Tuesday, May 21, 2013

(Very) Short Form: Tuesday

First Circuit:

Young v. Wells Fargo Bank  -- Change in loan payments at the end of the initial period did not breach the contract; Delay in notification of new payment obligations states a claim for breach; Statutory claim duplicative of breach claim; No breach of implied covenant of good faith/fair dealing; No IIED claim; Sufficient injury to state claim for debt collection act violation.

Clukey v. Camden, ME  -- S1983: Breach suit not a sufficient remedy for Due Process claim for re-employment by state.

Second Circuit:

CARCO GROUP, Inc., et al. v. Maconachy -- Torts - No PX/CZ; Full salary not a reliable measure of general damages for faithless servant claim; Demial of interest and 20% across-the-board reduction in fees reversed.

Williams v. Comm'r -- No error in denial of face-to-face hearing before assessing tax levy.

Third Circuit:

In Re:Majestic Star Casino LLC v. -- Bankruptcy - No standing, as an S-Corporation status is not property, and there can therefore be no voidable transfer of property due to the change of a corporate status.

Hart v. Electronic Arts Inc -- In balancing Free Speech against a claim for the appropriation of likeness, courts should consider whether the use is transformative - whether ingredient or product imbued with new meaning. (Video games.)

Fifth Circuit:

Natl Rifle Assn of America Inc, et al v. Steven Mc -- Guns - carry right for 18-20 falls outside of 2nd Amendment protections; substantial tailoring enough for intermediate scrutiny; No equal Protection violation as plaintiffs did not carry burden of proving lack of rational basis.

Robert Howard v. Kathleen Blanco, et al -- As the decision as to parole is ultimately discretionary, no ex post facto violation from the change of commutation procedures.

Martha Haire v. Bd Supr LA State University -- Error to dismiss Title VII gender suit against university police department, as the racial animus of offensive comment can be imputed to the ultimate decision-maker; Genuine issue of material fact as to retaliation claim.

Mike Hooks Dredging Co., Inc. v. Eckstein Marine S -- Admiralty - Mooring of dredge in narrows created presumption of fault in the collision - the fact that it was not obstructing traffic is irrelevant; Hole in vessel not significant enough to justify lenity under emergency actions; No abuse of discretion in allowing erxpert witness; FRCP 14(c) does not bar third-party liability.

Eighth Circuit (From site):

111460P.pdf   05/21/2013  Michael Nack  v.  Douglas Walburg
   U.S. Court of Appeals Case No:  11-1460
   U.S. District Court for the Eastern District of Missouri - St. Louis    
   [PUBLISHED] [Melloy, Author, with Wollman and Colloton, Circuit Judges]
   Civil case - Telephone Consumer Protection Act of 1991. District court
   erred in granting defendant summary judgment on plaintiff's claim that
   his receipt of one fax advertisement from defendant which did not
   contain the opt-out language mandated by 47 C.F.R. Sec.
   64.1200(a)(3)(iv) violated the Telephone Protection Act as amended by
   the Junk Fax Prevention Act of 2005; the regulation, as written, requires
   the opt-out language even if the sender received prior express
   authorization to send the fax; this plain-language interpretation of the
   regulation is consistent with the FCC's proffered interpretation of the
   regulation; at this stage of the matter, the court could not entertain
   arguments that the unambiguous regulation is contrary to unambiguous
   statutory language or that the application of the regulation was arbitrary
   or capricious as such challenges would be precluded by the Hobbs Act. 
122641P.pdf   05/21/2013  United States  v.  Adam Winarske
   U.S. Court of Appeals Case No:  12-2641
   U.S. District Court for the District of North Dakota - Bismarck    
   [PUBLISHED] [Holmes, Author, with Wollman and Colloton, Circuit Judges]
   Criminal case - Criminal law. Based on information provided by an
   informant, officers had probable cause to arrest defendant for illegally
   possessing a firearm; the officers had ample cause to believe the
   informant was reliable since he had provided accurate information in the
   past, officers had verified certain information he had provided regarding
   defendant, and defendant had shown up at the time and in the location the
   informant had set for a firearm deal; search of defendant's girlfriend's
   vehicle was constitutional as officers had reasonable cause to believe it
   contained evidence of the offense.
122813P.pdf   05/21/2013  Brian Ulrich  v.  Pope County
   U.S. Court of Appeals Case No:  12-2813
   U.S. District Court for the District of Minnesota - Minneapolis    
   [PUBLISHED] [Holmes, Author, with Wollman and Colloton, Circuit Judges]
   Civil case - Civil rights. Defendant police officers had arguable
   probable cause to arrest Ulrich for violating a restraining order and were
   entitled to qualified immunity on his claim that his arrest violated his
   Fourth Amendment rights; even assuming plaintiff suffered a
   constitutional deprivation, the district court did not err in dismissing his
   claim against the County since he failed to allege facts in his complaint
   that would demonstrate the existence of a County policy or custom that
   caused the deprivation; the defendant officers were performing
   discretionary, rather than ministerial, functions when they determined that
   Ulrich should be incarcerated following his arrest, and that were entitled
   to official immunity on Ulrich's false imprisonment claim.
123267P.pdf   05/21/2013  United States  v.  Michael Never Misses A Shot
   U.S. Court of Appeals Case No:  12-3267
   U.S. District Court for the District of South Dakota - Pierre    
   [PUBLISHED] [Holmes, Author, with Wollman and Colloton, Circuit Judges]
   Criminal case - Sentencing. District court did not err in imposing an
   upward departure based on its determination that defendant's criminal
   history category substantially understated the seriousness of his record
   and the likelihood he would commit future offenses; no error in imposing
   an upward departure based on Guidelines Sec. 5K2.0(a)(1)(A) based on
   the court's determination that this was not a typical false statement case
   since it involved an elaborate set of lies which interfered with an active
   FBI murder investigation and accused two innocent individuals of
   multiple murders; sentence was substantively reasonable.
123853P.pdf   05/21/2013  Gerald Geier  v.  Missouri Ethics Commission
   U.S. Court of Appeals Case No:  12-3853
   U.S. District Court for the Western District of Missouri - Jefferson City    
   [PUBLISHED] [Shepherd, Author, with Colloton, Circuit Judge, and
   Rose, District Judge]
   Civil case - Injunctions. Where the Missouri Ethics Commission had
   brought an enforcement action against plaintiff and a political action
   committee for failure to file ongoing reports and other documentation, the
   district court did not err in abstaining from plaintiffs' injunction action on
   the ground the state proceedings, through the administrative and appellate
   process, provided an adequate forum for plaintiffs to raise constitutional
   issues; district court did not err in denying plaintiffs' motion to amend
   their complaint as the matter had been dismissed; even if the action had
   not been completely dismissed, any error in denying the motion to amend
   was harmless as the proposed amendment was futile.

