green
Positive treatment
Quoted verbatim 3×
40.8 score
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Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981
2003
2026
Top citers, strongest first. 45 distinct citers.
How cited ↗
discussed
Cited "but see"
Ago
But cf ., Abrams v. Reno, 452 F. Supp. 1166 (S.D.Fla., 1978), aff'd , 649 F.2d 342 (5th Cir. 1981), cert. den ., 455 U.S. 1016 (1982) (holding former s 103.091 [6], F.S. 1978, an unconstitutional abridgement of the associational rights of the Dade County Democratic Party since it prohibited such a committee from endorsing or opposing any candidate of its political party who sought nomination in any primary election).
examined
Cited as authority (verbatim quote)
Faulkner v. MX Sports, Inc.
in diversity of citizenship actions, state law defines the nature of defenses, but the federal rules of civil procedure provide the manner and time in which defenses are raised and when waiver occurs.
examined
Cited as authority (verbatim quote)
Cheryl Searcy v. R.J. Reynolds Tobacco Company
(2×)
also: Cited as authority (quoted)
in diversity of citizenship actions, state law defines the nature of defenses, but the federal rules of civil procedure provide the manner and the time in which defenses are raised and when waiver occurs.
examined
Cited as authority (verbatim quote)
Proctor v. Fluor Enterprises, Inc.
in diversity of citizenship actions, state law defines the nature of defenses, but the federal rules of civil procedure provide the manner and time in- which defenses are raised and when waiver occurs.
cited
Cited as authority (rule)
CCER Investments LLC v. Scottsdale Insurance Company
Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th Cir. 1981)); see also Ross v. Chisholm, 2006 WL 8432311 , at *5 (S.D.
discussed
Cited as authority (rule)
GF INDUSTRIES OF MISSOURI, LLC v. LEHIGH VALLEY GENOMICS, LLC
Co. of N.Y. v. Blum, 649 F.2d 342, 344 (5th Cir. 1981); Troxler v. Owens-Illinois, Inc., 717 F.2d 530, 532 (11th Cir. 1983); see also Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir. 1991) (“Matters treated as affirmative defenses under state law are generally treated in the same way by federal courts in diversity cases.”).
discussed
Cited as authority (rule)
Gladden v. The Coca-Cola Company
Co. of N.Y. v. Blum, 649 F.2d 342, 344 (5th Cir. 1981)); Arismendez v. Nightingale Home Health Care, Inc., 493 F.3d 602, 610 (5th Cir. 2007) (applying the same standard in a case removed from state court).
cited
Cited as authority (rule)
National Health Finance DM, LLC v. Sea Spine Orthopedic Institute, LLC
Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th Cir. 1981)); see also Ross v. Chisholm, 2006 WL 8432311 , at *5 (S.D.
discussed
Cited as authority (rule)
Cox v. SMG & Capital City Convention Center Commission
(2×)
Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th Cir. 1981); Konigsberg v. Shute, 435 F.2d 551, 552 (3d Cir. 1970); Miller v. Batesville Casket Co., 219 F.R.D. 56 (E.D.N.Y. 2003); 5C Wright & Miller, Federal Practice and Procedure § 1391 (2004). ¶9.
cited
Cited as authority (rule)
Thomas v. Firerock Products, LLC
Trust Co. of New York v. Blum, 649 F.2d 342, 344 (5th Cir.1981)).
cited
Cited as authority (rule)
Keybank National Association v. Curtis Hamrick
Trust Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th Cir. Unit B 1981)).
cited
Cited as authority (rule)
Keybank National Association v. Curtis Hamrick
Trust Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th Cir. Unit B 1981)).
cited
Cited as authority (rule)
Jack Henry & Associates, Inc. v. BSC, Inc.
Trust Co. v. Blum, 649 F.2d 342, 344 (5th Cir.1981).
cited
Cited as authority (rule)
Bryant v. Wyeth, Inc.
Trust Co. of New York v. Blum, 649 F.2d 342, 344 (5th Cir.1981)).
discussed
Cited as authority (rule)
General Southern Industries v. Stanley Shub
For example, “we look to state law to inform the determination of whether a certain defense is “any other matter constituting an avoidance or affirmative defense” under [Rule 8(c) ].” Id. at 1350 ; see also Troxler, 717 F.2d at 532 (examining Georgia law to determine whether statutory immunity was an affirmative defense under Rule 8(c)); Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344 (5th Cir. Unit B July 1981) (examining Georgia law to determine whether a provision of that state’s corporation qualification statute was an affirmative defense under Rule 8(c)).
cited
Cited as authority (rule)
Arismendez v. Nightingale Home Health Care, Inc.
