No post 3/23

We'll do a comprehensive roundup tomorrow, probably early.

MB

Short Form: 3/20

Second Circuit:

Arzuaga v. Quiros, Faucher, Cieboter, et al. -- Prisoner law - Where a petitoner received back SSA payments, it is not a cause for revocation of IFP (pauper) status, as they cannot access these finds while incarcerated;  IFP does not require prisoner to exhaust all personal resources in costs of the appeals.                                                                                                                                                   

Fourth Circuit:

Amanda Smith v. R. Ray S1983 - Denial of qualified immunity upheld, as excessive force need not be on all fours with that described in precedent to be clearly prohibited by the Constitution; tackling the suspect in response to an innocent question was too much.

Bonnilyn Mascio v. Carolyn Colvin  --  SSI/Administrative Law - ALJ erred in not specifically defining the other work that the petitioner was capable of; There is no per se rule for remand in these cases, but remand should be ordered where the ALJ's analysis sufficiently frustrates appellate review.

 US v. Xavier Lymas -- Sentencing - Court committed procedural error in not sufficiently explaining its reasons for the departure from Guidelines where it simply believed that the Guidelines didn't effectuate goals of sentencing, even in a 'mine run' case.

Fifth Circuit:

Wendy Davis, et al v. Rick Perry, et al -- Election Law/ Fee Shifting:  Where a district during the pendency of a challenge adopts the court-authorized plan, the plaintiff is not necessarily entitled to fees where the specific challenges raised by the suit are not remedied in the plan.

USA v. Justin Ortiz -- Fourth Amendment: Given that the deft was told that he was free to leave, the stop was noncustodial, and no Miranda warning was needed prior to the admissions.  Dissent: when they went into the government's car, things changed.

Sixth Circuit:

Elizabeth Goodwin v. City of Painesville  -- S1983: Denial of Qualified Immunity in tasering case.

Lexon Insurance Co. v. Aziz Naser --- FRCP/ K -- Appeals clock ran from entry of amended judgment, not the simple ruling on the Rule 59(a) motion; as the Officer of the Corporation signed the instrument twice, once in personal capacity, once in corporate.

USA v. Raymond Burch, Jr.  -- FRCP - When challenging a post-judgment ancillary order allowing a party additional time to file a motion, a motion to dismiss does not reach the question -- there must be a cross-appeal of the ancillary order.

Eighth Circuit (Summaries from Circuit):

133265P.pdf  03/20/2015  Karl Adams  v.  ActionLink
   U.S. Court of Appeals Case No:   13-3265
                          and No:   13-3380
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [PUBLISHED] [Melloy, Author, with Benton and Shepherd, Circuit Judges] 
   Civil case - Fair Labor Standards Act. The district court did not err in 
   determining that certain of defendant's employees were non-exempt under 
   the Fair Labor Standards Act as they performed non-exempt promotional work 
   for the company to stimulate sales that would be made by someone else and 
   were not, themselves, outside salesman for FLSA purposes; nor were they 
   administrative employees as they did not meet the tests for administrative 
   employees established in 29 C.F.R. Sec. 541.200; the district court erred 
   in determining that one group of the employee plaintiffs had waived their 
   right to pursue additional claims against defendant by cashing proposed 
   settlement checks; the court joins other courts which have held that the 
   plain language of 29 U.S.C. Sec. 216(c) requires an agreement by the 
   employee to accept a certain amount of back wages and requires the 
   employer to pay those wages; this involves more than simply tendering a 
   check and having the employee cash it, as an agreement must exist 
   independently of the payment; here, the language on the checks was 
   insufficient as a matter of law to constitute proper notice to the 
   employees and did not serve as a release of their rights. 
  
141595P.pdf  03/20/2015  Tri-National, Inc.  v.  Canal Insurance Company
   U.S. Court of Appeals Case No:   14-1595
   U.S. District Court for the Eastern District of Missouri - Cape Girardeau   
   [PUBLISHED] [Riley, Author, with Colloton and Kelly, Circuit Judges] 
   Civil case - Motor Carrier Act of 1980. Tri-National held a default 
   judgment against Canal's insured and was the real party in interest under 
   Missouri law; Alabama court did not render a final judgment on the merits 
   of Tri-National's present claim on the MCS-90 endorsement issue since that 
   claim was voluntarily dismissed, and the present claim was not barred by 
   res judicata; Tri-National could assert its rights as a member of the 
   general public under the MCS-90 endorsement and that fact that its insurer 
   had satisfied its claim did not preclude this action or absolve defendant 
   of its obligations under the endorsement. 


