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Oyez! Oyez! Oyez! – U.S. Supreme Court preview

9/10/25

By: Robert Scavone Jr.

The United States Supreme Court’s October 2025 term begins on October 6, 2025. The Court will cover a lot of ground this term, but three cases stand out as having broad applicability in civil actions across the country. And each involves a circuit split. Here is a summary of the cases.

Berk v. Choy, 24-440 (Third Circuit)

Issue presented: Whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court.

If Erie Railroad Co. v. Thompson jumped to mind, you paid close attention in law school. Under Erie and its progeny (the Erie Doctrine), federal courts sitting in diversity apply state substantive law and federal procedural rules. But when the federal and state procedural rules (or statutes) answer the same question (conflict), the federal rule applies so long as it is constitutional and within the scope of the Rules Enabling Act. Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010). “If no federal rule applies, a federal court must follow the Rules of Decision Act, . . . and make the ‘relatively unguided Erie choice,’ to determine whether the state law is the ‘rule of decision.’” Id. at 417 (Stevens, J., concurring in part and concurring in the judgment).

Many states have enacted “affidavit of merit” laws, which require a med-mal plaintiff to file an affidavit from a medical expert attesting that the plaintiff’s claim has merit. See, e.g., § 766.203(2), Fla. Stat. According to the petitioner in Berk, as of 2019, 27 states have passed affidavit-of-merit laws.

The petitioner states that the Second, Fourth, Fifth, Sixth, Seventh and Ninth circuits have held that state affidavit-of-merit laws do not apply in federal court because the laws conflict with the federal counterpart. The Third and Tenth circuits have come out the other way and applied state law, finding no conflict with the federal rule.

You can find the petition for writ of certiorari here and all the filings here.

The Hain Celestial Group, Inc. v. Palmquist, 24-724 (Fifth Circuit)

Issues presented: 1) Whether a district court’s final judgment as to completely diverse parties must be vacated when an appellate court later determines that it erred by dismissing a non-diverse party at the time of removal. 2) Whether a plaintiff may defeat diversity jurisdiction after removal by amending the complaint to add factual allegations that state a colorable claim against a nondiverse party when the complaint at the time of removal did not state such a claim.

The case was removed to federal court based on diversity jurisdiction. In its notice of removal, Hain (the diverse defendant) argued that diversity existed even though Whole Foods (the nondiverse defendant) was joined because Whole Foods was fraudulently joined. The plaintiffs filed a post-removal, amended complaint alleging new facts that, according to the plaintiffs, defeated Hain’s argument that Whole Foods was fraudulently joined. The plaintiffs also moved for remand.

The district court denied the motion to remand and dismissed Whole Foods as fraudulently joined, leaving only Hain and the plaintiffs in the case.

The case proceeded to trial, and the district court granted Hain’s Rule 50 motion for judgment as a matter of law. On appeal, the plaintiffs ask the Fifth Circuit to vacate the final judgment and remand the case to state court. Plaintiffs argued that Whole Foods should not have been dismissed from the case because the post-removal, amended complaint stated a claim against Whole Foods under state law; therefore, Whole Foods had not been fraudulently joined.

The Fifth Circuit concluded that the district court erred in dismissing Whole Foods as fraudulently joined and in denying the plaintiffs’ motion for remand. The Fifth Circuit also determined that complete diversity did not exist when the final judgment was entered because Whole Foods should not have been dismissed. The lack of complete diversity at the start of the case “lingered” through to final judgment, even though Whole Foods (the only non-diverse party) was dismissed. The Fifth Circuit denied rehearing en banc.

The Eleventh Circuit is in the Fifth Circuit’s camp on the issue. The Fourth, Eighth and Ninth circuits have come out the other way. See Pet. at 14–17.

You can find the petition for writ of certiorari here and all the filings here.

Coney Island Auto Parts Unlimited, Inc. v. Burton, 24-808 (Sixth Circuit)

Issue presented: Whether Federal Rule of Civil Procedure 60(c)(1) imposes any time limit to set aside a void default judgment for lack of personal jurisdiction.

A judgment entered against a defendant “over whom the court had not acquired in personam jurisdiction” is void. Hanson v. Denckla, 357 U.S. 235, 250 (1958). Federal Rule of Civil Procedure 60(b)(4) allows a court to relieve a party from a final judgment that is void. But a motion for relief must be made within a “reasonable time.” Id. at (c)(1).

Except for the Sixth Circuit, all the circuit courts have concluded that Rule 60(c)(1)’s reasonable-time requirement does not apply to motions for vacatur, because a judgment against a defendant over whom a court lacks jurisdiction is void ab initio. See Pet. at 8–11.

The Sixth Circuit, in a 2-1 opinion, concluded it was bound by its precedent and Rule 60’s plain language and held that a motion for vacatur must be made within a reasonable time. The court denied rehearing en banc.

You can find the petition for writ of certiorari here and all the filings here.

For information on how we can assist you with appeals and complex motions, please contact Robert Scavone Jr. at robert.scavone@fmglaw.com.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.