Sixth Circuit -- Mark Kerman v. CIR

Tax -- no substance to the shelter, so the penalty for understating assets applies.  Circuit split on this noted.

Mark Kerman v. CIR 

Sixth Circuit -- El Camino Resources, LTD. v. Huntington National Bank

Under Michigan law, aiding and abetting unlawful conversion requires actual knowledge, and there was no evidence that fraudster's bank had such knowledge.

Preliminary bankruptcy holding that bank had not acted in good faith not binding on the civil case at summary judgment.

El Camino Resources, LTD. v. Huntington National Bank 

Tuesday is the new Monday

Monday's opinions will be listed Tuesday morning.

MB

All Opinions

Time is short, and many opinions rolled today, so -- (very) short form:

First --
US v. Baird   -  Guns -- deft should have gotten an 'innocent possession' instruction.
US v. Morales-Cruz  -- Sentencing - conditions on supervised release.
Gianfrancesco v. Wrentham, MA  -- Equal Protection and Due Process claims by potentially over-regulated restaurant owner TKO'd.

Second --
Federal Housing Fin. Agency v. UBS Americas Inc.  -- Statute of limitations/repose, Appointments challenge
United States v. Westchester County, New York  --  Federal housing consent decree litigation
Mercer v. Gupta -- Securities - whether a 'beneficial owner'

Third --
Timothy Ross v. David Varano -- Habeas, equitable tolling
Grane Health Care v. NLRB

Fourth --
Southern Walk at Broadlands v. Openband at Broadlands, LLC 
Lansdowne on the Potomac v. Openband at Lansdowne, LLC

Fifth --
First National Bank, et al v. Polk Mechanical Comp 

Sixth --
Commonwealth of Kentucky v. Tracfone Wireless, Inc.
USA v. Derrick Hammond 

Seventh --
USA v.   Kurt Scheuneman
Anthony Maniscalco v.   Jay Simon
USA v.   Nicolas Gomez
Bankmanagers Corporation v.   Federal Insurance Company

Eighth -- [text from court site]

121857P.pdf 04/05/2013 Southern Wine and Spirits, etc v. Mountain Valley Spring Company U.S. Court of Appeals Case No: 12-1857 and No: 12-1915 U.S. District Court for the Western District of Arkansas - Hot Springs [PUBLISHED] Gruender, Author, with Wollman and Shepherd, Circuit Judges]
Civil case - Contracts. For the court's prior opinion in the case, see Southern Wine & Spirits of Nevada v. Mountain Valley Spring Co., 646 F.3d 526 (8th Cir. 2011). District court order denying Southern's motion for attorneys' fees is affirmed, as the district court was within its discretion in finding that neither party in the case qualified as the prevailing party under Nevada law.

Ninth --

FIREBAUGH CANAL WATER DISTRICT V. USA  -- Deference to Dept of Interior
CARLOS CASTRO V. CAL TERHUNE -- Prison anti-gang statutes not void for vagueness

Tenth --

 11-3258  United States v. Patterson

DC Circuit --

11-7127Magloire Etoh v. Fannie Mae








12-1284Marc Barnes v. Commissioner, IRS




Federal Circuit -- 

INRE: STEVE MORSA [OPINION]

Go, stranger, and tell the Spartans that at least we got the titles posted.

-MB

Federal Circuit -- BRUCE SAFFRAN v. JOHNSON & JOHNSON [OPINION]

Patent.


BRUCE SAFFRAN v. JOHNSON & JOHNSON [OPINION]

Ninth Circuit -- NORTH EAST MEDICAL SERVICES, I V. CALIFORNIA DEPARTMENT OF HEALT

Health clinics cannot recoup monies paid to the state 11th Amendment bars the suit, as the funds would be taken from the state treasury.

NORTH EAST MEDICAL SERVICES, I V. CALIFORNIA DEPARTMENT OF HEALT

Ninth Circuit -- PETER KNAPPE V. USA

Executor's reliance on accountant's advice as to tax deadline does not excuse the late filing -- deadlines are not a substantive matter.

PETER KNAPPE V. USA

Eighth Circuit -- United States v. William Mefford

Conditions imposed on supervised release not overbroad.