132918P.pdf   03/19/2015  Sletten & Brettin Orthodontics  v.  Continental Casualty Company
   U.S. Court of Appeals Case No:  13-2918
   U.S. District Court for the District of Minnesota - Minneapolis    
   [PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges] 
   Civil case - Insurance. The policy in question excluded coverage for 
   intent-to-injure acts; since the complaint against the insured alleged 
   defamation with intent to injure,the policy did not provide coverage and 
   the insurer did not have a duty to defend the suit. 


Ninth Circuit:


ABDULHALIM ALI V. ROBERT ROGERS -- Employment/Admiralty -- As the claims sounded in statutory contract, not Admiralty tort, the proper defendant was the government, not the ship's owner.

SOPHIA DAIRE V. MARY LATTIMORE -- AEDPA - Deference to state court holding on Ineffective Assistance claim.


BERNARD PICOT V. DEAN WESTON -- Personal Jurisdiciton -- Insufficient purposeful availment even when the deft travelled to the forum state in order to make the agreement and the agreement had ties to the forum state.


FREDDY CURIEL V. AMY MILLER -- AEDPA/Habeas - Two unadorned citations in summary denial of Habeas did not mean that the Court reached the merits of the claim in a manner that vacated the procedural default found by the court below; No equitable tolling of AEDPA SOL, even given pro se petitioner.


CHRIS KOHLER V. EDDIE BAUER -- ADA: Court erred in finding compliance, given statements in DOJ manual interpreting the Act.


BRUCE LISKER V. CITY OF LOS ANGELES -- S1983/FRCP: Police fakery of reports is not so inextricably tied to their testimony at trial so as to give them immunity; Motion for summary judgment on merits can't be reached here under ancillary jurisdiction.


Eleventh Circuit:



Curtis J. Collins v. Experian Information Solutions, Inc. -- Summary denial of rehearing, as issue was waived by not being raised below.


George Russell Curtis, Sr. Living Trust, et al. v. William F. Perkins -- FRE - Although summares based on reports were hearsay due to the underlying data, they were admnissible under the Business Records exception, which can be established using hearsay testimony.

USA v. Bobby Jenkins -- Question certified to Florida: whether a guilty plea under a withheld adjudication counts as a conviction for purposes of being a predicate offense.  (State courts had hinted yes, binding Circuit precedent said no.)



Federal Circuit:

SENJU PHARMACEUTICAL CO. v. LUPIN LIMITED -- Patent: Obviousness. [Which isn't to us.]





DC Circuit:

USA v. Luis Munoz Miranda -- Crim/Extraterritorial jurisdiction:  Unconditional guilty pleas waived all grounds for appeal except subject matter jurisdiction; Extraterritorial application of a statute goes to merits and is therefore subject to waiver of appeal in guilty plea; Whether the Act applies to a specific ship is a question of subject-matter jurisdiction for the courts and not an element to be found by the finder of fact; Vessels were in fact covered by the Act, given deference to intermediate factual findings below.

USA v. Mark-Anthony Adams -- Sentencing: Appeals waiver not subject to the miscarriage of justice exception despite bar of proffered medical testimony.

Next Update Tomorrow

It's a bit early, and there's only a handful up (one in the Fifth, a couple in the Sixth; one in the Eighth; one apiece in 11th & Federal Circuit), so we'll plan to post those in tomorrow's run & head out in search of some St. Joseph's Day cookies.  Cheers.

MB

Short Form: 3/18

First Circuit:

Vaello-Carmona v. Siemens Medical Solutions USA,  -- ADA:  ADA and correlative Puerto Rico law claim survive the death of the plaintiff and can be inherited.

US v. Ngige  -- Conspiracy/SOL -  Deft claiming that prosecution for Conspiracy was time-barred relied on a different theory of the crime than articulated in the indictment.  As there were overt acts in furtherance within the relevant time frame according to the indictment's theory of the conspiracy, the case is not time-barred; Sufficient evidence.

US, ex rel. Escobar v. Universal Health Services, Inc  -- FCA/Fraud: Complinace with appropriate regulations is a precondiiton of payment for purposes of the False Claims Act (and therefore, a breach of same gives the c/a); Claim pleaded with sufficient particularity.

