USA v. Brandon Laureys
Improper inducement of a minor can be proven when deft communicates with a third party as opposed to the minor.
Remand for ineffective assistance evidentiary hearing.
No plain error in supervised release restrictions banning cameras, barring deft from areas where pr0n is sold, requiring internet restrictions.
Recent Precedential Slip Opinions from the U.S. Circuit Courts of Appeals.
Friday, August 19, 2011
DC Circuit -- USA v. Brandon Laureys
Tenth Circuit -- The City of Riviera Beach vs That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, Fane Lozman
The City of Riviera Beach vs That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, Fane Lozman
Although deft claims the structure is a floating non-seafaring shack, Circuit precedent holds it to be a vessel. Circuit split flagged.
No error in district court finding of maritime lien for unpaid dockage.
Suspicious timing not enough to avoid summary judgment on 1A retaliation claim.
City issuance of a lease does not judicially estop the bringing of a maritime lien.
Bar of earlier eviction action due to retaliatory nature does not collaterally estop present action.
Although deft claims the structure is a floating non-seafaring shack, Circuit precedent holds it to be a vessel. Circuit split flagged.
No error in district court finding of maritime lien for unpaid dockage.
Suspicious timing not enough to avoid summary judgment on 1A retaliation claim.
City issuance of a lease does not judicially estop the bringing of a maritime lien.
Bar of earlier eviction action due to retaliatory nature does not collaterally estop present action.
Tenth Circuit -- Sidney Gipson, William McGuirk, et al vs Jefferson County Sheriff's Office, in his official capacity, State of Alabama
Sidney Gipson, William McGuirk, et al vs Jefferson County Sheriff's Office, in his official capacity, State of Alabama
Challenge to law dismissed as moot, as the law has become irrelevant.
Challenge to law dismissed as moot, as the law has become irrelevant.
Ninth Circuit -- CENTER FOR ENVIRONMENTAL LAW A V. UNITED STATES BUREAU OF RECLAMATION
CENTER FOR ENVIRONMENTAL LAW A V. UNITED STATES BUREAU OF RECLAMATION
Drawdown of water from lake under NEPA upheld under hard look review. (The agency took a sufficiently hard look, according to the court -- not Overton Park hard look.)
Drawdown of water from lake under NEPA upheld under hard look review. (The agency took a sufficiently hard look, according to the court -- not Overton Park hard look.)
Ninth Circuit -- YAKIMA VALLEY MEMORIAL HOSPITA V. WASHINGTON STATE DEPARTMENT OF HEALTH
YAKIMA VALLEY MEMORIAL HOSPITA V. WASHINGTON STATE DEPARTMENT OF HEALTH
Regulatory regime issues permits for hospitals to perform certain elective procedures, based on the community's need for a hospital to do such things. Challenged, viz -
The fact that the hospitals can adjust the number of elective procedures performed does not mean that the rule is not a unilateral restriction - the permit scheme is a simple barrier to entry, unilaterally imposed by the government, and thereforenot preemepted by the Sherman Act.
In-state hospital has standing to challenge under Dormant Commerce Clause.
Regulatory regime issues permits for hospitals to perform certain elective procedures, based on the community's need for a hospital to do such things. Challenged, viz -
The fact that the hospitals can adjust the number of elective procedures performed does not mean that the rule is not a unilateral restriction - the permit scheme is a simple barrier to entry, unilaterally imposed by the government, and thereforenot preemepted by the Sherman Act.
In-state hospital has standing to challenge under Dormant Commerce Clause.
Ninth Circuit -- C.F. V. CAPISTRANO UNIFIED SCHOOL DISTRICT
C.F. V. CAPISTRANO UNIFIED SCHOOL DISTRICT
No error in allowing plaintiff to amend schedule & deft to file new response after summary judgment substantially impacting theory of the case.
Qualified immunity from Establishment Clause challenge for history teacher who allegedly made disparaging statements in AP HIstory about Christianity.
No error in allowing plaintiff to amend schedule & deft to file new response after summary judgment substantially impacting theory of the case.
Qualified immunity from Establishment Clause challenge for history teacher who allegedly made disparaging statements in AP HIstory about Christianity.
Ninth Circuit -- IN RE: BLUETOOTH HEADSET PROD.
IN RE: BLUETOOTH HEADSET PROD.
100K to class and 800K to counsel raises an inference of unfairness - record does not dispel the thought that counsel tossed class under the proverbial bus.
100K to class and 800K to counsel raises an inference of unfairness - record does not dispel the thought that counsel tossed class under the proverbial bus.
Ninth Circuit -- REBECCA RICKLEY V. COUNTY OF LOS ANGELES
REBECCA RICKLEY V. COUNTY OF LOS ANGELES
S1988 Fees to attorney-spouses of original counsel upheld, as they are sufficiently independent and detached, and the alternative is unworkable.
S1988 Fees to attorney-spouses of original counsel upheld, as they are sufficiently independent and detached, and the alternative is unworkable.
Ninth Circuit -- FLEISCHER STUDIOS, INC. V. A.V.E.L.A., INC.
FLEISCHER STUDIOS, INC. V. A.V.E.L.A., INC.
Doctrine of indivisibility of copyrights does not mean that an explicit transfer of film rights while retaining character rights by a separate and nonspecific clause implies that transferor did not wish to retain character rights.
Transferor's subsequent licensing of character does not mean that they thought to retain character in an earlier deal.
No abuse of discretion in declining to consider evidence submitted after FRCP deadline.
Appeals court should not take judicial notice of untimely submitted (to trial court) trademark registration.
Fractured trademark ownership is not a per se bar to a finding of secondary meaning.
Dissent - Title to the character passed.
Doctrine of indivisibility of copyrights does not mean that an explicit transfer of film rights while retaining character rights by a separate and nonspecific clause implies that transferor did not wish to retain character rights.
Transferor's subsequent licensing of character does not mean that they thought to retain character in an earlier deal.
No abuse of discretion in declining to consider evidence submitted after FRCP deadline.
Appeals court should not take judicial notice of untimely submitted (to trial court) trademark registration.
Fractured trademark ownership is not a per se bar to a finding of secondary meaning.
Dissent - Title to the character passed.
Ninth Circuit -- M.H. V. USA
M.H. V. USA
Under the Required Records Doctrine (essentially regulatory, customarily kept, public in some sense), the Fifth Amendment does not bar compliance with a subpoena asking for information about Swiss bank accounts.
Under the Required Records Doctrine (essentially regulatory, customarily kept, public in some sense), the Fifth Amendment does not bar compliance with a subpoena asking for information about Swiss bank accounts.
Ninth Circuit -- USA V. GEARY WATERS, JR.
USA V. GEARY WATERS, JR.