United States v. William Mefford

Eighth Circuit -- United States v. Roberto Rodriguez

Handcuffing during traffic stop did not make it an arrest.

Probable cause for automobile exception search, as deft admitted to having contraband in the car.

Sources sufficed for warrant.

Many sentencing challenges.

United States v. Roberto Rodriguez

Seventh Circuit -- USA v. Steven Dotson

As the dilapidated gun pointed by the deft could still be regarded as something capable of firing bullets and was not beyond repair, it qualifies under the statute.

USA v.   Steven Dotson

Seventh Circuit -- Rebecca Pepper v. Carolyn W. Colvin

No error in ALJ's denial of disability claim.

Rebecca Pepper v.   Carolyn W. Colvin

Seventh Circuit -- USA v. Geoffrie Allen Lee Dill

Alternate juror's presence in jury room did not constitute a Constitutional violation, as the juror did not participate in or affect the deliberations.

USA v.   Geoffrie Allen Lee Dill

Seventh Circuit -- Betty Jordan v. Kelly Binns

Multi-step hearsay analysis.  Ultimately harmless error.

Betty Jordan v.   Kelly Binns

Seventh Circuit -- Solomon Monroe v. Randy J. Davis

Denial of Habeas --

As appellate holding was consistent with time of arrest stipulated to by the parties, the state courts gave the question a full and fair adjudication, despite error by trial court.

No ineffective assistance, as the putative additional witness wouldn't have done much for the case.

Conviction of murder on accountability theory upheld, as the deft's gang had a preexisting common plan to harm the victim.

Solomon Monroe v.   Randy J. Davis

Seventh Circuit -- Lisa Williamson v. Mark Curran, Jr.

As plaintiff's pleadings establish that deputies had reasonable grounds to suspect plaintiff to have stolen the horse, no S1983 claim.

Lisa Williamson v.   Mark Curran, Jr.

Sixth Circuit -- SEC v. Sierra Brokerage Services, Inc

SEC shift in theory of the case at the summary judgment stage from fraud-based to non-fraud-based (investors as stockholders) did not unduly harm deft's ability to defend.

Broker was a control person under Rule 144, given shareholder agreement.

Stock powers made broker a beneficial owner of the securities.

Sufficient scienter for injunction.

SEC v. Sierra Brokerage Services, Inc 

Sixth Circuit -- Cumberland River Coal Co. v. The Federal Mine Safety and He

Order of relief for mine worker upheld, as ALJ credited medical evidence to the contrary.  No impermissible imposition of business judgment.

Cumberland River Coal Co. v. The Federal Mine Safety and He 

Fourth Circuit -- Ashley II of Charleston LLC v. PCS Nitrogen Incorporated

Successor corporation did not assume clear contractual responsibility for predecessor's toxic waste liabilities, as the asset sale was treated as if it were hypothetically a stock swap.  Still responsible, though, after weighing the other evidence.

Extensive grading and construction is enough to make one a responsible party - no need to prove that soil was actually imported.

Adjacent leasehold should be considered part of the site.

Duty of care towards the waste is that of a similarly situated reasonable person.

No error in imposition of joint & several liability, as the inquiry was detailed and fact-specific.

Ashley II of Charleston LLC v. PCS Nitrogen Incorporated 

Third Circuit -- Akers National Roll Company v. United Steel, Paper and Forest

Deference to arbitrator's decision, as an arbitration outcome derives its essence from the CBA if it could in any way rationally derive from it.  Arbitrator could therefore look to past practice of parties.

Akers National Roll Company v. United Steel, Paper and Forest

Third Circuit -- West Run Student Housing v. Huntington National Bank

Conclusory allegations that contractor disclosed information to a competitor insufficient to state a claim.  Corroboration required.

No breach of the implied warranty of good faith and fair dealing in providing financing to a competitor.

At the motion to dismiss stage, the court cannot look beyond the four corners of the pleading -- statements in original pleading later superseded by amended pleading are therefore not binding judicial admissions.

West Run Student Housing v. Huntington National Bank

First Circuit yesterday

These appeared in the First after we went to press yesterday:

Aetna, Inc. v. Pfizer, Inc., et al 

Harden Manufacturing Co. v. Pfizer, Inc. 

Kaiser Foundation Health Plan v. Pfizer, Inc. 