Second Circuit:

Ricci v. Teamsters Union Local 456 -- Communications/SOP Web hosting company shielded from liability under safe harbor in the Communications Decency Act; Union's claims time-barred.

Third Circuit:

John Cottillion v. United Refining Co -- ERISA: Employees did not have to exhaust Plan-based remedies to vindicate statutory rights, as there was a fixed policy denying the claims; Early Retirement claims vested according to the terms of the Plan, so those denied the benefit have standing to challenge, notwithstanding the fact that the denial did not invade the statutory bottom limit for such benefits;  "(I)mpermissible sur-reply" stricken.

Sixth Circuit:

Sierra Club v. EPA  -- Standing/ Environmental:  Reasonable inference of direct increase of emissions due to challenged policy suffices for Article III Injury for Club member living in the metropolitan area; Chevron deference to Agency interpretation; State must assess whether company is takking all reasonable measures to abate pollutants, regardless of whether the regulatory threshold measurement is exceeded.

Seventh Circuit:


Emir Lenjinac v. Eric Holder, Jr Immigration:  For a Convention Against Torture claim,  Petitioner must establish preponderance of likelihood of adverse treatment, not merely that the potential harms are congruent with those envisaged by the statute; At one point, Court uses "fulsome" to mean "complete," causing minor conniptions on this end. 

Eighth Circuit (Summaries from Court)

142805P.pdf  03/18/2015  United States  v.  Michael Munz
   U.S. Court of Appeals Case No:   14-2805
   U.S. District Court for the Northern District of Iowa - Dubuque   
   [PUBLISHED] [Per Curiam - Before Loken, Bye and Smith, Circuit Judges] 
   Criminal case - Sentencing. The district court did not err when it 
   declined to consider a proposed Amendment to the guidelines in setting 
   defendant's sentence; sentence was not substantively unreasonable. 
 
  
146034P.pdf  03/18/2015  Jack Bowman  v.  Daniel J. Casamatta
   U.S. Court of Appeals Case No:   14-6034
   U.S. Bankruptcy Court for the District of Nebraska - Omaha   
   [PUBLISHED] [Nail, Author, with Kressel and Schermer, Bankruptcy Judges] 
   Bankruptcy Appellate Panel. The bankruptcy court did not abuse its 
   discretion by denying debtors' motion to reopen where their case had been 
   dismissed for cause before it was fully administered; no error in refusing 
   to hold a hearing on the motion as there is no requirement in Section 350 
   that the court provide a hearing on a motion to reopen. 
  
146045P.pdf  03/18/2015  Daniel Gess  v.  Randolph Brooks Credit Union
   U.S. Court of Appeals Case No:   14-6045
   U.S. Bankruptcy Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Federman, Author, with Saladino and Nail, Bankruptcy Judges] 
   Bankruptcy Appellate Panel. Order granting Credit Union relief from the 
   automatic stay with respect to debtors' vehicle affirmed as the Credit 
   Union had a perfected security interest in the van and established that 
   its interest was not adequately affected. 


142805P.pdf  03/18/2015  United States  v.  Michael Munz
   U.S. Court of Appeals Case No:   14-2805
   U.S. District Court for the Northern District of Iowa - Dubuque   
   [PUBLISHED] [Per Curiam - Before Loken, Bye and Smith, Circuit Judges] 
   Criminal case - Sentencing. The district court did not err when it 
   declined to consider a proposed Amendment to the guidelines in setting 
   defendant's sentence; sentence was not substantively unreasonable. 


