Seventh Circuit -- USA v. Michael Roux

Judge appropriately limited evidence as to prior bad acts to motive and identity.

Uncharged nature of prior bad acts not dispositive.

Arrest photos admissible for purposes of identifying deft in crime photos.

Prosc reference to jail telephone calls not grounds for mistrial.

Cross of deft did not implicate right to remain silent.

USA v.   Michael Roux

Fourth Circuit -- L.S. v. Pamela Shipman

Where the Secretary has decided to comply with an injunction restoring Medicaid services, state agency has no standing to challenge the injunction.

Litigation decisions can constitute final agency action for purposes of review when tantamount to a specific policy choice.

Would be an advisory opinion anyway.

L.S. v. Pamela Shipman

Fourth Circuit -- Timothy Branigan v. Bryan Davis

As they are unsecured interests, value-less liens can be stripped off in Chapter 20 proceedings even absent possibility of final discharge.  Courts must first value the interest.

Dissent: Liens with no present value therefore worse off than unsecured interests.

Timothy Branigan v. Bryan Davis

Sixth Circuit -- Frances Spurlock v. David Fox

School bussing -- Even where policymakers considered racial data, classification of students by location of home does not amount to classification by race.

Where the plan has indicia of legitimate intent, there is no segregative intent unless there is an overwhelming or suspicious concentration that leaves no room for inference to the contrary.

School under-utilization suffices for rational basis.

Frances Spurlock v. David Fox 

Sixth Circuit -- USA v. Tyree Washington

Difference in skin tone did not make photo lineup impermissibly suggestive.

Sufficient evidence for intent element of carjacking statute where touching victim and brandishing weapon are both established.  Where one not established, finder of fact can find general threat suffices.

Lenity counsels that the ordering of convictions in a simultaneous verdict should be arranged to favor the defendant when calculating total length of sentence.


 USA v. Tyree Washington 

Sixth Circuit -- Lee Gardner v. Heartland Industrial Partners

ERISA does not preempt state-law tortious interference claim.

Lee Gardner v. Heartland Industrial Partners 

Sixth Circuit -- Donnetta Smith v. Stoneburner

Ambiguity as to what the suspect said at the door of the house before police entered is the epitome of a triable fact.

Where narratives are disparate, it's not therefore a close call that should be granted S1983 immunity under lenity, but rather an issue for the trial.

No immunity for warrantless arrest made by reaching across the threshold of the door.

Arrest quite possibly involved excessive force.

Bad faith is a triable question.

 Donnetta Smith v. Stoneburner 

Sixth Circuit -- USA v. Kenneth Kennedy

Mail and wire fraud statutes cover both fraudulent loans and fraudulent investments.

Subjective good faith in scheme's fraudulent premise does not exculpate.

Deft had no right under FRCrimP to know vote-count/holdout revealed in jury note.

No error in denial of juror interview.

For purposes of sentencing enhancements, specific knowledge of funds acquired by scheme is not necessary.  Merely that they were reasonably forseeable outcomes of the scheme.

Sophistication & Obstruction sentencing bumps upheld.

USA v. Kenneth Kennedy 

Second Circuit -- RLI Insurance Co. v. JDJ Marine, Inc.

No extension of time to file brief absent (new) extraordinary circumstances where parties selected return date for answer, and prior extension was given, even though parties consented to the extension.

No reinstatement of case where filing deadline has passed even though court denied motion for extension of time to file after the deadline to file.

(Circuit-specific rules, not so much FRCP.)

RLI Insurance Co. v. JDJ Marine, Inc.

Short Form - Rest of Thursday

Short on time today, so...

Sixth:

Ivy Bailey v. Edward Callaghan  -- No First Amendment / Equal protection (Rational Basis) claim against school district's unwillingness to withhold union dues.  Dissent.

Les Kepley v. Gerald Lanz -- Since shareholders of closely held corporation had to sell at a loss, they had distinct harms as opposed to harms derived from harms to the corporation.  Decision under Delaware law, as Kentucky courts would likely apply it.

Seventh:

Qiu Chen v.   Eric Holder, Jr.  -- Posner - immigration/forced sterilization.

