Thursday, June 13, 2013

Short-Form (Omnibus, 6/11-6/13)

(As of about 1:30PM ET 6/13.)


Boston Property Exchange Trans v. Iantosca  (Souter) Endorsement of order was not a final judgment; state claims might have been waived when not raised in state action; insufficient causation for tort claims.
United States v. Ortho Biotech Products, LP  -- FRCP - discovery appropriately limited


Carrion v. Agfa Construction, Inc.  --- Third-party private action to enforce wage scales is foreclosed by precedent; 
Mali v. Federal Insurance Co. -- Court did not have to make specific findings prior to adverse inference instruction on missing photo, as it was circumstantial, not punitive; 
Souratgar v. Fair -- Hague Convention
Gaia House Mezz LLC v. State St. Bank & Trust Co. -- Claims on contract
Marshall v. Randall -- Grand jury testimony can be used to impeach the witness in subsequent S1983 suit; 
Guzzo v. Cristofano -- Hague Convention
CGS Indus., Inc. v. Charter Oak Fire Ins. Co. -- Duty to defend -- "advertising injury"
Hooks v. Forman, Holt, Eliades & Ravin, LLC -- FDCPA - disputing of debt in written form
Gary Friedrich Enters., LLC v. Marvel Characters, Inc. -- Genuine issues of materialfact as to assignment of IP rights.
United States v. Malki  -- Trial court erred in undertaking de novo re-sentencing after remand to correct Guidelines error.

Fourth (6/13 not posted yet):

US v. Abduladhim Al Sabahi  -- Alien was here unlawfully; District court did not have to wait for IJ to rule on removability; sufficient evidence on weapons possession charge despite deft's 911 call (excluded as hearsay)


X Technologies, Inc. v. Marvin Test Systems, Inc. -- Breach of contract claim
USA v. Calvin Windless -- Court cannot rely on bare arrest record when imposing sentence conditions.


Joseph Sadie v. City of Cleveland  -- Age discrimination claim - mandatory police/fire retirement age
USA v. Akeem Stafford -- Crim -- sufficient evidence, gunshot residue evidence properly admitted
Christopher Hrivnak v. NCO Portfolio Management Inc.  -- Class claim not moot after offer of only partial relief to putative representative


USA v.  Funds in the amount of $574,84

Jennifer Hitchcock v. Angel Corps Incorporated

USA v.  Rodney Johnson

USA v. John Natale

Atkinson Candy Company v. Kenray Associates, Incorporate

Tiberius Mays v. Jerome Springborn

USA v. Ladmarald Cates

Deborah Kenseth v. Dean Health Plan, Incorporated (concurrence)

Eighth (From site):

121605P.pdf   06/13/2013  Iowa Right To Life Committee  v.  Megan Tooker
  U.S. Court of Appeals Case No:  12-1605
  U.S. District Court for the Southern District of Iowa - Des Moines    
  [PUBLISHED] [Benton, Author, with Smith and Melloy, Circuit Judges]
   Civil case - Campaign Financing. Please see the opinion text for further 
  details of the court's ruling in this challenge to the constitutionality of 
  several Iowa campaign-finance laws, an administrative rule and two related 
  forms. Plaintiff lacked standing to challenge the definitions under Iowa 
  Code subsections 96A.102(18) and 68A.402(9); certain provisions of statutory 
  sections, an Iowa Code Administrative rule and Form Ind-Exp-O are 
  constitutional as applied to plaintiff and groups whose major purpose is not 
  nominating or electing candidates, while other sentences of the statute, 
  rule and Form DR-3 are unconstitutional as applied to plaintiff and such 
  groups; Iowa Code section 68A.503 is constitutional under the First and 
  Fourteenth Amendments; plaintiff has standing to challenge under the First 
  Amendment Iowa Code subsections 68A.404(2)(a-b) and 68.404(5)(g); plaintiff 
  has standing to challenge under the Fourteenth Amendment whether those 
  sections impose content-based restrictions that violate its right to equal 
  protection; Subsections 68A.404(2)(a-b) are constitutional under the Equal 
  Protection Clause insofar as they do not differentiate between similarly 
  situated speakers; the clause "of the corporation" in Iowa Code subsections 
  68A.404(5)(g) and the clause "if the organization making the expenditure is 
  a corporation" in Form Ind-Exp-O are unconstitutional under the Fourteenth 
  Amendment. On remand, the district court should consider severability. Judge 
  Melloy, concurring. 
122215P.pdf   06/13/2013  Doe Run Resources Corporation  v.  Lexington Insurance Company
  U.S. Court of Appeals Case No:  12-2215
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Loken, Author, with Murphy and Colloton, Circuit Judges] 
  Civil case - Insurance. In a declaratory judgment action brought to 
  determine whether defendant had an obligation to defend Doe Run on claims 
  that its mining and mill operations had caused environmental damage on 
  neighboring property, the district court did not err in determining the 
  insurer had no duty to defend because the policies' absolute pollution 
  exclusions unambiguously barred coverage of all claims asserted in the suit 
  brought against Doe Run. 
122321P.pdf   06/13/2013  United States  v.  Lawrence Johnson
  U.S. Court of Appeals Case No:  12-2321
  U.S. District Court for the Northern District of Iowa, Waterloo    
  [PUBLISHED] [Wollman, Author, with Gruender and Shepherd, Circuit Judges]
   Criminal case - Criminal law and sentencing. Evidence was sufficient to 
  support defendant's conviction for conspiracy to distribute heroin; because 
  the identity of defendant's coconspirators was not an essential element of 
  the conspiracy, the district court's failure to include their names in the 
  jury instruction was not a constructive amendment of the indictment; 
  presentation of evidence that defendant conspired with indicted and 
  unindicted coconspirators was not a constructive amendment of the indictment 
  or a variance; claim that the government charged a single conspiracy and 
  proved multiple conspiracies rejected; rejection of defendant's requests for 
  instructions on single v. multiple conspiracy and buyer-seller relationship 
  was not error; an instruction requiring proof that a detectable (as opposed 
  to measurable) amount of a controlled substance was knowingly and 
  intentionally distributed is sufficient to sustain a conviction under 21 
  U.S.C. Sec. 841(a); while the oral pronouncement of sentence is controlling, 
  when the oral pronouncement does not resolve whether sentences are 
  concurrent or consecutive, the clearly expressed intent of the sentencing 
  judge as set out in the written judgment and commitment may properly serve 
  to resolve the issue. 