Where sentencing court sentences according to offense level and not the career offender guideline, subsequent revisions in the offense level statutory scheme do not justify a downward revision past the career offender guidelines, so long as the sentencing court found that the career offender terms were triggered (while not making them the reason for decision).
A sentence reduction hearing cannot be used to challenge a career offender finding.
Where sentencing court sentences according to offense level and not the career offender guideline, subsequent revisions in the offense level statutory scheme do not justify a downward revision past the career offender guidelines, so long as the sentencing court found that the career offender terms were triggered (while not making them the reason for decision).
A sentence reduction hearing cannot be used to challenge a career offender finding.
Ninth Circuit -- RUSSELL JOHNSON, III V. LUCENT TECHNOLOGIES INC.
Ninth Circuit -- YAO REN V. ERIC H. HOLDER JR.
YAO REN V. ERIC H. HOLDER JR.
Although ILJ's adverse credibility decisions were not supported by substantial evidence (e.g. asking Chinese Christian to recite "the Lord's Prayer"), when petitioner didn't provide corroborating evidence within time frame, the claim was properly forfeited.
Although ILJ's adverse credibility decisions were not supported by substantial evidence (e.g. asking Chinese Christian to recite "the Lord's Prayer"), when petitioner didn't provide corroborating evidence within time frame, the claim was properly forfeited.
Ninth Circuit -- MCCOY V. CHASE MANHATTAN BANK
MCCOY V. CHASE MANHATTAN BANK
After Scotus remand, lower court dismissal of TILA and state law claims which challenged retroactive imposition of credit card fees is upheld.
After Scotus remand, lower court dismissal of TILA and state law claims which challenged retroactive imposition of credit card fees is upheld.
Ninth Circuit -- DELGADO V. HOLDER
DELGADO V. HOLDER
Courts have jurisdiction to review agency definition of "particularly serious crime" warranting withholding of removal.
Under Chevron deference, BIA can set threshold for "particularly serious crime" by either rule or adjudication.
Concur/special concur: BIA rules & precedent foreclose withholding of removal for a DUI.
Courts have jurisdiction to review agency definition of "particularly serious crime" warranting withholding of removal.
Under Chevron deference, BIA can set threshold for "particularly serious crime" by either rule or adjudication.
Concur/special concur: BIA rules & precedent foreclose withholding of removal for a DUI.
Eighth Circuit -- Interlachen Harriet Investment v. Douglas A. Kelley
Interlachen Harriet Investment v. Douglas A. Kelley
Sufficient evidence in the record for bankruptcy settlement, although not enumerated by court.
Drexel factors satisfied.
Sufficient evidence in the record for bankruptcy settlement, although not enumerated by court.
Drexel factors satisfied.
Eighth Circuit -- Federal Trade Commission v. Lundbeck, Inc.
Federal Trade Commission v. Lundbeck, Inc.
No error in District Court finding that there was no pharma market for antitrust purposes, since experts testified that cost did not drive their decisions as to which of several similar drugs to use.
Functionally similar products can be in different markets.
No error in District Court not crediting expert claiming marginal buyers could affect costs.
Manufacturer's own documents indicating market are not dispositive.
Concurrence - Docs never choose drugs based on economic motives - but no reversible error in trial court holdings.
No error in District Court finding that there was no pharma market for antitrust purposes, since experts testified that cost did not drive their decisions as to which of several similar drugs to use.
Functionally similar products can be in different markets.
No error in District Court not crediting expert claiming marginal buyers could affect costs.
Manufacturer's own documents indicating market are not dispositive.
Concurrence - Docs never choose drugs based on economic motives - but no reversible error in trial court holdings.
Seventh Circuit -- M. C. Winston v. Ana Boatwright
M. C. Winston v. Ana Boatwright
When deft's lawyer deliberately uses all peremptory strikes to keep males off of sexual assault jury, it's ineffective assistance - but as no clear caselaw on how to assess prejudice from error, no error in state denial of habeus.
(While Batson would justify automatic reversal, and therefore the writ, the fact that deft's counsel made the choice triggers Strickland analysis, which requires a showing of prejudice.)
When deft's lawyer deliberately uses all peremptory strikes to keep males off of sexual assault jury, it's ineffective assistance - but as no clear caselaw on how to assess prejudice from error, no error in state denial of habeus.
(While Batson would justify automatic reversal, and therefore the writ, the fact that deft's counsel made the choice triggers Strickland analysis, which requires a showing of prejudice.)
Labels:
AEDPA,
Habeas,
Ineffective Assistance,
Jury Selection
Seventh Circuit -- USA v. Nikole Sakellarion
USA v. Nikole Sakellarion
Where additional priors come to light after plea deal and deft subsequently tests positive for drugs, appeals waiver in plea deal bars appellate consideration of alleged government bad faith in the drug testing/subsequent negotiations.
Where additional priors come to light after plea deal and deft subsequently tests positive for drugs, appeals waiver in plea deal bars appellate consideration of alleged government bad faith in the drug testing/subsequent negotiations.
Seventh Circuit -- International Union, v. ZF Boge
International Union, v. ZF Boge Elastmetal
Absent other indications in the text, where an agreement it reached modifying the terms of a CBA, the interstitial agreement expires with the CBA - no terms bind the parties past the agreement of a new CBA.
No latent ambiguity in agreement which would justify looking beyond the text.
Absent other indications in the text, where an agreement it reached modifying the terms of a CBA, the interstitial agreement expires with the CBA - no terms bind the parties past the agreement of a new CBA.
No latent ambiguity in agreement which would justify looking beyond the text.
Sixth Circuit -- USA v. Calvin Boender
USA v. Calvin Boender
No requirement to prove a specific quid pro quo for conviction on corrupt political giving statute. Circuit split lightly noted .
Crime/Fraud exception to privilege - no hard evidence required to hold a review in camera, merely that a reasonable person might hold a good faith belief that it was probative.
As for government attendance at the in camera hearings, courts should consider (1) presumption against ex parte proceedings (2) relative efficiency of multiparty proceeding, and (3) nature of evidence to be examined.
Statute barring false name contributions also bars straw man contributions.
No requirement to prove a specific quid pro quo for conviction on corrupt political giving statute. Circuit split lightly noted .
Crime/Fraud exception to privilege - no hard evidence required to hold a review in camera, merely that a reasonable person might hold a good faith belief that it was probative.
As for government attendance at the in camera hearings, courts should consider (1) presumption against ex parte proceedings (2) relative efficiency of multiparty proceeding, and (3) nature of evidence to be examined.
Statute barring false name contributions also bars straw man contributions.
Sixth Circuit -- Carol Metz v. Unizan Bank
Carol Metz v. Unizan Bank
James Loyd v. Huntington National Bank
Billy Blair v. Bank One
David McKinney v. Nick Ludwick
A UCC "properly payable" claim against the bank issuer of checks used in a Ponzi scheme is not considered an action for conversion under the Ohio statute of limitations. (Which would have ticked from discovery, not conduct.)
