Eighth Circuit -- Minch Family LLLP v. Estate of Gladys I. Norby

Where a flood damage claim is based on the construction of a dike, the 6-year trespass SOL is superseded by the 2-year real estate improvement SOL.  

Claim based on flooding of neighbors field doesn't get the 15 year adverse possession SOL.

First flood is the accrual date.

Continuing trespass exception doesn't apply.

No tolling for time seeking administrative relief against what seems to be some sort of state agency.  [Again folks, this is quick work.]

Minch Family LLLP v. Estate of Gladys I. Norby

Eighth Circuit -- United States v. Jackie Porchay

No speedy trial violation.

Statutory:

No speedy trial violation as part of the alleged time was requested by deft, and a newly indicted deft was joined in the interim.

Court need not make detailed factual findings to justify tolling the speedy trial clock.

Mistrial from Brady does not mean that all consequent delays should be charged to the gov't when calculating speedy trial.

Sixth Amendment:

TKO'd by deft's active litigating.

--

Franks claim TKO'd - no need to disclose that some of affiant's FBI background was as a 'paraprofessional' & no proof of intentional/reckless disregard for truth.

No Brady  violation where disclosed during tril (but not beforehand)

No abuse of discretion in denying mistrial after codeft spuriously invoked the Fifth -- no prejudice.

No error in denying pretrial release.

Dissent: Violation of Speedy Trial Act , as gov't didn't offer proof that missing witness was essential.


United States v. Jackie Porchay

Eighth Cicuit -- Ricky Kidd v. Jeff Norman

 Habeus petition claiming actual innocence must rely on of acts not discoverable through reasonable due diligence at the time of trial.


Circuit split flagged.


Ricky Kidd v. Jeff Norman

Eighth Circuit -- Patti Beeler v. Michael J. Astrue

 Agency determination that four statutory methods are sole methods of establishing paternity/maternity entitled to deference under Chevron  and Auer.  

Prior agency ruling that children of valid marriage entitled to the benefit does not estop present ruling, as state intestacy laws establish that the designation doesn't apply to present case (posthumously conceived child)

Circuit split flagged.

Patti Beeler v. Michael J. Astrue

Eighth Circuit -- United States v. Donald Leonard Sturgis

Where the warrant includes 'occupants' of a structure and their vehicles, a regular occupant of the  structure who is not physically occupying the structure at the time the warrant was served is within the warrant.

United States v. Donald Leonard Sturgis

Seventh Circuit -- William Padula v. Timothy Leimbach

Summary judgment dismissal of S1983 claims against police actions against hypoglycemic individual during Terry stop.

Actions of hypoglycemic driver provided probable cause for DUI arrest, TKO'ing wrongful arrest S1983 action.

Removal from car wasn't excessive force, given court's decision not to second-guess police decisions.

Training/condoning claims are untenable given the loss of the underlying claims.

William Padula v. Timothy Leimbach

Sixth Circuit -- Joe D'Ambrosio v. Margaret Bagley

Where a federal court issues a conditional habeus order and the state releases the
deft but doesn't reprosecute within the time allotted, the federal court retains jurisdiction and may issue an unconditional writ barring reprosecution.

Key is that the first conviction wasn't vacated - What vacates a conviction is an entry in the court docket,
which—depending on the state’s procedures—is likely made through a court order, or
clear actions by the court signifying a vacatur.


FRCP 60(b) is an independent basis for jurisdiction.

Deft still has standing after issue of unconditional writ - not being retried is sufficient interest.

Dissent - The writ is an attack on the judgment - when the deft is freed from the incarceration incurred by the unjust judgment, the federal courts jurisdiction is at an end.

Joe D'Ambrosio v. Margaret Bagley

Sixth Circuit -- USA v. Lanerrick Johnson

Deft has standing to object to search o his bedroom where he is intermittently living there - house owned by his mother in law, inhabited by defts mother and estranged wife.

The right is not linked to the law of property.