   U.S. District Court for the Eastern District of Missouri - Cape Girardeau   
   [PUBLISHED] [Kelly, Author, with Riley, Chief Judge, and Smith, Circuit 
   Judge] 
   Criminal case - Criminal law and sentencing. Defendant Corey Turner lacked 
   standing to contest the issuance of warrants for Precise Location 
   Information on two other defendants' cell phones as he did not own, 
   possess or use the cell phones which were the objects of the warrants and 
   did not have a legitimate expectation of privacy in the phones or the 
   location information; the government made the requisite showing of 
   necessity to justify the issuance of wiretap orders; assuming that Corey 
   Turner's cell phone was a tracking device for the purposes of the 
   procedural requirements of Rule 41, the combination order in the case, 
   granting both wire tap authorization and permission to seize PLI from 
   Corey Turner's phone, failed to meet a substantial number of Rule 41's 
   procedural requirements; while the court is concerned about the number of 
   Rule 41 violations in the case, Turner has failed to show any prejudice or 
   that the government acted in reckless disregard of the Rule, and exclusion 
   of the evidence is not the proper remedy for the violations; in order to 
   admit testimony from a co-conspirator regarding the meaning of certain 
   drug-related terms in intercepted calls, the government should have 
   qualified her as an expert; however, the error did not affect the jury's 
   verdict as she and other witnesses interpreted the terms without 
   objection; before admitting evidence regarding defendants' prior drug 
   convictions, the court should have required the government to explain its 
   purpose in offering the evidence to exclude the possibility that the 
   evidence was being admitted solely to prove propensity; any error in 
   admission of the evidence in this case was harmless in light of the other 
   evidence in the case; where only the video, without sound, of defendant 
   Anthony Turner's prior arrest was played, any error in playing the video 
   was harmless as the jury did not hear the statements to which Turner 
   objected; evidence was sufficient to support defendant Donald Turner's 
   conviction for conspiracy as it was up to the jury to determine the 
   credibility of the witnesses against Turner and the jurors were properly 
   instructed on their responsibilities, including weighing any benefits the 
   witnesses received for their testimony; evidence was sufficient to support 
   defendant Antonio Turner's conviction for conspiracy; Antonio Turner's 
   sentence was set by the enhanced penalty provisions of 21 U.S.C. Sec. 851 
   and any error in calculating the quantity of drugs attributable to him was 
   harmless; no error in admitting evidence of drugs distributed by 
   co-defendants where the distribution was reasonably foreseeable by 
   defendant Donald Turner; the Section 851 notice provided defendant Donald 
   Turner was adequate and any error in the notice did not deprive him of due 
   process; claims of ineffective assistance at sentencing should be raised 
   in a collateral proceeding under 28 U.S.C. Section 2255. 

Ninth Circuit:


USA V. ESTEFANI ZARAGOZA-MOREIRA --  Crim. Pro:  Border Agent had duty to preserve video, as it was manifestly relevant to deft's claim of Duress.  


SETH BAKER V. MICROSOFT CORPORATION -- Class Actions: Denial of certification reversed (after stipulation to voluntary dismissal of claim with prejudice and without settlement given denial of attempt at interlocutory appeal); District court erred in holding that individual issues predominated over shared issues;   Special Concurrence: denial of certification in a sister District is entitled to a rebuttable presumption of correctness.
SEATTLE MIDEAST AWARENESS CAMP V. KING COUNTY -- Free Speech: Ads on busses are a limited public forum; denial of specific ad wasn't viewpoint-based , as all ads referencing the issue in question were banned; Dissent: Designated public forum was created by selling ads.

Tenth Circuit:

Nixon v. Pryor -- Prisoner Claim: Actual innocence claim insufficient to toll Statute of Limitations.

Short Form: 3/17

Balance of summaries TK.  - MB

First Circuit:

US v. Gray  -- Amended opinion. [cf. https://youtu.be/EBHLcBxQZiM ]

United States v. Brigham and Women's Hospital  -- FRCP: JMOL 50(b) motion can only restate those grounds raised in a 50(a) motion (failure to argue insufficient evidence at the wrap-up of the other side's case means that you can't argue insufficient evidence after the case is decided); sufficient evidence for finder of fact to rule for deft, even when deft calls no expert witnesses; In ruling on a Motion for a New Trial, court need not individually re-weigh evidence, but need only conclude that the finder of fact could reasonably decided as they did; No abuse of discretion in case (without written explanation) not being reassigned on remand, despite standing court rule to the contrary; Hard data underlying expert witnesses' findings can be inadmissible hearsay; No abuse of discretion in allowing Relator to be questioned as to his financial motives for bringing the FCA suit; No reversible error in jury instructions or special verdict form that divided liability findings between the defts.

US v. Rossignol  Sentencing: No procedural error in within-guidelines drug conspiracy sentence not reduced due to deft being senior, upstanding member of the community where court says that it is increasing the sentence due to the fact that the deft was a senior, upstanding member of the community.

Second Circuit:

Fischer v. Smith -- AEDPA: State Court still entitled to double deference on Ineffective Assistance claim resolved briefly and in the alternative. 

