Friday, August 09, 2013

Thursday and Friday

Second Circuit:

United States v. Brunner  -- Offender must register even after discharge from military.
United States v. Edelman -- Halfway house is "custody" for purposes of escape statute; No expectation of privacy in halfway house.
Ramos v. Racette -- Habeas denied - a brief assignment of counsel during voir dire did not sufficiently violate right to represent oneself.
Sutherland v. Ernst & Young LLP -- FLSA does not trump arbitration clause; although individual arbitration might not be cost-effective, itr doesn't bar vindication of the right.
Giovanniello v. ALM Media, LLC -- Federal statute of limitations governs claims under consumer protection statute; tolling ceased with the denial of class certification.
Fahs Construction Group, Inc. v. Gray, et al. -- No free speech / equal protection defense against dismissal of state employee, matter was not one of public concern.
Marvel Characters, Inc. v. Kirby -- Mailing of cease-and-desist letter insufficient purposeful availment for personal jurisdiction; parties not indispensable - the action can continue without joinder; expert correctly excluded, as hearsay was the basis for the proffered testimony; IP in question was created as works for hire.
United States v. Rene Rodriguez -- Prosecutor's recital of the mandatory minimum sentence was enough to put defendant on notice; ineffective assistance claim denied.
Hoffler v. Bezio - COA a prerequisite for Habeas appeal; jeopardy attached despite error in swearing of jury; sufficient evidence for retrial.
SEC v. Pentagon Capital Management -- Securities - Late trading scheme violated 10(b)5, 17(a) - sufficient scienter where deliberate; Non-broker status does not shield defts; Error to impose civil penalty jointly and severally; Scotus has held that "Discovery rule" does not toll statute of limitations for securities fraud.

Third Circuit:

USA v. Richard Caraballo-Rodriguez
Marmon Coal Co v. Dir OWCP, US Dept Labor
Dawn Ball v. Famiglio
USA v. Terrell Davis
James Washington v. Secretary Pennsylvania Departm

Fifth Circuit:

Juan Ojeda-Calderon v. Eric Holder, Jr.
USA v. Antonio Hughes
Natasha Whitley v. John Hanna, et al

Sixth Circuit:

USA v. Robin Riley, Jr. 
Findlay Truck Line, Inc. v. Central States Southeast and Southwest 
Village of Maineville, Ohio v. Hamilton Township Board of Trustees 
City of Pontiac Retired Employees v. Louis Schimmel 
Tommy Sharp v. Aker Plant Services Group, Inc 

Seventh Circuit:

Johana Cece v. Eric Holder, Jr. (Dissent)  (Dissent)
Lawrence Ruppert v. Alliant Energy Cash Balance
Paul Hester v. Indiana State Department of Health
Melvin Newman v. Rick Harrington
Wachovia Securities, LLC v.  Loop Corporation
Marica Johnson v. Koppers, Inc.
Bank of America, N.A. v. James Knight
Michael Carter v. Marc Hodge

Eighth Circuit (From site):