USA v. Lanerrick Johnson

Sixth Circuit -- Kassem Hachem v. Eric Holder, Jr.

Immigration - Rule withdrawing voluntary departure upon filing of adverse appeal upheld under Chevron.


ILJ correctly applied totality of circumstances test to adverse credibility finding.


Adversarial demeanor of ILJ insufficiently established to show bias.

Any putative error in finding as to fear of persecution irrelevant, given changed conditions in the country. 

Reinstatement of earlier voluntary departure which had been imposed prior to rulemaking makes the order subject to the rule.


Kassem Hachem v. Eric Holder, Jr.

Fifth Circuit -- Jane Doe, et al v. Covington County Sch Dist, et al

Elementary school  students in public schools are shielded by a Deshaney responsibility to protect from third parties on the part of the state. 

Qualified immunity for school officials,as this is new law.

Dissent : Circuit split flagged, parents could have removed student from school at any time, no state-created danger.

Jane Doe, et al v. Covington County Sch Dist, et al

Third Circuit -- USA v. Leonard Gibbs

State statute barring wearing of body armor is a serious drug offense ACCA predicate.

Modified categorical approach, the indictment is in under Shepard, and it reveals the underlying offense to be possession of cocaine with intent to distribute.

No notice issue as insufficiently vague or unexpected.

USA v. Leonard Gibbs

FIrst Circuit -- Nolan v. CN8

No coercion under the Mass. Civil Rights Act where the action was termination and the employment arrangement was at-will.

Concurrence - no interference wit any protected right, given emplyment contract negotiated by sophisticated parties.

Nolan v. CN8

First Circuit -- Hatch v. Trail King Industries, Inc.

No error in jury instruction based on S404 of the RST recognizing an implied warranty of merchantability under Massachusetts law towards an innocent third party where the employer of the third party substantially designed the device.

In both strict liability and implied warranty, contract specifications defense is available.

No error in instruction which stated the law from S404 of the RST instead o Massachusetts state law.

Hatch v. Trail King Industries, Inc.

First Circuit --- Curet-Velazquez v. ACEMLA De Puerto Rico, Inc.

Copyright action - mostly procedural stuff.  

Preemption, SOL, misc arguments waived since not presented/preserved below.

No abuse of discretion in district court not looking at whole record for implied nonexclusive license affirmative defense - where not explicit, waived.

No abuse of discretion in reopening discovery.

No abuse of discretion in allowing expert to testify beyond his report without subsequent amendment. 

No error in not striking expert testimony where court ultimately doesn't credit his method.

Election of statutory damages under the Copyright Act can happen anytime prior to entry of judgment.

No error in damages.

Curet-Velazquez v. ACEMLA De Puerto Rico, Inc.

First Circuit -- Sagun Tuli v. Brigham & Women's Hospital

Gender discrimination verdict upheld.


No requirement to seek internal remedy where formal remedy discouraged by supervisor and specific adverse employment action taken.

Within SOL, as it didn't tick until a formal presentation to hospital committee about hostile work environment.

Hearsay in as not for the truth of the matter asserted.

Holding claim in abeyance is not a formal waiver.

No error in denial of isolated incidents instruction.

Jury could reasonably find that ordered counseling was retaliation.

The formal presentation resuscitated earlier small incidents for purposes of causation assessment.

No error in jury construing negative evaluations as animus.

No error in jury finding defamatory statement reckless.

No abuse of discretion in denying remittitur for 1.6m verdict; parallel state claims allow the jury to bypass the federal damages limit.

No error in 1.3m fees.

Sagun Tuli v. Brigham & Women's Hospital,

Federal Circuit -- STAR SCIENTIFIC, INC. V. R.J. REYNOLDS TOBACCO CO.

Patent claim which TMB will misconstrue later, as he's out of time now.  Much about best mode, infringement, obviousness - the usual patent argot.


STAR SCIENTIFIC, INC. V. R.J. REYNOLDS TOBACCO CO.

DC Circuit -- Christol English v. DC

No reversible error in exclusion of report on violations of procedures, as it wasn't directly probative to the S1983 claim.