Acosta-Ramirez v. Banco Popular de Puerto Rico 

- MB

Ninth Circuit & Federal

Short on time -- here's what's posted so far:

Ninth:

USA V. YALE AUGUSTINE A. D. V. STATE OF CALIF. HIGHWAY PATROL ECOLOGICAL RIGHTS FOUNDATION V. PG&E USA V. THOMAS JENNINGS

Federal:

KAHRS INTERNATIONAL, INC. v. US [OPINION]

- MB

Eighth Circuit -- Jeff Knutson v. Schwan's Home Service, Inc.

From the court's website:

122240P.pdf 04/03/2013 Jeff Knutson v. Schwan's Home Service, Inc. U.S. Court of Appeals Case No: 12-2240 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Benton, Author, with Wollman and Bye, Circuit Judges]
Civil case - Employment discrimination. Plaintiff was not qualified to perform an essential job junction because of his eye injury and his inability to obtain DOT qualification, and the district court did not err in granting Schwan's motion for summary judgment on plaintiff's ADA claim; district court did not err in granting Schwan's summary judgment on plaintiff's claims for mileage reimbursement and a bonus.

Eighth Circuit -- Owners Insurance Company v. Betty Hughes

From the court's website:

122198P.pdf 04/03/2013 Owners Insurance Company v. Betty Hughes U.S. Court of Appeals Case No: 12-2198 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Gruender, Author, with Wollman and Shepherd, Circuit Judges]
Civil case - Insurance. The Owners policy's underinsured motorist coverage does not cover Hughes' claims because the underinsured person's insurance bodily injury limit was not less than $100,000 as required by the policy's unambiguous definition of underinsured automobile.

Eighth Circuit -- Douglas Reuter v. Jax Ltd., Inc.

From the court's website:

121753P.pdf 04/03/2013 Douglas Reuter v. Jax Ltd., Inc.
U.S. Court of Appeals Case No: 12-1753 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Benton, Author, with Wollman and Bye, Circuit Judges]
Civil case - Contracts. Even if Reuter did not waive Jax's breach of the parties' contract with his own breach, any factual disputes in the case were not outcome determinative because Jax's breach was neither damaging nor material, and the district court did not err in granting Jax's motion for summary judgment on Reuter's claim for breach of contract; the district court did not err in denying Reuter's motion to amend his complaint.

Seventh Circuit -- Shun Warren v. Michael Baenen

Denial of Habeas for plea-stage ineffective assistance.

Due process claims on knowingness of plea speculative.

No DP violation in sentencing judge's citation of attempt to withdraw from plea as a basis for sentence length.

Shun Warren v.   Michael Baenen

Sixth Circuit -- USA v. Jermaine Woods

"What's in your pocket?"  doesn't change a Terry stop [SITA?] into an interrogation.

Concurrence -- public safety exception.

USA v. Jermaine Woods 

Sixth Circuit -- Cogent Solutions Group, LLC v. Hyalogic, LLC

Where business competitors enter into a settlement agreement barring deprecatory references to each others' products, only direct references are barred, absent language to the contrary in the agreement.

 Cogent Solutions Group, LLC v. Hyalogic, LLC 

Sixth Circuit -- USA v. Rashan Doyle

Conditions of supervised release vacated as insufficiently explained.

USA v. Rashan Doyle 

Third Circuit -- USA v. Mark Zabielski

Sentencing -- application of the threat of death sentencing bump harmless error, as court explicitly stated that it didn't affect the length of the sentence.

USA v. Mark Zabielski

Third Circuit -- In Re: Leon A. Kendall

Statement in judicial opinion disagreeing with superior tribunal cannot serve as a basis for criminal contempt charge unless there is a clear and present danger of obstruction or prejudice.  Not judicial immunity, tho --  Free Speech.

In Re: Leon A. Kendall

Second Circuit -- United States v. Bryant

Guns --  Federal possession-in-furtherance statute survives 2A review.

United States v. Bryant

Second Circuit -- Evans v. Fischer

Reversal of Habeas grant --  admission of hearsay isn't, per se, a violation of due process.  State prior appellate review holding the error to be harmless therefore bars federal collateral review.

Evans v. Fischer

Second Circuit -- CFTC v. 3M Employee Welfare Benefit Association Trust I, et al.