Eighth: (From site)

121555P.pdf   05/09/2013  Thomas P. Cawley  v.  Frank Celeste
   U.S. Court of Appeals Case No:  12-1555
   Appeal from the Bankruptcy Appellate Panel for the Eighth Circuit    
   [PUBLISHED] [Colloton, Author, with Riley, Chief Judge, and
   Gruender, Circuit Judge]
   Civil case - Bankruptcy. All of the elements of North Dakota's res
   judicata standard were met in this case, and the state court judgment was
   entitled to preclusive effect under the full faith and credit statute - 28
   U.S.C. Sec. 1738.

122334P.pdf   05/09/2013  Affordable Communities of MO  v.  Federal Nat'l. Mortgage Assoc.
   U.S. Court of Appeals Case No:  12-2334
   U.S. District Court for the Eastern District of Missouri - St. Louis    
   [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
   Civil case - Contracts. The district court did not err in finding plaintiff
   had failed to plead facts establishing that defendant EFA was Fannie
   Mae's agent in connection with a loan plaintiff obtained; viewing the
   contract language in the context of the entire written document and
   considering the likely intent of the parties, the court concludes the
   agreement was ambiguous as to whether the phrase "condemnation sale"
   included a sale in lieu of condemnation, and the district court erred in
   dismissing plaintiff's claim that Fannie Mae breached the contract;
   district court did not err in dismissing plaintiff's breach of implied
   covenant of good faith and fair dealing claim or its claim for unjust
   enrichment.

Ninth:

USA V. IRVIN SANDOVAL-ORELLANA  -- California s-xual penetration statute is a crime of violence for immigration purposes.

RIGHTHAVEN LLC V. WAYNE HOEHN -- Copyright/ Standing - assignment of right to sue without assignment of the underlying rights does not give standing.

MARTIK SARGSYAN V. ERIC H. HOLDER JR. -- Cryptic denial of fees.

Federal:

GENERAL DYNAMICS CORPORATION v. LEON PANETTA, SECRETARY OF DEF [OPINION]

Fifth Circuit -- Mary Ainsworth v. Cargotec USA, Incorporated

Reasonable expectation of substantial sales in a jurisdiction suffices for personal jurisdiction under "stream of commerce" theory.

Mary Ainsworth v. Cargotec USA, Incorporated

Fourth Circuit -- US v. Nicole Grant

Anticipated prospective tax refunds are not sufficient basis for revision of restitution order where the circumstances were in evidence at sentencing and no new findings are made as to the impact on the deft's ability to pay.

US v. Nicole Grant 

Third Circuit -- National Amusements Inc v. Borough of Palmyra

No pre-closing notification was needed under procedural Due Process to close the market, given the discovery of unexploded munitions.

Closing market did not require compensation under Takings Clause, as it was a core public safety function.

Even given a low probability of harm from the explosives, the standard of review under state statute's arbitrary and capricious analysis is whether a reasonable finder of fact could conclude that closure was necessary.

Although the market eventually won right to reopen, since S1983 claims were denied on the merits, no award of interim fees.

National Amusements Inc v. Borough of Palmyra

Second Circuit -- United States v. Steele

When resentencing (here for crack/cocaine), court should not apply any downward departures applied in previous sentencing -- with the exception of the substantial assistance downward departure.

United States v. Steele

Second Circuit -- United States v. Figueroa

Where prisoner stipulates to conduct sanctions incurred during time of incarceration, District Court can properly deny crack/cocaine resentencing for otherwise eligible deft.

United States v. Figueroa

Eighth Circuit -- Michele Hathorn v. Corwin Petty

Bankruptcy -- filing of challenge was timely.

Michele Hathorn  v.  Corwin Petty

Eighth Circuit -- United States v. Alireza Bakhtiari

Sentencing -- Within-guidelines sentence affirmed.

United States  v.  Alireza Bakhtiari

Eighth Circuit -- United States v. John Arrocha

Decision to tow vehicle was permissible, and evidence was therefore admissible as fruits of inventory search.

United States  v.  John Arrocha

Eighth Circuit -- Miles LaCross v. City of Duluth

S1983 suit after tasering of suspect - at the time of offense, officer could reasonably have believed that a tasering that inflicted minimal injury (as distinct from not employing excessive force) was not unconstitutional.

