Thursday, August 18, 2011

Eighth Circuit -- Buddy Rynders v. Larry Williams

Buddy Rynders v. Larry Williams

Free Speech claim strong enough to survive summary judgment where person doing the firiing allegedly said it was because of the free speakin'.

FMLA claim similarly strong as to notification of supervisor in official capacity, but not necessarily in personal capacity.

Parial dissent - FMLA notice was stautorily inadequate.

Eighth Circuit -- United States v. Jesus Benitez-De Los Santos

United States v. Jesus Benitez-De Los Santos

Sentence Report held to be a qualified document for Shepard analysis of priors.

No error in counting prior despite possible plea of nolo contendre, where there was a conviction.

Sentence not substantively unreasonable.

Eighth Circuit -- Adam Walker v. Bradley Barrett

Adam Walker v. Bradley Barrett

Missouri SOL on sex abuse runs from the time that a reasonably prudent person would ascertain the harm, which, absent proof of memory issues, runs from time of offense, tolled until majority.  Federal claims time barred as they follow closest state SOL.

Missouri abuse law does not apply to nonperpatrator defts.

No error in denying motion to amend, as it wouldn't have cured.

Eighth Circuit -- United States v. Bobby Springston

United States v. Bobby Springston

Error in barring sex offender from accessing internet without permission where no proof that deft has ever used a computer.

Barring contact with minors and requiring treatment not supported by evidence in record.

Eighth Circuit -- Mike Buetow v. A.L.S. Enterprises, Inc.

Mike Buetow v. A.L.S. Enterprises, Inc.

Error to the District Court, as although Lanham Act literal falseness awakens a favorable presumption, a finding of irreparable injury is still required for issuance of an injunction.

Error to base finding of literal falseness on dictionary definitions - falseness must be more unambiguous than that.

Concur/Dissent: Claims were more than puffery

Eighth Circuit -- Liberty Mutual Insurance Co. v. Pella Corporation

Liberty Mutual Insurance Co. v. Pella Corporation

Mother of 7, 2 of which suffer from autism seeking discharge of 300K in student debt.

No error in consideration of recent past when evaluating undue hardship for discharge of student loans.

Possible error in double-counting methodology harmless error.

Special concurrence - they have an expensive car, but ECMC stipulated to odd income levels, so no remedy.

Eighth Circuit -- United States v. Darwin Huggans

United States v. Darwin Huggans

No error in not dismissing for bad indictment where conspiracy charge has specific timeframe, but no list of co-conspirators or specific concrete step in furtherance.

No error in denial of bill of particulars for same.

No error on denial of severance of counts, as deft did not establish specific evidence that was prejudicial.

Sufficient evidence.

No error in barring deft from challenging lack of equitable tolling of time to challenge priors.

No error in denying new trial based on newly discovered impeaching ev.

No error in not reviewing PSRs in camera where no clear request was made.

Seventh Circuit -- USA v. Bolivar Benabe

USA v. Bolivar Benabe

No error in empaneling anonymous jury.

No error in excluding defts who did not agree to be nondisruptive from courtroom .  No 6A error in issuing the order prior to the beginning of trial (basing it on pretrial conduct), FRCrimP error in same was harmless.

No error in admitting ID based on photo lineup followed by live lineup when there are six months in between.

No error in pattern aiding & abetting instruction instead of RICO-specific one.

No error in court adding a Pinkerton  instruction for penalty phase that was not contemplated at close of guilt phase.

No error in providing jury with partial transcripts.

No error in not holding hearing on potential intrinsic juror biases, where vooir dire responses were truthful.

Seventh Circuit -- USA v. Mariano Morales

USA v. Mariano Morales

[NB - another decision released today appears to indicate that this is a nonprecedential decision - please see the "precedential status" note on the top of the page.]

Quick read:

No presumption against empaneling an anonymous jury - insufficient explanation here held harmless, though.

Among other things, disparity-of-evidence (where proper limiting instructions were given), prima facie lengthening of trial, and possibility of a non-anonymous jury in putative second trial are insufficient grounds for finding improper joinder.

Where one deft is considerably more violent than his co-defts, no error in denying severance and thereby making him look bad by comparison.

No abuse of discretion in not investigating report of intra-jury chattering where the accusation arose after the verdict.

Where testimony establishes that deft engaged in illegal activity, no possible error in being told that he went to jail for it.

District court holding that deft's bad acts were coterminous with the conspiracy was error, as it was not included in PSR for deft to challenge.  Harmless, though.

Sufficient evidence.

Deference to District Court holding that some possibly random acts were connected to the gang scene & therefore conspiratorial.

Mere inactivity through "retirement" insufficient to effectuate withdrawal from conspiracy.

No disparity in special verdict findings on conspiracy and ultimate sentence.

No requirement on parties to "sterilize" testimony - inflammatory stuff was part & parcel.

Despite lack of district court findings on the hard edge of the conspiracy, finding that certain acts were within it was kosher.

Seventh Circuit -- Kevin Sroga v. Timothy Weiglen

Kevin Sroga v. Timothy Weiglen

Dismissal of S1983 action based on 4A for three arrests was kosher, as internal police memo did not raise the bar for arresting for disorderly conduct, a ready explanation does not always erase probable cause, and there was sufficient ambiguity as to whether the signs in a police parking lot sufficiently heralded the exclusion of interlopers.