Corporate receivership winding up a fraud has equitable authority not to award a prudence premium to investors in the regulated funds, as both the regulated and the non-regulated investments are similarly situated with respect to the fraud.

Inflation adjustment not required as a matter of law.

CFTC v. 3M Employee Welfare Benefit Association Trust I, et al.

Second Circuit -- Cohen v. Cohen

To state a fraud-based RICO claim in a divorce action, the facts alleged must create a plausible inference of wrongdoing.

Fraud-based claims accrued at first suspicions of the ex-wife, but the investigation at the time was reasonable.

Event-based statute of limitations for unjust enrichment has run.

Cohen v. Cohen

Rest of opinions

Sixth:

USA v. Bernard Kurlemann 

USA v. Kevin Daws 


Seventh:

Feras Jabr v.   Eric Holder, Jr.
Koransky, Bouwer & Poracky, P. v.   Bar Plan Mutual Insurance Comp
Richard Budd v.   Edward Motley
USA v.   Mario Lomax

Eighth:

113862P.pdf 04/02/2013 United States v. Elnora Logan U.S. Court of Appeals Case No: 11-3862 U.S. District Court for the Southern District of Iowa - Des Moines [PUBLISHED] [Loken, Author, with Melloy and Colloton, Circuit Judges]
Criminal case - Sentencing. The district court erred in denying defendant's motion to reduce her sentence under 18 U.S.C. Sec. 3582(c)(2), and the case is remanded for exercise of the district court's substantial discretion. Judge Colloton, dissenting. 121297P.pdf 04/02/2013 Salahaddin Ayyoubi v. Eric Holder, Jr. U.S. Court of Appeals Case No: 12-1297 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Colloton, Author, with Riley, Chief Judge, and Smith, Circuit Judge]
Civil case - Immigration. The USCIS's approval of plaintiff's application for adjustment to permanent resident status mooted his appeal of the district court's judgment in his action seeking a declaration that the agency had acted unlawfully by withholding adjudication on his application without periodic review; plaintiff's uncertainty about the reasons for his approval and his subjective fears about future applications or eventualities are insufficient to establish a continuing controversy. 122476P.pdf 04/02/2013 Andrew Alexander v. Mary Jo Jensen-Carter U.S. Court of Appeals Case No: 12-2476 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Arnold, Author, with Melloy and Smith, Circuit Judges]
Civil case - Bankruptcy. District court order affirming the order of the bankruptcy court giving possession of disputed property to the trustees is affirmed.

Ninth:

RUBEN CERON V. ERIC H. HOLDER JR.
USA V. LKAV, JUVENILE MALE

Tenth:

 12-5013  United States v. Benoit


DC:

12-5004Citizens for Resp. and Ethics v. Federal Election Commission

 
And two in fed

Sixth Circuit -- Thomas Kinkade Company v. Nancy White

Arbitration vacated for evident partiality.

Thomas Kinkade Company v. Nancy White 

Fifth Circuit -- Willie Garner v. Paul Morales, et al

Muslim prisoners have right under RLUIPA to grow short beards.

Willie Garner v. Paul Morales, et al

Second Circuit -- United States v. Livecchi

Despite facial reading of statute to the contrary, government had both foreclosure rights and civil cause of action, as such a reading of the statute best effectuates the intent & purpose of the statute.

Claim accrued for statute of limitations purposes at the discovery fo the underlying crime, not the defaulted mortgage payments.

United States v. Livecchi

Second Circuit -- United States v. Walsh

Asset attachment -- as parties to the divorce waived statutory equitable distribution, there was no claim on the value of the house prior to the fraud -- and as the income from the fraud exceeded the net worth at the time of the deft, proceeds from the sale of the house are reachable.

Exception to FRE witness identification requirements for drug-related cases (Monsanto) can be applied to non-drug cases.  No error in quashing subpoena for pretrial deposition of witnesses in Monsanto hearing, as the facts were available elsewhere.



United States v. Walsh

Second Circuit -- Pension Benefit Guar. Corp. v. Morgan Stanley Inv. Mgmt. Inc.

To state a claim for breach of fiduciary duty under ERISA, circumstantial evidence is sufficient, but there must be enough to raise a reasonable inference of breach of duty -- mere decline in the assets of the Plan is insufficient.