122698P.pdf   08/08/2013  William Pilger  v.  William Sweeney
   U.S. Court of Appeals Case No:  12-2698
   U.S. District Court for the Southern District of Iowa - Davenport    
   [PUBLISHED] [Phillips, Author, with Loken and Gruender, Circuit Judges] 
   Civil case - ERISA. Plaintiffs' claim to recover benefits under 29 U.S.C. 
   Sec. 1132(a)(1)B) was time-barred; ERISA plan booklet contained broad 
   language granting defendants authority to take remedial action, and they 
   could both correct and recoup overpayments; because the plan in question 
   was a defined-benefit plan, plaintiffs could not recover individualized 
   relief in a Sec. 1132(a)(1)(B) claim; claim for relief under Sec. 
   1132(a)(3)(B) was also barred. 
122828P.pdf   08/08/2013  Fedja Rochling  v.  Dept. of VA
   U.S. Court of Appeals Case No:  12-2828
   U.S. District Court for the District of Nebraska - Omaha    
   [PUBLISHED] [Benton, Author, with Colloton and Gruender, Circuit Judges] 
   Civil case - Administrative Procedure Act. In action claiming the VA 
   violated the APA and plaintiff's substantive and due process rights when 
   it reported a settlement to the National Practitioner Data Bank, the 
   district court did not err in dismissing the procedural due process claim 
   as plaintiff's claim that the report injured him was speculative and 
   conclusory and failed to plead a deprivation of a constitutionally 
   protected interest; the complaint failed to state a claim for a violation 
   of substantive due process; the VA's fact finding procedures were adequate 
   and the district court applied the proper review standard - arbitrary and 
   capricious - rather than de novo review; the district court did not 
   grossly abuse its discretion in denying plaintiff's request to supplement 
   the administrative record; the VA's decision in the matter was not 
   arbitrary or capricious, and the district court did not err in granting 
   the VA's motion for summary judgment. 
122955P.pdf   08/08/2013  Tim Lors  v.  Jim Dean
   U.S. Court of Appeals Case No:  12-2955
   U.S. District Court for the District of South Dakota - Pierre    
   [PUBLISHED] [Smith, Author, with Wollman and Murphy, Circuit Judges] 
   Civil case - Employment discrimination. Plaintiff's claims for money 
   damages against the State of South Dakota and its employees under Titles I 
   and V of the Americans with Disabilities Act were barred by sovereign 
   immunity; the appeal must be dismissed for lack of jurisdiction.   
123687P.pdf   08/08/2013  United States  v.  Robert Ford
   U.S. Court of Appeals Case No:  12-3687
   U.S. District Court for the District of South Dakota - Sioux Falls    
   [PUBLISHED] [Smith, Author, with Wollman and Murphy, Circuit Judges] 
   Criminal case - Criminal law. Where the jury acquitted defendant of sexual 
   assault and convicted him of kidnapping, the district court's supplemental 
   instruction validly instructed the jury that it could find Ford guilty to 
   kidnapping despite concluding that he was not guilty of sexual abuse; 
   second supplemental instruction adequately elaborated the "unlawfully 
   seized or detained" element of kidnapping under 18 U.S.C.Sec. 1201(a); 
   evidence was sufficient to support defendant's conviction for kidnapping 
   the victim to prevent her from reporting a sexual assault; the verdicts 
   were not inconsistent as the jury could reasonably belief that the victim 
   wanted to report an assault and defendant prevented her from doing so even 
   if the jury was not persuaded that the government proved all of the 
   elements of the assault beyond a reasonable doubt.
136005P.pdf   08/08/2013  Randall Seaver  v.  New Buffalo Auto Sales, LLC
   U.S. Court of Appeals Case No:  13-6005
                          and No:  13-6006
   U.S. Bankruptcy Court for the District of Minnesota - Duluth    
   [PUBLISHED] [Federman, Author, with Saladino and Nail, Bankruptcy Judges] 
   Bankruptcy Appellate Panel. For the panel's prior opinion in the case, see 
   Seaver v. New Buffalo Auto Sales, 459 B.R. 6 (B.A.P. 8th Cir. 2011). GMAC 
   had no standing to appeal any violation of the stay by the judgment 
   creditors and its appeal is dismissed; estate suffered no damages from 
   registration of certain judgments and the court did not err in awarding 
   the trustee nothing under Section 550. 
136010P.pdf   08/08/2013  Kimberly Hernandez  v.  Dept. of Health & Human Serv.
   U.S. Court of Appeals Case No:  13-6010
   U.S. Bankruptcy Court for the District of Nebraska - Lincoln    
   [PUBLISHED] [Kressel, Author, with Schermer and Shodeen, Bankruptcy 
   Bankruptcy Appellate Panel. A debt owed to the Department of Health and 
   Human Services for domestic support was a a debt in the nature of child 
   support under 11 U.S.C. Sec. 101(14A)(B), and the bankruptcy court did not 
   err in allowing the claim filed by the Nebraska DHHS as a priority debt. 

113530P.pdf   08/09/2013  Greg Herden  v.  United States
   U.S. Court of Appeals Case No:  11-3530
   U.S. District Court for the District of Minnesota - Minneapolis    
   [PUBLISHED] [Bye, Author, for the Court En Banc] 
   Civil case - Federal Tort Claims Act. In a suit claiming plaintiffs' 
   cattle operations were damaged because of a seed mixture an employee of 
   the U.S. Department of Agriculture directed plaintiffs to use on their 
   property, the district court did not err in concluding the employee's 
   conduct fell within the Federal Tort Claims Act's discretionary function 
   exception. Judge Melloy, with whom Chief Judge Riley and Judge Shepherd 
   join, dissenting. 
123417P.pdf   08/09/2013  United States  v.  Jo Anna Bame
   U.S. Court of Appeals Case No:  12-3417
   U.S. District Court for the District of Minnesota - Minneapolis    
   [PUBLISHED] [Bright, Author, with Loken and Bye, Circuit Judges] 
   Civil case - Federal Tax. The district court erred in granting the United 
   States' motion for summary judgment on its claim to recover a tax refund 
   overpayment as there were genuine issues of material fact as to 
   defendant's good faith defense and her entitlement to funds her deceased 
   husband transferred to her in payment of certain debts; on remand, the 
   district court should consider whether unjust enrichment is available to 
   the government in light of the remedies at law which might be available. 

Ninth Circuit:


Eleventh Circuit:

Merly Nunez v. Geico General Insurance Company
Joshua Daniel Bishop v. Warden, GDCP

DC Circuit:

In Re: Rail Freight Fuel Surcharge

Federal Circuit:


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.