Thursday, July 28, 2011

Published Circuit Opinions - July 28

Second Circuit

When a court enters summary judgment against a party not mentioned in the motion for summary judgment, (1) the appeals clock starts anew for that party; (2) the party must have been given a full and fair opportunity to dispute the SJ; (3) subsequent motions in support of the SJ have the burden of production to establish any de facto merger of parties.

Securities fraud - 10(b) reasonable reliance claims of sophisticated investor given the lie by boilerplate disclosures on broker's website of asset vulnerabilities; 'Guaranteed' nature of govt-backed SLARS assets given the lie by buyer's intentions and broker discussions; Common-law claims given the lie by lack of reasonable reliance; Unjust enrichment 'doesn't fit the facts of the case.'

Third Circuit:

Mortgage company alleges that law firm partner was a few weeks late with two mortgage payments, LFP files suit under Fair Credit Reporting Act.  Trial court: dismisses, holding that the claim must first be addressed to the credit reporting agencies.  Appeals court:  Yep.

Fourth Circuit:
Fruits of search conducted in objectively reasonable reliance on binding circuit precedent not subject to the exclusionary rule, given Scotus holding in Davis that the fruits of a search conducted in objectively reasonable reliance are not subject to the exclusionary rule.

Fifth Circuit:

Maritime contract law - boilerplate reference on RSO to terms and conditions via a non-working URL incorporates the T&C into the parties agreement through course of dealing; Given wording of policy, contractor is not an additional insured under sub's policy unless named in policy; Remanded for consideration of attorneys fees.

Sixth Circuit:

Remand for determination of whether separate conduct underlies receipt and possession of child pr0n files; Sentence not procedurally or substantively unreasonable.

Earlier consent judgment did not violate RFRA, as church waived rights; Consent judgments are prospective by nature, and therefore susceptible to 60(b)(5) modification; RFRA and RLUIPA are similar enough that there is insufficient change in law for modification of the judgment; Factual claims of the church are similar enough that there is insufficient change in factual situation for modification.

Securities fraud - insufficient scienter for 10(b) pleading, as the seller of the ARS might have been genuinely caught off-guard by the collapse of the market;  Insufficient scienter TKO's the state-law claim as well; 'Particularity' in pleading common-law fraud operates as a correlative to scienter; Online disclosure materials TKO promissory estoppel claim; Negligent misrepresentation TKO'd for lack of proof of reliance.

Seventh Circuit:

Commerce Clause - based challenge to SORNA struck down.
Patents/Trademarks - The quilting of toilet paper is functional, and therefore cannot be trademarked.
 But again, this case is about toilet paper, and who really pays attention to the design on a roll of toilet paper? The parties, however, are quick to inform us that in a $4 billion dollar industry, designs are very important. Market share and significant profits are at stake. So with that, we forge on. 
[Puns follow.]

Where gov't informant uses cell phone (article of interstate commerce) to plan crime with deft, no entrapment, as there was insufficient inducement; Intra-state use of an automobile sufficient to qualify as use of an article of interstate commerce - circuit split lightly suggested.

Although the elements of claim preclusion are established (request for equitable subordination denied by Bankruptcy Court resurrected as RICO action against subsequent holder of assets), given tenuous, possibly non-final effect of non-core Bankruptcy Court holdings (circuit split signaled), claim is instead TKO'd under issue preclusion.

Eighth Circuit:

Successful motion to acquit reversed, as "uncontroverted" testimony might have been disbelieved by jury & drugs under one's hotel room pillow are sufficient for possession; Motion for new trial upheld, given indiscriminate use of prior conviction at trial.

More about the Missouri Second Loan Mortgage Act than you'd ever want to know.  Inter alia, 2 day deprivation of fee subsequently returned to the borrower was sufficient loss for standing.

Under Missouri common law, lack of privity bars use of findings from criminal trial via nonmutual collateral estoppel in subsequent action against police officer; Arrest warrant is self-authenticating as a public document under seal / public document signed by official; Late filing by the municipality properly admitted; Failure to train TKO'd by lack of individual liability on underlying claim.

Challenges to SOL in products liability suit upheld against continuing torts doctrine, Texas Constitution's "open courts doctrine,"  ripeness doctrine, alleged mental diability of plaintiff; Notice of Breach of Warranty requirement upheld.

Sentencing - Cross-reference to kidnapping upheld against deft's argument that precedent argued for domestic battery cross-application.

Understandable ignorance of the law is no excuse - where court informed deft there would be no 2A restrictions, a possible scrivening error on actual order barred deft's owning of a gun (NB, though, the conviction would usually have implicated 2A); Sentence was reasonable.

Domingo Solis v. Eric H. Holder, Jr
Where BIA discretion is clear, lack of conformity with precedent and legal standard used by IJ are darn near unreviewable.  

Where police officer consulted an attorney and interviewed the CI, reliance on the warrant was objectively reasonable.

Deft, convicted of accessing President Obama's student loan records, claims insufficient evidence for unauthorized computer access, as the userid & pw were in an unlocked drawer in her desk & that the court should have provided for expert discovery - Circuit denies both.

(The balance complied from intros, as TMB has a concert to get to.)

Ninth Circuit:

Death penalty habeus - ineffective counsel remanded, as earlier state ruling barring deft from arguing the claim on grounds of timeliness and waiver was not a 'previous collateral proceeding.'  Thou shalt not kill.

Koz - Given evidence of misleading, competitors have a presumption of commercial injury for Lanham Act standing; Injunction ordering a 'splash screen' upheld against overbreadth BUT valid 1A concern, as it delays access of content - remand for tailoring; Denial of damages kosher; = exceptional misconduct, court should have awarded fees;

Unequal restrictions on pro-abortion/anti-abortion speech in bubble zone outside clinic violates 1A
. (See earlier note on TMB being out of time here - very quick skim.)

No error in not giving entrapment instruction where insufficient inducement established at trial.

SOL for S1983 action equitably estopped given police affirmative misrepresentations and stonewalling.

Tenth Circuit:

Duress instruction properly denied where deft doesn't show inescapability of situation (meth manufacturing); Priors appropriately considered as two offenses for sentencing.

Plaintiffs' voluntary dismissal of state action moots federal remand order where not a class action, or capable o repetition yet evading review, etc, etc.

Eleventh Circuit:

Perry R. Dionne v. Floormasters Enterprises, Inc. 

In this matter, we must decide whether an employer, who denies liability for
nonpayment for overtime work, must pay attorney’s fees and costs pursuant to
29 U.S.C. § 216(b) of the Fair Labor Standards Act (“FLSA”) if he tenders the full
amount claimed by an employee where the trial court grants the employer’s motion
to dismiss the employee’s complaint on mootness grounds. We conclude that,
under such circumstances, an employer is not required to pay attorney’s fees and
costs because the District Court has not awarded judgment to the employee as the
prevailing party. Accordingly, we affirm.



Cindy Fils v. City of Aventura

 Long case.  S1983 action.  TMB is out of time.  Addio!

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.