Monday, April 29, 2013

Short Form: Friday and Monday

Second Circuit:

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.  -- Gender discrimination claim under NYCHRL gets past summary judgment
Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs., P.C. -- Gender discrimination - Title VII and NYSHRL claims dismissed, as "paramour preference" is insufficient basis for claim.

Third Circuit:

Robert A. Mariotti, Sr. v. Mariotti Bldg Products -- For purposes of employee standing under the ADA, shareholder-directors of corporations other than professional corporations must be considered under common-law criteria of agency, and they must act according to their own right in exercising their authority, as opposed to exercising delegated authority.

Fourth Circuit:

US v. 4219 University Drive, Fairfax   -- Crim - trial questions & JMOL
C Dept of Education v. US Secretary of Education -- IDEA (education rights of disabled)
US v. Raymond Allen -- Crim - sufficient evidence, crack/cocaine FSA adjustment
US v. Adley Abdulwahab -- Crim - Money laundering, mail fraud, conspiracy
Central Telephone Company of VA v. Sprint Communications Company  -- Phone carrier tie-in: Article III vs. State review of administrative decisions, Exhaustion, Judicial recusal, Contract interpretation.
The Country Vintner of NC v. E. & J. Gallo Winery -- FRCP - neither data storage nor transmittal count as costs that can be recovered under the fee-shifting statute - only when the file is converted to TIFF/PDF or printed onto CD.
US v. Frederick Springer  -- Civil commitment - mootness, merits.  Dissent.

Fifth Circuit:

USA v. Julian Garza-Guijan -- Sexual battery counts as a crime of violence for immigration purposes.
USA v. Fred Cooper   -- Crim - trial issues, for-cause strike denied, lesser-included instruction, viability of firearm at issue.
Terry Lonatro, et al v. Orleans Levee District -- The Quiet Title Act only waives sovereign immunity when the underlying dispute is between the plaintiff and the United States.

Seventh Circuit:

USA v.   Jose Tovar-Pina -- Sentencing - challenge to PSRs sustained despite lack of contemporaneous objection.
Gerald Kamlager v.   William Pollard  -- "De facto" confession not entitled to per se reversal after 6A challenge
Ji Cheng Ni v.   Eric H. Holder, Jr.
Big Ridge, Incorporated v.   Federal Mine Safety and Review

Eight Circuit (From snazzy new website):

111380P.pdf   04/29/2013  United States  v.  Daniel Lee
  U.S. Court of Appeals Case No:  11-1380
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Prisoner case - habeas. Lee's trial counsel's use of peremptory strikes
  based on race in violation of Georgia v. McCollum, 505 U.S. 42 (1992)
  did not deprive him of effective assistance of counsel; Lee's
  constitutional challenges to his sentence were rejected in his direct appeal
  and cannot be relitigated by way of a petition for postconviction relief
  under Section 2255; other challenges to the death sentence were outside
  the scope of the certificate of appealability.

103076P.pdf   04/26/2013  Shirley Phelps-Roper  v.  Chris Koster
  U.S. Court of Appeals Case No:  10-3076
  U.S. District Court for the Western District of Missouri - Jefferson City    
  [PUBLISHED] [Bye, Author, with Wollman and Shepherd, Circuit Judges]
  Civil case - Funeral Protests. Plaintiff's speech at funerals, while
  repugnant to some listeners, is entitled to constitutional protection; since
  the plaintiff established that she engages in First Amendment expressive
  conduct protected by the First Amendment, the district court properly
  placed the burden of proof on the State as the proponent of the funeral
  protest laws which restricted plaintiff's right to engage in the conduct;
  given the en banc court's decision in Phelps-Roper v. City of Manchester,
  Mo., 697 F.3d (8th Cir. 2012), Missouri has shown a significant
  government interest in protecting the peace and privacy of funeral
  attendees for a short time and in a limited space; the failure, however, to
  define the spatial extent of the buffer zone in Missouri Rev. Stat. Sec.
  578.501 resulted in the statue burdening substantially more speech than is
  necessary to serve Missouri's interests and prevents the section from
  being narrowly tailored; both Sec. 578.501 and 578.502 use the word
  "processions" in their definition of a funeral, and the use of this word
  creates a "floating zone," giving both sections impermissibly broad reach;
  however, severing the word from the statutory sections, results in a three-
  hundred-foot buffer zone in Section 578.502, and, with the word severed,
  this statutory section is constitutional since it is narrowly tailored and
  leaves open ample alternative channels for communication of plaintiff's
  message; elimination of the word from Section 578.501 does not solve
  the remaining constitutional problems for that section, and the district
  court did not err in finding it unconstitutional.

121342P.pdf   04/26/2013  United States  v.  Lowell Baisden
  U.S. Court of Appeals Case No:  12-1342
  U.S. District Court for the District of Nebraska - Lincoln    
  [PUBLISHED] [Smith, Author, with Beam and Gruender, Circuit Judges]
  Criminal case - Criminal law. The record established the district court
  properly reviewed defendant's request for new counsel and correctly
  denied it; defendant's attempt to withdraw his guilty plea did not have
  factual or legal support and was properly denied; the record further
  showed defendant had received competent, effective assistance of counsel
  in connection with his plea.