Seventh Circuit -- Anchor Bank, FSB v. Clark Hofer

Anchor Bank, FSB v. Clark Hofer

Inference of scienter sufficient to survive 9(b) where there is an accelerating synchronicity certain to affect the market.

To plead loss, plaintiff must merely contend that the deft is one plausible cause of loss.

Sixth Circuit -- Scott Gerber v. James Riordan

Scott Gerber v. James Riordan

While motion to vacate default judgment was an insufficient general appearance to consent to jurisdiction, a general appearance in support of the motion was sufficient for jurisdiction.

Concurrence - one-line Entry of Appearance insufficient for jurisdiction, but contemporaneous motion to enforce settlement sufficeth.

Sixth Circuit -- Henry Ford Health System v. HHS

Henry Ford Health System v. HHS

“My effort is in the direction of simplicity,” once wrote the namesake of the Henry Ford Hospital. Henry Ford, My Life and Work 13 (Garden City Publ’g Co. 1922). Mr. Ford apparently had nothing to do with the creation of the Medicare program.

Chevron deference to HHS determination that pure research activities are not subject to Medicare reimbursal under PPACA.

Fourth Circuit -- US v. Torrance Hill

US v. Torrance Hill

Police officers' subjective belief that the arrestee would not be at home is sufficient to defeat the probable cause/reasonable expectation requirement for entering the house to execute an arrest warrant.

Damaged door frame, muffled voices inside, nonresponsiveness to officers' calls, and what might have been the sound of a latch being pulled are insufficient grounds for entry due to exigency.

Remand for development of the record as to whether subsequent consent cleared the taint of the initial entry.

Dissent - totality-of the-circumstances test establishes enough evidence of reasonable belief deft would be inside.  Noises probative of presence.

First Circuit -- State of California et al. v. Amgen, Inc

State of California et al. v. Amgen, Inc


First Circuit -- US v. Santiago-Miranda

US v. Santiago-Miranda 
US v. Irizarry-Corchado 

Family coercion, drug use, and lack of sleep does not establish involuntariness of plea or impugn the colloquy.

First Circuit -- Roman-Oliveras v. PREPA

Roman-Oliveras v. PREPA 

Due Process theory cannot save a S1983 action on appeal, as it wasn't in the original short, plain statement.

Removal from position and repeated demands for psychiatric examination can sufficiently establish a plausible S1983 claim for schizophrenia.

Like Title VII, the ADA imposes liability only on employers, not other individuals.

Second Circuit -- Cash v. Cnty. of Erie

Cash v. Cnty. of Erie

In a S1983 action at summary judgment stage, where there have been relevant past disciplinary issues that have not risen to the level of assault, a prison administration's continued policy of allowing one-on-one contact with prisoners can represent sufficient indifference to an affirmative duty to protect.

Not preserving objection to special verdict form prior to beginning of deliberation forfeits the appeal.

No error in special verdict form conflating policy and causation where the two are distinguished in the jury instructions.

"Moving force" for Monell liability is fairly described as "proximate cause."

Not preserving an inconsistency objection prior to discharge of jury forfeits the appeal.

Even where form is labeled "special verdict form," appeals court can interpret as general verdict form with specific interrogatories.

Where instruction specifically says that negligence is a lesser standard than deliberate indifference, no Seventh Amendment violation in special verdict finding deliberate indifference but not negligence.

Dissent: Unfairly creates strict liability standard for municipalities with respect to an ever-present danger.

Second Circuit -- United States v. Matthew Marino

United States v. Matthew Marino

No error in District Court holding that although concrete steps in Misprision of Felony prosecution happened outside the charged time of the offense, they can help to indirectly establish scienter during the charged time (implicit , not stated directly in opinion).

Mandatory Victims Restitution Act - 

For misprision, no need to prove individual reliance of victims, presumably if they had known of the fraud, they would not have invested the money.

Presumption is that a whistleblower's whistleblowing would be curative.

Positive steps to conceal fraud can establish MVRA cause-in-fact.

Losses were foreseeable to a reasonable person in defts position.

Second Circuit -- City of New York v. Group Health Inc.

City of New York v. Group Health Inc.

City of New York challenges merger on monopoly grounds.

(1) Purchasing strategy of a single buyer (here, the plaintiff) is insufficient basis to define the tying market.

(2) Leave to amend properly denied as the defect would not be remedied, extraordinary discovery would be required, and the movant waited too durn long to file the motion.

Second Circuit -- Brown v. Eli Lilly & Co.

Brown v. Eli Lilly & Co.

Heavy-duty FRCP.

Quick read:

(1) Consent order stamped by clerk of court / staff attorney claiming not to prejudice future appeals and referencing 42(b) does not preclude entry of final judgment, despite assertions by court staff that the (somewhat flawed) entry of final judgment was a nullity.  Appeals clock runs from flawed filing.

(2) Action can be non-diverse at time of removal to fed courts as long as the non-diversity is cured before final judgment.  [If TMB's memory serves, this might be a circuit split - there was something in dicta from one of the other circuits in the last few days about diversity being requisite at both removal and judgment to survive appeals challenge.]

(3) Actions of co-defts whose time to appeal has passed cannot be re-examined to create a PF case for deft still in the thick of things.
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.