Out of Time

MB is still working under diminished resources -- apologies, but 8, 9, 10, 11 DC & FED skipped today.  Ciao.

MB

Seventh Circuit -- USA v. Danny Turner

SCOTUS remand -- Confrontation Clause error on expert cross was harmless.

USA v. Danny Turner

Seventh Circuit -- Juana Sanchez v. Prudential Pizza,

In Rule 68 motion "claims for relief" do not necessarily include fees.

Juana Sanchez v. Prudential Pizza,

Seventh Circuit -- Caterpillar Financia v. Peoples Nat

Posner quotes "As You Like It," writes secured transactions opinion -- viz:

Two creditors claimed an interest, second one held a good note subordinating a third's interest -- but that note subordinated the holder's interest to the other original creditor.  So it's arguing for partial subordination. Incidental arguments on PMSI and SIV fall by the wayside.  No partial subordination, says Posner, since a note holding that the priority order is ABC can't result in a priority order of  BAC or BCA , even given lost quarto suggesting BAC.

Caterpillar Financia v. Peoples Nat

Sixth Circuit -- Juana Villegas v. The Metro. Gov't of Nashville

8th Amendment claim for being shackled during childbirth -- summary judgment for plaintiff reversed, remanded.

Juana Villegas v. The Metro. Gov't of Nashville 

Sixth Circuit -- Sarunas Abraitis v. USA

Tax -- although the administrative exhaustion requirement is not jurisdictional, claim is waived for not being raised in District Court, and because this particular deadline is not subject to equitable tolling.

Sarunas Abraitis v. USA 

Sixth Circuit -- Dwayne Ballinger, Jr. v. John Prelesnik

Habeas -- District Court erred in holding evidentiary hearing, as state Habeas had resolved the issue on its merits.

Dwayne Ballinger, Jr. v. John Prelesnik 

Fourth Circuit -- US v. Robert Mann

Crack/cocaine sentencing adjustment. Court did not err in interpreting it's earlier findings of fact.

US v. Robert Mann

Fourth Circuit -- Scott Andochick v. Ronald Byrd

ERISA does not preempt post-distribution suits for proceeds against fiduciaries.  (Here, to get previously declined funds as part of marital settlement.)

Scott Andochick v. Ronald Byrd

Second Circuit -- McMillan v. City of New York

Reversal of dismissal of ADA claim -- arriving late to work might be a reasonable accomodation, given plaintiff's prescribed meds.

McMillan v. City of New York

Second Circuit -- County of Erie v. Colgan Air, Inc.

County barred from plane-crash cleanup reimbursement under 'free public services' doctrine.

County of Erie v. Colgan Air, Inc.

Second Circuit -- United States v. Nouri

No plain error in post-Skilling fraud instruction that didn't limit honest services to bribes & kickbacks.

Same with including honest services element in instruction for securities fraud.

Court correctly instructed on finding fiduciary obligations.

No error in denial of deft's requested instruction distinguishing "incidental to" / "in connection with."

Sufficient evidence, sentence reasonable.

United States v. Nouri

Out of time

One more in the 8th, readers are commended to the circuit websites for 9, 10, 11, DC & Fed.  Good weekend!

MB

Eighth Circuit -- Neal Roberts v. United States

U.S. Court of Appeals Case No: 11-2054 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Bye, Author, with Smith and Colloton, Circuit Judges]
Civil case - False Claims Act. The district court did not err in finding relators were entitled to a portion of the government's recovery under the False Claims Act, as the defective pricing claim the government brought was related to relators' suit; the court rejects the idea that Rule 9(b)'s heightened pleading requirement plays a part in determining whether a relator is entitled to share in settlement proceeds resulting from a qui tam action in which the government elects to intervene. Judge Colloton, dissenting.

Neal Roberts v. United States

Eighth Circuit -- Carlos Manuel Calles Quinteros v. Eric H. Holder, Jr.

Court Summary:

U.S. Court of Appeals Case No: 11-1875 and No: 11-3425 Petition for Review of an Order of the Board of Immigration Appeals [PUBLISHED] [Smith, Author, with Loken and Beam, Circuit Judges]
Petition for Review - Immigration. Petitioner failed to show a well- founded fear of future persecution and the BIA's decision denying asylum, withholding of removal and CAT relief is affirmed.