121786P.pdf   04/26/2013  Smith Flooring  v.  Pennsylvania Lumbermens Mutual
  U.S. Court of Appeals Case No:  12-1786
  U.S. District Court for the Western District of Missouri - Springfield    
  [PUBLISHED] [Smith, Author, with Beam and Gruender, Circuit Judges]
  Civil case - Insurance. The district court erred in finding there were no
  issues common to the parties' legal and equitable claim, and plaintiff had
  a Seventh Amendment right to trial by jury on the common issue of what
  the terms of the parties' intended contract were; the court also erred in
  treating the jury's verdict as merely advisory under Fed. R. Civ. P. 39
  insofar as this issue was concerned; however the errors doe not
  necessitate reversal of the court's order granting post-verdict judgment to
  defendant as the evidence was not sufficient to support the jury's verdict
  for plaintiff, and the district court did not err in reforming the insurance

121806P.pdf   04/26/2013  American Bank of St. Paul  v.  TD Bank, N.A.
  U.S. Court of Appeals Case No:  12-1806
                         and No:  12-1862
                         and No:  12-2399
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Benton, Author, with Smith and Melloy, Circuit Judges]
  Civil case - Torts. The district court did not err in denying defendant
  Mercantile's Rule 50 motion for judgment as a matter of law on
  plaintiff's aiding and abetting and conspiracy claims; excluding
  defendant's evidence of other banks' reactions to the borrower's fraud
  was not error; challenges to jury instructions rejected; denial of plaintiff's
  motion for additur was not an abuse of discretion, as the amount of
  damages was properly left to the jury.

122376P.pdf   04/26/2013  United States  v.  Matthew Olsson
  U.S. Court of Appeals Case No:  12-2376
  U.S. District Court for the Western District of Missouri - Jefferson City    
  [PUBLISHED] [Shepherd, Author, with Riley, Chief Judge, and Loken,
  Circuit Judge]
  Criminal case - Criminal law and Sentencing. Challenges to cross-
  examination of the government's witnesses rejected; defendant's prior
  conviction for second-degree burglary qualified as a crime of violence for
  purposes of career offender sentencing under Guidelines Sec. 4B1.1.

122482P.pdf   04/26/2013  David Longaker  v.  Boston Scientific Corporation
  U.S. Court of Appeals Case No:  12-2482
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
  Civil case - Contracts. The district court did not err in determining
  plaintiff lacked standing to pursue his breach of contract claim against his
  former employer as the claim belonged to plaintiff's bankruptcy estate;
  plaintiff never asked the court for leave to amend his complaint to include
  a retaliation claim under Minnesota's Human Rights Act, and the court
  could not err by failing to grant leave under these circumstances. Judge
  Bye, concurring in part and dissenting in part.

123028P.pdf   04/26/2013  United States  v.  David Nicklas
  U.S. Court of Appeals Case No:  12-3028
  U.S. District Court for the Western District of Arkansas - Fayetteville    
  [PUBLISHED] [Bye, Author, with Riley, Chief Judge, and Benton,
  Circuit Judge]
  Criminal case - Criminal law. In a prosecution for transmitting a fax
  containing a threat to injure in violation of 18 U.S.C. Sec. 875(c), the
  court did not err in granting the government's motion to strike the word
  "wilfully" from the indictment as the section creates a general intent
  crime and the section does not require the government to prove a
  defendant specifically intended his or her statements to be threatening;
  instead, the government must prove a reasonable recipient would have
  interpreted the fax as a serious threat to injure; as a result, the word
  willful was properly stricken as surplusage; evidence was sufficient to
  support defendant's conviction; no error in refusing to give defendant's
  proposed instruction on reasonable doubt as it was foreclosed by circuit

123211P.pdf   04/26/2013  Shawna Hess  v.  Carol Abels
  U.S. Court of Appeals Case No:  12-3211
  U.S. District Court for the Eastern District of Arkansas - Pine Bluff    
  [PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges]
  Civil case - Employment law. In action brought by an city employee
  who was terminated after refusing to take a drug test, the district court did
  not err in granting the defendants' motion for summary judgment based
  on qualified immunity as it was not clearly established at the time of the
  termination that such an action violated an employee's Fourth
  Amendment rights; plaintiff's Fifth Amendment and Fourteenth
  Amendment claims failed to allege a constitutional violation; the district
  court properly dismissed the official capacity claims against the
  individual defendant and the claims against the City; no error in
  dismissing claims under the Arkansas Civil Rights Act.

Ninth Circuit:


Tenth Circuit - nothing published today, unknown if any published opinions were posted Friday.

DC Circuit:

Flagstaff Medical Center, Inc. v. NLRB
American Petroleum Institute v. SEC
AstraZeneca Pharmaceuticals LP v. FDA

Federal Circuit:


Incomplete summaries today. Time/equipment limits. Better results in the next at-bat.


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.