SOL ran from the first discovery that something wasn't right (cessation of interest payments), not the full discovery of facts.
Though plaintiffs did not caption petition as securities fraud, the actual nature of the investments means that the securities fraud statutory SOL applies, not the common law rule.
Court retains jurisdiction over claims after denial of class certification.
Settlement of claims against a party releases any respondeat superior claims against their supervisor.
James Loyd v. Huntington National Bank
Billy Blair v. Bank One
David McKinney v. Nick Ludwick
A UCC "properly payable" claim against the bank issuer of checks used in a Ponzi scheme is not considered an action for conversion under the Ohio statute of limitations. (Which would have ticked from discovery, not conduct.)
SOL ran from the first discovery that something wasn't right (cessation of interest payments), not the full discovery of facts.
Though plaintiffs did not caption petition as securities fraud, the actual nature of the investments means that the securities fraud statutory SOL applies, not the common law rule.
Court retains jurisdiction over claims after denial of class certification.
Settlement of claims against a party releases any respondeat superior claims against their supervisor.
Third Circuit -- Mark Renfro v. Unisys Corp
Mark Renfro v. Unisys Corp
Dismissal of claim against ERISA directed trustee upheld, as, according to the plan paperwork, their fiduciary duty did not extend to the challenged conduct.
By pleading that directed trustee didn't exercise proper oversight, plaintiff's TKO the necessary scienter.
Statute does not permit recovery from non-fiduciaries involved in fiduciary breach.
Courts can pierce pleadings sufficiently to examine the mix of investment options offered by trustee - instant plan is kosher.
Dismissal of claim against ERISA directed trustee upheld, as, according to the plan paperwork, their fiduciary duty did not extend to the challenged conduct.
By pleading that directed trustee didn't exercise proper oversight, plaintiff's TKO the necessary scienter.
Statute does not permit recovery from non-fiduciaries involved in fiduciary breach.
Courts can pierce pleadings sufficiently to examine the mix of investment options offered by trustee - instant plan is kosher.
First Circuit -- Dickow v. US
Dickow v. US
IRS regs which denied a second 6 month extension upheld under Chevron deference.
Neither equitable estoppel nor equitable tolling are available for tax deadlines. (The latter soewhat dicta-ish.)
Gov't silence in response to deadline extension application insufficient to create estoppel.
IRS regs which denied a second 6 month extension upheld under Chevron deference.
Neither equitable estoppel nor equitable tolling are available for tax deadlines. (The latter soewhat dicta-ish.)
Gov't silence in response to deadline extension application insufficient to create estoppel.
First Circuit -- US v. Vargas-Davila
US v. Vargas-Davila
Within-guidelines sentence was not substantively unreasonable. The Tempest is quoted - poetry literally being used to imprison others.
Within-guidelines sentence was not substantively unreasonable. The Tempest is quoted - poetry literally being used to imprison others.
First Circuit -- Soto-Torres v. Fraticelli
Soto-Torres v. Fraticelli
Pleadings in Bivens action against the head of FBI local office insufficient - there is no de facto supervisory liability, so specific acts, omissions, and knowledge must be in pleadings.
Pleadings in Bivens action against the head of FBI local office insufficient - there is no de facto supervisory liability, so specific acts, omissions, and knowledge must be in pleadings.
First Circuit -- Doe v. Newburyport MA Public Schools
Doe v. Newburyport MA Public Schools
When parents seek compensation for alternative educational setup under IDEA, a subsequent move out of the school district does not moot their claim for costs incurred before the move or for fees on actions on which they prevailed prior to the move.
When parents seek compensation for alternative educational setup under IDEA, a subsequent move out of the school district does not moot their claim for costs incurred before the move or for fees on actions on which they prevailed prior to the move.
Second Circuit -- Amador v. Superintendents of Dep’t of Corr. Servs.
Amador v. Superintendents of Dep’t of Corr. Servs.
Where jurisdiction over claims is only granted contingently, a higher standard applies to pendant and ancillary claims tied to the case - the court here declines to review interlocutory rulings which limited recoveries of certain members of the putative class.
Error in dismissal of claims of released prisoners as moot, since they were capable of repetition yet evading review.
Prisoner's lack of exhaustion of internal remedies not excused by estoppel, as there was insufficient dissuasion from prison administration to the filing of the full complaint.
Prisoner claim that there was insufficient protection was sufficient to constitute a complaint about systems and procedures.
Where jurisdiction over claims is only granted contingently, a higher standard applies to pendant and ancillary claims tied to the case - the court here declines to review interlocutory rulings which limited recoveries of certain members of the putative class.
Error in dismissal of claims of released prisoners as moot, since they were capable of repetition yet evading review.
Prisoner's lack of exhaustion of internal remedies not excused by estoppel, as there was insufficient dissuasion from prison administration to the filing of the full complaint.
Prisoner claim that there was insufficient protection was sufficient to constitute a complaint about systems and procedures.
Second Circuit -- Federal Trade Commission v. Bronson Partners, LLC
Federal Trade Commission v. Bronson Partners, LLC
False advertising - Section 13(b) of the FTC Act permits not merely injunctive relief, but also ancillary remedies, incl. disgorgement.
Extensive discussion of remedies in law v. equity.
Disgorgement can function as an equitable remedy - no tracing to individual victims need be established.
Disgorgement should be of the gross takings, not the net.
False advertising - Section 13(b) of the FTC Act permits not merely injunctive relief, but also ancillary remedies, incl. disgorgement.
Extensive discussion of remedies in law v. equity.
Disgorgement can function as an equitable remedy - no tracing to individual victims need be established.
Disgorgement should be of the gross takings, not the net.
Second Circuit -- USA v. Echeverry
USA v. Echeverry
Sentencing bump for discharge of a weapon upheld despite the fact that the defts gun was grabbed by the victim, who then shot the deft's accomplice.
Reasoning: Drafting in passive voice negatives intent, Recent Scotus decision somewhat on point.
Sentencing bump for discharge of a weapon upheld despite the fact that the defts gun was grabbed by the victim, who then shot the deft's accomplice.
Reasoning: Drafting in passive voice negatives intent, Recent Scotus decision somewhat on point.
Thursday, August 18, 2011
Eighth Circuit -- Buddy Rynders v. Larry Williams
Buddy Rynders v. Larry Williams
Free Speech claim strong enough to survive summary judgment where person doing the firiing allegedly said it was because of the free speakin'.
FMLA claim similarly strong as to notification of supervisor in official capacity, but not necessarily in personal capacity.
Parial dissent - FMLA notice was stautorily inadequate.
Free Speech claim strong enough to survive summary judgment where person doing the firiing allegedly said it was because of the free speakin'.