Taser not sui generis for excessive force claims.  Same analysis as other weapons.

Miles LaCross  v.  City of Duluth

Eighth Circuit -- Primitivo Alavez-Hernandez v. Eric H. Holder, Jr.

Immigration -- Mexico - past incidents in village against evangelicals do not justify withholding of removal, as relocation to city is possible.

Primitivo Alavez-Hernandez  v.  Eric H. Holder, Jr.

Eighth Circuit -- Luisa Chavez-Lavagnino v. Motivation Education Training

Complete diversity must exist at the time of removal to federal court -- subsequent move by party doesn't cure.

 Luisa Chavez-Lavagnino  v.  Motivation Education Training

Federal Circuit -- USHIP INTELLECTUAL PROPERTIES v. US

Patent -- validation of parcel receipt.

USHIP INTELLECTUAL PROPERTIES v. US 

Federal Circuit -- DECKERS OUTDOOR CORPORATION v. US

As a matter of law, slip-on shoes can be either shoes or boots.  Battle of dictionary definitions.

Dissent: Nope.  Legislative intent.

DECKERS OUTDOOR CORPORATION v. US 

Eleventh Circuit -- Franklin Owusu-Ansah v. The Coca-Cola Company

To have standing under the ADA's provision barring examination or inquiry into medical condition, plaintiff need not demonstrate that they have a disability protected under the ADA.

Employer's inquiry in this case was reasonable, given employee's statements.

Franklin Owusu-Ansah v. The Coca-Cola Company

Ninth Circuit -- THOMAS GOLDSTEIN V. CITY OF LONG BEACH

For purposes of S1983, California District Attorneys act as local policymakers (not state agents) when developing policies related to the use of jailhouse informants.

Concurrence -- California Supreme Court holding suggesting the contrary is imprecise in defining policy-making role of the DA.

THOMAS GOLDSTEIN V. CITY OF LONG BEACH

Seventh Circuit -- USA v. Charles Goodwin

Sentencing --

Offender registration law not an unconstitutional delegation of legislative authority.

Not registering is not a s-x offense.

Supervised release conditions reversed.

USA v.   Charles Goodwin

Seventh Circuit -- USA v. Tyrone Reynolds

Sentencing --

Leader of kidnapping troupe appropriately received leadership sentencing enhancement, but ransom sentence enhancement reversed, as there was no ransom demand communicated to a third party.

USA v.   Tyrone Reynolds

Seventh Circuit -- Terri Basden v. Professional Transportation

Plaintiff did not have a claim for discrimination under the ADA after only a preliminary diagnosis of disabling disease.

Plaintiff was ineligible for FMLA claim as she had not been employed for one year.

Terri Basden v.   Professional Transportation

Third Circuit -- USA v. Diego Duque-Hernandez

No plain error in modified-categorical approach to assessing drug trafficking enhancement based on a drug distribution prior.

USA v. Diego Duque-Hernandez

Third Circuit -- ACS Recovery Services, Inc., et al v. Larry Griffi

ERISA --

Claim for relief under the statute suffices for jurisdiction irrespective of final decision on merits.

Constructive trust can be imposed as equitable relief against Participant's trust which received commingled funds from a tort recovery, since the Administrator had a right to recover earlier payments.

Concur/dissent -- recovery from individuals, not the trust.

Concur/dissent -- Commingled funds in special needs trust are unreachable.

ACS Recovery Services, Inc., et al v. Larry Griffi

Second Circuit -- Weber v. SEFCU

Creditor must return repossessed articles to trustee or debtor-in-possession upon learning of the filing of Chapter 13 petition -- no affirmative suit by trustee or debtor-in-possession is required.

Minor circuit split flagged.

Belief that additional security was needed before release of the property does not excuse the retention.

Intention to retain the property made this a willful act, subject to penalties and costs.

Weber v. SEFCU

Second Circuit -- Edelhertz v. City of Middletown

Short per curiam -- zoning change with minimal notification didn't offend Due Process, as it was prospective in nature and generally applicable.

Edelhertz v. City of Middletown

First Circuit -- Nikitine v. Wilmington Trust Company

Denial of leave to amend without showing of cause one year after filing of suit upheld.