Harmless error in gov't not amending expet disclosure under FRCP 26. 

Other evidence rulings upheld.

Christol English v. DC

DC Circuit -- Christol English v. DC

Errata.

Christol English v. DC

Eleventh Circuit -- Natalie Versiglio v. Board of Dental Examiners of Alabama

Board of Dental Examiners not entitled to sovereign immunity.

Natalie Versiglio v. Board of Dental Examiners of Alabama

Tenth Circuit -- United States v. Coleman

Oklahoma juvie drug convictions count as serious drug priors under ACCA.

Court must look to full sentence in statute without considering offsetting factors such as release at majority.

United States v. Coleman

Tenth Circuit -- Qwest Corporation v. Colorado Public Utilities

We conclude that 47 C.F.R. § 51.5 plainly states that all UNE loops count towards the number of business lines in a wire center.

No deference, as statute is not ambiguous.

Qwest Corporation v. Colorado Public Utilities

Ninth Circuit -- SEC V. HAROLD GEWERTER

Under FRCP (45), a motion to quash a subpoena must be presented to the court that issued the subpoena.

Attorney attempts to quash SEC third-party subpoena seeking his client banking records.

Jurisdiction, as third party has no incentive to contest, so no need to wait for noncompliance. 

SEC V. HAROLD GEWERTER

Ninth Circuit -- JEANENE HARLICK V. BLUE SHIELD OF CALIFORNIA

Although ERISA plan does not cover inpatient treatment for anorexia nervosa, state statute requires that plans of its type must provide such coverage.

JEANENE HARLICK V. BLUE SHIELD OF CALIFORNIA

Ninth Circuit -- MARK YOUNG V. COUNTY OF LOS ANGELES

S1983 Action for officer's pepper-spraying and striking with a baton during routine traffic stop upon plaintiff's refusal to go back into the car.

No state claim for false imprisonment, as officer could have arrested. 

Error in dismissing 4A excessive force claim.

Error in granting qualified immunity.

MARK YOUNG V. COUNTY OF LOS ANGELES

Ninth Circuit -- MANUFACTURED HOME COMMUNITIES V. COUNTY OF SAN DIEGO

Insufficient proof of actual falseness as required by California public speech lawsuit statute.

Where statute awards fees to prevailing party, no abuse of discretion where a party that lost on first motion but eventually prevailed gets all fees - law of the case does not bind.

MANUFACTURED HOME COMMUNITIES V. COUNTY OF SAN DIEGO

Ninth Circuit -- JUAN VALADEZ LOPEZ V. UNITED STATES OF AMERICA

Where plaintiff doesn't name the US on initial complaint, subsequently exhausts administrative remedy and then amends the complaint to add the US, exhaustion is kosher, there's no need to file a new action, and the amended complaint does not relate back to original filing for purposes of assessing exhaustion.

Claim not within FTCA waiver of sovereign immunity, as no specific negligent federal conduct alleged in pleadings.

No error in dismissal of S1983 & Monell claims.

JUAN VALADEZ LOPEZ V. UNITED STATES OF AMERICA

Ninth Circuit -- USA V. STINSON

Errata.

USA V. STINSON

Seventh Circuit -- Jaymz Hernandez v. Lakesha Foster

S1983 claim for improper removal of infant from family - substantive due process, 4A & procedural due process claims.

Infant has substantive due process claim on initial removal, as 4A protects, but parents can pursue SDP for removal.  Qualified immunity for defts, as probable cause existed.

Infant's continued withholding analysed under 4A, parents' claim under SDP.  Sufficient to survive summary judgment, no qualified immunity. 

Issue of coercion in agreeing to protective plan strong enough to survive summary judgment, as parents didn't have custy and were told that they wouldn't get custody unless they signed.  Caselaw put defts on notice that empty threats were clear violations of rights - no immunity. 

Qualified immunity on PDP for removal, as caselaw on removal/exigency was insufficient for notice .  PDP violation in withholding of custody during negotiating protective plan.