FMLA claim similarly strong as to notification of supervisor in official capacity, but not necessarily in personal capacity.
Parial dissent - FMLA notice was stautorily inadequate.
Eighth Circuit -- United States v. Jesus Benitez-De Los Santos
United States v. Jesus Benitez-De Los Santos
Sentence Report held to be a qualified document for Shepard analysis of priors.
No error in counting prior despite possible plea of nolo contendre, where there was a conviction.
Sentence not substantively unreasonable.
Sentence Report held to be a qualified document for Shepard analysis of priors.
No error in counting prior despite possible plea of nolo contendre, where there was a conviction.
Sentence not substantively unreasonable.
Eighth Circuit -- Adam Walker v. Bradley Barrett
Adam Walker v. Bradley Barrett
Missouri SOL on sex abuse runs from the time that a reasonably prudent person would ascertain the harm, which, absent proof of memory issues, runs from time of offense, tolled until majority. Federal claims time barred as they follow closest state SOL.
Missouri abuse law does not apply to nonperpatrator defts.
No error in denying motion to amend, as it wouldn't have cured.
Missouri SOL on sex abuse runs from the time that a reasonably prudent person would ascertain the harm, which, absent proof of memory issues, runs from time of offense, tolled until majority. Federal claims time barred as they follow closest state SOL.
Missouri abuse law does not apply to nonperpatrator defts.
No error in denying motion to amend, as it wouldn't have cured.
Eighth Circuit -- United States v. Bobby Springston
United States v. Bobby Springston
Error in barring sex offender from accessing internet without permission where no proof that deft has ever used a computer.
Barring contact with minors and requiring treatment not supported by evidence in record.
Error in barring sex offender from accessing internet without permission where no proof that deft has ever used a computer.
Barring contact with minors and requiring treatment not supported by evidence in record.
Eighth Circuit -- Mike Buetow v. A.L.S. Enterprises, Inc.
Mike Buetow v. A.L.S. Enterprises, Inc.
Error to the District Court, as although Lanham Act literal falseness awakens a favorable presumption, a finding of irreparable injury is still required for issuance of an injunction.
Error to base finding of literal falseness on dictionary definitions - falseness must be more unambiguous than that.
Concur/Dissent: Claims were more than puffery
Error to the District Court, as although Lanham Act literal falseness awakens a favorable presumption, a finding of irreparable injury is still required for issuance of an injunction.
Error to base finding of literal falseness on dictionary definitions - falseness must be more unambiguous than that.
Concur/Dissent: Claims were more than puffery
Eighth Circuit -- Liberty Mutual Insurance Co. v. Pella Corporation
Liberty Mutual Insurance Co. v. Pella Corporation
Mother of 7, 2 of which suffer from autism seeking discharge of 300K in student debt.
No error in consideration of recent past when evaluating undue hardship for discharge of student loans.
Possible error in double-counting methodology harmless error.
Special concurrence - they have an expensive car, but ECMC stipulated to odd income levels, so no remedy.
Mother of 7, 2 of which suffer from autism seeking discharge of 300K in student debt.
No error in consideration of recent past when evaluating undue hardship for discharge of student loans.
Possible error in double-counting methodology harmless error.
Special concurrence - they have an expensive car, but ECMC stipulated to odd income levels, so no remedy.
Eighth Circuit -- United States v. Darwin Huggans
United States v. Darwin Huggans
No error in not dismissing for bad indictment where conspiracy charge has specific timeframe, but no list of co-conspirators or specific concrete step in furtherance.
No error in denial of bill of particulars for same.
No error on denial of severance of counts, as deft did not establish specific evidence that was prejudicial.
Sufficient evidence.
No error in barring deft from challenging lack of equitable tolling of time to challenge priors.
No error in denying new trial based on newly discovered impeaching ev.
No error in not reviewing PSRs in camera where no clear request was made.
No error in not dismissing for bad indictment where conspiracy charge has specific timeframe, but no list of co-conspirators or specific concrete step in furtherance.
No error in denial of bill of particulars for same.
No error on denial of severance of counts, as deft did not establish specific evidence that was prejudicial.
Sufficient evidence.
No error in barring deft from challenging lack of equitable tolling of time to challenge priors.
No error in denying new trial based on newly discovered impeaching ev.
No error in not reviewing PSRs in camera where no clear request was made.
Seventh Circuit -- USA v. Bolivar Benabe
USA v. Bolivar Benabe
No error in empaneling anonymous jury.
No error in excluding defts who did not agree to be nondisruptive from courtroom . No 6A error in issuing the order prior to the beginning of trial (basing it on pretrial conduct), FRCrimP error in same was harmless.
No error in admitting ID based on photo lineup followed by live lineup when there are six months in between.
No error in pattern aiding & abetting instruction instead of RICO-specific one.
No error in court adding a Pinkerton instruction for penalty phase that was not contemplated at close of guilt phase.
No error in providing jury with partial transcripts.
No error in not holding hearing on potential intrinsic juror biases, where vooir dire responses were truthful.
No error in empaneling anonymous jury.
No error in excluding defts who did not agree to be nondisruptive from courtroom . No 6A error in issuing the order prior to the beginning of trial (basing it on pretrial conduct), FRCrimP error in same was harmless.
No error in admitting ID based on photo lineup followed by live lineup when there are six months in between.
No error in pattern aiding & abetting instruction instead of RICO-specific one.
No error in court adding a Pinkerton instruction for penalty phase that was not contemplated at close of guilt phase.
No error in providing jury with partial transcripts.
No error in not holding hearing on potential intrinsic juror biases, where vooir dire responses were truthful.
Seventh Circuit -- USA v. Mariano Morales
USA v. Mariano Morales
[NB - another decision released today appears to indicate that this is a nonprecedential decision - please see the "precedential status" note on the top of the page.]
Quick read:
No presumption against empaneling an anonymous jury - insufficient explanation here held harmless, though.
Among other things, disparity-of-evidence (where proper limiting instructions were given), prima facie lengthening of trial, and possibility of a non-anonymous jury in putative second trial are insufficient grounds for finding improper joinder.
Where one deft is considerably more violent than his co-defts, no error in denying severance and thereby making him look bad by comparison.
No abuse of discretion in not investigating report of intra-jury chattering where the accusation arose after the verdict.
Where testimony establishes that deft engaged in illegal activity, no possible error in being told that he went to jail for it.
District court holding that deft's bad acts were coterminous with the conspiracy was error, as it was not included in PSR for deft to challenge. Harmless, though.
Sufficient evidence.
Deference to District Court holding that some possibly random acts were connected to the gang scene & therefore conspiratorial.
Mere inactivity through "retirement" insufficient to effectuate withdrawal from conspiracy.
No disparity in special verdict findings on conspiracy and ultimate sentence.