Dissent -- Plausible inference suffices -- no heightened pleading for ERISA


Pension Benefit Guar. Corp. v. Morgan Stanley Inv. Mgmt. Inc.

Second Circuit -- United States of America v. Barton

Court must make finding of requisite financial status before appointing counsel, even if deft declines to provide any information.

United States of America v. Barton

Balance of today's opinions

Plans of mice and men.  Have to wrap this up quick.  Here are the rest of today's decisions:

Sixth:

USA v. MedQuest Associates, Inc. 
A.C. v. Shelby County Board of Education 

Seventh:

USA v.   Jon Burge
Isaiah Brady v.   Randy Pfister
Ivan Hernandez v.   Michael F. Sheahan
Gabriela Arteaga v.   USA  (Poz)

Eighth:

122767P.pdf 04/01/2013 United States v. Adam Fernandez U.S. Court of Appeals Case No: 12-2767 and No: 12-2774 and No: 12-2784 and No: 12-2787 and No: 12-3358 U.S. District Court for the Western District of Arkansas - Ft. Smith [PUBLISHED] [Per Curiam - Before Murphy, Smith and Gruender, Circuit Judges]
Criminal case - Criminal law. Nondelegation challenge to SORNA rejected as SORNA's relatively narrow delegation of authority to the Attorney General was guided by an intelligible principle for delegation and was consistent with the requirements of the nondelegation doctrine.

122619P.pdf 04/01/2013 Annex Properties, LLC v. TNS Research International U.S. Court of Appeals Case No: 12-2619 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Per Curiam - Before Loken, Melloy and Colloton, Circuit Judges]
Civil case - contracts. The district court erred in determining plaintiff was only entitled to two months of a claimed four months' rent after defendant held over and created a tenancy at will which it failed to terminate in accordance with Minnesota law. Judge Loken, with whom Judge Melloy joins, concurring.

122125P.pdf 04/01/2013 United States v. Todd Hobbs U.S. Court of Appeals Case No: 12-2125 U.S. District Court for the District of Nebraska - Lincoln [PUBLISHED] [Loken, Author, with Bright and Colloton, Circuit Judges]
Criminal case - Sentencing. District court did not abuse its substantial discretion by imposing special conditions on defendant's supervised release which required probation office advance approval before he could reside with or contact children under 18 (including his own) or possess any material that is sexually stimulating or sexually oriented.

121974P.pdf 04/01/2013 Olympus Insurance Company v. AON Benfield, Inc. U.S. Court of Appeals Case No: 12-1974 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Shepherd, Author, with Murphy and Benton, Circuit Judges]
Civil case - Insurance. District court correctly determined that under the unambiguous language of the contract defendant was relieved of any obligation to pay plaintiff an annual fee because plaintiff's decision not to renew the brokerage agreement activated the agreement's forfeiture provision.

121186P.pdf 04/01/2013 Northern States Power Co. v. IBEW, Local 160 U.S. Court of Appeals Case No: 12-1186 U.S. District Court for the District of Minnesota - Minneapolis [PUBLISHED] [Shepherd, Author, with Murphy and Beam, Circuit Judges]
Civil case - Labor Law. The language in the arbitrator's decision - that the employer had demonstrated justification for an employee's termination - was sufficient to show the arbitrator found the termination was supported by just cause; as a result, the arbitrator had no authority to address the question of remedy or to fashion a remedy other than termination, and the district court properly vacated the arbitrator's award of reinstatement. Judge Murphy, dissenting.

Ninth:

USA V. GUSTAVO REYES-CEJA
JENNIFER WESTENDORF V. WEST COAST CONTRACTORS OF NV

Tenth:

 11-6040  Lockett v. Workman

Eleventh:

Fane Lozman v. City of Riviera Beach, Florida, et al

Back to (~) normal with tomorrow's posting, likely late afternoon.  Cheers.

MB

Friday in the Fifth

USA v. Todd Culbertson -- No sentencing for rehabilitative purposes.
Andricka Stewart v. Waco Independent School Dist -- Civil Rights claim - Rehabilitation Act
Frank Teta v. Michelle Chow -- Class action within bankruptcy improvidently dismissed
William Davison v. Huntington Ingalls, Inc. -- Pro se plaintiff's brief too far afield from FRCP standards.