Jaymz Hernandez v. Lakesha Foster

Seventh Circuit -- Joseph A. Freda v. CIR

No clear error in funds received as a result of a settlement of a claim for misappropriation of capital assets being taxed as ordinary income as opposed to capital gains.

The settlement was not in lieu of a replacement of appropriated capital.

Nothing in agreement suggested that the payor viewed the deal as compensation for the use of capital assets.  Complaint was for lost profits.

Dissent: Nature and basis of claim is compensation for use of trade secret.


Joseph A. Freda v. CIR

Seventh Circuit -- Victoria L. Serednyj v. Beverly Healthcare LLC

Summary judgment upheld against Title VII claimant (pregnancy) who was denied a work accommodation and then left the gig because she didn't qualify for leave under FMLA.

Company's light-work policy does not violate the PDA, as it is pregnancy-blind.

Pregnancy complications may qualify under the ADA, but there were insufficiently limiting.

Insufficient proof for ADA record of disability claim to survive SJ.

Same for retaliation claim.


Victoria L. Serednyj v. Beverly Healthcare LLC

Seventh Circuit -- Owner-Operator Indep v. FMCS

Rulemaking TKO'd for not taking into account statutory requirement.

Rule dealt with electronic monitoring of truckers.  Court held that rulemaking was arbitrary and capricious under State Farm as the agency hadn't ever considered a statutory mandate barring electronic devices from being used in a manner harassing to drivers.

Owner-Operator Indep v. FMCS

Seventh Circuit -- Mariana Kasalo v. Harris & Harris

District Court's decision to dismiss an individual suit for lack of prosecution while plaintiff was attempting to certify a class was an abuse of discretion.

Lesser remedies wiser.

Mariana Kasalo v. Harris & Harris

Seventh Circuit -- USA v. Juan P. Lua-Guizar

 No procedural error in sentencing where judge declines to depart downwards in anticipation of pending change to guidelines; No procedural error in sentencing where judge declines to depart downward in recognition of fast-track programs in other districts and states that the court recognizes that it has the power to do so.

(Illegal entry case.)

USA v. Juan P. Lua-Guizar

Seventh Circuit -- Zakaria Bullen Wani v. Eric H. Holder, Jr.

Though government claims court has no remaining jurisdiction over immigration case, court retains ability to review for errors of law.  Case is not moot due to gov't cessation of removal process.

Three legal claims forfeited by the gov't accepted by court here - (1) fact that petitioner's deported family member has not yet been tortured isn't dispositive; (2) no requirement that petitioner have personal knowledge of the certainty of his impending torture; (3) unopposed evidence stating that foreign nation tortures repatriates. 

Petition is not moot when gov't states that removal has been stopped, so long as there is an active removal order and court has jurisdiction. 

Zakaria Bullen Wani v. Eric H. Holder, Jr.

Sixth Circuit -- Nancy Dickson v. Countrywide Home Loans

Although lender did not have a perfected lien on manufactured home prior to foreclosure - as no notation was made to title and lis penden does not suffice - subsequent conversion to improvement to real estate perfected the claim.

A manufactured home is personalty, until converted to an improvement to real estate.

Petitoner can avoid the lien, however, since the operative act wasn't the mortgage (as the property was personalty at the time) but the (involuntary) state court default judgement, and all other requirements for avoidance are met.

Nancy Dickson v. Countrywide Home Loans

Sixth Circuit -- Christina Roberts v. Christopher Hamer

Children of a lessee have no statutory standing to sue for lead paint violations under RLPHRA.

Statutory standing is dismissed under 12(b)(6), not subject matter jurisdiction.

Even where children have legal status of third-party beneficiaries under state law, plain reading of federal statute reveals Congress' intent to limit.

Christina Roberts v. Christopher Hamer

Sixth Circuit -- EA Management v. JP Morgan Chase Bank NA

Bank was not required to honor cashiers checks when it acted as both payor and depositor, meaning that it received no consideration on the deal, defeating any UCC claim against it.