No requirement on parties to "sterilize" testimony - inflammatory stuff was part & parcel.
Despite lack of district court findings on the hard edge of the conspiracy, finding that certain acts were within it was kosher.
[NB - another decision released today appears to indicate that this is a nonprecedential decision - please see the "precedential status" note on the top of the page.]
Quick read:
No presumption against empaneling an anonymous jury - insufficient explanation here held harmless, though.
Among other things, disparity-of-evidence (where proper limiting instructions were given), prima facie lengthening of trial, and possibility of a non-anonymous jury in putative second trial are insufficient grounds for finding improper joinder.
Where one deft is considerably more violent than his co-defts, no error in denying severance and thereby making him look bad by comparison.
No abuse of discretion in not investigating report of intra-jury chattering where the accusation arose after the verdict.
Where testimony establishes that deft engaged in illegal activity, no possible error in being told that he went to jail for it.
District court holding that deft's bad acts were coterminous with the conspiracy was error, as it was not included in PSR for deft to challenge. Harmless, though.
Sufficient evidence.
Deference to District Court holding that some possibly random acts were connected to the gang scene & therefore conspiratorial.
Mere inactivity through "retirement" insufficient to effectuate withdrawal from conspiracy.
No disparity in special verdict findings on conspiracy and ultimate sentence.
No requirement on parties to "sterilize" testimony - inflammatory stuff was part & parcel.
Despite lack of district court findings on the hard edge of the conspiracy, finding that certain acts were within it was kosher.
Seventh Circuit -- Kevin Sroga v. Timothy Weiglen
Kevin Sroga v. Timothy Weiglen
Dismissal of S1983 action based on 4A for three arrests was kosher, as internal police memo did not raise the bar for arresting for disorderly conduct, a ready explanation does not always erase probable cause, and there was sufficient ambiguity as to whether the signs in a police parking lot sufficiently heralded the exclusion of interlopers.
Dismissal of S1983 action based on 4A for three arrests was kosher, as internal police memo did not raise the bar for arresting for disorderly conduct, a ready explanation does not always erase probable cause, and there was sufficient ambiguity as to whether the signs in a police parking lot sufficiently heralded the exclusion of interlopers.
Seventh Circuit -- Anchor Bank, FSB v. Clark Hofer
Anchor Bank, FSB v. Clark Hofer
Inference of scienter sufficient to survive 9(b) where there is an accelerating synchronicity certain to affect the market.
To plead loss, plaintiff must merely contend that the deft is one plausible cause of loss.
Inference of scienter sufficient to survive 9(b) where there is an accelerating synchronicity certain to affect the market.
To plead loss, plaintiff must merely contend that the deft is one plausible cause of loss.
Sixth Circuit -- Scott Gerber v. James Riordan
Scott Gerber v. James Riordan
While motion to vacate default judgment was an insufficient general appearance to consent to jurisdiction, a general appearance in support of the motion was sufficient for jurisdiction.
Concurrence - one-line Entry of Appearance insufficient for jurisdiction, but contemporaneous motion to enforce settlement sufficeth.
While motion to vacate default judgment was an insufficient general appearance to consent to jurisdiction, a general appearance in support of the motion was sufficient for jurisdiction.
Concurrence - one-line Entry of Appearance insufficient for jurisdiction, but contemporaneous motion to enforce settlement sufficeth.
Sixth Circuit -- Henry Ford Health System v. HHS
Henry Ford Health System v. HHS
“My effort is in the direction of simplicity,” once wrote the namesake of the Henry Ford Hospital. Henry Ford, My Life and Work 13 (Garden City Publ’g Co. 1922). Mr. Ford apparently had nothing to do with the creation of the Medicare program.
Chevron deference to HHS determination that pure research activities are not subject to Medicare reimbursal under PPACA.
“My effort is in the direction of simplicity,” once wrote the namesake of the Henry Ford Hospital. Henry Ford, My Life and Work 13 (Garden City Publ’g Co. 1922). Mr. Ford apparently had nothing to do with the creation of the Medicare program.
Chevron deference to HHS determination that pure research activities are not subject to Medicare reimbursal under PPACA.
Fourth Circuit -- US v. Torrance Hill
US v. Torrance Hill
Police officers' subjective belief that the arrestee would not be at home is sufficient to defeat the probable cause/reasonable expectation requirement for entering the house to execute an arrest warrant.
Damaged door frame, muffled voices inside, nonresponsiveness to officers' calls, and what might have been the sound of a latch being pulled are insufficient grounds for entry due to exigency.
Remand for development of the record as to whether subsequent consent cleared the taint of the initial entry.
Dissent - totality-of the-circumstances test establishes enough evidence of reasonable belief deft would be inside. Noises probative of presence.
Police officers' subjective belief that the arrestee would not be at home is sufficient to defeat the probable cause/reasonable expectation requirement for entering the house to execute an arrest warrant.
Damaged door frame, muffled voices inside, nonresponsiveness to officers' calls, and what might have been the sound of a latch being pulled are insufficient grounds for entry due to exigency.
Remand for development of the record as to whether subsequent consent cleared the taint of the initial entry.
Dissent - totality-of the-circumstances test establishes enough evidence of reasonable belief deft would be inside. Noises probative of presence.
First Circuit -- State of California et al. v. Amgen, Inc
First Circuit -- US v. Santiago-Miranda
US v. Santiago-Miranda
US v. Irizarry-Corchado
Family coercion, drug use, and lack of sleep does not establish involuntariness of plea or impugn the colloquy.
US v. Irizarry-Corchado
Family coercion, drug use, and lack of sleep does not establish involuntariness of plea or impugn the colloquy.
First Circuit -- Roman-Oliveras v. PREPA
Roman-Oliveras v. PREPA
Due Process theory cannot save a S1983 action on appeal, as it wasn't in the original short, plain statement.
Removal from position and repeated demands for psychiatric examination can sufficiently establish a plausible S1983 claim for schizophrenia.
Like Title VII, the ADA imposes liability only on employers, not other individuals.
Due Process theory cannot save a S1983 action on appeal, as it wasn't in the original short, plain statement.
Removal from position and repeated demands for psychiatric examination can sufficiently establish a plausible S1983 claim for schizophrenia.
Like Title VII, the ADA imposes liability only on employers, not other individuals.
Second Circuit -- Cash v. Cnty. of Erie
Cash v. Cnty. of Erie
In a S1983 action at summary judgment stage, where there have been relevant past disciplinary issues that have not risen to the level of assault, a prison administration's continued policy of allowing one-on-one contact with prisoners can represent sufficient indifference to an affirmative duty to protect.
Not preserving objection to special verdict form prior to beginning of deliberation forfeits the appeal.
No error in special verdict form conflating policy and causation where the two are distinguished in the jury instructions.