Trust Co. of New York v. Blum, 649 F.2d 342, 344 (5th Cir. Unit B 1981).
discussed
Cited as authority (rule)
Velco Chemicals, Inc. v. Polimeri Europa Americas, Inc. F/K/A Enichem Americas, Inc.
Trust Co. v. Blum , 649 F.2d 342, 345 (5th Cir. Unit B July 1981) (objection to lack of personal jurisdiction is waived by failure to raise it in Rule 12(b)(2) motion or in answer or amendment permitted by Rule 15(a) as a matter of course).
cited
Cited as authority (rule)
Robbins Hardwood Flooring Inc. v. Bolick Distributors Corp.
Trust Co. of N.Y. v. Blum, 649 F.2d 342, 344 (5th Cir.1981).
discussed
Cited as authority (rule)
Roskam Baking Company, Inc., (00-1570)/cross-Appellee v. Lanham MacHinery Company, Inc. Apv Consolidated, Inc. Apv Baker Company, Inc., Defendants-Appellees/cross-Appellants (00-1578). Maximo Dominguez, Personal Representative of the Estate of Jacqueline Del Carmen Medina, Deceased v. Lanham MacHinery Company, Inc. Apv Consolidated, Inc. Apv Baker Company, Inc.
See, e.g., Troxler v. Owens-Illinois, Inc. 717 F.2d 530, 532 (11th Cir.1983) (holding in a diversity case that "[d]etermining whether a contention is an affirmative defense for rule 8(c) purposes is a matter of state law."); Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344 (5th Cir.1981) ("In diversity of citizenship actions, state law defines the nature of defenses, but the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs."); cf. Hayes v. General Motors Corp., No. 95-5713, 1996 WL 452916, at *4 (6th Cir. Aug.8, 1996) (though …
discussed
Cited as authority (rule)
Roskam Baking Co. v. Lanham Machinery Co.
See, e.g., Troxler v. Owens-Illinois, Inc. 717 F.2d 530, 532 (11th Cir.1983) (holding in a diversity case that “[djetermining whether a contention is an affirmative defense for rule 8(c) purposes is a matter of state law.”); Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344 (5th Cir.1981) (“In diversity of citizenship actions, state law defines the nature of defenses, but the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs.”); cf. Hayes v. General Motors Corp., No. 95-5713, 1996 WL 452916, at *4 (6th Cir. Aug.8, 1996) …
discussed
Cited as authority (rule)
Tesh v. United States Postal Service
See Swaim v. Moltan Co., 73 F.3d 711, 718 (7th Cir.1996); Morgan Guaranty Trust Co. of New York v. Blum, 649 F.2d 342, 345 (5th Cir.1981); Young v. Pattridge, 40 F.R.D. 376, 379 (N.D.Miss.1966); and 6A Charles Alan Wright, Arthur R.
discussed
Cited as authority (rule)
Simi Investment Co v. Harris County Texas
(2×)
also: Cited "see"
Trust Co. v. Blum, 649 F.2d 342, 345-46 (5th Cir. Unit B July 1981).
cited
Cited as authority (rule)
Simi Investment Company Inc v. Harris County Texas
Trust Co. v. Blum, 649 F.2d 342, 345-46 (5th Cir. Unit B July 1981).
cited
Cited as authority (rule)
Crane Construction Co. v. Klaus Masonry
Trust Co. v. Blum, 649 F.2d 342, 344 (5th Cir.1981).
cited
Cited as authority (rule)
MONT BELVIEU SQUARE v. City of Mont Belvieu, Tex.
See Ashe v. Corley, 992 F.2d 540 , 545 n. 7 (5th Cir.1993); Morgan Guaranty Trust Co. of New York v. Blum, 649 F.2d 342, 345 (5th Cir.1981).
cited
Cited as authority (rule)
Hollywood Fantasy Corp. v. Gabor
Trust Co. of N.Y. v. Blum, 649 F.2d 342, 344 (5th Cir. Unit B 1981).
discussed
Cited as authority (rule)
Banc One Capital Partners Corp. v. Kneipper
(2×)
Corp., 752 F.2d 168, 172 (5th Cir.1985); Morgan Guaranty Trust Co. of New York v. Blum, 649 F.2d 342, 344-45 (5th Cir.1981); Henry v. First Nat’l Bank of Clarksdale, 595 F.2d 291, 298 (5th Cir.1979), cert. denied, 444 U.S. 1074 , 100 S.Ct. 1020 , 62 L.Ed.2d 756 (1980).
