Sixth Circuit -- USA v. James Gamble

Pr0n restitution payments remanded for showing of proximacy of cause between dfeft conduct and victim harm.

 USA v. James Gamble 

Sixth Circuit -- Timothy Pagliara v. Johnston Barton Proctor and Rose

Fraud -- Bald assertions don't sufficiently state a state breach of fiduciary duty claim.

Professional services exception to statute bars statutory claim.

Timothy Pagliara v. Johnston Barton Proctor and Rose 

Sixth Circuit -- Yellowbook Inc. v. Steven Brandeberry

Trademark - Contract transferred the mark in its entirety.

Yellowbook Inc. v. Steven Brandeberry 

Fifth Circuit -- Lisa Learmonth v. Sears, Roebuck & Co.

State statutory cap on non-economic damages is kosher under SOP and state constitution, despite the fact that the state supreme court held that the lack of explicit designation of damages as non-economic in the present case meant that the issue wasn't presented.

Lisa Learmonth v. Sears, Roebuck & Co.

Second Circuit -- NLRB v. Special Touch Home Care Servs., Inc.

Labor law -- employer's individual call-in rule cannot be enforced to make strike no-show an unprotected activity.  Home health aides who don't provide notice, however, create an imminent danger and are therefore unprotected.

NLRB v. Special Touch Home Care Servs., Inc.

Second Circuit -- Mark Maraschiello v. City of Buffalo Police Department

Under Title VII, a general overhaul of department-wide promotion criteria is not a race-based adverse action specific enough to survive summary judgment.

Mark Maraschiello v. City of Buffalo Police Department

Second Circuit -- Taveras v. UBS AG et al.

ERISA plan fiduciaries should not be accorded presumption of prudence for offering stock in the company, as the Plan didn't explicitly reference it as an option.

Taveras v. UBS AG et al.

DC Circuit -- American Electric Power Serv. v. FCC

Agency decision upheld as consistent with statute and precedent, and more rational than previous policy.

American Electric Power Serv. v. FCC

Eleventh Circuit -- Luis W. LeBron v. Secretary, Florida Departtment of Children and Families

No error in preliminary injunction barring suspicion-less drug testing for government assistance recipients.

Concurrence: Injuction only -- state's rational basis is not a sufficient justification for the 4A violation.

Luis W. LeBron v. Secretary, Florida Departtment of Children and Families

Eleventh Circuit -- Flintlock Construction Services, LLC v. American Safety Risk Retention Group, Inc., et al.

Motion for summary judgment not a basis for amending complaint without leave.

Flintlock Construction Services, LLC v. American Safety Risk Retention Group, Inc., et al.

Tenth Circuit -- Stewart Title v. Dude

Where loan application requires disclosure of prior loans, and applicant does not disclose a prior loan, a separate area of the form excepting certain loans doesn't bar justifiable reliance by the lender on applicant's omission in the first area.  Nor does faulty recordation.

Stewart Title v. Dude

Tenth Circuit -- Full Life Hospice v. Sebelius

Dismissal without leave to amend of administrative challenge upheld, as the statutory clock had run.

Full Life Hospice v. Sebelius

Tenth Circuit -- United States v. Addison

Sufficient evidence for embezzlement ; no 6A Public Trial violation in excluding co-deft who was granted mistrial.

United States v. Addison

Tenth Circuit -- Case v. Hatch

Denial of 'actual innocence' Habeas as recantations and new DNA evidence cannot be considered, and Brady violation not necessarily outcome-determinative.

Concurrence -- de novo review of merits at second/successive stage wastes judicial resources.

Case v. Hatch

Ninth Circuit -- GINGER MCCALL V. FACEBOOK, INC.

Dissent from denial of en banc -- cy pres class action settlement requiring donations to charitable foundations is not reasonably certain to advance the interests of class members.

GINGER MCCALL V. FACEBOOK, INC.

Seventh Circuit -- Milwaukee Police Ass v. Board

Where a plaintiff settles a procedural Due Process claim, the plaintiff's union's challenge to the same action becomes moot.