"Moving force" for Monell liability is fairly described as "proximate cause."
Not preserving an inconsistency objection prior to discharge of jury forfeits the appeal.
Even where form is labeled "special verdict form," appeals court can interpret as general verdict form with specific interrogatories.
Where instruction specifically says that negligence is a lesser standard than deliberate indifference, no Seventh Amendment violation in special verdict finding deliberate indifference but not negligence.
Dissent: Unfairly creates strict liability standard for municipalities with respect to an ever-present danger.
In a S1983 action at summary judgment stage, where there have been relevant past disciplinary issues that have not risen to the level of assault, a prison administration's continued policy of allowing one-on-one contact with prisoners can represent sufficient indifference to an affirmative duty to protect.
Not preserving objection to special verdict form prior to beginning of deliberation forfeits the appeal.
No error in special verdict form conflating policy and causation where the two are distinguished in the jury instructions.
"Moving force" for Monell liability is fairly described as "proximate cause."
Not preserving an inconsistency objection prior to discharge of jury forfeits the appeal.
Even where form is labeled "special verdict form," appeals court can interpret as general verdict form with specific interrogatories.
Where instruction specifically says that negligence is a lesser standard than deliberate indifference, no Seventh Amendment violation in special verdict finding deliberate indifference but not negligence.
Dissent: Unfairly creates strict liability standard for municipalities with respect to an ever-present danger.
Second Circuit -- United States v. Matthew Marino
United States v. Matthew Marino
No error in District Court holding that although concrete steps in Misprision of Felony prosecution happened outside the charged time of the offense, they can help to indirectly establish scienter during the charged time (implicit , not stated directly in opinion).
Mandatory Victims Restitution Act -
For misprision, no need to prove individual reliance of victims, presumably if they had known of the fraud, they would not have invested the money.
Presumption is that a whistleblower's whistleblowing would be curative.
Positive steps to conceal fraud can establish MVRA cause-in-fact.
Losses were foreseeable to a reasonable person in defts position.
No error in District Court holding that although concrete steps in Misprision of Felony prosecution happened outside the charged time of the offense, they can help to indirectly establish scienter during the charged time (implicit , not stated directly in opinion).
Mandatory Victims Restitution Act -
For misprision, no need to prove individual reliance of victims, presumably if they had known of the fraud, they would not have invested the money.
Presumption is that a whistleblower's whistleblowing would be curative.
Positive steps to conceal fraud can establish MVRA cause-in-fact.
Losses were foreseeable to a reasonable person in defts position.
Second Circuit -- City of New York v. Group Health Inc.
City of New York v. Group Health Inc.
City of New York challenges merger on monopoly grounds.
(1) Purchasing strategy of a single buyer (here, the plaintiff) is insufficient basis to define the tying market.
(2) Leave to amend properly denied as the defect would not be remedied, extraordinary discovery would be required, and the movant waited too durn long to file the motion.
City of New York challenges merger on monopoly grounds.
(1) Purchasing strategy of a single buyer (here, the plaintiff) is insufficient basis to define the tying market.
(2) Leave to amend properly denied as the defect would not be remedied, extraordinary discovery would be required, and the movant waited too durn long to file the motion.
Second Circuit -- Brown v. Eli Lilly & Co.
Brown v. Eli Lilly & Co.
Heavy-duty FRCP.
Quick read:
(1) Consent order stamped by clerk of court / staff attorney claiming not to prejudice future appeals and referencing 42(b) does not preclude entry of final judgment, despite assertions by court staff that the (somewhat flawed) entry of final judgment was a nullity. Appeals clock runs from flawed filing.
(2) Action can be non-diverse at time of removal to fed courts as long as the non-diversity is cured before final judgment. [If TMB's memory serves, this might be a circuit split - there was something in dicta from one of the other circuits in the last few days about diversity being requisite at both removal and judgment to survive appeals challenge.]
(3) Actions of co-defts whose time to appeal has passed cannot be re-examined to create a PF case for deft still in the thick of things.
Heavy-duty FRCP.
Quick read:
(1) Consent order stamped by clerk of court / staff attorney claiming not to prejudice future appeals and referencing 42(b) does not preclude entry of final judgment, despite assertions by court staff that the (somewhat flawed) entry of final judgment was a nullity. Appeals clock runs from flawed filing.
(2) Action can be non-diverse at time of removal to fed courts as long as the non-diversity is cured before final judgment. [If TMB's memory serves, this might be a circuit split - there was something in dicta from one of the other circuits in the last few days about diversity being requisite at both removal and judgment to survive appeals challenge.]
(3) Actions of co-defts whose time to appeal has passed cannot be re-examined to create a PF case for deft still in the thick of things.
Wednesday, August 17, 2011
Eleventh Circuit -- USA v. Charles Willis
USA v. Charles Willis
No standing for ineffective assistance habeus, as it wasn't in the COA.
Resentencing is not a pretext for relitigating corollary issues by bootstrapping them to the permitted claim.
Deft's receipt of the PSR (nine days) inside of the statutory 10 day period was harmless error.
No error in sentence as court stated that it had the power to vary downwards & didn't.
No standing for ineffective assistance habeus, as it wasn't in the COA.
Resentencing is not a pretext for relitigating corollary issues by bootstrapping them to the permitted claim.
Deft's receipt of the PSR (nine days) inside of the statutory 10 day period was harmless error.
No error in sentence as court stated that it had the power to vary downwards & didn't.
Ninth Circuit -- Johnson v. Liberty Mutual Fire Insur. Co.
Johnson v. Liberty Mutual Fire Insur. Co.
No c/a for spoilation tort where insurance company does not retain taillights after testing - plaintiffs had wanted to use them in a later suit, and they had been discarded. No foreseeability.
No c/a for spoilation tort where insurance company does not retain taillights after testing - plaintiffs had wanted to use them in a later suit, and they had been discarded. No foreseeability.
Ninth Circuit -- RONALD YONEMOTO V. DEPARTMENT OF VETERANS AFFAIRS
RONALD YONEMOTO V. DEPARTMENT OF VETERANS AFFAIRS
Agency cannot satisfy FOIA request by offering to make the documents available to requestor in his capacity as an employee of the agency.
Remand for certain emails expurgaged according to exemption 6 of FOIA (personnel/medical), as there's insufficient proof in the record to justify.
Agency cannot satisfy FOIA request by offering to make the documents available to requestor in his capacity as an employee of the agency.
Remand for certain emails expurgaged according to exemption 6 of FOIA (personnel/medical), as there's insufficient proof in the record to justify.
Ninth Circuit -- BEATRICE MIRANDA V. KURT BRAATZ
BEATRICE MIRANDA V. KURT BRAATZ
Habeus grant reversed, as tribal courts are permitted to impose multiple yearlong sentences for discrete violations of the law, even though they emanate from the same occurrence.