Friday in the Fourth

US v. William Graham -- Court Reporter Act, taped conversations, life sentence unconstitutional.

US v. Sean Price -- Pr0n sentencing 

Second Circuit -- WC Capital Mgmt. LLC v. UBS Sec. LLC

Securities -- borrower has Article III standing to challenge whether margin call disclosures met statutory standards, as it was harmed by lack of knowledge of its options.

10(b) - 16 exists to protect the investor, so a general schema and information on where to get specifics sufficed for initial disclosure.

Margin call rules don't trigger 10(b) - 16(b) 30 day notification rule.

WC Capital Mgmt. LLC v. UBS Sec. LLC

Second Circuit -- Singer v. Ferro

As the corruption alleged by an employee parody was not relevant to matters of public concern, the speakers are not protected against retaliation.

Singer v. Ferro

Second Circuit -- WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc.

Subscriber-requested simultaneous one-to-one transmission of copyrighted content is not a performance for copyright purposes.

Dissent: one-to-one technology irrelevant -- the system functions as a broadcast.

WNET, Thirteen v. Aereo, Inc.; Am. Broad. Cos., Inc. v. Aereo, Inc.

First Circuit (Friday) -- Hann v. Educational Credit Management

Student Loans held to be $0 in claim order for Chapter 13 bankruptcy are $0 for all purposes.

Hann v. Educational Credit Management 

First Circuit (Friday) -- Frank Sawyer Trust of May 1992 v. Commissioner of Internal Revenue

Piercing the veil -- state law governs, so not the substance-over-form standard, but rather whether the transfers were themselves fraudulent.

Frank Sawyer Trust of May 1992 v. Commissioner of Internal Reveue

First Circuit (Friday) -- Hannington v. Sun Life and Health Insurance

ERISA -- Plan erred in holding that benefits should be offset for Veterans' benefits received, as they only superficially compared the program in the Plan (SSI) with the program not mentioned (Veterans).

Hannington v. Sun Life and Health Insurance 

Friday and Today

Rolling a bit early today, so some Circuits might not be up yet.  Looks like Friday was a busy day for the First Circuit and DC Circuit -- though the New Plan is to only post the day's opinions, we'll add a few of Friday's as well.

So it's a bouilabaisse of early postings for today and some of what came in over the transom Friday.

MB

Other Decisions:

Sixth:

National Truck Equipment Assoc v. NHTSA 

William Schumacher v. AK Steel Corporation 

Seventh:

Peter Lewis v.   Jerry Sternes

USA v.   Ollie Peterson

Eighth:

[From the Court's site]

U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Colloton, Author, with Riley, Chief Judge, and Smith, Circuit Judge]
Civil case - Fair Credit Reporting Act. Plaintiff failed to show she suffered "actual damages" from any violation of the FCRA, as a brief episode of frustration and unhappiness over an incorrect report did not establish the sort of concrete emotional distress that is required to constitute a genuine injury and actual damages. 121294P.pdf 03/28/2013 United States v. Neil Havlik U.S. Court of Appeals Case No: 12-1294 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Colloton, Author, with Riley, Chief Judge, and Smith, Circuit Judge]
Criminal case - Criminal law. Defendant's statements to interrogating officers were not an unequivocal or unambiguous request for counsel, and the police were not required to ask clarifying questions; defendant's waiver of his Miranda rights was voluntary, and the district court did not err in denying his motion to suppress his statements; district court did not err in declining to give an entrapment instruction; evidence was sufficient to prove the jurisdictional element of the child pornography charges against defendant; claim of ineffective assistance of counsel should be raised in a habeas action. 121639P.pdf 03/28/2013 Nelson Gomes v. American Century Companies, U.S. Court of Appeals Case No: 12-1639 U.S. District Court for the Western District of Missouri - Kansas City [PUBLISHED] [Colloton, Author, with Riley, Chief Judge, and Smith, Circuit Judges]
Civil case - RICO. Maryland's demand requirement for derivative claims does not frustrate the federal policies underlying RICO, and demand was required on all of plaintiff's derivative claims; because plaintiff failed to make the required demand, the district court did not err in dismissing his complaint. 121807P.pdf 03/28/2013 Dakota, MN & Eastern R.R. v. Kevin Schieffer U.S. Court of Appeals Case No: 12-1807 U.S. District Court for the District of South Dakota - Sioux Falls [PUBLISHED] [Loken, Author, with Melloy and Colloton, Circuit Judges]
Civil case - ERISA. For the court's prior decision in the matter, see Dakota, Minn. &E.R.R. v. Schieffer, 647 F.3d 935 (8th Cir. 2011). The district court did not err in finding that the benefits sought in Schieffer's arbitration demand were not claims for benefits under an ERISA plan; as a result, the district court lacked federal subject matter jurisdiction to consider arbitrability or any other issue arising under the Employment Agreement.