Milwaukee Police Ass v. Board 

Seventh Circuit -- Dishon McNary v. Marcus Hardy

Denial of ineffective assistance Habeas claims -- (1) no prejudice; (2) state court assessment of counsel's strategic choices was reasonable; (3) specific situation underlying the claim wasn't raised in state collateral challenge ; (4) (Appellate) Strategic choice call by state review was reasonable.

Dishon McNary v. Marcus Hardy

Sixth Circuit -- Lee Moore v. Betty Mitchell

Reversal of Habeas grants as - more or less - (1) procedurally defaulted, since state court holding that there was no prejudice is upheld under 'AEDPA deference'; (2) Habeas record here can't look beyond trial record.

[There's more here, but we're in a hurry.  As always, entertainment value only.  MB]

Lee Moore v. Betty Mitchell 

Sixth Circuit -- Martha Vassalle v. Midland Funding LLC

District court erred in accepting class action settlement, given disparity in payments between named and unnamed class members.

Certification was error -- representatives not adequate; class action not the superior method.

No abuse of discretion in denying discovery for intervenor.

Martha Vassalle v. Midland Funding LLC 

Fifth Circuit -- Western Real Estate Equities v. Village at Camp Bo

Bankruptcy -- deliberate creation of an impaired class of creditors is not bad faith per se.

Western Real Estate Equities v. Village at Camp Bo

Fifth Circuit -- Gary Klein v. Nabors Drilling USA, L.P.

Arbitration agreement binds, despite the fact that the agreement contemplates other options as well.

Gary Klein v. Nabors Drilling USA, L.P.

Fourth Circuit -- US v. Under Seal

Offender registration for juveniles -- no violation of Federal confidentiality laws; non-punitive, and therefore permissible.

US v. Under Seal

Fourth Circuit -- Mehdi Noohi v. Toll Bros., Inc

Class action -- arbitration agreement unenforceable for lack of consideration.

Mehdi Noohi v. Toll Bros., Inc

Fourth Circuit -- Building Graphics, Inc. v. Lennar Corporation

Copyright: Building floor plans

No claim for copying in fact, as access not proven

Building Graphics, Inc. v. Lennar Corporation

Fourth Circuit -- Patricia Moore-King v. County of Chesterfield, VA

Although fortune-telling is not proven to be inherently deceptive and is therefore the subject of First Amendment protections, county restrictions were permissible as regulations of professional speech.

Equal Protection: Rational BAsis ; RILUPA & Religion 1A: Nope.

Patricia Moore-King v. County of Chesterfield, VA

Second Circuit -- U.S. Smokeless Tobacco Mfg. Co., et al. v. City of New York

Local law restricting tobacco flavoring not preempted by Federal law restricting flavoring of tobacco.

Saving clause saves anyway.

U.S. Smokeless Tobacco Mfg. Co., et al. v. City of New York

First Circuit -- Commonwealth of Massachusetts v. US Nuclear Regulatory Commission

NRC denial of reopening of nuclear power administrative contention wasn't arbitrary/capricious.

Agency took hard look as required by NEPA.

Commonwealth of Massachusetts v. US Nuclear Regulatory Commission

Current M.O.

Around 2 or 3 PM every working day, we post quick summaries of and links to published decisions of the U.S. Circuit Courts of Appeal.  These are quick summaries, and are not to be relied upon for any purpose.  There is no guarantee that all decisions will be listed, or that the summaries will not be flat wrong.  This is quick work in bulk.  There is a (notably non-comprehensive) search function at the top of the page that can be used to find recent slip decisions referencing various topics in the law.  No part of this website is legal advice.

We make ye kindly welcome.

MB

Tenth Circuit -- Berneike v. CitiMortgage, Inc.

No error in District Court considering papers outside pleadings as the relevant data was included in papers incorporated into the pleadings.

Chevron deference to Agency rule requiring borrower complaints to go to a certain address.

State law claim properly dismissed, as there are better remedies and the statute's reach is unclear.  This discernible from state Supreme Court holdings, so no preemption issue.

No error in denial of leave to amend, as party did not provide the gist/drift of potential amendments to the claim.

Berneike v. CitiMortgage, Inc.

Ninth Circuit -- SONOMA COUNTY ASSOCIATION OF R V. SONOMA COUNTY

District Court should have granted leave to amend complaint for the purposes of establishing that a county created an implied contract to provide health benefits.