Habeus grant reversed, as tribal courts are permitted to impose multiple yearlong sentences for discrete violations of the law, even though they emanate from the same occurrence.
Ninth Circuit -- A. OLIVER V. RALPHS GROCERY COMPANY
A. OLIVER V. RALPHS GROCERY COMPANY
Sufficient injury-in-fact for ADA claim.
No error in court not considering ADA barriers listed in expert report but not listed in claim - notice.
Violations of MUTCD are not per se violations of the ADA.
Sufficient injury-in-fact for ADA claim.
No error in court not considering ADA barriers listed in expert report but not listed in claim - notice.
Violations of MUTCD are not per se violations of the ADA.
Ninth Circuit -- CRYSTAL AMMONS V. STATE OF WASHINGTON DEPARTMENT
CRYSTAL AMMONS V. STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES
No qualified immunity for supervisor of psychatric facility where allegation of past abuse was known and evidence of present improper relationship was present.
Qualified immnuity for Director of Nursing who had better scientific data suggesting present abuse, but did not know of past allegation.
Long dissent: Qualified immunity for the supervisor.
No qualified immunity for supervisor of psychatric facility where allegation of past abuse was known and evidence of present improper relationship was present.
Qualified immnuity for Director of Nursing who had better scientific data suggesting present abuse, but did not know of past allegation.
Long dissent: Qualified immunity for the supervisor.
Ninth Circuit -- GEORGE SOULIOTES V. ANTHONY HEDGPETH
GEORGE SOULIOTES V. ANTHONY HEDGPETH
Order - vacating of decision given en banc holding in another case.
Order - vacating of decision given en banc holding in another case.
Eighth Circuit -- Wanda Slater v. Republic-Vanguard Insurance Co
Wanda Slater v. Republic-Vanguard Insurance Co
Diversity jurisdiction was not destroyed during trial, as $100 retained interest was insufficient to keep non-diverse party from being merely nominal.
Legal issue of whether duty to defend was triggered by contractual exception is insufficiently developed for consideration.
Under Texas law, where a "completed operations" term in policy bars recovery for goods once they are off the seller's site, it similarly bars actions based on services which would have been provided prior to the removal of the product from the site.
Diversity jurisdiction was not destroyed during trial, as $100 retained interest was insufficient to keep non-diverse party from being merely nominal.
Legal issue of whether duty to defend was triggered by contractual exception is insufficiently developed for consideration.
Under Texas law, where a "completed operations" term in policy bars recovery for goods once they are off the seller's site, it similarly bars actions based on services which would have been provided prior to the removal of the product from the site.
Eighth Circuit -- Fair Isaac Corporation v. Experian Information Solutions
Fair Isaac Corporation v. Experian Information Solutions
Even if the plaintiff is the target of an anti-competitive conspiracy, they still must demonstrate cognizable harm under Sherman Act (increased prices, etc) for standing.
Hypothetical future damages from inadequate data is an insufficient harm for suit against collusion among data providers.
No error in finding the "300-850" trademark to be merely descriptive.
Sufficient evidence for fraud on the Patent Office in assertions of proprietary use of "300-850"
No licensee estoppal basis for denying challenge to mark, as (1) entity raising the challenge wasn't proved to be an alter ego of the licensee, and (2) if the mark is invalid by one of the challenges, estopping one of several plaintiff from challenging doesn't get you much.
No false advertising.
No abuse of discretion in not awarding fees to prevailing party, even though fraud on the Patent Office was proven,
Even if the plaintiff is the target of an anti-competitive conspiracy, they still must demonstrate cognizable harm under Sherman Act (increased prices, etc) for standing.
Hypothetical future damages from inadequate data is an insufficient harm for suit against collusion among data providers.
No error in finding the "300-850" trademark to be merely descriptive.
Sufficient evidence for fraud on the Patent Office in assertions of proprietary use of "300-850"
No licensee estoppal basis for denying challenge to mark, as (1) entity raising the challenge wasn't proved to be an alter ego of the licensee, and (2) if the mark is invalid by one of the challenges, estopping one of several plaintiff from challenging doesn't get you much.
No false advertising.
No abuse of discretion in not awarding fees to prevailing party, even though fraud on the Patent Office was proven,
Seventh Circuit -- Lisa Hicks v. Avery Drei, LLC
Lisa Hicks v. Avery Drei, LLC
Claim for vacation pay in the first year TKO'd by agreement with employer that there would be no vacation pay in the first year.
Allegedly spurious supplemental response provided by deft at end of discovery period not grounds for reversal, as forfeited for not including the relevant parts of the record with the appeal, and not enough of a miscarriage of justice to justify reversal for plain error.
No error in court's finding that enterprise was not subject to the FLSA.
Special concurrence - Enough evidence in the record for FLSA coverage.
Claim for vacation pay in the first year TKO'd by agreement with employer that there would be no vacation pay in the first year.
Allegedly spurious supplemental response provided by deft at end of discovery period not grounds for reversal, as forfeited for not including the relevant parts of the record with the appeal, and not enough of a miscarriage of justice to justify reversal for plain error.
No error in court's finding that enterprise was not subject to the FLSA.
Special concurrence - Enough evidence in the record for FLSA coverage.
Seventh Ciruit -- Sarah Bertanowski v. Spin Master
Sarah Bertanowski v. Spin Master
Parents whose kids weren't injured by recalled defective toy have standing under the Consumer Protection Act, as they paid more for the (cheap) toy than they might otherwise have done.
Although the Rules Enabling Act means that the District Court is not free to impose its own analysis at class certification over Rule 23 considerations of best remedy, 23(a)(4) allows courts to functionally consider the same reasoning.
Different state remedies make class unworkable.
Parents whose kids weren't injured by recalled defective toy have standing under the Consumer Protection Act, as they paid more for the (cheap) toy than they might otherwise have done.
Although the Rules Enabling Act means that the District Court is not free to impose its own analysis at class certification over Rule 23 considerations of best remedy, 23(a)(4) allows courts to functionally consider the same reasoning.
Different state remedies make class unworkable.
Sixth Circuit -- Abu-Ali Abdur'Rahman v. Roland Colson
Abu-Ali Abdur'Rahman v. Roland Colson
Death penalty deft's cumulative error arguments under Brady and prosecutorial misconduct can't be considered as they weren't raised in state courts and they're not on the COA.
No Brady violation where co-deft statements indicating deft went to locus in quo as member of anti-crime group (which proscs denied at trial) weren't released to deft, as deft knew that co-deft had discussed the group with prosecutors.
Deft's attempts at self-harm after arrest (not remembered by deft) are not grounds for a Brady violation, as they were mentioned in available reports not sought by deft's counsel & not material proof of mental illness.
