Thursday, August 25, 2011


Typos in a table showing the effect of citric acid concentration on the stability of salmon calcitonin are insufficient grounds for piercing privilege under crime/fraud.

No abuse of discretion in refusal to allow new counterclaims, given the minor change to claim.

Obviousness: (T)his court agrees that no reasonable juror could conclude that the ’014 patent would give a person of ordinary skill sufficient reason or motivation to use about 20 mM citric acid in aliquid nasal salmon calcitonin composition.


Eleventh Circuit -- Community State Bank v. James Strong

Where the underlying dispute between the parties has not yet been litigated, efforts to discern federal jurisdiction for a freestanding arbitration claim can look to the underlying potential bases -- since the question has not been litigated, the dimensions of the potential grounds for jurisdiction have not yet been embodied.

State court TKO of arbitration rights as statutory penalty for discovery abuses collaterally estops a federal FAA attempt to compel arbitration.

Community State Bank v. James Strong

Tenth Circuit -- Katz v. Gerardi

 While final judgment is required for claim preclusion, it is not required for dismissal for claim splitting; Merger doesn't fundamentally change shares sufficiently so that plaintiff becomes 'purchaser' under 1933 Act.

Katz v. Gerardi


Given the the increased usage of the airport to be expected, an agency decision to waive a EIS for runway expansion violated NEPA.

Case-by-case examination of facts required.

Public hearing satisfied the statute.

Dissent: Durn paperwork.



No substantial evidence that gov't established by clear, unequivocal and convincing evidence that parents of petitioner did not intend to return to the US.

Imputation of adult parent's decision to abandon LPR status is kosher until child's majority.

Concurrence - Imputation is tricky.



Dismissal of S1983 action for groundless pr0n investigation reversed.

Violation of 4A by Judicial Deception where affiant states that illicit images were downloaded and purchased where only evidence is that a credit card was used for the hosting costs of the website where the images were uploaded.

Substantial showing of reckless disregard, given distant IP address, CC# was inherently unreliable indication.

Showing of judicial deception bars SJ grant of qualified immunity.


Eighth Circuit -- United States v. Frank Michael Frazier

Remand for determination of which restitution to charity that assisted arson victims is redundant with restitution directly to victims.

Error in ordering restitution to insurer for replacement value of structure, as insurance company was not a victim.  Better measure is replacement value to owners, offset by relevant transactions with renting arsonist.

United States v. Frank Michael Frazier

Eighth Circuit -- George Stokes v. Southern States Cooperative

 Reversal of dismissal of wrongful prosecution claim.

Deft's averrance of subjective belief of legit claim not enough, objectively, the belief was unreasonable.

Given lack of merit to claim, jury could reasonably infer malice.

George Stokes v. Southern States Cooperative

Eigthth Circuit -- Jordan To v. US Bancorp

Summary judgement on wrongful dismissal claim upheld.

Company policy requuiring personal notification of supervisor wasn't followed.

Forewarning of grounds for termination is not required under USERRA.

Jordan To v. US Bancorp

Eighth Circuit -- Jane Porter v. City of Lake Lotawana

Dismissal of wrongful termination claim upheld.

Dismissal of wrongful termination claim for lack of a written contract - element of claim under Missouri law.

Retaliation claim TKO'd for causation.

Jane Porter v. City of Lake Lotawana

Eighth Circuit -- Artie Jackson v. Larry Norris

Barring of evidence about minor sexual assault victim's sexual history was not unreasonable.

Dissent - Goes to reason for possible fabrication.

Artie Jackson v. Larry Norris

Eighth Circuit -- Anthany Kaden v. Daryl Slykhuis

Prisoner S1983 claim that mail censorship of magazine violated 1A is strong enough to survive summary judgement.

Anthany Kaden v. Daryl Slykhuis

Seventh Circuit -- Kenneth Pearson v. Voith Paper Roll

 Summary judgement affirmed against claim that decision to retire was prompted by pension administrator's incorrect data  - no proof of detrimental reliance or intentional misrepresentation.