discussed
Cited as authority (rule)
Schloegel v. Boswell
As set out by the United States Court of Appeals for the Fifth Circuit in Morgan Guaranty Trust Co. of New York v. Blum, 649 F.2d 342, 345 (5th Cir.1981), “any party who wishes to raise an issue of the capacity of any party to sue or be sued must ‘do so by specific negative averment’ in the appropriate pleading or amendment or be deemed waived.” It is this Court’s holding that the defendant’s decision to wait until after trial to assert this objection is untimely and is grounds for and constitutes waiver.
cited
Cited as authority (rule)
Phillip Davis, Jr., and Betty Ann Davis v. Huskipower Outdoor Equipment Corporation
But “the Federal Rules of Civil Procedure provide the manner and time in which defense are raised and when waiver occurs.” Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344 (5th Cir. Unit B 1981).
cited
Cited as authority (rule)
Mrs. Lizzie Beatrice Easterwood v. Csx Transportation, Inc.
Trust Co. of N.Y. v. Blum, 649 F.2d 342, 345 (5th Cir. Unit B 1981).
discussed
Cited as authority (rule)
Hall Dadeland Towers Associates v. Hardeman
As Defendants Hardeman set forth in their Brief of 1/16/90, although "state law defines the nature of defenses, ... the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs.” Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 345 (5th Cir.1981).
discussed
Cited as authority (rule)
Sherman Simon, Jr., Individually and as Next Friend of His Minor Children, Peter Darnell Simon and Keenan Simon, Etc. v. United States
A Although state substantive law applies in suits brought under the FTCA, “the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs.” Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 345 (5th Cir.1981).
discussed
Cited as authority (rule)
Richard Lucas v. United States of America, Richard Lucas, Cross-Appellees v. United States of America, Cross-Appellant
But this court has noted that although “state law defines the nature of defenses, ... the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs.” Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 345 (5th Cir. 1981).
discussed
Cited as authority (rule)
Index Fund, Inc. v. Hagopian
See Chase v. Pan-Pacific Broadcasting, Inc., 750 F.2d 131 (D.C.Cir.1984); Myers v. American Dental Assoc., 695 F.2d 716, 720-21 (2d Cir.1982), cert. denied, 462 U.S. 1106 , 103 S.Ct. 2453 , 77 L.Ed.2d 1333 (1983); Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 345 (5th Cir.1981); Rauch v. Day & Night Mfg.
cited
Cited as authority (rule)
Kinetic Concepts, Inc. v. Kinetic Concepts, Inc.
Morgan Guaranty Trust Company of New York, 649 F.2d at 345; Federal Rule of Civil Procedure 12(h)(1).
discussed
Cited as authority (rule)
William C. Chapman v. Orange Rice Milling Company, and Edward J. Stine
While limitations, an affirmative defense, must be specifically pled or waived, Morgan Guaranty Trust Co. of New York v. Blum, 649 F.2d 342, 345 (5th Cir.1981), 5 it was never raised by the defendant.
discussed
Cited as authority (rule)
Jackson M. Troxler v. Owens-Illinois, Inc., Defendant/third-Party v. National Service Industries, Inc., D/B/A North Bros. Co., Third-Party
An even more precise statement of the law appears in Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344 (5th Cir.1981) (Unit B): “In diversity of citizenship actions state law defines the nature of defenses, but the Federal Rules of Civil Procedure provide the manner and time in which defenses are raised and when waiver occurs.” In Seal v. Industrial Electric, Inc., 362 F.2d 788, 789 (5th Cir.1966), the court looked to Mississippi law and determined that a claim of statutory immunity under Mississippi’s workers’ compensation scheme was an affirmative defense under rule 8(c).
cited
Cited as authority (rule)
Clayton Carpet Mills, Inc. v. Martin Processing, Inc.
See Erie R.R. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 (1938); Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344-45 (5th Cir.1981) (Unit B). 3 .
cited
Cited as authority (rule)
Healy Tibbitts Construction Co., a Corporation v. Insurance Company of North America, a Corporation
Morgan Guaranty Trust Co. of New York v. Blum, 649 F.2d 342, 344 (5th Cir. Unit B, 1981).
cited
Cited "see"
Jackson-Shaw Co. v. Jacksonville Aviation Authority
See Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344-6 (5th Cir. Unit B 1981); Lang v. Texas & Pacific Ry.
cited
Cited "see"
Fidelity & Deposit Co. of Maryland v. Glenn (In Re Glenn)
See Morgan Guaranty & Trust Co. of New York v. Blum, 649 F.2d 342, 345 (5th Cir.1981).
discussed
Cited "see"
Eu v. San Francisco County Democratic Central Committee
(2×)
See Abrams v. Reno, 452 F. Supp. 1166, 1171-1172 (SD Fla. 1978), aff’d, 649 F. 2d 342 (CA5 1981), cert. denied, 455 U. S. 1016 (1982).