Fourth Circuit:

Roman Zak v. Chelsea Therapeutics International  -- Securities; FRCP:  Sufficient context-intensive strong inference of scienter in pleadings, given that the drug company left out a few hurdles to drug approval when talking to investors; Error in allowing court to take judicial notice of internal SEC documents showing that the defts did not transact the stock during the period in question was not harmless.

US v. Jorge Cornell  -- RICO, Sufficient Evidence.

Oteria Moses v. Cashcall, Inc -- Bankruptcy, Arbitration -  Court did no err in retaining piece of Bankruptcy action in face of compelled arbitration.

Fifth Circuit:

USA v. Kendrick Fulton -- Prisoner litigation - petition was second/successive.

Sixth Circuit:

Brenda Colosi v. Jones Lang LaSalle Americas, Inc.   Discovery/Fees: Where one party delivers actual computer in response to demand for computer files, the court does not err in listing the required technical services as costs that can be potentially shifted against the party if otherwise prompted.

Eighth Circuit: (Summaries from Circuit website)

133252P.pdf  03/17/2015  Argonaut Great Central Ins.  v.  Audrain County Joint
   U.S. Court of Appeals Case No:   13-3252
   U.S. District Court for the Eastern District of Missouri - Hannibal   
   [PUBLISHED] [Bye, Author, with Colloton and Gruender, Circuit Judges] 
   Civil case - Torts. The court had jurisdiction in this interlocutory 
   appeal over the question of whether defendant's purchase of insurance 
   waived the common law sovereign immunity it might otherwise have under Mo. 
   Rev. Stat. Sec. 537.600; the court lacked jurisdiction to address the 
   question of whether defendant's purchase of insurance also waived any 
   statutory immunity it might have under Mo. Rev. Stat. Sec. 190.307 as a 
   911 call center, as that statute does not extend to defendant a 
   substantive right to be free from the burdens of litigation; the district 
   court did not err in determining that defendant did not present sufficient 
   evidence that it and its insurer had a pre-existing agreement to attach a 
   sovereign immunity endorsement to the insurance policy and made a mutual 
   mistake when they failed to do so; the district court did not err, 
   therefore in determining defendant waived the common law sovereign 
   immunity provided by Sec. 537.600 through the purchase of insurance. 
  
141659P.pdf  03/17/2015  United States  v.  Anthony Bearden
   U.S. Court of Appeals Case No:   14-1659
   U.S. District Court for the Western District of Missouri - Springfield   
   [PUBLISHED] [Kelly, Author, with Bye and Shepherd, Circuit Judges] 
   Criminal case - Criminal law and sentencing. Defendant lacked standing to 
   challenge police officers' entry onto another individual's property and 
   the resulting seizure of evidence from that property; officers had a 
   reasonable, articulable suspicion that defendant was engaged in criminal 
   activity and his detention was justified; defendant consented to a search 
   of his home; the district court did not err in classifying defendant as a 
   career offender under Guidelines Sec. 4B1.1 as his Missouri conviction for 
   second-degree burglary qualified as crime of violence. 
  
142772P.pdf  03/17/2015  United States  v.  Bobby Clark, Jr.
   U.S. Court of Appeals Case No:   14-2772
   U.S. District Court for the District of Nebraska - Lincoln   
   [PUBLISHED] [Per Curiam - Before Loken, Smith and Colloton, Circuit 
   Judges] 
   Criminal case - Sentencing. No error in imposing enhancements under both 
   Guidelines Sections 2G2.1(b)(2)(A) and 2G2.1(b)(4) as application of both 
   enhancements is not impermissible double counting; alternatively, the 
   court clearly stated it would impose the same sentence with or without the 
   enhancements, and any error in imposing them would be harmless. 
Ninth Circuit:
FAIRFIELD-SUISUN USD V. EDU-CA -- (Statutory) Standing: School Districts do not have implied right of action under IDEA.


Federal Circuit:


MOBILEMEDIA IDEAS LLC v. APPLE INC. -- Patent.

Short Form 3/16

Third Circuit:

Zachary Wilson v. Secretary Pennsylvania Departm  -- Prisoner Habeas - District Courts have jurisdiction over 60(b) motions seeking to modify grants of the Writ; Where a prisoner seeks to prevent retrial by filing a  Rule 60(b) motion after the State has not retried him or her according to the Writ, he or she must first exhaust State remedies where there are new substantive questions of fact or law.