Ninth Circuit (from site):

LAWRENCE V. HOLDER -The panel denied Alfredo Rolando Lawrence’s petition
for review of the Board of Immigration Appeals’ decision
finding him ineligible for INA § 212(c) relief, because he is
an aggravated felon who filed his application for relief after
November 29, 1990. The panel held that the term “admissions” in § 212(c)’s
effective date provision refers to the date that an alien seeks
relief, and thus the aggravated felony bar applies to
applications filed after November 29, 1990, regardless of the
date the alien was initially admitted to the United States.

ANTONIO HINOJOS V. KOHL'S CORPORATION -- The panel reversed the district court’s dismissal of claims under California’s Unfair Competition Law, Fair Advertising
Law, and Consumer Legal Remedies Act brought by a
plaintiff in a putative class action against Kohl’s Department
Stores alleging false advertising.
The panel applied the California Supreme Court’s holding
in Kwikset Corp. v. Superior Court, 246 P.3d 877 (Cal. 2011),
and held that when a consumer purchases merchandise on the
basis of false price information, and when the consumer
alleges that he would not have made the purchase but for the
misrepresentation, he has standing to sue under the Unfair
Competition Law and Fair Advertising Law because he has
suffered an economic injury. The panel also reversed the
district court’s dismissal of plaintiff’s Consumer Legal
Remedies Act claims. Finally, the panel denied defendant’s
motion to certify the issues to the California Supreme Court
both on the merits and because of the circumstances attendant
to its filing (where defendant only requested certification for
the first time after oral argument).
Judge Wardlaw concurred in the majority opinion, except
that she concurred only as to the result in Part III, which
denied Kohl’s request to certify the state law standing
requirements for review by the California Supreme Court.
Judge Wardlaw would simply deny the request as untimely.

PAUL ISAACSON V. TOM HORNE - The panel reversed the district court’s order denying
declaratorya nd injunctive relief to plaintiffs and held that the
Constitution does not permit the Arizona legislature to
prohibit abortion beginning at twentyweeks gestation, before
the fetus is viable.
The panel held that under controlling Supreme Court
precedent, Arizona may not deprive a woman of the choice to
terminate her pregnancy at any point prior to viability. The
panel held that Arizona House Bill 2036, enacted in April
2012, effects such a deprivation by prohibiting abortion from
twenty weeks gestational age through fetal viability. The
panel held that the twenty-week law is therefore
unconstitutional under an unbroken stream of Supreme Court
authority, beginning with Roe v. Wade, 410 U.S. 113 (1973),
and ending with Gonzales v. Carhart, 550 U.S. 124 (2007). 
Concurring, Judge Kleinfeld stated that the current state
of the law compelled him to concur, and that what controls
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Tenth Circuit:

United States v. Baker

Enterprise v. Warrick

Eleventh Circuit:

John Ferguson v. Secretary, Florida Department of Corrections

Pedro Machado Alturo, et al v. US Attorney General

DC Circuit:

Gregory English v. DC

Judicial Watch, Inc. v. Department of Defense

Deutsche Bank National Trust v. FDIC

Federal Circuit:



Ran a bit short of time today.  Tomorrow's will be either later in the evening or posted Thursday.  Still facing equipment troubles.  New Macbook Pros can be sent to the author, Poste Restante, Gotham.  Onward.


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.