122757P.pdf   06/13/2013  Ranna Muor  v.  U.S. Bank National Association
  U.S. Court of Appeals Case No:  12-2757
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Wollman, Author, with Colloton, Circuit Judge, and P.K. 
  Holmes, District Judge]
  Civil case - Employment Discrimination. Assuming 
  that a written warning issued plaintiff was an adverse employment action and 
  that she could otherwise establish a prima facie case of race and national 
  origin discrimination, the employer articulated a legitimate, 
  non-discriminatory basis for issuing the warning, and plaintiff failed to 
  show the stated reason was pretextual; on the claim defendant retaliated 
  against plaintiff for complaining internally about discrimination and for 
  filing a discrimination charge, plaintiff failed to establish a causal 
  connection between her complaints of discrimination and the adverse 
  employment action. 
123498P.pdf   06/13/2013  The Doe Run Resources Corp.  v.  Lexington Insurance Company
  U.S. Court of Appeals Case No:  12-3498
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Loken, Author, with Gruender, Circuit Judge, and Wimes, 
  District Judge]
  Civil case - Insurance. In a declaratory judgment action 
  to determine whether the insurer had a duty to defend Doe Run in two 
  lawsuits seeking damages from operation of Doe Run's waste pile known as the 
  "Leadwood Pile," the district court correctly determined that the insurance 
  policy's pollution exclusions unambiguously applied to claims that Doe Run 
  tortiously released pollutants into the environment and thereby barred a 
  duty to defend in one of the suits; however, the second suit included 
  allegations not found in the other action - that Doe Run distributed the 
  chat and tailings into the community for use on roads and in buildings and 
  children's sandboxes - and these allegations are not based on the 
  inadvertent release of pollutants; this claim, that plaintiffs were injured 
  by distribution of toxic materials, potentially fell within the policies' 
  coverage and created a duty to defend; additionally, the complaint in this 
  action also included claims that Doe Run created an attractive nuisance by 
  leaving the Leadwood Pile open and available to the general public, an 
  allegation which was not unambiguously barred by the pollution exclusions. 

123006P.pdf   06/12/2013  United States  v.  Ardelle Dunlap, Jr.
  U.S. Court of Appeals Case No:  12-3006
  U.S. District Court for the District of Nebraska - Omaha    
  [PUBLISHED] [Per Curiam - Before Shepherd, Beam and Melloy,
  Circuit Judges]
  Criminal case - Criminal law. Where defendant had served the
  sentence imposed upon revocation of his supervised release and faced no
  further supervision, his appeal must be dismissed as moot; neither the
  possibility that the supervised release violation involved in the case might
  increase his sentence for a future conviction nor social stigma associated
  with conviction established a sufficient basis to maintain the appeal; case
  did not fall within the "capable of repetition yet evading review"
  exception to mootness.

122748P.pdf   06/11/2013  United States  v.  Lee Adams
  U.S. Court of Appeals Case No:  12-2748
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Per Curiam - Before Bye, Melloy and Smith, Circuit Judges]
  Criminal case - Sentencing. Under California law, defendant's two
  convictions were felonies for sentencing purposes because, although each
  of the assault cases may "wobble" between a felony and a misdemeanor,
  neither conviction resulted in a judgment and neither sentencing court
  declared the convictions to be misdemeanors; the case contained no
  grievous ambiguity or uncertainty, and the rule of lenity did not apply;
  based on this analysis, the district court did not err in classifying
  defendant as an armed career criminal under 18 U.S.C. Sec. 924(e).

131196P.pdf   06/11/2013  United States  v.  Dennis Capps
  U.S. Court of Appeals Case No:  13-1196
  U.S. District Court for the Eastern District of Missouri - Cape Girardeau    
  [PUBLISHED] [Gruender, Author, with Riley, Chief Judge, and
  Benton, Circuit Judge]
  Criminal case - Criminal law and Sentencing. Failure to give Miranda
  warning prior to asking defendant to consent to a search did not nullify
  defendant's otherwise voluntary consent; search of defendant's vehicle
  did not exceed the scope of defendant's consent; mandatory life sentence
  pursuant to 21 U.S.C. Sec. 841(b)(1)(A)(viii) does not violate the Eighth
  Amendment; Miller v. Alabama, 132 S. Ct. 2455 (2012) does not disturb
  existing circuit precedent foreclosing defendant's argument that his
  sentence is grossly disproportionate.



Ronald Palmer Heath v. Secretary, Florida Department of Corrections
USA v. Scott W. Rothstein
Jose Alberto Perez-Guerrero v. U.S. Attorney General


Kevin West v. John Potter

Catholic Health Initiatives v. Kathleen Sebelius
USA v. Ali Ali
Chlorine Institute, Inc. v. Federal Railroad Admin.
John Saad v. SEC

Federal Circuit:


No posts tomorrow.  Back next week -- with fuller summaries.


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.