Wednesday, March 18, 2015

Short Form: 3/18

First Circuit:

Vaello-Carmona v. Siemens Medical Solutions USA,  -- ADA:  ADA and correlative Puerto Rico law claim survive the death of the plaintiff and can be inherited.

US v. Ngige  -- Conspiracy/SOL -  Deft claiming that prosecution for Conspiracy was time-barred relied on a different theory of the crime than articulated in the indictment.  As there were overt acts in furtherance within the relevant time frame according to the indictment's theory of the conspiracy, the case is not time-barred; Sufficient evidence.

US, ex rel. Escobar v. Universal Health Services, Inc  -- FCA/Fraud: Complinace with appropriate regulations is a precondiiton of payment for purposes of the False Claims Act (and therefore, a breach of same gives the c/a); Claim pleaded with sufficient particularity.

Second Circuit:

Ricci v. Teamsters Union Local 456 -- Communications/SOP Web hosting company shielded from liability under safe harbor in the Communications Decency Act; Union's claims time-barred.

Third Circuit:

John Cottillion v. United Refining Co -- ERISA: Employees did not have to exhaust Plan-based remedies to vindicate statutory rights, as there was a fixed policy denying the claims; Early Retirement claims vested according to the terms of the Plan, so those denied the benefit have standing to challenge, notwithstanding the fact that the denial did not invade the statutory bottom limit for such benefits;  "(I)mpermissible sur-reply" stricken.

Sixth Circuit:

Sierra Club v. EPA  -- Standing/ Environmental:  Reasonable inference of direct increase of emissions due to challenged policy suffices for Article III Injury for Club member living in the metropolitan area; Chevron deference to Agency interpretation; State must assess whether company is takking all reasonable measures to abate pollutants, regardless of whether the regulatory threshold measurement is exceeded.

Seventh Circuit:

Emir Lenjinac v. Eric Holder, Jr Immigration:  For a Convention Against Torture claim,  Petitioner must establish preponderance of likelihood of adverse treatment, not merely that the potential harms are congruent with those envisaged by the statute; At one point, Court uses "fulsome" to mean "complete," causing minor conniptions on this end. 

Eighth Circuit (Summaries from Court)

142805P.pdf  03/18/2015  United States  v.  Michael Munz
   U.S. Court of Appeals Case No:   14-2805
   U.S. District Court for the Northern District of Iowa - Dubuque   
   [PUBLISHED] [Per Curiam - Before Loken, Bye and Smith, Circuit Judges] 
   Criminal case - Sentencing. The district court did not err when it 
   declined to consider a proposed Amendment to the guidelines in setting 
   defendant's sentence; sentence was not substantively unreasonable. 
146034P.pdf  03/18/2015  Jack Bowman  v.  Daniel J. Casamatta
   U.S. Court of Appeals Case No:   14-6034
   U.S. Bankruptcy Court for the District of Nebraska - Omaha   
   [PUBLISHED] [Nail, Author, with Kressel and Schermer, Bankruptcy Judges] 
   Bankruptcy Appellate Panel. The bankruptcy court did not abuse its 
   discretion by denying debtors' motion to reopen where their case had been 
   dismissed for cause before it was fully administered; no error in refusing 
   to hold a hearing on the motion as there is no requirement in Section 350 
   that the court provide a hearing on a motion to reopen. 
146045P.pdf  03/18/2015  Daniel Gess  v.  Randolph Brooks Credit Union
   U.S. Court of Appeals Case No:   14-6045
   U.S. Bankruptcy Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Federman, Author, with Saladino and Nail, Bankruptcy Judges] 
   Bankruptcy Appellate Panel. Order granting Credit Union relief from the 
   automatic stay with respect to debtors' vehicle affirmed as the Credit 
   Union had a perfected security interest in the van and established that 
   its interest was not adequately affected. 