Extraordinarily forceful dissent --
Cumulative Brady: covered by the COA, whole-record analysis makes the prosc's omissions enough for violation. 5th Circuit has considered similar hybrid claims.
[Thou shalt not kill. TMB]
Death penalty deft's cumulative error arguments under Brady and prosecutorial misconduct can't be considered as they weren't raised in state courts and they're not on the COA.
No Brady violation where co-deft statements indicating deft went to locus in quo as member of anti-crime group (which proscs denied at trial) weren't released to deft, as deft knew that co-deft had discussed the group with prosecutors.
Deft's attempts at self-harm after arrest (not remembered by deft) are not grounds for a Brady violation, as they were mentioned in available reports not sought by deft's counsel & not material proof of mental illness.
Extraordinarily forceful dissent --
Cumulative Brady: covered by the COA, whole-record analysis makes the prosc's omissions enough for violation. 5th Circuit has considered similar hybrid claims.
[Thou shalt not kill. TMB]
Sixth Circuit -- Edward Kizer v. Shelby County Government
Edward Kizer v. Shelby County Government
No property interest in civil service employment, as the position was unclassified, and plaintiffs never challenged the designation - no equitable remedy from state "policy of inactivity" precluding challenge.
No property interest in civil service employment, as the position was unclassified, and plaintiffs never challenged the designation - no equitable remedy from state "policy of inactivity" precluding challenge.
Fourth Circuit -- US v. Jason Simmons
US v. Jason Simmons
When assessing priors (here for sentencing under the Controlled Substances Act), the prior sentence must be considered absent any aggravating factor enhancements not applied by the sentencing court, nor is it legit for the second court to consider hypothetical aggravating factors.
Dissent one (short) - plain language - statute says "punishable by"
Dissent two - When Scotus remanded 'in light of' a certain decision, that's not a positive command - in that the (now-controlling) decision was immigration, not crim and had a differently structured statute,it's not a slam dunk.
When assessing priors (here for sentencing under the Controlled Substances Act), the prior sentence must be considered absent any aggravating factor enhancements not applied by the sentencing court, nor is it legit for the second court to consider hypothetical aggravating factors.
Dissent one (short) - plain language - statute says "punishable by"
Dissent two - When Scotus remanded 'in light of' a certain decision, that's not a positive command - in that the (now-controlling) decision was immigration, not crim and had a differently structured statute,it's not a slam dunk.
Third Circuit -- Michael McKenna v. City of Philadelphia
Michael McKenna v. City of Philadelphia
Where a participant in the dismissal of an employee is motivated by animus, a subsequent disciplinary procedure cannot immunize the termination from considerations of that animus - it remains a matter of proximate cause.
Where a participant in the dismissal of an employee is motivated by animus, a subsequent disciplinary procedure cannot immunize the termination from considerations of that animus - it remains a matter of proximate cause.
Third Circuit -- Animal Science Prod Inc v. China Minmetals Materials Imports
Animal Science Prod Inc v. China Minmetals Materials Imports
District Court's Sherman Act jurisdiction over foreign mineral price-fixing is a question for merits, not a matter to be decided under subject matter jurisdiction. 12(b)(6), not 12(b)(1) (this shifts the presumptions and reduces the court's ability to go all sua sponte on the question).
District Court's Sherman Act jurisdiction over foreign mineral price-fixing is a question for merits, not a matter to be decided under subject matter jurisdiction. 12(b)(6), not 12(b)(1) (this shifts the presumptions and reduces the court's ability to go all sua sponte on the question).
Third Circuit -- Eustace Simon v. Atty Gen USA
Eustace Simon v. Atty Gen USA
The availability of a visa is one of many factors to be considered in granting a continuance in an immigration proceeding, and is not of itself dispositive.
The availability of a visa is one of many factors to be considered in granting a continuance in an immigration proceeding, and is not of itself dispositive.
Third Circuit -- Gray Holdco Inc v. Cassady
Gray Holdco Inc v. Cassady
"No waiver" term in contract does not bar consideration of whether party invoking arbitration unduly prejudiced by delay the determination.
The amount of time between beginning the litigation and invoking arbitration is not of itself dispositive, but given the lively motion practice, the court found both substantive and procedural prejudice.
"No waiver" term in contract does not bar consideration of whether party invoking arbitration unduly prejudiced by delay the determination.
The amount of time between beginning the litigation and invoking arbitration is not of itself dispositive, but given the lively motion practice, the court found both substantive and procedural prejudice.
First Circuit -- Kindelan v. Disability Management
Kindelan v. Disability Management
A week after clean bill of heath, extraordinary self-reported pain is not grounds for coverage where doc doesn't run any further tests.
A week after clean bill of heath, extraordinary self-reported pain is not grounds for coverage where doc doesn't run any further tests.
Second Ciruit -- Cox v. Warwick Valley Cent. School Dist.
Cox v. Warwick Valley Cent. School Dist.
District Court summary judgment of S1983 claims against school administrators upheld.
No First Amendment issue, as removing the student from the classroom for the afternoon in response to a an essay topic is a decision due due unusual deference, and does not constitute retaliation.
Parents retained custody of child during coerced psychological examination, so no 14A deprivation.
District Court summary judgment of S1983 claims against school administrators upheld.
No First Amendment issue, as removing the student from the classroom for the afternoon in response to a an essay topic is a decision due due unusual deference, and does not constitute retaliation.
Parents retained custody of child during coerced psychological examination, so no 14A deprivation.
Second Circuit -- In re Literary Works in Elect. Databases Copyright Litig.
In re Literary Works in Elect. Databases Copyright Litig.
In Tasini, Scotus held that contributors to periodicals might be due recompense for the conversion of their work into subsequently sold electronic forms. Here, the Second Circuit rules that a class of these contributors was improperly certified.
Held:
The release of future claims by the class was kosher, as tied to the same factual predicate.
The de facto subclass of claimants holding unregistered claims are unduly hurt by a contingent term in the deal which would further cap their recovery after the percentage of monies due them relative to the rest of the class was determined. Certification was therefore an abuse of discretion under the adequacy requirement.
Partial dissent: The contingent term reflected a value judgment just as valid as the percentage call. No DP violation in settlement.
In Tasini, Scotus held that contributors to periodicals might be due recompense for the conversion of their work into subsequently sold electronic forms. Here, the Second Circuit rules that a class of these contributors was improperly certified.
Held:
The release of future claims by the class was kosher, as tied to the same factual predicate.
The de facto subclass of claimants holding unregistered claims are unduly hurt by a contingent term in the deal which would further cap their recovery after the percentage of monies due them relative to the rest of the class was determined. Certification was therefore an abuse of discretion under the adequacy requirement.
Partial dissent: The contingent term reflected a value judgment just as valid as the percentage call. No DP violation in settlement.
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