FRAP 8 for a stay or modification of the injunction pending appeal, if the district court issued one against the appellant, or for an injunction pending appeal, if the district court denied an injunction the appellant requested.
As fast as federal district judges typically hear requests for preliminary injunctions, the Fourth Circuit often acts even faster. After litigating emergency motions in the Fourth Circuit a few times, I thought I’d pass along some pointers. Read More…
March 2020 Maryland Certiorari Grants
Eight reported opinions of the Court of Special Appeals are now under further appellate review. Here are the writs of certiorari issued by the Court of Appeals today: Read More…
POSTPONED: Maryland Impact Decisions 2020
UPDATE, March 12, 2020: The previously scheduled April 1 event, “Recent Impact Decisions of the Maryland Appellate Courts” has been taken off the calendar due to COVID-19 concerns. We hope to reschedule the event and, if so, will re-post the event on the blog.
20/20 Hindsight, in the Year 2020… Do Recent Maryland Court of Appeals’ Decisions Suggest It’s Time to Permit Citations to Unreported Opinions?
By: Michael Wein
Over the past two years, there has seen pointed recognition by the Court of Appeals of Maryland, on the issue of citing to unreported Maryland opinions, which make up about 90% of the Court of Special Appeals appellate decisions. Under Maryland Rule 1-104, unreported opinions cannot be cited in our appellate or trial courts as, precedent or as persuasive authority, but otherwise may be used under very specific conditions, such as “law of the case, res judicata, or collateral estoppel.”
The present incarnation of Md. Rule 1-104 (previously under Md. Rule 8-114) is as follows.
RULE 1-104. UNREPORTED OPINIONS
(a) Not Authority. An unreported opinion of the Court of Appeals or Court of Special Appeals is neither precedent within the rule of stare decisis nor persuasive authority.
(b) An unreported opinion of either Court may be cited in either Court for any purpose other than as precedent within the rule of stare decisis or as persuasive authority. In any other court, an unreported opinion of either Court may be cited only (1) when relevant under the doctrine of the law of the case, res judicata, or collateral estoppel, (2) in a criminal action or related proceeding involving the same defendant, or (3) in a disciplinary action involving the same respondent. A party who cites an unreported opinion shall attach a copy of it to the pleading, brief, or paper in which it is cited.
But this Rule puts Maryland in contrast with most other states, and the Federal Rules since at least 2007, which allow citations to unreported opinions as “persuasive” authority, when involving similar or identical legal and factual issues. Read More…
Workers paid a “day rate” instead of by the hour, calculating their overtime compensation, and the Maryland Wage and Hour Law and the FLSA
How should an employer compute overtime pay for a worker paid by the day instead of the hour? In an opinion authored by Judge Kevin Arthur, Maryland’s Court of Special Appeals addressed that question in Poe v. ISEI Md. Corp., 243 Md. App. 243 (2019). Leonard Poe worked in the trash-hauling business, where he was paid a “day rate.” That form of “compensation is common in the trash-hauling industry, because it motivates employees to work quickly and efficiently: the sooner the employees finish the job, the greater their rate of pay.” Id. at 245. If Poe worked over forty hours in a week, both the Maryland Wage and Hour Law and the federal Fair Labor Standards Act entitled him to receive overtime. When that happened, his employer, IESI, relied on a federal regulation in calculating how much overtime it owed Poe. He disagreed with that mode of calculation, however, and sued IESI, “claiming that the federal regulation was inconsistent with the Maryland Wage and Hour Law and that, in relying on the federal regulation, IESI had understated the amount of overtime compensation he was due under State law.” Id. The trial court ruled for IESI, granting its motion for summary judgment, and the Court of Special Appeals affirmed that decision. In reaching that conclusion, the Court of Special Appeals examined the pertinent federal and state statutes and regulations, and held that the employer and the trial court had properly relied on the federal regulation and that IESI had paid Poe the right amount of overtime. Read More…
February 2020 Maryland Certiorari Grants
The Maryland Court of Appeals today posted grants in four cases. They are listed below, with questions presented and links to the Court of Special Appeals opinions under review. Read More…
Nine nominated for vacancy on Court of Special Appeals
On Wednesday, the Appellate Courts Judicial Nominating Commission nominated nine lawyers and judges for consideration by the Governor for the vacant at-large seat on the Court of Special Appeals: Read More…
Court of Appeals to Review New Expert-Testimony Requirement for Medical Malpractice Defendants Asserting “Empty Chair” Defense
Although it is well-established Maryland law that a medical negligence plaintiff must support her claim with expert testimony, the Court of Special Appeals recently issued the first Maryland appellate decision to hold that defendants have the same obligation when asserting an “empty chair” defense. Reiss v. Am. Radiology Servs., LLC, 241 Md. App. 316 (2019). The well-established “empty chair” defense asserts that a non-party’s negligence caused the alleged injury.[i] Under Reiss, those asserting the defense now must elicit “expert testimony, to a reasonable degree of medical probability, that the non-party breached the standard of care.”[ii]
Although the rule announced in Reiss is relatively straightforward, the holding’s full implications remain unclear for litigants in medical negligence cases. The Court of Appeals may address these issues on February 6 at oral argument in Reiss. The court can resolve an important unanswered question: Can defendants elicit the testimony from a properly qualified plaintiff’s expert? The Court of Special Appeals’ reasoning in Reiss and existing Maryland law should allow it. Read More…
Choosing the appropriate standard of review, defining ambiguity, and interpreting a promissory note – Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380 (2019).
The Court of Appeals has once again shown that the importance of a case’s legal issues, and not the amount in controversy, drives its decision whether to review a case. In a collection action that started in the District Court of Maryland, and then appealed to the Circuit Court for Montgomery County, the Court of Appeals addressed the appropriate standard of appellate review a circuit court should use when reviewing an appeal on the record from the District Court. The Court also discussed and applied fundamental principles of contract interpretation. In Credible Behavioral Health, Inc. v. Johnson, 466 Md. 380 (2019), in an opinion authored by Judge Clayton Greene, Jr., the Court held that, when sitting as an appellate court, a circuit court reviews the District Court’s factual findings under the clearly erroneous standard, but reviews legal conclusions de novo. That portion of the Court’s opinion is unremarkable. The Court also reminded that “the interpretation or construction of a contract is a legal determination subject to de novo review,” explaining that contracts should be interpreted as a whole, reading separate provisions harmoniously, and striving to do so “in accordance with common sense.” Id. at 392, 395, 396 (latter internal quotation marks omitted and citations omitted). This portion of the Court’s opinion, on the other hand, may help inform the bar about the Court’s attitude toward contract interpretation. Read More…
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