Nikitine v. Wilmington Trust Company 

First Circuit -- Bacardi International Limited v. V. Suarez & Co., Inc.

Parties to an arbitration are not, per se, required parties that must be joined for the judicial confirmation of the arbitrator's decision.  Decided without remand.

Federal action stayed due to parallel suit in state courts.

Bacardi International Limited v. V. Suarez & Co., Inc. 

First Circuit -- US v. LaPlante

Fraudulent misrepresentation theory of mail fraud does not add an element of misrepresentation to the common-law elements of mail fraud.

No need for unanimity jury  instruction as to which statement in particular was fraudulent.

No ineffective assistance claim based on deft's introduction of prior bad acts, as other evidence was overwhelming.

US v. LaPlante 

The Rest of Today's Decisions

Ninth:

USA V. VICTOR SIVILLA

Tenth:

FTC v. Chapman
Squires v. Breckenridge Outdoor Educ Cntr

Eleventh:

John D. Dupree v. Warden, Attorney General, State of Alabama

DC:

USA v. Larry Brinson-Scott
Judith Barnett v. PA Consulting Group, Inc.
Natl Assoc. of Manufacturers v. NLRB

Federal Circuit:

BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 

- MB

Eighth Circuit -- Andrea Olsen v. Capital Region Medical Center

Discrimination --

No age discrimination / ADA claim for plaintiff subject to seizures, as they are not qualified to do the job when subject to seizures.

Andrea Olsen  v.  Capital Region Medical Center

Seventh Circuit -- USA v. Jeremiah Dorai Jacob

Appeal dismissed, as defendant is apparently now a fugitive.

USA v.   Jeremiah Dorai Jacob

Seventh Circuit -- Jose J. Loera, Jr. v. USA

Dismissal of indictment was insufficiently final judgment on the merits to allow for automatic exclusion of evidence barred in the first proceeding under exclusionary rule.

As there was no prejudice or invidious intent behind the delay, no basis for ineffective assistance claim on Speedy Trial Act violation.

Jose J. Loera, Jr. v.   USA

Sixth Circuit -- USA v. Stephen Graham-Wright

Court can use results of pretrial psychiatric examination requested by and available only to the defense (and court) in sentencing.

Dissent: Fifth Amendment.

USA v. Stephen Graham-Wright 

Fifth Circuit -- USA v. Wen Liu

Harmless error to exclude expert testimony of expert with limited personal knowledge of the facts.  Competency determines admissibility, familiarity with case determines weight given.

USA v. Wen Liu

Third Circuit -- USA v. Albert Savani

Sentencing.

Deft was sentenced to under mandatory minimums due to cooperation.  Guidelines ranges for the relevant offenses subsequently were lowered.  Deft can move for review of sentence under statute permitting such review where the "applicable guidelines range" has changed, as the mandatory minimum is not the "guidelines" range.

Concurrence: No need to invoke lenity.

Circuit split flagged.

USA v. Albert Savani

Second Circuit -- United States v. Chu

Sentencing --

Acceptance of responsibility sentencing reduction may be denied to an otherwise qualifying defendant who attempts a similar crime in the interval.  (Smuggling drugs into detention facility.)

Substantively reasonable, correct calculation of amount of drugs.

United States v. Chu

Second Circuit -- Steel Institute of New York v. City of New York

NYC laws regulating construction cranes are not preempted by federal workplace safety rules, as they are laws of general applicability, affecting both workplace safety and public safety.

Steel Institute of New York v. City of New York

Second Circuit -- Fezzani v. Bear, Stearns & Co.

Securities --

Pleading standard for private civil damage actions is higher than SEC civil actions -- knowing and substantial assistance in the fraud is insufficient.  (i.e., no specific reliance)

State statutory fraud claim stated.

Concur/Dissent:   Sufficient participation in the fraudulent scheme.  (i.e. fraud on the market)

Fezzani v. Bear, Stearns & Co.

First Circuit -- DeLong v. Dickhaut (5/6)

Habeas --

Prisoner's challenge to denial of extension of time to file challenge evinced an intention to challenge the underlying action, and the collateral challenge was therefore timely..

When dismissing a petition that has both exhausted and unexhausted claims, court must make specific findings as to good cause for the non-exhausted claims.