Plaintiff was not legally in a position to enforce the instrument, separately defeating the claim.

 EA Management v. JP Morgan Chase Bank NA

Sixth Circuit -- Christian Heyne v. Metropolitan Nashville Public

Where plaintiff sufficiently alleges imposition of school suspension based on impermissible considerations of race, no qualified immunity for initial adjudication (Due Process & EP) - Qualified immunity granted for DP allegations on appeal, as there was no constitutional right to an appeal.

Where plaintiff in S1983 claim does not plead a plan or agreement among defts, court is to consider defts separately in analyzing qualified immunity -- not as conspirators.

Denial of qualified immunity to school official who imposed a suspension upheld -- sufficient pleading that adjudication's impartiality had been manifestly compromised.

Immunity for officials who handled case after initial appeal to board, as such appeals were not constitutionally required.

Qualified immunity for EP violation (race) denied to initial decisionmaker, but granted for others, given allegations in pleading.

Christian Heyne v. Metropolitan Nashville Public Schools

Third Circuit -- USA v. Wayne Bryant

[Third Circuit server is down at this writing.]



USA v. Wayne Bryant

First Circuit -- EMC Corp v. Arturi

Under Massachusetts law, court cannot impose a post-employment equitable remedy beyond the length of time agreed upon in the employment agreement.


EMC Corp v. Arturi

First Circuit -- Glik v. Cunniffe

The filming of government officials in a public space is a clearly established right under 1A - court did not err in denying qualified immunity.

Contradicts unpublished decision from the Fourth Circuit.

Despite the fact that the recording was done with a cell phone, sufficient notice for the police officers to have actual knowledge of the recording , defeating any violation of the Massachusetts wiretap statute.  No immunity for 4A violation.


Glik v. Cunniffe

First Circuit -- Martinez-Burgos v. Guayama Corp.

Where other performance-related factors would justify the decision not to hire, no error in dismissal of Title VII pregnancy- based hiring claim.

 Claim based on decision not to rehire after pregnancy TKO'd by fact that replacement had outperformed her in her absence.

(Full disclosure - your correspondent worked for the same temp firm many years ago.)


Martinez-Burgos v. Guayama Corp.

First Circuit -- Donald v. Spencer

District Court correctly denied discovery request for DNA examination, given the overwhelming evidence for conviction.

AEDPA restriction of habeus review to existing Scotus precedent is not unconstitutional.

Donald v. Spencer

First Circuit -- Perez-Cordero v. Wal-mart Puerto Rico, Inc.

District court's dismissal of Title VII suit for  lack of severity and pervasiveness reversed - plaintiff had raised genuine issues of material fact.

Error in dismissal of retaliation claim as well, as deft has not explained actions of managers and no explanation is evident in the record. 

Perez-Cordero v. Wal-mart Puerto Rico, Inc.

Second Circuit -- Interpharm, Inc. v. Wells Fargo Bank, N.A.

 Where a lender has the right to cut off credit and demand repayment, threats to do so are not wrongful, and therefore not grounds for a claim of economic duress.


No threat to withhold performance of contract.

Interpharm, Inc. v. Wells Fargo Bank, N.A.

Federal Circuit -- UNIGENE LABORATORIES, INC. V. APOTEX, INC.

Typos in a table showing the effect of citric acid concentration on the stability of salmon calcitonin are insufficient grounds for piercing privilege under crime/fraud.

No abuse of discretion in refusal to allow new counterclaims, given the minor change to claim.

Obviousness: (T)his court agrees that no reasonable juror could conclude that the ’014 patent would give a person of ordinary skill sufficient reason or motivation to use about 20 mM citric acid in aliquid nasal salmon calcitonin composition.

UNIGENE LABORATORIES, INC. V. APOTEX, INC.

