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Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

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Bowen v. Cheuvront: APPELLATE PROCEEDURE - case now moot; remand to vacate and dismiss

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3487
___________
Bethany V. Bowen, *
*
Appellant, **
v. **
Honorable Jeffre Cheuvront, in his *
official capacity as Justice of the *
District Court for the State of * Appeal from the United States
Nebraska, * District Court for the District
* of Nebraska.
Appellee. *
____________ * [PUBLISHED]
*
North Dakota State's Attorneys *
Association. *
*
Amici on behalf of *
Appellant. *
___________
Submitted: March 27, 2008
Filed: April 3, 2008
___________
Before RILEY, BEAM, MELLOY, Circuit Judges.
___________
PER CURIAM.
Pamir Safi was charged with the felony sexual assault of Bethany Bowen in
Nebraska state court. A motion in limine was granted by the trial judge with regard
-2-
to several evidentiary matters. Thereafter, a trial was held which resulted in a mistrial.
A second trial was scheduled. Prior to the second trial, the trial judge renewed some
or all of these earlier rulings prohibiting the use of certain terms during the course of
the testimony. Prior to the completion of voir dire and jury selection, the second trial
also resulted in a mistrial because of pretrial publicity arising from Ms. Bowen's
objections to the trial court's evidentiary rulings. A third trial was scheduled but
before it proceeded, Ms. Bowen filed this action in the federal district court seeking
remedies based upon purported violations of her constitutional rights. After Ms.
Bowen responded to a "show cause" order, the district court dismissed the case. After
requesting reconsideration, which was denied, Ms. Bowen then filed a notice of
appeal. The matter is now before us for consideration on our own motion.
The record clearly establishes that the state trial judge was never served
summons in this matter. As a result, neither the district court nor this court has
personal jurisdiction over the defendant/appellee. More importantly, though, the state
criminal prosecution was dismissed on January 4, 2008, mooting all issues initially
presented to the federal court.
In U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994),
Justice Scalia, speaking for a unanimous Court stated that "'[t]he established practice
of the Court in dealing with a civil case from a court in the federal system which has
become moot while on its way [to the Supreme Court] or pending our decision on the
merits is to reverse or vacate the judgment below and remand with a direction to
dismiss.'" Id. at 22 (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40
(1950)). The Court further clarified that "mootness by happenstance provides
sufficient reason to vacate." Id. at 25 n.3. Following the mandate of the Supreme
Court and without consideration of any rulings of the district court or of any
substantive issues before this court, we vacate the judgment of the district court and
remand this matter with directions to dismiss.
______________________________
 

 
 
 

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