SONOMA COUNTY ASSOCIATION OF R V. SONOMA COUNTY

Ninth Circuit -- SHANNA KUXHAUSEN V. BMW FINANCIAL SERVICES NA LLC

As initial pleading in state class action was silent as to the loss sustained by individual class members, CAFA eligibility was not established, and the removal clock did not start ticking.

Pre-suit documents do no qualify for the statutory exception to rule that CAFAbility is established from the pleadings.

SHANNA KUXHAUSEN V. BMW FINANCIAL SERVICES NA LLC

Eighth Circuit -- United States v. Aaron Anderson, Jr.

As re-sentencing court's finding of facts was not clearly at odds with facts found in first proceeding, no error in denial of resentencing for crack/cocaine adjustment, given that the original offense could qualify for a higher minimum under the new rule.

United States v. Aaron Anderson, Jr.

Eighth Circuit -- Melvin Folkerts v. City of Waverly

Police contact and charging decisions as to mentally disabled petitioner insufficiently conscience-shocking for S1983 claim.

As this is a narrow range of facts, and there were no violations of rights established in the present claim, no claim against municipality for 'culture of indifference.'

Police adjustments to procedure sufficed for ADA/ Rehabilitation Act requirements.

Melvin Folkerts v. City of Waverly

Seventh Circuit -- Nazirmohammad I. Vah v. Eric H. Holder

Immigration / India

No error in Board holding that the sectarian violence in former country wasn't instigated by folks that the government was unwilling or unable to control.

Nazirmohammad I. Vah v. Eric H. Holder

Seventh Circuit -- USA v. Zhaofa Wang

No clear error in sentencing bump for false document production in excess of 100, although deft only handled 15 of the customers.

No clear error in denial of minor participant sentencing reduction, given scope of deft's knowledge.

USA v. Zhaofa Wang

Sixth Circuit -- Freedom From Religion Foundation v. City of Warren

Holiday display is government speech, and therefore pagan proposal was not impermissibly rejected.

No Establishment of religion involved.

 Freedom From Religion Foundation v. City of Warren 

Third Circuit -- Neal Crispin v. Commissioner of Internal Revenue

No clear error in Tax Court holding that a loan had no economic substance, as the deft never attempted to collect the proceeds and court findings on general credibility.

Penalty properly applied, as underreporting resulted from said insubstantiality.

Reliance on official opinion of no avail given the broad caveats in the opinion.

Neal Crispin v. Commissioner of Internal Revenue

First Circuit -- Brown v. State of RI

Prisoner claim should have been given a chance to amend, as opposed to summary dismissal.  Although the remedy was impossible, the harm might have been real.

Brown v. State of RI 

First Circuit -- US v. Fiume

As the underlying base crime ("wherefore base?") is generic, a sentencing bump fr an element also included in the base offense is not impermissible double counting.

US v. Fiume 

Milepost

Well, somewhere in the last few dozen posts, we passed 2,000 decisions.  And there was much rejoicing.

MB

Federal Circuit -- SHARP ELECTRONICS CORPORATION v. ARMY [OPINION]

SHARP ELECTRONICS CORPORATION v. ARMY [OPINION]

DC Circuit -- Nick Koretoff v. Tom Vilsack

Nick Koretoff v. Tom Vilsack

Eleventh Circuit -- USA v. Yuri Izurieta, et al

USA v. Yuri Izurieta, et al

Eleventh Circuit -- Michael Turner v. Warden Coleman FCI

Michael Turner v. Warden Coleman FCI 

Eleventh Circuit -- Chau Kieu Nguyen v. JP Morgan Chase Bank, NA

Chau Kieu Nguyen v. JP Morgan Chase Bank, NA

Tenth Circuit -- Peterson v. Garcia

Carrying of concealed firearms not protected by 2A / Privileges/Immunities.

Peterson v. Garcia

Eighth Circuit -- United States v. Jerrell Moore

[PUBLISHED] [Arnold, Author, with Smith and Melloy, Circuit Judges]
Criminal case - Sentencing Guidelines. District court may make supplemental findings in a resentencing proceeding under 18 U.S.C. Sec. 3582(c)(2) if the findings are necessary to deciding the motion and do not contradict any findings made at the sentencing; here, the district court was authorized to make the findings, and the record provided ample evidence for the court's supplemental findings.