Carlos Manuel Calles Quinteros v. Eric H. Holder, Jr.

Seventh Circuit -- Parvati Corporation v. City of Oak

Parvati Corporation v. City of Oak

Seventh Circuit -- SEC v. First Choice Managem

SEC v. First Choice Managem

Fifth Circuit -- Nelson Gongora v. Rick Thaler, Director

Habeas  -- conviction vacated due to prosc comments in closing on deft not testifying.

Nelson Gongora v. Rick Thaler, Director

Fourth Circuit -- US v. Tyrone Moore

Crim -- newly discovered evidence justifies retrial.

US v. Tyrone Moore

Fourth Circuit -- Municipal Association of SC v. USAA General Indemnity Company

Federal flood insurance premiums trigger sovereign immunity, given how closely the companies are intertwined with the FG, therefore municipality cannot base business license tax levels on premium levels.

Municipal Association of SC v. USAA General Indemnity Company

Fourth Circuit -- ESA Environmental Specialists v. The Hanover Insurance Company

Bankruptcy -- voidable transfer

ESA Environmental Specialists v. The Hanover Insurance Company

Third Circuit -- Ray Caprio v. Healthcare Revenue Recovery Group

Debt Collection Act.

Ray Caprio v. Healthcare Revenue Recovery Gr

Second Circuit -- Lundy v. Catholic Health System of Long Island Inc.

FLSA overtime claim must allege that plaintiff worked overtime.

Supplementary state claims should not have been completely dismissed with prejudice, given different gap-time rules.

Mailing of allegedly short paychecks doesn't state a RICO claim.

Lundy v. Catholic Health System of Long Island Inc.

Second Circuit -- United States v. Robles

Crim -- consecutive mandatory minimums for gun charges in same proceeding upheld.

United States v. Robles

Second Circuit -- New Jersey Carpenters v. Royal Bank of Scotland

Securities -- shoddy mortgage portfolio states a case, statements were material.

New Jersey Carpenters v. Royal Bank of Scotland

Second Circuit -- City Wide Transit, Inc. v. Comm’r

Tax.

City Wide Transit, Inc. v. Comm’r

First Circuit -- Bluetarp Financial, Inc. v. Matrix Construction Co., Inc.

Personal Jurisdiction over out-of-state party.

Bluetarp Financial, Inc. v. Matrix Construction Co., Inc. 

First Circuit -- US v. Gates

Speedy Trial Act

US v. Gates 

Eleventh Circuit -- Shade Lawal v. U.S. Attorney General

Shade Lawal v. U.S. Attorney General

Ninth Circuit -- PEDRO TAMAYO-TAMAYO V. ERIC H. HOLDER JR.

PEDRO TAMAYO-TAMAYO V. ERIC H. HOLDER JR.

Eighth Circuit -- William NMI Paul, Jr. v. Forrest C. Allred

Court summary:

[PUBLISHED] [Federman, Author, with Kressel and Schermer, Bankruptcy Judges]
Bankruptcy Appellate Panel. Bankruptcy court did not err in denying debtor's homestead exemption as the record showed he had abandoned the property as his homestead by removing himself with no fixed or actual intent to return.

William NMI Paul, Jr. v. Forrest C. Allred

Eighth Circuit -- Frank Hohn v. BNSF Railway Company

Court summary:

[PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
Civil case - Employment Discrimination. Plaintiff's Nebraska law Whistleblower claim was untimely and the district court did not err in granting defendant's motion for summary judgment on the claim; district court did not err in excluding evidence of the Whistleblower complaint in the trial of plaintiff's disability discrimination claim; defendant's judgment on plaintiff's disability discrimination claim is affirmed, as the evidence supported the jury's finding that plaintiff could not perform the essential functions of the locomotive machinist position with or without a reasonable accommodation.

Frank Hohn v. BNSF Railway Company

Seventh Circuit -- USA v. Lamar E. Sanders

Any error on photo lineup and in-court ID was harmless.

Limitation on mention of witness' priors during cross doesn't implicate Confrontation Clause, as the impeachment theory was presented without the priors.

No abuse of discretion in denying reverse 404B evidence for gov't witness, as only a 'gossamer thread' connected priors to present crime.

