Not To Be Published (05/07/24)

Tip Summary:?

--?CEB has my article, “Super snap removals’ not permitted in Ninth Circuit”.--?Untimely appeal saved “as a matter of fairness”.

-- CEB has my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals”.

-- New Cal.App.Law.Pod episode?w/ Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 1)

-- New Cal.App.Law.Pod episode?w/?Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 2)

Dear Colleagues:

Each week, I look for cases presenting a likelihood to shock, surprise, puzzle, inform, anger, or elate. The summaries are mine, the reactions are yours. If you would like to share your reactions, or provide a tip, email me at [email protected].

And I am always happy to talk about these kinds of issues in your cases.

Tim Kowal

CEB has my article, “Super snap removals’ not permitted in Ninth Circuit”

CEB DailyNews has published my article, “Super snap removals’ not permitted in Ninth Circuit.”

Where federal jurisdiction is based on diversity as in Casola v. Dexcom, Inc., No. 23-55403 (9th Cir. Apr. 10, 2024), a home-state defendant cannot remove. 28 U.S.C. § 1441(b)(2). But that defect is deemed waived if the plaintiff does not seek remand within 30 days of the removal. The rule only apples to a “served” defendant, though, so if you remove before service, that “snap removal” might be effective.

But what if you remove before the complaint is even filed? The Ninth Circuit holds that this “super-snap removal”—filed while the clerk is still processing the filing—is not effective.

Notably, however, the panel did not decide what happens to regular “snap removals”—that is, where the complaint has been accepted as filed, but the defendant files a notice of removal before service. So if you’re minded to remove and your a home-state defendant, keep an eye on the docket.

This is a summary. Read the full article at the?KowalLawGroup.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/.

Untimely appeal saved “as a matter of fairness”

The appeal in in Norman v. Ross (D2d4 Apr. 23, 2024 No. B316971) [cert. for part. pub.]. was from an anti-SLAPP motion arising from a complaint alleging that defendant Tracee Ellis Ross, the actor who plays Rainbow Johnson in the TV show Blackish, stole plaintiff’s idea.

California follows the “one shot rule” for appeals, meaning, you only get one shot to appeal, and if you miss that shot then you’re done. Courts follow the rule religiously. No sympathy allowed.

But the Second District felt sympathy for the challenge to the attorneys’ fees order here. Which is weird, not only because court affirmed anyway, and not only because the fee award is going to be increased on remand anyway, but the court also admonished the appellant’s lack of civility and professionalism.

The fee award was a collateral order, and the appeal was untimely. But the court declined to follow the one-shot rule and the collateral-order doctrine. Why? The court explained: “As a matter of fairness, we decline to dismiss Norman's appeal as untimely while case law on the issue is in conflict.”

This is disconcerting. The court may throw in with one side of the split or the other, or even stake out a third position. Instead, the court effectively held that “anything goes while there’s a split.” That is not how this is supposed to work.

This is a summary. Read the full article at the?KowalLawGroup.com?blog here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://kowallawgroup.com/not-to-be-published/.

Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 1)

A big 9th Circuit win for parents of kids with IEPs (individualized education protocols) came down recently, and the prevailing attorney is podcast alum Tim Adams.

In the first of this two-part discussion, we set the table to discuss Irvine Unified School District v. Landers and Gagliano. For example, to understand why parents trying to help their dyslexic daughter needed to make a federal case out of it, you should know:

?? The school district spent over $1.13 million on its attorneys (at hourly rates up to $1300!).

?? The hearings in these cases are often a “trial by experts.”

?? IEPs are a constitutional right, so school districts are not legally permitted to consider their costs—but obviously they do. So how does that work?

?? Parents wrongfully denied an adequate IEP have no recourse but to get their children the resources they need—out of pocket—and then fight for reimbursement.

Listen to the podcast here.

Video clips from the podcast are available here.

You can also subscribe to the California Appellate Law Podcast on your favorite podcast player.

Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 2)

Last time, we set the table with special-education attorney Tim Adams to discuss the big 9th Circuit win for parents of kids with IEPs (individualized education protocols). Now we dig in to Irvine Unified School District v. Landers and Gagliano.

After covering the fact that the school district, to get out of helping a dyslexic student get the help she needed, spent over $1.13 million on its attorneys in over five-years of litigation involving a “trial by experts.” In this discussion, Tim Adams explains that IEPs are a constitutional right, so school districts are not legally permitted to consider their costs. Yet school district spokespersons take to the press to decry how these lawsuits are breaking the bank. So what is going on here?

Listen to the podcast here.

Video clips from the podcast are available here.

You can also subscribe to the California Appellate Law Podcast on your favorite podcast player.

_______________________

I am always happy to talk with you about these kinds of issues in your cases.

-Tim

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and posts regular updates of appellate news and tips for trial attorneys at KowalLawGroup.com. Contact Tim at [email protected] or (949) 676-9989.

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