discussed
Cited "see"
Long Island Trust Company v. Dicker
See Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344-45 (5th Cir. 1981). 28 Accordingly, we hold that the district court erred in concluding that that portion of Long Island's claim that is premised on the $114,000 note was barred by the four-year statute of limitations contained in article 5527; that statute was tolled by the operation of the Texas saving statute, article 5539a. 13 III.
cited
Cited "see"
Long Island Trust Co. v. Dicker
See Morgan Guaranty Trust Co. v. Blum, 649 F.2d 342, 344-45 (5th Cir. 1981).
discussed
Cited "see, e.g."
Gill v. State of Rhode Island
Eu v. San Francisco Democratic Comm., 489 U.S. 214, 229 , 109 S.Ct. 1013, 1023 , 103 L.Ed.2d 271 (1989); see also Abrams v. Reno, 452 F.Supp. 1166, 1171-72 (S.D.Fla.1978), aff'd, 649 F.2d 342 (5th Cir.1981), cert. denied, 455 U.S. 1016 , 102 S.Ct. 1710 , 72 L.Ed.2d 133 (1982) (holding Florida’s statutory ban on primary endorsements by political parties unconstitutional).
Retrieving the full opinion text from the archive…
Michael ABRAMS and Sergio Bendixen, Etc., Plaintiffs-Appellees,
v.
Janet RENO, Etc., Defendants-Appellants
v.
Janet RENO, Etc., Defendants-Appellants
79-1272.
Court of Appeals for the Fifth Circuit.
Jul 2, 1981.
Calvin L. Fox, Asst. Atty. Gen., Jim Smith, Atty. Gen., Miami, Fla., for defendants-appellants., Bruce Rogow, Fort Lauderdale, Fla., Flynn, Rubio & Tarkoff, Michael H. Tarkoff, Miami, Fla., for plaintiffs-appellees.
Godbold, Simpson, Clark.
Cited by 3 opinions | Published
Citer courts: Eleventh Circuit (1)
Reporter's Syllabus — editorial summary, not part of the Court's opinion
Appeal from the United States District Court for the Southern District of Florida; Wm. M. Hoeveler, Judge.
Calvin L. Fox, Asst. Atty. Gen., Jim Smith, Atty. Gen., Miami, Fla., for defendants-appellants.
Bruce Rogow, Fort Lauderdale, Fla., Flynn, Rubio & Tarkoff, Michael H. Tarkoff, Miami, Fla., for plaintiffs-appellees.
Before GODBOLD, SIMPSON and THOMAS A. CLARK, Circuit Judges.
PER CURIAM:
Lead Opinion
PER CURIAM:
Affirmed on the basis of the Memorandum Opinion of the district court, Abrams v. Reno, 452 F.Supp. 1166 (S.D.Fla.1978).
Concurrence
THOMAS A. CLARK, Circuit Judge,
specially concurring:
I write only to point out my understanding of the limited scope of the holding of the district court’s opinion. The district court held that whatever interests the state has that might in turn rise to the level of a compelling state interest could not be furthered by an overbroad statute that unnecessarily intrudes on the associational rights of the Dade County Democratic Party and its members, and with this holding I wholeheartedly agree. The opinion mentions in passing, however, practices which may or may not support a much more limited intrusion on the part of the state. Whether the party may make contributions to or incur expenses in behalf of a candidate for party nomination prior to nomination in that party’s primary is a constitutional question involving party practices that have not been made an issue either in the lower court or on appeal. I wish to add only that, in the event that such practices do form the basis of a complaint sometime in the future, “the wisdom of such procedures,” 452 F.Supp. at 1171, may not be a matter solely for the party to decide. Qualifying fees that a dissident party member is compelled to pay the state in order to advance his candidacy in the party primary may be turned over to the party before the primary. See, e. g., F.S.A. § 99.103. These funds may in turn be sufficiently imbued with the qualifying candidate’s own political beliefs as to support the state’s limited intervention in behalf of the candidate by prohibiting the party’s using such funds in the primary campaign against one (dissident) candidate in favor of another (mainstream) candidate. Compare, e. g., Abood v. Detroit Board of Education, 431 U.S. 209, 97 S.Ct. 1782, 52 L.Ed.2d 261 (1977) (union may not require, as condition for closed shop public employment job, contributions that it may then use to advance political causes to which employee objects). These are, of course, issues we do not decide. The issue in this case is the validity of a statute that is plainly over-broad on its face, and I can only agree that the judgment of the district court must be AFFIRMED.