Sentencing -- "not less than 20 years" doesn't amend earlier 25 year minimum statute.

USA v. Lamar E. Sanders

Seventh Circuit -- Mauricio Moral-Salaz v. Eric Holder

Immigration -- statutory bar to review of removal order prohibits review, as the merits are directly implicated.

Mauricio Moral-Salaz v. Eric Holder

Seventh Circuit -- USA v. Casey Hunter

"Can you call my attorney" is an unambiguous invocation of the right to counsel.

USA v. Casey Hunter

Seventh Circuit -- Farrokh Yassan v. J.P. Morgan Chase

Removal of dismissed action - subsequent to dismissal - equitably revested jurisdiction in the state court.

Dismissal of employment claim on merits upheld given waiver.

Farrokh Yassan v. J.P. Morgan Chase

Seventh Circuit -- Buddha Entertainment v. Gus A. Palo

Easterbrook -- Deft claiming excusable neglect in receipt of papers must plead and prove circumstances.

Buddha Entertainment v. Gus A. Palo

Sixth Circuit -- USA v. Timothy Sims

Error in exclusion of evidence from pr0n case, as the deft could have taken the requisite substantial step without actually meeting all of the statutory elements.

Dissent, no abuse of discretion, as court just made the call on the evidence at the pretrial stage.

USA v. Timothy Sims 

Fourth Circuit -- US v. Larry Deffenbaugh

For purposes of proving conspiracy to make a false report to the Coast Guard, prosc need not prove that the conspirators intended a Federal authority to receive the distress call.

Sentence not erroneous.

US v. Larry Deffenbaugh

Fourth Circuit -- US v. Michael Bernard

Standard for mentally trouble deft to go pro se is whether they have the wits to waive counsle, not the wits to  represent themselves.

Dissent -- Trial court understood this to be a mandatory rule, and didn't look to see whether further, permissive scrutiny should have been applied.

US v. Michael Bernard

Second Circuit -- Mitchell v. Lyons Prof’l Servs., Inc.

Error in court's denying writ of execution -- as a technique to sanction counsel.

Mitchell v. Lyons Prof’l Servs., Inc.

First Circuit -- Latson v. Plaza Home Mortgage, Inc.

Souter, pinch hitting on loans case.

Pre-loan conduct by lender not covered by the state implied warranty of good faith and fair dealing.

Statute of limitations has run.

Latson v. Plaza Home Mortgage, Inc. 

First Circuit -- Gilberti v. Coppola

Rule 11 sanctions upheld for untenable claims of usury and conversion.

Gilberti v. Coppola

First Circuit -- US v. Ramirez

Sentencing --

Burglary is a crime of violence for purposes of the sentencing bump.

Remand, as amended judgment unclear as to status of a certain enhancement.

US v. Ramirez

First Circuit -- US v. Rios-Ortiz

Crim -- sufficient evidence for existence of a single conspiracy during the relevant timeframe.

US v. Rios-Ortiz 

First Circuit -- Rubin v. Harvard University

Plaintiffs cannot attach articles in a museum, as the foreign sovereign with an interest in the articles has not formally asserted that interest, and so the articles are not reachable under the statutory carve-out to the FSIA.

Rubin v. Harvard University 

Out of time

9, 10 & seq tomorrow.

MB

Eighth Circuit -- Victor Santiago v. Daniel Blair

U.S. Court of Appeals Case No: 11-3693 U.S. District Court for the Eastern District of Missouri - St. Louis [PUBLISHED] [Wollman, Author, with Beam and Loken, Circuit Judges]
Civil Case - qualified immunity. On appeal from denial of qualified immunity, claim of excessive force is remanded to district court for determination whether circumstances support a reliable inference of an unnecessary and wanton infliction of pain; denial of qualified immunity on deliberate indifference claim is reversed; denial of qualified immunity on First Amendment retaliation claim relating to death threats for filing excessive force grievance and relating to placement in cell without personal property, proper bedding, a working sink or working toilet are affirmed; and retaliatory discipline claim fails as a matter of law because some evidence supported disciplinary violation.

Victor Santiago v. Daniel Blair

Sixth Circuit -- Carol Smith v. Perkins Board of Education

ADA and IIED -- dismissal of complaint  at summary judgment was error.

Carol Smith v. Perkins Board of Education 

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