Eleventh Circuit -- Community State Bank v. James Strong

Where the underlying dispute between the parties has not yet been litigated, efforts to discern federal jurisdiction for a freestanding arbitration claim can look to the underlying potential bases -- since the question has not been litigated, the dimensions of the potential grounds for jurisdiction have not yet been embodied.

State court TKO of arbitration rights as statutory penalty for discovery abuses collaterally estops a federal FAA attempt to compel arbitration.

Community State Bank v. James Strong

Tenth Circuit -- Katz v. Gerardi

 While final judgment is required for claim preclusion, it is not required for dismissal for claim splitting; Merger doesn't fundamentally change shares sufficiently so that plaintiff becomes 'purchaser' under 1933 Act.

Katz v. Gerardi

Ninth Circuit -- MICHELLE BARNES V. USDOT

Given the the increased usage of the airport to be expected, an agency decision to waive a EIS for runway expansion violated NEPA.

Case-by-case examination of facts required.

Public hearing satisfied the statute.

Dissent: Durn paperwork.

MICHELLE BARNES V. USDOT

Ninth Circuit -- SALAR KHOSHFAHM V. ERIC HOLDER, JR.

No substantial evidence that gov't established by clear, unequivocal and convincing evidence that parents of petitioner did not intend to return to the US.

Imputation of adult parent's decision to abandon LPR status is kosher until child's majority.

Concurrence - Imputation is tricky.

SALAR KHOSHFAHM V. ERIC HOLDER, JR.

Ninth Circuit -- TODD CHISM V. WASHINGTON STATE

Dismissal of S1983 action for groundless pr0n investigation reversed.

Violation of 4A by Judicial Deception where affiant states that illicit images were downloaded and purchased where only evidence is that a credit card was used for the hosting costs of the website where the images were uploaded.

Substantial showing of reckless disregard, given distant IP address, CC# was inherently unreliable indication.

Showing of judicial deception bars SJ grant of qualified immunity.

TODD CHISM V. WASHINGTON STATE

Eighth Circuit -- United States v. Frank Michael Frazier

Remand for determination of which restitution to charity that assisted arson victims is redundant with restitution directly to victims.


Error in ordering restitution to insurer for replacement value of structure, as insurance company was not a victim.  Better measure is replacement value to owners, offset by relevant transactions with renting arsonist.

United States v. Frank Michael Frazier

Eighth Circuit -- George Stokes v. Southern States Cooperative

 Reversal of dismissal of wrongful prosecution claim.


Deft's averrance of subjective belief of legit claim not enough, objectively, the belief was unreasonable.

Given lack of merit to claim, jury could reasonably infer malice.

George Stokes v. Southern States Cooperative

Eigthth Circuit -- Jordan To v. US Bancorp

Summary judgement on wrongful dismissal claim upheld.

Company policy requuiring personal notification of supervisor wasn't followed.


Forewarning of grounds for termination is not required under USERRA.


Jordan To v. US Bancorp

Eighth Circuit -- Jane Porter v. City of Lake Lotawana

Dismissal of wrongful termination claim upheld.

Dismissal of wrongful termination claim for lack of a written contract - element of claim under Missouri law.

Retaliation claim TKO'd for causation.

Jane Porter v. City of Lake Lotawana

Eighth Circuit -- Artie Jackson v. Larry Norris

Barring of evidence about minor sexual assault victim's sexual history was not unreasonable.

Dissent - Goes to reason for possible fabrication.

Artie Jackson v. Larry Norris

Eighth Circuit -- Anthany Kaden v. Daryl Slykhuis

Prisoner S1983 claim that mail censorship of magazine violated 1A is strong enough to survive summary judgement.

Anthany Kaden v. Daryl Slykhuis

Seventh Circuit -- Kenneth Pearson v. Voith Paper Roll

 Summary judgement affirmed against claim that decision to retire was prompted by pension administrator's incorrect data  - no proof of detrimental reliance or intentional misrepresentation.


Bonus: at time of dismissal, plaintiff had a colorable age discrimination claim., and the pension manager was the HR director.

ERISA claim withdrawn.

No holding on whether a funded, single-employer plan can be estopped based on representations.