United States v. Jerrell Moore

Eighth Circuit -- United States v. Leo Villarreal

[PUBLISHED] [Smith, Author, with Beam and Loken, Circuit Judges]
Criminal case - Criminal law. Speedy Trial Act claim rejected as the continuances granted in the case served the ends of justice and were excludable under the speedy-trial calculation under 18 U.S.C. Sec. 3161(h)(7)(A); Indictment was sufficient to allege an offense under 18 U.S.C. Sec. 2241(a)(1); Evidence was sufficient to support defendant's conviction for attempted sexual abuse under 18 U.S.C. Sec. 2242(B); claim of fatal variance between indictment and proof rejected.

United States v. Leo Villarreal

Eighth Circuit -- Brian Farrington v. Officer Steven Smith

Court Summary (as MB is running late)

Civil case - Civil Rights. In suit alleging the defendant police officer used excessive force, the district court did not err in allowing the officer to testify as to his purported mental state regarding the situation and plaintiff's actions as much of the evidence was elicited by plaintiff's counsel, the information provided context for the officer's actions and the jury was instructed not to consider the officer's state of mind, intention or motivation; no error in permitting the officer to testify regarding possible "weaponization" of cell phones; no error in refusing plaintiff's proposed revised Eighth Circuit Jury Instruction Number 16 on excessive force as the instruction actually given was supported by the law and evidence; conclusion that the district court did not err in denying plaintiff's motion for a new trial on his excessive-force claim was dispositive of his claim that other officers failed to protect him from the use of excessive force.

Brian Farrington v. Officer Steven Smith

Seventh Circuit -- Lorene Mann v. Meldon Vogel

Plaintiff had liberty interest when regulators briefly closed child-care center -- 'stigma plus'

Sufficient Due Process accorded, however.

Lorene Mann v. Meldon Vogel

Seventh Circuit -- http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=12-1254_002.pdf

35B motion converted to Habeas sua sponte.

Not second/successive, as claim did not become ripe until gov't incorrectly made 35B motion.

BUT time-barred under one-year rule.

USA v. Khaled Obeid

Seventh Circuit -- Northeastern Rural E v. Wabash

Electricity provision contract presents question of state law, not federal law.

Northeastern Rural E v. Wabash 

Fifth Circuit -- USA v. Mark Woerner

Good faith exception applies to warrant obtained on the basis of deft statements later determined to be the fruit of an illegal search.  Case by case, not categorical.

Sufficient evidence, pr0n counts not multiplicitous.

USA v. Mark Woerner

Fifth Circuit -- Mid-Continent Casualty Co. v. Eland Energy Inc.

Insurer does not breach duty of good faith and fair dealing by settling third party claims on the side to the limit of coverage, despite contractual duty to defend.

Choice of law assigned under interest analysis. Texas wins.

Misrepresentations were not a 'producing cause' of the allegedly tortious settlement offers.

Mid-Continent Casualty Co. v. Eland Energy Inc., e

Third Circuit -- Barry Belmont v. MB Investment Partners, Inc.

Securities Fraud -

Reckless acts by controlling persons do not establish 20a liability.

No negligent supervision by Board, as not foreseeable, not really managers.

No 10b5 claim as insufficient scienter.

(again, very quick skim based on what catches our eye as we scroll.  MB)

Barry Belmont v. MB Investment Partners, Inc.

Second Circuit -- United States v. Wilson

Where the deft got the Social Security number nonfraudulently but updated it fraudulently, the Number was not acquired fraudulently.

United States v. Wilson

Second Circuit -- In re: Bernard L. Madoff Inv. Sec. LLC

Even where an investor exerts discretion in how fund invests and intends that the fund invest in a certain (ill-fated) endeavour, they are not customers of the endeavour, as they themselves transacted no business with it.

In re: Bernard L. Madoff Inv. Sec. LLC

Blog Reset

Cutting the Gordian knot of opinion backlog.  MB is hitting the "reset button" and, tomorrow, will resume publishing same-day summaries for all Circuits.