Ninth:

HILARIO RIVAS V. JANET NAPOLITANO

Tenth:

 11-1340  Llewellyn v. Allstate Home Loans
 12-9010  Schoppe v. CIR

Eleventh:

USA v. Archery Lynn Overstreet

Next update Monday.

MB

Sixth Circuit -- Derry Lovins v. Tony Parker

Claim raised in motion for post-conviction relief not procedurally forfeited for federal habeas.

As sentence was enhanced for factors not found by the finder of fact, claim gets the retroactive benefit of Scotus holding barring such things.

Derry Lovins v. Tony Parker 

Sixth Circuit -- Donnetta Berrien v. USA

Federal government had no duty to inspect the structure inspected by contractor, so no FTCA liability.

Donnetta Berrien v. USA 

Sixth Circuit -- USA v. DTE Energy

EPA has standing to challenge plant emission claims prior to plant construction.

Dissent -- moot, given likely holding on remand, plus it's basically a right of pre-approval.

USA v. DTE Energy 

Sixth Circuit -- The Ohio Bell Telephone Co. v. Public Utilities Comm. of Ohio

Phone system patch points -- No error in arbitration holding applying more general provision of the Act to suit requesting relief under a more specific provision, as the intent of the statute was that the more general provision should apply as well.

Maybe.  Entertainment value only, folks.

The Ohio Bell Telephone Co. v. Public Utilities Comm. of Ohio 

Sixth Circuit -- Glendle Cain, III v. Owensboro Public Schools

Under Kentucky law, revocation of out-of-District status is tantamount to expulsion, triggering DP.  Deference to Kentucky AG's written opinion.

General knowledge of student's drug use insufficient for search of cell phone for text messages.

Mental health issues insufficient showing for Rehabilitation Act claim.

Glendle Cain, III v. Owensboro Public Schools 

Second Circuit -- United States v. James and Mallay

Extended Confrontation Clause discussion.  (Must-read.)  

A document is testimonial when prepared for use at a trial -- autopsy reports weren't, ergo not hearsay.

No error in exclusion of contradictory closing by prosecutors in another case, as there was a preponderance of evidence indicating an innocent explanation.

No error in limitation of cross on collateral inconsistent statements.

No error in denial of severance, as the potentially prejudicial issue was probative as to the racketeering charge.

Dicta - sealed indictment on another matter didn't implicate Confrontation Clause for taping of statements to CI.

Second taped statement in, as the stipulated dispute among the conspiracy was a sign of its viability, not its end.  [The opposite of conspiracy is not hate but indifference, perhaps.]

Post-trial letter alleging AUSA witness coercion not enough for evidentiary hearing.

United States v. James and Mallay

Second Circuit -- SDBC Holdings, Inc. v. NLRB

Management asseverations that they wanted to return the company to profitablility rather than sell it didn't trigger a duty to disclose financials to the union.

SDBC Holdings, Inc. v. NLRB

Second Circuit -- Gallagher v. United States

New Scotus holdings on plea-stage Ineffective Assistance were not made retroactive to cases pending on collateral appeal.

Gallagher v. United States

Second Circuit -- United States v. Botti

Honest-services jury instruction that was not limited to bribery and kickbacks is not grounds for reversal, as bribery was the only viable theory of the crime.

Discussion of "scheme or artifice" would not have implicitly created another theory for the conviction.

United States v. Botti

First Circuit -- Jakobiec v. Merrill Lynch Life Insurance

No breach of contract, as the third-party fraud would have happened even if the deft had issued the check to the correct entity.

