Second Circuit:
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. -- Gender discrimination claim under NYCHRL gets past summary judgment
Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs., P.C. -- Gender discrimination - Title VII and NYSHRL claims dismissed, as "paramour preference" is insufficient basis for claim.
Third Circuit:
Robert A. Mariotti, Sr. v. Mariotti Bldg Products -- For purposes of employee standing under the ADA, shareholder-directors of corporations other than professional corporations must be considered under common-law criteria of agency, and they must act according to their own right in exercising their authority, as opposed to exercising delegated authority.
Fourth Circuit:
US v. 4219 University Drive, Fairfax -- Crim - trial questions & JMOL
C Dept of Education v. US Secretary of Education -- IDEA (education rights of disabled)
US v. Raymond Allen -- Crim - sufficient evidence, crack/cocaine FSA adjustment
US v. Adley Abdulwahab -- Crim - Money laundering, mail fraud, conspiracy
Central Telephone Company of VA v. Sprint Communications Company -- Phone carrier tie-in: Article III vs. State review of administrative decisions, Exhaustion, Judicial recusal, Contract interpretation.
The Country Vintner of NC v. E. & J. Gallo Winery -- FRCP - neither data storage nor transmittal count as costs that can be recovered under the fee-shifting statute - only when the file is converted to TIFF/PDF or printed onto CD.
US v. Frederick Springer -- Civil commitment - mootness, merits. Dissent.
Fifth Circuit:
USA v. Julian Garza-Guijan -- Sexual battery counts as a crime of violence for immigration purposes.
USA v. Fred Cooper -- Crim - trial issues, for-cause strike denied, lesser-included instruction, viability of firearm at issue.
Terry Lonatro, et al v. Orleans Levee District -- The Quiet Title Act only waives sovereign immunity when the underlying dispute is between the plaintiff and the United States.
Seventh Circuit:
USA v. Jose Tovar-Pina -- Sentencing - challenge to PSRs sustained despite lack of contemporaneous objection.
Gerald Kamlager v. William Pollard -- "De facto" confession not entitled to per se reversal after 6A challenge
Ji Cheng Ni v. Eric H. Holder, Jr.
Big Ridge, Incorporated v. Federal Mine Safety and Review
Eight Circuit (From snazzy new website):
111380P.pdf 04/29/2013 United States v. Daniel Lee
U.S. Court of Appeals Case No: 11-1380
U.S. District Court for the Eastern District of Arkansas - Little Rock
[PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
Prisoner case - habeas. Lee's trial counsel's use of peremptory strikes
based on race in violation of Georgia v. McCollum, 505 U.S. 42 (1992)
did not deprive him of effective assistance of counsel; Lee's
constitutional challenges to his sentence were rejected in his direct appeal
and cannot be relitigated by way of a petition for postconviction relief
under Section 2255; other challenges to the death sentence were outside
the scope of the certificate of appealability.
103076P.pdf 04/26/2013 Shirley Phelps-Roper v. Chris Koster
U.S. Court of Appeals Case No: 10-3076
U.S. District Court for the Western District of Missouri - Jefferson City
[PUBLISHED] [Bye, Author, with Wollman and Shepherd, Circuit Judges]
Civil case - Funeral Protests. Plaintiff's speech at funerals, while
repugnant to some listeners, is entitled to constitutional protection; since
the plaintiff established that she engages in First Amendment expressive
conduct protected by the First Amendment, the district court properly
placed the burden of proof on the State as the proponent of the funeral
protest laws which restricted plaintiff's right to engage in the conduct;
given the en banc court's decision in Phelps-Roper v. City of Manchester,
Mo., 697 F.3d (8th Cir. 2012), Missouri has shown a significant
government interest in protecting the peace and privacy of funeral
attendees for a short time and in a limited space; the failure, however, to
define the spatial extent of the buffer zone in Missouri Rev. Stat. Sec.
578.501 resulted in the statue burdening substantially more speech than is
necessary to serve Missouri's interests and prevents the section from
being narrowly tailored; both Sec. 578.501 and 578.502 use the word
"processions" in their definition of a funeral, and the use of this word
creates a "floating zone," giving both sections impermissibly broad reach;
however, severing the word from the statutory sections, results in a three-
hundred-foot buffer zone in Section 578.502, and, with the word severed,
this statutory section is constitutional since it is narrowly tailored and
leaves open ample alternative channels for communication of plaintiff's
message; elimination of the word from Section 578.501 does not solve
the remaining constitutional problems for that section, and the district
court did not err in finding it unconstitutional.
121342P.pdf 04/26/2013 United States v. Lowell Baisden
U.S. Court of Appeals Case No: 12-1342
U.S. District Court for the District of Nebraska - Lincoln
[PUBLISHED] [Smith, Author, with Beam and Gruender, Circuit Judges]
Criminal case - Criminal law. The record established the district court
properly reviewed defendant's request for new counsel and correctly
denied it; defendant's attempt to withdraw his guilty plea did not have
factual or legal support and was properly denied; the record further
showed defendant had received competent, effective assistance of counsel
in connection with his plea.
