Federal district court judgments can appear a bit metaphysically fuzzy, at least when you’re looking at the docket to figure out if your appeal is due. Of course, you already know that your notice of appeal is due 30 days after judgment is entered. And Federal Rule of Civil Procedure 58(a) requires a jury-verdict judgment to be entered “in a separate document.”

But what if that separate document hasn’t appeared? Where—or rather, when—is your final judgment? Well Rule 58(c) states that “if a separate document is required” judgment is entered on the day that “the judgment is entered in the civil docket . . . and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket.” And if all that seems relatively straightforward, the Ninth Circuit Court of Appeals agrees.

Harrison Orr was pulled over by the California Highway Patrol after his car veered halfway into the next lane. Orr passed a breathalyzer test but agreed to come down to the highway patrol station for drug testing as long as he wasn’t handcuffed. One of the officers used force to get the handcuffs on Orr. Orr passed the drug test, the DA dropped a resisting arrest charge, and Orr sued the state, the Highway Patrol, and the two officers.

On June 17th, 2015, the jury returned a special verdict awarding Orr $125,000 in damages against one of the officers, Terrence Plumb. The clerk entered the special verdict on the docket that day, with a minute order stating “verdict returned, read and filed in favor of plaintiff.” Plumb filed a motion for judgment notwithstanding the verdict, which the district court denied on July 8th, 2015. On January 4th, 2016, Plumb filed a notice of appeal of the special verdict.

The Ninth Circuit denied the special verdict appeal as untimely (over Judge Rawlinson’s dissent). Because there was never any separate document setting out the judgment, the 150-day clock in Rule 58(c) started running the day the clerk entered the jury verdict on the docket. Plumb’s appeal was due December 2015, and he filed the appeal in January 2016.

Plumb argued that the clerk’s docket note couldn’t have triggered the 150-day period “because the district court didn’t approve its form and the clerk didn’t enter it on a separate document as required by Rule 58(b)(2).” The Ninth Circuit rejected this argument because Rule 58(c) allows a judgment to be “constructively entered” even if the separate document hasn’t been issued. (Judge Rawlinson’s dissent would have held the appeal deadline doesn’t start to run until the separate document has been issued.)

Read the Ninth Circuit’s decision (and Judge Rawlinson’s dissent) here.

Breach Level Index reports that an average of 59 personal data records are stolen or lost every second. But not every data breach shows up on the credit card bill next month. So when is a breach enough to support a federal case? The Ninth Circuit recently confirmed that the risk of identity theft alone is enough.

Several years ago, Zappos.com (an online shoe and clothing retailer owned by Amazon) was hacked. The hackers stole personal information from more than 24 million customers, including credit card numbers. Some of those customers filed class-action lawsuits. Several cases were consolidated in the District of Nevada, where Zappos is based. One class of plaintiffs alleged that the breach had exposed them to a greater risk of identity theft. The district court dismissed these claims for lack of standing because these plaintiffs had not alleged any financial harm as a result of that increased risk of identity theft.

The Ninth Circuit reversed, noting that an earlier lawsuit against Starbucks had found that the risk of identity theft was injury enough for Article III. The plaintiffs had alleged the same injury in the suit against Zappos: The information stolen from Zappos “gave hackers the means to commit fraud or identity theft . . . .” The court also noted that Congress had singled out credit card numbers for protection, banning retailers from printing them on receipts “specifically to reduce the risk of identity theft.” Because the personal nature of that information created a risk of identity theft the plaintiffs had standing to sue.

The Ninth Circuit also rejected Zappos’ argument that too much time had passed since the breach for any harm to be imminent. The court noted that when looking at the requirements of standing the only relevant time period is the time when the action was brought. And the “initial complaint against Zappos was filed on the same day that Zappos provided notice of the breach.”

The Ninth Circuit is in step with the other circuits on Article III and the risk of identity theft. The Sixth Circuit, for example, delivered a similar ruling in a claim against Nationwide in 2016, citing the Ninth Circuit’s decision in the Starbucks case—although the Sixth Circuit also noted that the plaintiffs were going to have to spend time and money on credit-monitoring.

You can read the Ninth Circuit’s opinion here and the Sixth Circuit’s opinion here.

A complaint must set forth a short and plain statement of why the pleader is entitled to relief—but that rule holds much more than just the rules’ notice requirement. Packed in there alongside notice pleading and heightened standards are all the limits on what cases a federal court can hear. And one of those limits is standing: You can only sue if you’ve been injured. Fights over what counts as injury pop up constantly in federal litigation—and it’s not unusual for the spring underneath to have been congressionally-made. The Sixth Circuit recently settled one of those fights when it held that Congress can recognize an injury that gives Article III standing but Congress cannot create injury to give Article III standing.

James and Patricia Hagy sued their former mortgage servicer and the servicer’s lawyer under the Fair Debt Collection Practices Act. The Hagys alleged that after they settled a mortgage default with the servicer the lawyer sent two letters confirming the settlement. Those letters did not state that they were communications from a debt collector. The Hagys alleged the letters had to have that disclaimer, and because they didn’t the lawyer had violated the FDCPA. The district court entered summary judgment against the lawyer. The Sixth Circuit reversed on appeal, holding that the Hagys did not have Article III standing.