Bonus: at time of dismissal, plaintiff had a colorable age discrimination claim., and the pension manager was the HR director.

ERISA claim withdrawn.

No holding on whether a funded, single-employer plan can be estopped based on representations.

 As the Plan is legally a separate entity form the employer, and the Plan had no reason to misrepresent, simple assertion by plaintiff is insufficient to survive summary judgment.

No detrimental reliance, as no proof that employee could have negotiated a better deal, and doesn't want to rescind severance agreement.

Kenneth Pearson v. Voith Paper Roll

Seventh Circuit -- April Ortiz v. City of Chicago

Sufficient evidence to survive summary judgment in S1983 claim for arrestee who was detained without necessary medications, where a request for help was made, family members informed police of situation, and arrestee deteriorated while in custody.

4A, not 8A applies where detainee has not yet had probable cause hearing.

Although short period of detention is relevant to determining objectively reasonable conduct, it is far from dispositive - else detainee becomes hot potato. 

At summary judgment stage, expert medical testimony is not necessary to establish causation. 

Error to the District Court in rejection of expert witnesses.

No qualified immunity for defts.

No basis for Gerstein claim , as defts were not the ones who prolonged the paperwork.

April Ortiz v. City of Chicago

Seventh Circuit -- Brian Cleary v. Philip Morris Incorp

Violation of consumers' right to know about risks cannot independently support an unjust enrichment claim -- many members of class would not have suffered injury.

Post-removal destruction of diversity does not mandate remand under CAFA.

Expansion of the claim to other manufacturers' "Lights" brands properly barred, as different transaction/occurrence, insufficient notice to existing defts.

No ruling whether unjust enrichment can survive as an independent c/a under Illinois law.

Brian Cleary v. Philip Morris Incorp.

Seventh Circuit -- Robert Tenny v. Rod Blagojevich

No Due Process violation in raising prices at prison commissary beyond statutory bar.

No viable pre-deprivation process, no allegation of lack of adequate post-deprivation process.

Finding DP required pre-deprivation process would effectively create a state APA.

Robert Tenny v. Rod Blagojevich

Seventh Circuit -- Michael H. Haury v. Bruce Lemmon

Dismissal for lack of jurisdiction doesn't count as a PLRA strike.

Michael H. Haury v. Bruce Lemmon

Sixth Circuit -- USA v. Jose Clariot

Discovery of contraband on private airplane was kosher, given that the seizure terminated when the inspection papers were returned to the owners, and it was the subsequent conversation that led to suspicion for the search.

No deterrent value, given the attenuation between initial seizure and discovery.

USA v. Jose Clariot

Sixth Circuit -- Kelly Foust v. Mark Houk

Grant of habeus on ineffective assistance for insufficient mitigation work in death penalty case.

Ineffective assistance of counsel, for not doing sufficient investigation of mitigation factors (deft's Dickensian childhood), not hiring mitigation specialist, and generally by the sum of performance.  Prejudicial.

Dissent : State court finding not unreasonable.

Kelly Foust v. Mark Houk 

[Thou shalt not kill.  - TMB]

Sixth Circuit -- State of Ohio ex rel. Susan Boggs v. City of Cleveland

An earlier dismissal does not bar a suit against airport where there was an intervening expansion of runways.

A claim dismissed for lack of standing has no claim preclusive effect, but here, a subsequent appeals ruling referencing the action (which was continued by a co-plaintiff) dismissed the case with prejudice.  Court holds that the second dismissal was purely procedural, and did not establish preclusion. 

Expansion of runways brings a new set of harms, which were merely speculative in the first action - no preclusion. 

State of Ohio ex rel. Susan Boggs v. City of Cleveland

Sixth Circuit -- USA v. Lance Poulsen

Securities search, conviction & sentencing upheld 

No error of denial of entrapment instruction where there was no direct inducement.