DeLong v. Dickhaut 

Eleventh Circuit -- Sylvia Bapte, et al. v. West Caribbean Airways, et al.

Plaintiff who argues in foreign forum that the action is limited to the initial domestic forum due to the Montreal Convention (despite the fact that the initial domestic forum dismissed the action under forum non conveniens) is not entitled to relief in the domestic forum for changed circumstances when they prevail in the foreign forum.

Sylvia Bapte, et al. v. West Caribbean Airways, et al.

Eleventh Circuit -- Odebrecht Construction, Inc. v. Secretary, Florida Department of Transportation

Sufficient likelihood of success of claim that state statute barring contracts with companies doing business in Cuba is preempted.

Odebrecht Construction, Inc. v. Secretary, Florida Department of Transportation

Eleventh Circuit -- Montgomery County Employees' Retirement Fund v. Vitacost.com, Inc., et al.

Securities -- statements did not materially mislead.

Plans to terminate the CEO did not alter the total mix of information, as the CEO's role was explicitly limited while under investigation.

Unannounced relocation of principal place of business doesn't state a claim.

Knowledge of all FDA violations is not imputed to he company after citation for only a few of them.

Meaningful cautionary language and lack of fore-knowledge TKO growth predictions claim.

Montgomery County Employees' Retirement Fund v. Vitacost.com, Inc., et al.

Eleventh Circuit -- David H. Crumpton v. Richard Stephens

Payment to shareholder of closely held S-corporation in order to offset tax liability generated by the corporation's assets was not a fraudulent transfer, as it was compensation for the S-corporation election.

David H. Crumpton v. Richard Stephens

Tenth Circuit -- Browning v. Trammell

Habeas grant under Brady where central prosecution witness had psychiatric issues.

Browning v. Trammell

[Thou shalt not kill.  - MB]

Tenth Circuit -- United States v. Copar Pumice Company

Post-judgment appeal suffices for review of privilege claim.

As Petitioner is a party to the present civil action, no review is possible under non-party protective privilege (Perlman) doctrine.

No review under pragmatic finality doctrine, as the issue is insufficiently final, in a pragmatic sense.

Given alternate avenues of redress, Mandamus not warranted.

United States v. Copar Pumice Company

Ninth Circuit -- IN RE COMPLAINT OFJUDICIAL MISCONDUCT

Litigant with communications disability cannot ask as a reasonable accommodation that caretaker speak for him, as this amounts to the practice of law.

IN RE COMPLAINT OFJUDICIAL MISCONDUCT

Eighth Circuit -- Bank of the West v. National Bank of Kansas City

Similarity between two pieces of equipment is not sufficient basis to impose an equitable lien on the after-acquired piece when the interest on the first piece lapses / has insufficient seniority of claim.

[Entertainment purposes only, folks.]

Bank of the West  v.  National Bank of Kansas City

Eighth Circuit -- United States v. Kenneth Pappas

Sentencing -- enhancements correctly applied, sentence substantively reasonable.

United States  v.  Kenneth Pappas

Eighth Circuit -- United States v. John Perry

Crim  --

Sufficient evidence that the tax evasion happened within the statute of limitations period.

Interview during search of home did not elicit involuntary statements.

Franks challenge to warrant insufficiently detailed.

Sentencing challenge.

Decision on whether forfeiture should offset restitution to government is not ripe until forfeiture happens.

 United States  v.  John Perry

Seventh Circuit -- Zena Phillips v. The Prudential Insurance

Default option for life insurance policy which paid proceeds to an account maintained by the insurer at a fixed interest rate does not state a claim for breach of contract, vexatious delay, or breach  of fiduciary duty.

Zena Phillips v.   The Prudential Insurance

Sixth Circuit -- USA v. Keith Thompson, Jr.

Sentence insufficiently based on old crack/cocaine guidelines for purposes of subsequent revision when judge merely makes reference to "statutory" objectives.

USA v. Keith Thompson, Jr. 

Sixth Circuit -- Robert Shuler v. H. Edward Garrett, Jr.

A Rule 59 motion with the wrong docket number is nonetheless timely filed.

Robert Shuler v. H. Edward Garrett, Jr. 

