Over the Line, LLC, et al. v. Christine Thompson

The opportunity to be informed of and heard on matters pending is a fundamental requisite of due process. U.S. Const. amend. XIV § 1; Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950). This Court has recognized that appellate courts’ discretion to raise and rule on issues sua sponte is limited to “exceptional cases” “where the proper resolution is beyond any doubt” and “where ‘injustice might otherwise result.’” Hormel v. Helvering, 312 U.S. 552, 556, 61 S. Ct. 719, 721 (1941). This Court recognizes that its “particularity” requirement, as applied to Rule of Civil Procedure 9(b), directs parties to plead most allegations of fraud with a greater specificity than its “plausibility” standard. Ashcroft v. Iqbal, 556 U.S. 662, 686-87, 129 S. Ct. 1937, 1954 (2009). Similarly, Federal Rule of Civil Procedure 7(b) requires movants to state their grounds for relief with “particularity.” Fed. R. Civ. P. 7(b)(1)(B). The questions presented here are:

1. Can the Third Circuit United States Court of Appeals raise and rule on a non-jurisdictional or dispositive argument alleging fraud, that was expressly disavowed by the benefitting party and neither supported with evidence nor allegation, to overcome the District Court’s grant of summary judgment?

2. Does the “particularity” provision of Federal Rule of Civil Procedure 7(b) require the same specificity as the “particularity” provision of 9(b)?