There hasn’t been much news on Justice Keenan’s nomination to the Fourth Circuit recently. But yesterday, the VLW Blog reported that Virginia’s two Democratic Senators, Jim Webb and Mark Warner, invoked their Republican Governor, Robert McDonnell, in urging their Senate colleagues to act on her nomination.
According to the VLW Blog, Sens. Webb and
We’re back with the second in our series of guest posts from recent Supreme Court of Virginia clerk and avid water skier Tommy Strelka. Today, Tommy shares some more things that his clerkship taught him about brief writing:
The Supreme Court of Virginia is in session this week. Here’s the argument document, which includes four criminal and thirty-four civil appeals. Good luck to everyone who is arguing.
Also, the Court will be handing down opinions on Thursday, instead of Friday. (Mental note: check Emmert’s website on Thursday.) Friday will be devoted to
Welcome to De Novo’s inaugural guest post. Today, Tommy Strelka shares a few things that he learned during a recent clerkship with the Supreme Court of Virginia. This will be the first of several visits from Mr. Strelka, who has promised to provide us no fewer than ten–TEN!–tips.
T
ommy is currently a trial lawyer at Strickland, Diviney & Strelka in Roanoke. A Mary Washington and Richmond Law grad, he’s also clerked for Judge Turk in the Western District of Virginia. The opinions and practice tips expressed in this post are solely those of the author. They do not represent the opinions of any member of the Supreme Court of Virginia or any other Court–or, for that matter, any right-thinking person.
And now, a word from Thomas:
Clerking for a Justice of the Supreme Court of Virginia was a wonderful experience that opened my eyes to appellate practice. One of my favorite aspects of the job was the knowledge that many of the attorneys who filed briefs and argued before the Court were bringing their A-game. While skill, raw talent, and experience levels varied greatly, most attorneys stepped up to the plate and gave it their best shot. That best shot might have been an incredibly polished and persuasive brief or it might have been the world’s greatest thirty-second rebuttal. But no matter what form their work product manifested, the good attorneys always oozed preparedness. With that tenet in mind, I have compiled a list of traits or practices used by the attorneys who I felt, knocked it out of the park.
On Brief
As you’ve probably gathered by now, my job isn’t exactly rocket science. I read some pleadings, read some transcripts, read some statutes, read some cases, and then shout an argument into a dictaphone to be transcribed in 14-point type. In between, I drink lots of coffee.
My colleagues who do “real work” here at
Steve Emmert reports that today’s writ arguments before the Supreme Court of Virginia have been postponed. The Chief Staff Attorney’s office advises that appellants are being given the choice of arguing by telephone tomorrow, waiving oral argument, or arguing in person at a later date. (As a fairly obvious practice point, it’s never a good
Civil procedure nerds and defense counsel, rejoice! (I am looking at you, Travis.) In Barbour v. International Union, a fun–if dense–opinion handed down on Thursday, the Fourth Circuit adopts the “last-served defendant” rule for removal. Or in geekspeak, it takes a district court up on its invitation “to clarify whether the ‘first-filed’ ‘dictum’ in McKinney v. Bd. of Tr. of Mayland Cmty. Coll., 955 F.2d 924 (4th Cir. 1992), means what it actually seems to say.”
Short answer: it doesn’t. But before we get there, the Fourth Circuit walks us through some removal case law, considers the extent to which earlier panel decisions are binding, and honors the nerdly virtues of close reading and careful research.
A quick refresher, for those of us who slept through civ pro: under 28 U.S.C. 1446, a defendant has 30 days in which to file a notice of removal. But what if there are multiple defendants, and they are served more than 30 days apart? That’s what happened to the defendant unions in Barbour. All three defendants filed a joint notice of removal. They filed it more than 30 days after the first defendant was served, but less than thirty days after the second defendant was served, and before the third defendant was even brought into the case. Was the notice of removal timely?
Turns out there’s a Circuit split on that point. The Fifth Circuit applies a “first-served defendant” rule: in cases involving more than one defendant, the thirty days starts running when the first defendant is served. The Fifth Circuit reasons that, since all served defendants must join in the removal petition, the failure of the first defendant to remove within 30 days defeats removal altogether.
The Sixth, Eighth, and Eleventh Circuits, by contrast, apply a “last-served defendant” rule. Those jurisdictions give each defendant 30 days in which to file a notice of removal.
By all appearances, the Fourth Circuit had found a middle ground. Footnote 3 in the McKinney opinion states that, if the first-served defendant does not petition for removal within 30 days of service, the case may not be removed. But if the first-served defendant does petition for removal within 30 days, a later-served defendant may join in the petition or move for remand.Continue Reading Fourth Circuit Adopts Last-Served Defendant Rule; Plaintiffs Despair