Fourth Circuit -- Oakley Baldwin v. City of Greensboro

A Federal statute that created a right of action was sufficiently distinct from its predecessor statute to qualify under the generic federal 4-year statute of limitations, and its successor statute's elimination of limitations isn't retroactive to claims arising under it.

Agency investigation did not toll the statute of limitations.

Oakley Baldwin v. City of Greensboro

Second Circuit -- Berlin v. Renaissance Rental Partners, LLC

Chevron-ish deference to agency interpretation of a term that allows single-floor condominiums to qualify for reporting requirements of land lots.

Berlin v. Renaissance Rental Partners, LLC

Second Circuit -- Fink v. Time Warner Cable

False advertising class action claim not stated when the complaint doesn't include a copy of the ad.

Fink v. Time Warner Cable

Rest of Friday

Running short on time - so:

Sixth Circuit :

USA v. Robert Johnson, Jr. 
 Karl Kraus, Jr. v. Clark Taylor 
McCoy Elkhorn Coal Corporation v. Vernie Dotson 

Seventh:

Fidel Munoz-Avila v.   Eric Holder, Jr.
Keith Dookeran v.   Cook County   Dissent


Eighth (From site)

121617P.pdf  05/03/2013  United States  v.  Adekunle Olufemi Adetiloye
   U.S. Court of Appeals Case No:   12-1617
                          and No:   12-1919
   U.S. District Court for the District of North Dakota - Fargo   
   [PUBLISHED] [Bye, Author, with Wollman and Benton, Circuit Judges]
   Criminal case - Sentencing. District court thoroughly considered the
   3553(a) factors at the sentencing hearing, issued a 17-page sentencing
   memorandum and provided a sufficient explanation for its sentencing
   decision; district court did not err in denying defendant a reduction for
   acceptance of responsibility where defendant contested factual statements
   and nearly all applicable enhancements in the PSR; no error in imposing
   an enhancement under Guidelines Sec. 3B1.1(a) for leadership role in the
   offense; no error in imposing an upward enhancement on the ground the
   offense level substantially understated the seriousness of the offense;
   where the government failed to provide documentation with the required
   specificity and reliability to establish the amount of restitution, the court
   should have postponed the restitution proceedings for the gathering and
   presentation of additional evidence; similarly, the district court erred in
   ordering forfeiture in the limited amount set out in its restitution order;
   the restitution and forfeiture orders are vacated and remanded for further
   proceeding regarding the losses the victims sustained and the proceeds
   defendant gained from the scheme.
  

136011P.pdf  05/03/2013  David Lynd  v.  Charles Ries
   U.S. Court of Appeals Case No:   13-6011
   U.S. Bankruptcy Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Federman, Author, with Nail and Saladino,
   Bankruptcy Judges]
   Bankruptcy Appellate Panel. To the extent Lynd requested the
   bankruptcy court to deviate from the Code and order that his
   restitution claim be paid from some source not authorized by
   the Code, the bankruptcy court was without authority to grant
   such relief, and the court did not err in denying his request.






Ninth:



FRANCISCO MENDOZA-ALVAREZ V. ERIC H. HOLDER JR.

BENITO ACOSTA V. CITY OF COSTA MESA

AMY & VICKY V. USDC, SACRAMENTO



Tenth:



Wilson v. Montano

United States v. Luna-Acosta



Eleventh:



Denise Schippers, et al. v. USA



Federal:






2013-05-03
12-7089
CAVC
ARNOLD PARKS v. SHINSEKI [OPINION]
Precedential
2013-05-03
12-7003
CAVC
ARNOLD KYHN v. SHINSEKI [OPINION]
Precedential
2013-05-03
12-1186
CIT
FORD MOTOR COMPANY v. US [OPINION]
Precedential







Summaries TK



MB

Fifth Circuit -- S. Washington v. Rick Thaler, Director

Habeas -- Jury Selection

No Supreme Court precedent requiring dismissal of juror absent objection by one of the parties.

S. Washington v. Rick Thaler, Director

Fifth Circuit -- Ray Miller v. Rick Thaler, Director

Habeas / AEDPA --

Denial of attempt to go pro se / Ineffective Assistance.

Ray Miller v. Rick Thaler, Director

Fifth Circuit -- USA v. Ernesto Becerril-Pena

Sentencing/ Immigration -- challenges to supervised release and denial of downward variance.