 As the Plan is legally a separate entity form the employer, and the Plan had no reason to misrepresent, simple assertion by plaintiff is insufficient to survive summary judgment.

No detrimental reliance, as no proof that employee could have negotiated a better deal, and doesn't want to rescind severance agreement.

Kenneth Pearson v. Voith Paper Roll

Seventh Circuit -- April Ortiz v. City of Chicago

Sufficient evidence to survive summary judgment in S1983 claim for arrestee who was detained without necessary medications, where a request for help was made, family members informed police of situation, and arrestee deteriorated while in custody.

4A, not 8A applies where detainee has not yet had probable cause hearing.

Although short period of detention is relevant to determining objectively reasonable conduct, it is far from dispositive - else detainee becomes hot potato. 

At summary judgment stage, expert medical testimony is not necessary to establish causation. 

Error to the District Court in rejection of expert witnesses.

No qualified immunity for defts.

No basis for Gerstein claim , as defts were not the ones who prolonged the paperwork.

April Ortiz v. City of Chicago

Seventh Circuit -- Brian Cleary v. Philip Morris Incorp

Violation of consumers' right to know about risks cannot independently support an unjust enrichment claim -- many members of class would not have suffered injury.

Post-removal destruction of diversity does not mandate remand under CAFA.

Expansion of the claim to other manufacturers' "Lights" brands properly barred, as different transaction/occurrence, insufficient notice to existing defts.

No ruling whether unjust enrichment can survive as an independent c/a under Illinois law.

Brian Cleary v. Philip Morris Incorp.

Seventh Circuit -- Robert Tenny v. Rod Blagojevich

No Due Process violation in raising prices at prison commissary beyond statutory bar.

No viable pre-deprivation process, no allegation of lack of adequate post-deprivation process.

Finding DP required pre-deprivation process would effectively create a state APA.

Robert Tenny v. Rod Blagojevich

Seventh Circuit -- Michael H. Haury v. Bruce Lemmon

Dismissal for lack of jurisdiction doesn't count as a PLRA strike.

Michael H. Haury v. Bruce Lemmon

Sixth Circuit -- USA v. Jose Clariot

Discovery of contraband on private airplane was kosher, given that the seizure terminated when the inspection papers were returned to the owners, and it was the subsequent conversation that led to suspicion for the search.

No deterrent value, given the attenuation between initial seizure and discovery.

USA v. Jose Clariot

Sixth Circuit -- Kelly Foust v. Mark Houk

Grant of habeus on ineffective assistance for insufficient mitigation work in death penalty case.

Ineffective assistance of counsel, for not doing sufficient investigation of mitigation factors (deft's Dickensian childhood), not hiring mitigation specialist, and generally by the sum of performance.  Prejudicial.

Dissent : State court finding not unreasonable.

Kelly Foust v. Mark Houk 

[Thou shalt not kill.  - TMB]

Sixth Circuit -- State of Ohio ex rel. Susan Boggs v. City of Cleveland

An earlier dismissal does not bar a suit against airport where there was an intervening expansion of runways.

A claim dismissed for lack of standing has no claim preclusive effect, but here, a subsequent appeals ruling referencing the action (which was continued by a co-plaintiff) dismissed the case with prejudice.  Court holds that the second dismissal was purely procedural, and did not establish preclusion. 

Expansion of runways brings a new set of harms, which were merely speculative in the first action - no preclusion. 

State of Ohio ex rel. Susan Boggs v. City of Cleveland

Sixth Circuit -- USA v. Lance Poulsen

Securities search, conviction & sentencing upheld 

No error of denial of entrapment instruction where there was no direct inducement.

Existence of phone calls among conspirators were sufficient grounds for the wiretap.

No clear error in denial of Franks hearing.

Not unreasonable for sentencing court to accept government's estimates of loss, as the trigger is not actual losses of that amount, but rather that deft had knowledge of potential losses of that level.

No error in denial of venue change, as neither presumptive nor actual prejudice existed at venue.