The Sixth Circuit explained that although the Hagys had properly alleged a violation of the statute, the lawyer had challenged “Congress’s authority to create this injury—to create an injury in fact that involves no harm of any sort that could satisfy the injury-in-fact requirements of Article III.” And the Hagys had not alleged any “actual injury and damages from the letter.” The letter hadn’t “created a risk of double payment, caused anxiety, or led to any other concrete harm.” In fact, “[t]he letter was good news when it arrived . . . .” Rather, the Hagy’s claimed that any letter—no matter what the letter said—caused concrete injury if the letter didn’t include the legally-mandated disclaimer.

The Sixth Circuit held that Congress has the power to recognize an injury that meets Article III’s injury-in-fact requirement, but it does not have the power to create an injury where none exists. “We know of no circuit court decision . . . that endorses any anything-hurts-so-long-as-Congress-says-it-hurts theory of Article III injury. . . . That approach, if accepted, would leave Congress as the sole author of any limits on the Article III judicial power to hear cases and controversies.”

You can read the Sixth Circuit’s opinion here.

Say you buy professional-liability insurance. If the insurance company lets you think the insurance covers something that it does not, how soon do you have to sue your insurance company? I’m taking a little break from the federal courts today to look at the Ohio Supreme Court’s recent decision on professional-liability insurance and accrual. The Court held that a claim of negligent procurement of professional-liability insurance accrues when you buy the policy, not when the insurance company denies a claim you thought it covered.

LGR Realty, Inc. bought a professional-liability policy from London Insurance Agency. But the policy categorically ruled out coverage for any claims brought by a third company, Plaza Property. I bet you can guess what happened next: Plaza sued LGR and London Insurance denied LGR’s claim for defense and indemnification. Then, after Plaza won its lawsuit, LGR sued London Insurance for negligent insurance procurement.

The trial court dismissed the claim as untimely under Ohio’s Rule 12(B)(6) (which is very like the federal rule). The court of appeals reversed the trial court—then the Ohio Supreme Court reversed the court of appeals, holding the claim was indeed too late. The Court held the claim accrued when the policy was issued, not when the request for indemnification was denied.

The opinion gives a short, useful review of two important exceptions to the everyday rules of accrual: the discovery rule and the delayed-damage rule. The delayed-damage rule states that when a claim is based on an act that isn’t harmful—yet—the claim does not accrue until there’s actual damage. Here the Court held that the rule does not apply to professional-liability insurance claims. That’s because “[i]t is only in the narrow circumstances in which application of the general rule would lead to the unconscionable result that the injured party’s right to recovery can be barred by the statute of limitations before he is even aware of its existence.” As soon as it bought the allegedly negligent-procured policy LGR had started paying premiums on the policy—so that’s when the harm occurred, and that’s when the claim accrued.

The Ohio Supreme Court opinion is sparing with the facts, but it’s enough to serve as a gentle reminder: Read your documents. The Ohio Supreme Court’s opinion is here.

And if you’ve gotten this far but are starting to miss the federal courts, the Sixth Circuit addressed the discovery rule just last year. The Sixth Circuit held a claim for pension benefits accrues when the request is denied. You can read that opinion here.

When you’re hit with a complaint, one box on your pre-response checklist likely reminds you to think about removing the case to federal court. But what if the complaint is so short and plain that you can’t figure out if a federal court would have jurisdiction? You don’t want to file a removal just to have the case quickly bounced back to state court—you would be unhappy; your client would be unhappy; and not one, but two judges would be unhappy. But the response deadline is looming. A default judgment will make (almost) everyone even unhappier than an ill-taken removal. So what do you do?

The Ninth Circuit has some good news for you: A defendant’s right to remove to federal court can’t be waived without voluntary litigation on the merits.

Kris Kenny sued Wal-Mart in California state court, challenging the store’s policy that employees who are hurt on the job must submit to drug tests. Wal-Mart filed a demurrer then removed the case to the Central District of California under the Class Action Fairness Act.* But the district court sua sponte remanded the case back to state court, holding Wal-Mart had waived its right to removal by filing the demurrer. The Ninth Circuit reversed, holding that Wal-Mart had not waived its right.

To begin with, a defendant can only waive the right to removal by showing a “clear and unequivocal” intent to litigate in state court. When a defendant “takes necessary defensive action to avoid a judgment being entered automatically . . . such action does not manifest an intent to litigate in state court.” It would also be hard for Wal-Mart to wave a right before it knew it had one. The complaint didn’t state what damages Kenny was seeking, and CAFA only allows removal when damages exceed $5 million. Because the complaint didn’t give Wal-Mart notice that it could remove the case, Wal-Mart could “in effect . . . remove at any time.”

The Ninth Circuit’s opinion is here.

* A demurrer is a pre-FRCP pleading similar to a motion to dismiss for failure to state a claim. The FRCP (and 35 states) don’t allow them.