USA v. Ernesto Becerril-Pena

Fifth Circuit -- Richard Miller v. Raytheon Company (5/2)

Age-Discrimination JMOL

Although each element fell short, considered as a whole, the jury could reasonably have found for the plaintiff.

Discrimination in rehiring suffices for the willfulness requirement of ADEA.

Judgment for pension enhancement needs to be restated as for front pay so as not to be a speculative future harm.

Insufficient evidence for mental anguish 1M.

Single injury claim under federal and state statute is only entitled to one recovery.

Damage cap, fees, prejudgment interest claims addressed.

Richard Miller v. Raytheon Company

Fourth Circuit -- Unspam Technologies, Inc. v. Andrey Chernuk

FRCP --

Conclusory allegations of conspiracy do not justify exercise of personal jurisdiction over foreign banks.

No "arising under" jurisdiction absent proof of minimum contacts.


Unspam Technologies, Inc. v. Andrey Chernuk

Fourth Circuit -- John Coleman v. DEA (5/2)

Extended and inexcusable agency delay is, per se, a constructive exhaustion of agency remedies.

(FOIA)

John Coleman v. DEA

Second Circuit -- Reyes v. Holder

Immigration: Agency erred in applying same criteria to inadmissibility as deportability, as Congress might reasonably have attempted to impose a greater burden of compliance on those living under the laws of the country.

Reyes v. Holder

First Circuit -- Senra v. Smithfield, RI

Post-termination arbitration satisfied Due Process, as it addressed cause for firing; Constitutional and statutory violations can be beyond the scope of arbitration.

No Due Process right to the stated grievance procedures.

State statutory claims denied.

Special concurrence/ Concurrence in part: State law quibble.

 Senra v. Smithfield, RI 

First Circuit -- US v. Gomez

Crim --

Sufficient evidence for single conspiracy -- events introduced were therefore not outside the timeline and a variance from the indictment.

Sufficient probable cause for search, as police knew the substance of the transaction in the abandoned building.

No Apprendi violation in sentencing enhancement for quantity of drug above what was charged in the indictment, as the enhancement is found by a preponderance.

No unfair notice for same, as deft had knowledge of the amounts involved.



US v. Gomez 

First Circuit -- Nieves-Romero v. US

As there was no evidence as to when the situation became dangerous, the agency cannot be charged with constructive knowledge of the danger, and summary judgment was appropriate.

No abuse of discretion in granting summary judgment during pendency of extended discovery period.

Nieves-Romero v. US 

Circuit Break?

Only one published opinion from the circuits is up as of this writing -- from the Ninth, summarized, supra/infra.    No published opinions today -- the one in the Ninth is an amended opinion.  We'll check again tomorrow, as the Fourth apparently hasn't rolled yet, and the First and Second sometimes slip ones over the transom late in the day.

Odd -- having done this for about 2,500 posts, this is the lightest day in memory.

MB

Short Form -- Wednesday

Quick work today.  As always, entertainment value only.  Don't rely.

First Circuit:  (Souter pitches both games.)

US v. Rodas   Crim -- when the government proved the conspiracy, deft lost Confrontation Clause and prejudicial non-severance claims, as the taped statements in question were statements by conspirators in furtherance of the conspiracy.

US v. Stebbins, Jr.  -- Below-guidelines sentence upheld against deft appeal.  Deft had reason to know that the firearms would be used illicitly.  Motion for credit for previously served time was not made.  Not overall substantively unreasonable.

Second Circuit:

United States v. Richard James and Ronald Mallay  -- Crim. - Admission of lab report didn't violate Confrontation Clause.  Among other things:  trial issues, denial of severance, Confrontation Clause / taped statements.

Southern New England Telephone Company v. Comcast -- Telephone system deregulation -  No preemption, as no Congressional intent and agency indecision was a deliberate attempt to allow the states to experiment.   Merits.  State commission action reversed.    

Caronia v. Philip Morris USA  -- Tobacco liability - UCC and common law claims dismissed.  Question certified to NY top court as to whether the need for ongoing medical monitoring presents a viable separate claim.

