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I am in the 8th Circuit (Federal Court). There is an appellate

Customer Question
decision in the 6th circuit...
I am in the 8th Circuit (Federal Court). There is an appellate decision in the 6th circuit involving the same defendant, on the defendant's Motion to Dismiss for 12(b)(6), where the appellate court ruled that the exact same actions taken in that case (that were also taken in my case) did in fact violate the statute and therefore the Plaintiff had a valid cause of action.
1) Can I use this decision in my Circuit?
2) Since that court ruled that the defendant's actions violated the same statute I'm suing for, can I go for summary judgment, citing that case?
Submitted: 5 years ago.Category: Family Law
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7/1/2012
Family Lawyer: JackJD, Lawyer replied 5 years ago
JackJD
JackJD, Lawyer
Category: Family Law
Satisfied Customers: 535
Experience: I've been in practice for 30+ years, concentrating in family and employment law. I enjoy helping people.
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JackJD :

Hello, my name is XXXXX XXXXX I'd like to answer your question.

JackJD :

If I understand your question, you wish to cite a 6th Circuit opinion, denying the motion to dismiss, on the same set of facts and the same statute, as in your case?
The answer to that is, yes you certainly can cite the 6th Circuit opinion. The technical difference is that the 6th Circuit opinion is "persuasive" rather than "controlling," that is, your District Court is only compelled to follow decisions of the 8th Circuit and of the Supreme Court.
But there is no reason why your District Court shouldn't be persuaded by the reasoning in the 6th Circuit.
There are a relatively small number of issues, where the different Circuits are in disagreement with each other. Much more common, is just that this set of facts hasn't come up in the 8th Circuit.

JackJD :

Whether you can go for summary judgment or not, is a different question.
The 6th Circuit opinion simply denied a motion to dismiss. For summary judgment, you need to establish your facts in such a manner that "there is no genuine issue of fact."
I can't go into it in greater detail without 'way more information about your case (more than you can get into a post on JA).

JackJD :

Did I fully answer your question, or do you have a follow-up?

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Customer reply replied 5 years ago
Ok, looking forward to your answer.
Customer reply replied 5 years ago
No, sorry, I don't have a Motion to Dismiss in play, the other case did. The Appellate decision was based on that cases' Motion to Dismiss.
What I want to know, is whether that decision is a basis for me to file for Summary Judgment since the same defendant violated the same statute in my case, with the exact same circumstances.
Family Lawyer: JackJD, Lawyer replied 5 years ago
That decision may provide a legal basis for your motion for summary judgment; but you will have to establish the facts in your case on your own, the 6th Circuit opinion doesn't help you do that.
JackJD
JackJD, Lawyer
Category: Family Law
Satisfied Customers: 535
Experience: I've been in practice for 30+ years, concentrating in family and employment law. I enjoy helping people.
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