Jakobiec v. Merrill Lynch Life Insurance 

First Circuit -- Moses v. Mele

Extended summary affirmation of summary judgment below.

Moses v. Mele 

Eleventh Circuit - Seburt Nelson Connor v. Secretary, Florida Department of Corrections, et al

No error in denial of competency hearing, as the challenge is entirely record-based, and the underlying claims were reviewed in state Habeas with an implicit determination of sufficient competence.  No statutory right to establishment of competency for collateral challenges.  AEDPA deference.

Ineffective Assistance claim properly denied, as not presenting cumulative evidence in mitigation doesn't establish Ineffective Assistance, and there was no showing of outcome-determinancy.

Seburt Nelson Connor v. Secretary, Florida Department of Corrections, et al

[thou shalt not kill.  -MB]

Tenth Circuit -- Klein-Becker USA v. Englert

Discovery sanctions against pro se litigant upheld.

Corporate veil can be pierced for purposes of sanctions by default judgment.

Disgorgement amount equal to gross sales upheld (copyright/Lanham Act)

But/for fraud damages upheld.

Injunction upheld, despite the fact that movant had sold the intellectual property at issue.

Demand for jury trial untimely.

Can't Cross on matters unrelated to the Direct.

Klein-Becker USA v. Englert

Ninth Circuit -- MAIRI TANEDO V. EAST BATON ROUGE PARISH SCHOOL

Denial of immunity on the grounds of right to petition (Noerr-Pennington) is not immediately appealable under Collateral Order doctrine, as its not easily separable from the case and is potentially subject to later appellate scrutiny in the usual way.

But not sufficiently intertwined to trigger pendant jurisdiction.

MAIRI TANEDO V. EAST BATON ROUGE PARISH SCHOOL

Eighth Circuit -- Christine Dollar v. Smithway Motor Xpress

Employment -- FMLA

Employee had already been transferred at time of incident, so no need to prove that she could return to her old job.

No failure to mitigate claim for denying settlement offer, as failure to mitigate is an affirmative defense waived if not made early in the game.

Given business uncertainties, 10 year prospective pay relief was unreasonable.

Christine Dollar v. Smithway Motor Xpress

Seventh Circuit -- Xing Zheng v. Eric Holder, Jr

Immigration -- China.  BIA error in not analysing record before denying Chinese immigrant relief was harmless, as there's nothing in the record that justifies relief.  Petition denied.

Xing Zheng v.   Eric Holder, Jr

Sixth Circuit -- Melissa Hearring v. Karen Sliwowski

S1983 -- Qualified immunity to school health worker for extraordinary examination of student.

Melissa Hearring v. Karen Sliwowski 

Sixth Circuit -- Metropolitan Hospital v. HHS

Chevron deference to HHS interpretation of statute.

Dissent: Circuit precedent establishes that Congress did indeed speak to the precise question at issue.


Metropolitan Hospital v. HHS 

Fifth Circuit -- Kenneth Richards v. Rick Thaler, Director

Mailbox timestamp rule applies to post-conviction challenges of incarcerated inmates in Texas.

Kenneth Richards v. Rick Thaler, Director

Second Circuit -- Cruz v. TD Bank, N.A., Martinez v. Capital One Bank, N.A.

Questions certified to the New York Court of Appeals -- (1) whether judgment debtors have a private right of action under state protective statute, and if so, (2) what right to damages, and (3) anything else that comes to mind.

Cruz v. TD Bank, N.A., Martinez v. Capital One Bank, N.A.

Second Circuit -- Selevan, et. al v. New York Thruway Authority (NYTA), et al.

Discount on toll bridge for island residents doesn't violate Dormant Commerce Clause.

Nonresidents' comparatively higher tolls give standing.

No strict scrutiny, as not a significant restriction on travel.

Toll discount sufficiently relates to actual usage and cost.

Selevan, et. al v. New York Thruway Authority (NYTA), et al.

Second Circuit -- Johnson v. Priceline.com, Inc.

Class-action against "name your own price" internet travel booking service doesn't state a claim, since there is no valid agency relationship created between the customer and the service -- the customer retains no ability to direct the activity of the service.

Johnson v. Priceline.com, Inc.