Third Circuit:

USA v. Donald Turner -- Co-conspirators' statements aren't hearsay - the conspiracy was proved, as it was an organization devoted to popularizing the author's system of tax preparation, later found to be illicit.  Foreign bank documents had sufficient indicia of trustworthiness. Restitution to IRS upheld.

Fourth Circuit:

Mary DiFederico v. Marriott International, Incorporated   -- Forum non conveniens dismissal reversed for suit seeking damages for terrorist attack in Islamabad.

US v. Jervis Davis -- Restitution order to non-victim reversed, as plea agreement did not consent to it.

Fifth Circuit:

USA v. Melvin Towns, Jr. -- Crim - business record hearsay exception, safety valve sentencing reduction.

Erica P. John Fund, Inc. v. Haliburton Company, et -- Securities - Price-impact fraud on the market evidence should not be considered at certification stage.  

Glory Truong v. Bank of America, N.A., et al -- Rooker-Feldman does not bar claim, as the borrower was challenging not the foreclosure judgment, but the related actions of the banks.  Defts, however are immunie from suit, as state statute exempts federally-insured lenders.

American Family Life Assurance v. Glenda Biles, et  -- No abstention.  Arbitration order does not violate Anti-Injunction Act.  Merits upheld.

Sixth Circuit:

Libertarian Party of Michigan v. Ruth Johnson   -- Election Law - challenge not moot, as capable of repetition, avoiding review.

Bridgeport Music, Inc. v. Smith  --

Eighth Circuit:

(From the court's website)

103137P.pdf  05/01/2013  B & B Hardware  v.  Hargis Industries
   U.S. Court of Appeals Case No:   10-3137
                          and No:   11-1247
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [PUBLISHED] [Shepherd, Author, with Loken and Colloton, Circuit Judges]
   Civil case - Trademarks. For the court's prior opinions in the case, see
   B&B Hardware, Inc. v. Hargis Industries, Inc., 569 F.3d 383 (8th Cir.
   2009); and B&B Hardware, Inc. v. Hargis Industries, 252 F.3d 1010 (8th
   Cir. 2001). Assuming that Trademark Trial and Appeal Board decisions
   may be entitled to preclusive effect, such application is not appropriate
   here because the same likelihood-of-confusion issues were not decided by
   the Board as were brought in the action before the district court; the court
   rejects B&B's argument that the Board's factual findings from a
   trademark registration case are entitled to deference by the district court;
   district court did not abuse its discretion by refusing to admit the Board's
   decision into evidence as over the course of the seven-day trial the jury
   was presented with evidence regarding likelihood of confusion as it
   pertained to the factors under which the jury decided the claim of
   trademark infringement and the probative value of the Board's ultimate
   conclusion was minimal; the district court erred in including an award of
   attorneys' fees to Hargis for B&B's prior appeal as that appeal resulted in
   a ruling in B&B's favor and was not groundless or unreasonable; on
   remand, the court should amend its award of fees by deducting the fees
   for the appeal. Judge Colloton, dissenting. 
  
122913P.pdf  05/01/2013  United States  v.  Nathan Ozmon
   U.S. Court of Appeals Case No:   12-2913
   U.S. District Court for the Southern District of Iowa - Davenport   
   [PUBLISHED] [Murphy, Author, with Beam and Bye, Circuit Judge]
   Criminal case - Sentencing. Government did not breach the cooperation
   agreement when it used defendant's self incriminating statements from
   his proffer interview; sentence imposed was not substantively
   unreasonable. 
  


Ninth Circuit:


USA V. JEROME MANCUSO  -- Crim/Drugs - Multiple challenges to indictment, Question of whether the property was sufficiently used for illicit purposes,  sentencing challenges.


KEONE LABATAD V. CCA -- S1983 prisoner claim - summary judgment upheld, given lack of indifference by prison staff. (Assault by hostile gang member placed in same cell.)


Federal Circuit:


ALLERGAN, INC. v. SANDOZ INC. [OPINION]
STEPHANIE FIGUEROA v. HHS [OPINION]
VERSATA SOFTWARE, INC. v. SAP AMERICA, INC. [OPINION]


Long form tomorrow.  Still fighting equipment issues.  New Macbook Pros can be sent to the author, Poste Restante, Gotham.

MB