MB

Seventh Circuit -- William Grote, III v. Kathleen Sebelius

Granting of prelim injunction in health care mandate case, brief per curiam.

Long dissent -- closely held corporation is still a fundamentally commercial entity.

William Grote, III v. Kathleen Sebelius

Seventh Circuit -- Lock Realty Corporat v. U.S. Health, LP

Despite TKO of sole expert under Daubert, no error in award of liquidated damages even given denial of earlier motion for further discovery.  [Maybe.]

Attorney affidavit as to billing properly admitted despite awkward phrasing.

Lock Realty Corporat v. U.S. Health, LP

Seventh Circuit -- James Wells v. Jeff Coker

No preclusion/estoppel in subsequent S1983 suit.from earlier Criminal plea.  Potentially multiple bases for plea.

James Wells v. Jeff Coker

Seventh Circuit -- Ghulam Mustafa v. Eric Holder, Jr.

Immigration/Pakistan -- Reversal, as future threat might very well be political animus, not personal.

Ghulam Mustafa v. Eric Holder, Jr.

Seventh Circuit -- USA v. Carlos Mendiola

Linguist is not an expert for purposes of voice ID, and can therefore familiarize herself with the voice prior to the ID.

USA v. Carlos Mendiola

Seventh Circuit -- USA v. Jason Foster

Crack/cocaine adjustment is not a full resentencing, and therefore different statutory minimums don't apply.

USA v. Jason Foster

Seventh Circuit -- Central States South v. Stephen L. Messina

Veil pierced upon dissolution of retirement plan agreement, as the entity in question operated under an agreement that said that it was more than just a passive investment vehicle.

Central States South v. Stephen L. Messina

Seventh Circuit -- Porfirio Gutierrez v. Keith Anglin

Habeas -- Ineffective Assistance denial upheld, as the claim doesn't address the statutory factors of the potentially mitigated offense.

Porfirio Gutierrez v. Keith Anglin

Seventh Circuit -- John Asare Boadi v. Eric Holder, Jr

Immigration -- no unfair surprise when IJ accelerated the calendar on pro se petitioner.

IJ findings upheld.

John Asare Boadi v. Eric Holder, Jr

Seventh Circuit -- Matthew Thomas v. UBS AG

Dismissal of class action prior to certification -- Poz: Swiss bank had no obligation to tell folks that they had to pay relevant US taxes.

Matthew Thomas v. UBS AG

Seventh Circuit -- Jurijus Kadamovas v. Michael Stevens

Posner -- Reversal of dismissal of 99-page prisoner pro se complaint for unintelligibility.  There's a difference between length and unintelligibility, and Iqbal means that it might take that long to state a claim.

Jurijus Kadamovas v. Michael Stevens

Seventh Circuit -- Hoyt Ray v. Wexford Health Sourc

No cruel & unusual punishment for denial of MRI; no appointment of counsel.

Hoyt Ray v. Wexford Health Sourc

Seventh Circuit -- USA v. Adolfo Wren

Court does not have to reset to the statutory minimum when resentencing for crack/cocaine where substantial assistance to authorities moved the original range to beneath the statutory minimum.

USA v. Adolfo Wren

Seventh Circuit -- Karen Fitzgerald v. M. Santoro

Detention of potential suicide victim -- summary judgment for officers in S1983 action upheld.

Karen Fitzgerald v. M. Santoro

Seventh Circuit -- USA v. Ronald Love

Crinm -- evidence sufficient for cocaine conspiracy;

FRE --- a question doesn't assert anything and is therefore categorically not hearsay.

Remand for sentencing error -- amount of drugs involved in transaction.

USA v. Ronald Love

Seventh Circuit -- Bernard Hawkins v. USA

Posner:  Challenge to sentencing guidelines calculation not cognizable review, as the guidelines are now merely advisory.

Dissent: Circuit precedent says that prisoners can challenge career offender status.

Bernard Hawkins v. USA

Site Update

Still slogging through last week's backlog from the hintermost Circuits.  Back to nationwide same-day posting Friday, even if we have to cut the Gordian knot and not post a few.

MB