142805P.pdf  03/18/2015  United States  v.  Michael Munz
   U.S. Court of Appeals Case No:   14-2805
   U.S. District Court for the Northern District of Iowa - Dubuque   
   [PUBLISHED] [Per Curiam - Before Loken, Bye and Smith, Circuit Judges] 
   Criminal case - Sentencing. The district court did not err when it 
   declined to consider a proposed Amendment to the guidelines in setting 
   defendant's sentence; sentence was not substantively unreasonable. 

   U.S. District Court for the Eastern District of Missouri - Cape Girardeau   
   [PUBLISHED] [Kelly, Author, with Riley, Chief Judge, and Smith, Circuit 
   Criminal case - Criminal law and sentencing. Defendant Corey Turner lacked 
   standing to contest the issuance of warrants for Precise Location 
   Information on two other defendants' cell phones as he did not own, 
   possess or use the cell phones which were the objects of the warrants and 
   did not have a legitimate expectation of privacy in the phones or the 
   location information; the government made the requisite showing of 
   necessity to justify the issuance of wiretap orders; assuming that Corey 
   Turner's cell phone was a tracking device for the purposes of the 
   procedural requirements of Rule 41, the combination order in the case, 
   granting both wire tap authorization and permission to seize PLI from 
   Corey Turner's phone, failed to meet a substantial number of Rule 41's 
   procedural requirements; while the court is concerned about the number of 
   Rule 41 violations in the case, Turner has failed to show any prejudice or 
   that the government acted in reckless disregard of the Rule, and exclusion 
   of the evidence is not the proper remedy for the violations; in order to 
   admit testimony from a co-conspirator regarding the meaning of certain 
   drug-related terms in intercepted calls, the government should have 
   qualified her as an expert; however, the error did not affect the jury's 
   verdict as she and other witnesses interpreted the terms without 
   objection; before admitting evidence regarding defendants' prior drug 
   convictions, the court should have required the government to explain its 
   purpose in offering the evidence to exclude the possibility that the 
   evidence was being admitted solely to prove propensity; any error in 
   admission of the evidence in this case was harmless in light of the other 
   evidence in the case; where only the video, without sound, of defendant 
   Anthony Turner's prior arrest was played, any error in playing the video 
   was harmless as the jury did not hear the statements to which Turner 
   objected; evidence was sufficient to support defendant Donald Turner's 
   conviction for conspiracy as it was up to the jury to determine the 
   credibility of the witnesses against Turner and the jurors were properly 
   instructed on their responsibilities, including weighing any benefits the 
   witnesses received for their testimony; evidence was sufficient to support 
   defendant Antonio Turner's conviction for conspiracy; Antonio Turner's 
   sentence was set by the enhanced penalty provisions of 21 U.S.C. Sec. 851 
   and any error in calculating the quantity of drugs attributable to him was 
   harmless; no error in admitting evidence of drugs distributed by 
   co-defendants where the distribution was reasonably foreseeable by 
   defendant Donald Turner; the Section 851 notice provided defendant Donald 
   Turner was adequate and any error in the notice did not deprive him of due 
   process; claims of ineffective assistance at sentencing should be raised 
   in a collateral proceeding under 28 U.S.C. Section 2255. 

Ninth Circuit:

USA V. ESTEFANI ZARAGOZA-MOREIRA --  Crim. Pro:  Border Agent had duty to preserve video, as it was manifestly relevant to deft's claim of Duress.  

SETH BAKER V. MICROSOFT CORPORATION -- Class Actions: Denial of certification reversed (after stipulation to voluntary dismissal of claim with prejudice and without settlement given denial of attempt at interlocutory appeal); District court erred in holding that individual issues predominated over shared issues;   Special Concurrence: denial of certification in a sister District is entitled to a rebuttable presumption of correctness.
SEATTLE MIDEAST AWARENESS CAMP V. KING COUNTY -- Free Speech: Ads on busses are a limited public forum; denial of specific ad wasn't viewpoint-based , as all ads referencing the issue in question were banned; Dissent: Designated public forum was created by selling ads.

Tenth Circuit:

Nixon v. Pryor -- Prisoner Claim: Actual innocence claim insufficient to toll Statute of Limitations.

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.