Tuesday, July 19, 2011

Published Circuit Opinions - July 19

(TMB is very short on time tonight.  This stuff is much more likely than usual to be way off base.)

Second Circuit:

Wu v. Holder
Alien under a stay of deportation who ignores a "bag & baggage" letter does not forfeit his appeal under the fugitive disentitlement doctrine - would give an executive order the force of a court order.  Doctrine is an equitable precept, should vary with circumstances.

United States v. Vilar
No stay of appeal in order to allow deft to file a S2255 habeus collateral attack, but six months' extension allowed for general appeal prep.

Third Circuit:

Roberto Lima v. Newark Police Dept
Extrinsic evidence (the email to which the offer was attached) not admissible to determine whether a Rule 68 offer to settle includes costs.

Fifth Circuit:

Colony Insurance Co. v. Peachtree Construction Ltd
Under Texas law, an insurer's duty to indemnify can arise in a case in which it has no duty to defend;  an excess-liability insurer can maintain a subrogation claim against a primary liability insurer after the insured has been fully indemnified.

Jete Crosby v. Louisiana Health Service
Discovery in an ERISA action should be allowed to go beyond the administrative record where appropriate.

John Kinsel v. Burl Cain, Warden
AEDPA bars successive habeus filing when trial court finds recantation of key witness not credible

Michael Conway v. USA
CEO of airline held to be "responsible person" and therefore liable for 8M of airline's unpaid taxes.

USPPS, Ltd. v. Avery Dennison Corp., et al
Attorney conflict of interest case punted to Patent court; earlier ruling by court did not create an unstated 'rule of the case' holding of present court's jurisdiction.

Wal-Mart Stores, Inc. v. Qore, Inc.
Indemnification provision applies to award of attorney's fees against the indemnifier; award of fees should be closely examined to determine if the action arises within the specific indemnification.

USA v. William Breland, Jr.
Rehabilitation can be considered in revoking deft's supervised release.

Estate of Mable Dean Bradley v. Royal Surplus Line
Supplementary insurer's duty to defend does not arise until actual depletion of first policy; generally inadequate health care is not an ongoing injury for the purpose of identifying whether injury happened within policy's effective dates.

ANR Pipeline Company, et al v. Louisiana Tax Commission
Federal courts barred from considering state's (costly) re-valuation of pipelines, given Tax Injunction Act, and that state courts had considered the constitutional claims.

Sixth Circuit:

Stanley Adams v. Margaret Bradshaw 
Death penalty - method of execution challenges can be brought in habeus.  Thou shalt not kill.

USA v. Edward Fisher
Conviction for fraud upheld against evidentiary admission and sufficiency challenges.

Tracy Cowan v. Clarice Stovall 
Ineffective assistance of counsel habeus petition was timely.

Seventh Circuit:

Dana Woods v. Commissioner
Priosn policy barring pen pal solicitation upheld.

USA v. Charles States
Crim - Statements at time of arrest properly admitted

Milton Luster v. Illinois Dept of Corrections

Eighth Circuit: (Clerk summaries)

Brian Buckner v. Michael J. Astrue -
Civil case - Social Security. ALJ's findings concerning claimant's mental
impairments were supported by the substantial evidence on the record as a
whole; credibility findings regarding claimant were not erroneous; while
the ALJ erred in not expressly addressing the credibility of claimant's
girlfriend's statement, the error did not require remand as it had no
bearing on the outcome; challenge to hypothetical question posed to the
vocational expert rejected.

SEC v. Michael Shanahan, Jr.
Civil case - Securities. District court did not err in granting defendant's
motion for judgment as a matter of law at the close of the SEC's case on
the ground that the SEC had failed to prove the required elements of
scienter and negligence with respect to its claims that defendant had
violated securities law by participating in the grant of backdated "in-the-
money" stock options to corporate executives.

Southern Wine and Spirits, etc v. Mountain Valley Spring Company
Civil case - contracts. District court did not err in finding the
distributorship contract between the parties contemplated the duration of
the relationship and agreed to a term that ends only by mutual consent or
specific acts of default; as such, the district court did not err in finding
the agreement was for a perpetual term and not for an indefinite term;
district court did not err in denying defendant's motion for judgment as a
matter of law on plaintiff's claim for implied covenant of good faith and
fair dealing; however, the evidence was sufficient to support defendant's
counterclaim that plaintiff breached the implied covenant of good faith and
fair dealing, and the district court erred in setting aside the jury verdict
and granting plaintiff judgment as a matter of law; that portion of the case
is remanded, with directions to reinstate the jury's verdict and award for

Jody Borgman v. Ryan Kedley
Civil case - Civil rights. The district court did not err in finding that a
reasonable officer could have believed that plaintiff was barred from
entering the casino, and the officer was entitled to qualified immunity on
plaintiff's claim that her arrest for trespass violated her civil rights; the
release contained in the 2005 form plaintiff signed, which voluntarily
banned her from the casino, was valid and enforceable, and it absolved the
casino of any liability on plaintiff's constitutional and state law claims.

Ninth Circuit:





The rest TK.  Or not.
Compiled by D.E. Frydrychowski, who is, not incidentally, not giving you legal advice.

Category tags above are sporadically maintained Do not rely. Do not rely. Do not rely.

Author's SSRN page here.