121786P.pdf 04/26/2013 Smith Flooring v. Pennsylvania Lumbermens Mutual
U.S. Court of Appeals Case No: 12-1786
U.S. District Court for the Western District of Missouri - Springfield
[PUBLISHED] [Smith, Author, with Beam and Gruender, Circuit Judges]
Civil case - Insurance. The district court erred in finding there were no
issues common to the parties' legal and equitable claim, and plaintiff had
a Seventh Amendment right to trial by jury on the common issue of what
the terms of the parties' intended contract were; the court also erred in
treating the jury's verdict as merely advisory under Fed. R. Civ. P. 39
insofar as this issue was concerned; however the errors doe not
necessitate reversal of the court's order granting post-verdict judgment to
defendant as the evidence was not sufficient to support the jury's verdict
for plaintiff, and the district court did not err in reforming the insurance
policy.
121806P.pdf 04/26/2013 American Bank of St. Paul v. TD Bank, N.A.
U.S. Court of Appeals Case No: 12-1806
and No: 12-1862
and No: 12-2399
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Benton, Author, with Smith and Melloy, Circuit Judges]
Civil case - Torts. The district court did not err in denying defendant
Mercantile's Rule 50 motion for judgment as a matter of law on
plaintiff's aiding and abetting and conspiracy claims; excluding
defendant's evidence of other banks' reactions to the borrower's fraud
was not error; challenges to jury instructions rejected; denial of plaintiff's
motion for additur was not an abuse of discretion, as the amount of
damages was properly left to the jury.
122376P.pdf 04/26/2013 United States v. Matthew Olsson
U.S. Court of Appeals Case No: 12-2376
U.S. District Court for the Western District of Missouri - Jefferson City
[PUBLISHED] [Shepherd, Author, with Riley, Chief Judge, and Loken,
Circuit Judge]
Criminal case - Criminal law and Sentencing. Challenges to cross-
examination of the government's witnesses rejected; defendant's prior
conviction for second-degree burglary qualified as a crime of violence for
purposes of career offender sentencing under Guidelines Sec. 4B1.1.
122482P.pdf 04/26/2013 David Longaker v. Boston Scientific Corporation
U.S. Court of Appeals Case No: 12-2482
U.S. District Court for the District of Minnesota - Minneapolis
[PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
Civil case - Contracts. The district court did not err in determining
plaintiff lacked standing to pursue his breach of contract claim against his
former employer as the claim belonged to plaintiff's bankruptcy estate;
plaintiff never asked the court for leave to amend his complaint to include
a retaliation claim under Minnesota's Human Rights Act, and the court
could not err by failing to grant leave under these circumstances. Judge
Bye, concurring in part and dissenting in part.
123028P.pdf 04/26/2013 United States v. David Nicklas
U.S. Court of Appeals Case No: 12-3028
U.S. District Court for the Western District of Arkansas - Fayetteville
[PUBLISHED] [Bye, Author, with Riley, Chief Judge, and Benton,
Circuit Judge]
Criminal case - Criminal law. In a prosecution for transmitting a fax
containing a threat to injure in violation of 18 U.S.C. Sec. 875(c), the
court did not err in granting the government's motion to strike the word
"wilfully" from the indictment as the section creates a general intent
crime and the section does not require the government to prove a
defendant specifically intended his or her statements to be threatening;
instead, the government must prove a reasonable recipient would have
interpreted the fax as a serious threat to injure; as a result, the word
willful was properly stricken as surplusage; evidence was sufficient to
support defendant's conviction; no error in refusing to give defendant's
proposed instruction on reasonable doubt as it was foreclosed by circuit
precedent.
123211P.pdf 04/26/2013 Shawna Hess v. Carol Abels
U.S. Court of Appeals Case No: 12-3211
U.S. District Court for the Eastern District of Arkansas - Pine Bluff
[PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges]
Civil case - Employment law. In action brought by an city employee
who was terminated after refusing to take a drug test, the district court did
not err in granting the defendants' motion for summary judgment based
on qualified immunity as it was not clearly established at the time of the
termination that such an action violated an employee's Fourth
Amendment rights; plaintiff's Fifth Amendment and Fourteenth
Amendment claims failed to allege a constitutional violation; the district
court properly dismissed the official capacity claims against the
individual defendant and the claims against the City; no error in
dismissing claims under the Arkansas Civil Rights Act.
Ninth Circuit:
CLEVO CO. V. HECNY TRANSPORTATION, INC.
ROBIN PETERSEN V. BOEING COMPANY
GRAND CANYON SKYWALKDEVELOPMENT V. 'SA' NYU WA INCORPORATED
USA V. MICHAEL RAMIREZ
Tenth Circuit - nothing published today, unknown if any published opinions were posted Friday.
DC Circuit:
Flagstaff Medical Center, Inc. v. NLRB
American Petroleum Institute v. SEC
AstraZeneca Pharmaceuticals LP v. FDA
Federal Circuit:
ROBERT MACLEAN v. DHS [OPINION]
BIOSIG INSTRUMENTS, INC. v. NAUTILUS, INC. [OPINION]
Incomplete summaries today. Time/equipment limits. Better results in the next at-bat.
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