Introduction of evidence from obstruction prosecution in securities prosecution is not prejudicial for showing consciousness of guilt, but probative (because showing consciousness of guilt).

No error in introduction of testimony as to losses.

No error in calculation of losses for sentencing purposes.

USA v. Lance Poulsen

First Circuit -- Dickow v. US

Errata.

Dickow v. US

First Circuit -- Santiago v. Commonwealth of Puerto Rico

Summary judgment against claim alleging misconduct by private school bus company upheld.

Private school bus company not performing a state function, as there are such things as private schools, and the greater includes the lesser.

Private company doesn't qualify as one subject to extensive regulations, as the regulations didn't drive (sorry) the conduct.

Insufficient entanglement for nexus theory of S1983 jurisdiction.

Title IX claim TKO'd as there was no appropriate gov't actor with actual knowledge.

NB: Published 8/24

Santiago v. Commonwealth of Puerto Rico

First Circuit -- US v. De Jesus-Viera

Narcotics smuggling search, conviction, and sentence upheld.

No plain error in not suppressing fruits of border search consisting of drilling into secret compartment, given nervousness and inconsistent stories.

No plain error in willful blindness instruction - did not cause jury to apply negligence standard.

Sufficient evidence - distinguished from similar reversal, as deft didn't own the car.

No clear error in not applying minor participant sentencing reduction, as deft didn't finger other players in the enterprise.

NB: Publshed 8/24

US v. De Jesus-Viera

First Circuit -- Delia v. Verizon Communications, Inc.

Totality of circumstances insufficient to establish deft as employer for ADA and Title VII claims.

Said totality: employees subjective belief, company logo on keycard, bound by company's rules of conduct, participation in company benefits program, congratulatory letter from company after 15 years of service.

Code of conduct - employee can be bound to a contract with entity other than the one controlling her means & manner of work.

(NB - published 8/24)

 Delia v. Verizon Communications, Inc.

Second Circuit -- Emslie et al. v. Borg-Warner Auto

Where designer of allegedly defective machine had sold design to manufacturer 26 years prior to manufacture, the designer did not place the product into the stream of commerce as NY defective design law requires.

Policy grounds - designer had gotten out of the business, no longer in a position to know.


No abuse of discretion in dismissing claim for forum non conveniens, as only one American entity remains in the litigation.

Emslie et al. v. Borg-Warner Auto

Second Circuit -- United States v. Rodriguez

No abuse of discretion in admitting portion of recorded prison phone call in which deft instructed sister to tell brother to tell lawyer that he wanted to cop to a plea.

Presence of recording machine on the call destroys the privilege, as it's a third party not designed to facilitate the communication.


Low burden for reliable means - inmate should have contacted attorney directly.


No violation of FRE 410, as conversation was not with an attorney for the purpose of negotiating deal. 

United States v. Rodriguez

Federal Circuit -- BUSH V. U.S.

BUSH V. U.S.

When, under TEFRA, the IRS re-computes taxes due in relation to a partnership, there is no need for them to issue a notice of deficiency, as the process is one of computational adjustment.

Dissent: More goin' on here than just computin' & adjustin'

Federal Circuit -- DELANO FARMS CO. V. THE CALIFORNIA TABLE GRAPE COMMISSION

DELANO FARMS CO. V. THE CALIFORNIA TABLE GRAPE COMMISSION

Patent holder remains a necessary party, even after broad license to third party.

S702 of the APA waives immunity from all nonmonetary claims, not merely those with an administrative remedy.

Sufficient proof of inequitable conduct found in the pleading destroys the presumption of regularity.

Antitrust claim TKO'd for not defining the market.

Ninth Circuit -- USA V. LUIS BARAJAS-ALVARADO

USA V. LUIS BARAJAS-ALVARADO

Expedited removal proceedings are not sufficient to ground the charge as a predicate offense to illegal re-entry - additional processes and review are needed in the second proceeding when the alien challenges the removal offense as fundamentally unfair.