Existence of phone calls among conspirators were sufficient grounds for the wiretap.

No clear error in denial of Franks hearing.

Not unreasonable for sentencing court to accept government's estimates of loss, as the trigger is not actual losses of that amount, but rather that deft had knowledge of potential losses of that level.

No error in denial of venue change, as neither presumptive nor actual prejudice existed at venue.

Introduction of evidence from obstruction prosecution in securities prosecution is not prejudicial for showing consciousness of guilt, but probative (because showing consciousness of guilt).

No error in introduction of testimony as to losses.

No error in calculation of losses for sentencing purposes.

USA v. Lance Poulsen

First Circuit -- Dickow v. US


Dickow v. US

First Circuit -- Santiago v. Commonwealth of Puerto Rico

Summary judgment against claim alleging misconduct by private school bus company upheld.

Private school bus company not performing a state function, as there are such things as private schools, and the greater includes the lesser.

Private company doesn't qualify as one subject to extensive regulations, as the regulations didn't drive (sorry) the conduct.

Insufficient entanglement for nexus theory of S1983 jurisdiction.

Title IX claim TKO'd as there was no appropriate gov't actor with actual knowledge.

NB: Published 8/24

Santiago v. Commonwealth of Puerto Rico

First Circuit -- US v. De Jesus-Viera

Narcotics smuggling search, conviction, and sentence upheld.

No plain error in not suppressing fruits of border search consisting of drilling into secret compartment, given nervousness and inconsistent stories.

No plain error in willful blindness instruction - did not cause jury to apply negligence standard.

Sufficient evidence - distinguished from similar reversal, as deft didn't own the car.

No clear error in not applying minor participant sentencing reduction, as deft didn't finger other players in the enterprise.

NB: Publshed 8/24

US v. De Jesus-Viera

First Circuit -- Delia v. Verizon Communications, Inc.

Totality of circumstances insufficient to establish deft as employer for ADA and Title VII claims.

Said totality: employees subjective belief, company logo on keycard, bound by company's rules of conduct, participation in company benefits program, congratulatory letter from company after 15 years of service.

Code of conduct - employee can be bound to a contract with entity other than the one controlling her means & manner of work.

(NB - published 8/24)

 Delia v. Verizon Communications, Inc.

Second Circuit -- Emslie et al. v. Borg-Warner Auto

Where designer of allegedly defective machine had sold design to manufacturer 26 years prior to manufacture, the designer did not place the product into the stream of commerce as NY defective design law requires.

Policy grounds - designer had gotten out of the business, no longer in a position to know.

No abuse of discretion in dismissing claim for forum non conveniens, as only one American entity remains in the litigation.

Emslie et al. v. Borg-Warner Auto

Second Circuit -- United States v. Rodriguez

No abuse of discretion in admitting portion of recorded prison phone call in which deft instructed sister to tell brother to tell lawyer that he wanted to cop to a plea.

Presence of recording machine on the call destroys the privilege, as it's a third party not designed to facilitate the communication.

Low burden for reliable means - inmate should have contacted attorney directly.

No violation of FRE 410, as conversation was not with an attorney for the purpose of negotiating deal. 

United States v. Rodriguez

Federal Circuit -- BUSH V. U.S.


When, under TEFRA, the IRS re-computes taxes due in relation to a partnership, there is no need for them to issue a notice of deficiency, as the process is one of computational adjustment.

Dissent: More goin' on here than just computin' & adjustin'



Patent holder remains a necessary party, even after broad license to third party.

S702 of the APA waives immunity from all nonmonetary claims, not merely those with an administrative remedy.

Sufficient proof of inequitable conduct found in the pleading destroys the presumption of regularity.

Antitrust claim TKO'd for not defining the market.



Expedited removal proceedings are not sufficient to ground the charge as a predicate offense to illegal re-entry - additional processes and review are needed in the second proceeding when the alien challenges the removal offense as fundamentally unfair.

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.