Thursday, March 12, 2015

Short Form 3/12

First Circuit:

AngioDynamics, Inc. v. Biolitec AG -- 60(b) motion cannot be used to collaterally attack a preliminary injunction; civil contempt fines in excess of the judgment amount are permissible, but have to be capped at some point so that they don't  infinitely increase; alternative service was acceptable.

US v. Rojas  -- Appeal waiver in plea deal that doesn't recommend terms for supervised release still bars appeal of sentence terms imposing conditions on supervised release.

Raymond James Financial Servic v. Fenyk -- Arbitration - Statute of limitations not offended by award, as it was evolving at the time; Award under statute different from that claimed by the plaintiff does not indicate a manifest disregard of the law.  Circuit split on the issue flagged.

AngioDynamics, Inc. v. Biolitec AG -- Where deft corporation is at home in the forum state and makes a fraudulent transfer of assets out of the forum state, ancillary jurisdiction over other companies can be established (vague in decision, probably clearer in District Ct. opinion.); Tortious interference sufficiently pleaded; Entry of default judgment as discovery sanction wasn't an abuse of discretion; No need for evidentiary hearing before award of damages.

Second Circuit:

Prabhudial v. Holder -- Immigration: Agency may Constitutionally hold an argument (that a categorical instead of modified categorical approach was incorrectly used in offense determination) waived if not timely raised.  Circuit courts therefore have no jurisdiction over the appeal.

Fourth Circuit:

US v. Keith Reed -- Use of cell phone tracking map at trial that used deft's names instead of phone numbers was not an abuse of discretion; Post-arrest labeling of cell phone bag was not sufficiently testimonial to trigger Confrontation Clause (harmless error, as otherwise attributable); Sufficient evidence for convictions.

US v. Marco Flores-Alvarado -- Amended Opinion

Fifth Circuit:

Ralph Janvey, et al v. Golf Channel, Incorporated, -- State can reach under fraudulent transfer law advertising expenses paid by Ponzi scheme.  Although they had market value, they did not provide even speculative benefit to creditors.

Halliburton, Incorporated v. LABR -- Dissent from denial of en banc - Court should make a firm rule as to when the disclosure of a complainant's identity constitutes an adverse employment action.

USA v. Robert Kaluza, et al -- District Court holding that federal law did not apply to offshore drilling rig can't be bootstrapped into defts jurisdiction argument,as there was no cross-appeal by defts and the choice of law and jurisdictional elements of the statute are different; No error in District Court's use of ejustem generis to limit the ambiguous/general term in the statute to those persons responsible for the transportative functions of the vessel, thereby ruling out oil rig drilling employees.

Sixth Circuit:

Dawson Wise v. Zwicker & Associates PC -- State debt collection practices statute claim properly dismissed, as it doesn't apply to dealings between a consumer and a financial institution; Court must conduct interest analysis to determine if fee-shifting provision fundamentally offends public policy of forum state when the law of another jurisdiction is being applied.

Alfredo Montanez-Gonzalez v. Eric Holder, Jr. -- Immigration - even where refusal to consider a certain factor barring removal was constitutional error, prejudice must be shown; the phrase "on balance" does not establish that the court engaged in inappropriate balancing (as opposed to aggregation).

Seventh Circuit:

Kevin P. Gerard v. Michael J. Gerard -- Bankruptcy: Tort verdict against bankruptcy petitioner must be considered in totality to determine whether it was for malicious and willful harm, and therefore the basis for an undischargeable debt.

Ninth Circuit:

NRDC V. USEPA -- Chevron deference to EPA rulemaking creating alternative enforcement mechanism.

CHRIS TAYLOR V. JOHN CHIANG -- Constitutional concerns as to the appropriate means of locating owners of lost property vary by pre-escheat requirements and post-escheat requirements.

Eleventh Circuit:

SE Property Holdings, LLC v. Seaside Engineering & Surveying, Inc. -- Bankruptcy court may issue non-debtor releases of debt where necessary to preserve the viability of the post-petition entity.

USA v. Shedrick D. Hollis -- Evidence found in protective sweep of third-party residence admissible; No abuse of discretion in barring expert testimony on fingerprint comparison from expert on fingerprint sufficiency based solely on the averral of the expert that the two are identical.

Federal Circuit

BANNUM, INC. v. US  -- As bidder for government contract did not formally object to solicitation prior to the award, post-award challenges are waived.

(We'd like to get back to individual postings to help enable the tags function, but time, like an e'er rolling stream is moving a bit fast at the moment.  MB)
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.