Eighth Circuit:

Jerry Capps  v.  David Olson -- S1983  - Denial of qualified immunity for police officer who shot suspect, as, among other things, the first wound was in the suspect's back.

Tenth Circuit:

United States v. Cuevas-Bravo -- Sentencing - below-Guidlelines sentence upheld as presumptively reasonable against implicit challenges to Violent Burglary predicate, as, contrary to the stipulations in the PSR, the site wasn't a dwelling, and no violence was involved.

Jones v. McHugh -- Employment Law (Military) Position being made non-supervisory to ensure compliance with regs suffices for sufficient non-discriminatory motive to defeat per se showing of discrimination, Plaintiff did not respond;  Quite a few swipes at pro se brief.

EEOC v. Beverage Distributors Company Employment Law - Remedies/ Jury Instructions -- No error in tax offset, as jury awards need not be atypical to justify the offset; Error in jury instruction that required direct proof of direct threat as justification for adverse employment action consequent upon disability, the standard is reasonable belief.

Federal Circuit:

ENZO BIOCHEM INC. v. APPLERA CORP.  Patent - In Statement of Claim, the phrase "At least one component" establishes that there are multiple components to the system.  Dissent: The D-vil you say.


NB, these checks are happening earlier in the day than before, so a lot of opinions will show up in the following day's feed.

-MB

3/13 Short Form

Crick rose.  Links only for the nonce, possibly summaries Monday.  

-MB

First Circuit:

Vazquez-Baldonado v. Domenech  -- FRCP -  Where plaintiff has been given leave to amend complaint to state RICO cause of action, no second leave to amend need be given if they don't properly plead the predicate offenses in the Amended complaint.

US v. Gray -- Jury Instructions / Crim -- Definitions of Malice.

Cruickshank v. Cook, Jr. 

Fourth Circuit:

Dawnn McCleary-Evans v. Maryland Department of Trans 

US v. Tamny Westbrooks

Fifth Circuit:

BMC Software, Incorporated v. CIR

Keva Sampson v. ASC Industries

Sixth Circuit:

USA v. Gerald Singer 

Gwyn R. Hartman Revocable Living Trust v. S. Mich. Bancorp, Inc. 

Seventh Circuit:

USA v.  Booker Sewell

Mohamed Bouras v.  Eric Holder, Jr.   (Amended)

Eighth Circuit (summaries from Court):

133379P.pdf  03/13/2015  Branden Clark  v.  Leann Bertsch
   U.S. Court of Appeals Case No:   13-3379
   U.S. District Court for the District of North Dakota - Fargo   
   [PUBLISHED] [Melloy, Author, with Murphy and Benton, Circuit Judges] 
   Prisoner case - Habeas. There is an intra-circuit split on the issue of 
   whether a state appellate court's plain-error review of an unpreserved and 
   otherwise procedurally defaulted claim "cures" the default and open the 
   door for collateral review; following the earliest panel opinion, as the 
   court is required to do, the panel hold Hayes v. Lockhart, 766 F.2d 1247 
   (8th Cir. 1985) governs in the circuit; Hayes holds a federal habeas 
   cannot reach an otherwise unpreserved and procedurally defaulted claim 
   merely because a reviewing state court analyzed that claim for plain 
   error; the district court's judgment dismissing the habeas petition is 
   affirmd. 

141094P.pdf  03/13/2015  United States  v.  Ronnie Fire Cloud
   U.S. Court of Appeals Case No:   14-1094
   U.S. District Court for the District of South Dakota - Aberdeen   
   [PUBLISHED] [Melloy, Author, with Murphy and Benton, Circuit Judges] 
   Criminal case - Criminal law. Evidence was sufficient to support 
   defendant's convictions for abusive sexual contact and attempted 
   aggravated sexual abuse as the evidence was sufficient for a jury to infer 
   that he restrained the victim, thereby supplying each count's force 
   requirement. 
  
Ninth Circuit:

ROBERT REID V. JOHNSON & JOHNSON

Tenth Circuit:

Quinn v. Young
Eleventh Circuit:

John Lary v. Trinity Physician Financial & Insurance Services, et al

Federal Circuit:

GPX INTERNATIONAL TIRE CORP. v. US [OPINION]
GARCIA v. DHS [OPINION]

DC Circuit:
Wilfred Rattigan v. Eric Holder, Jr.

Friday's post will happen Saturday

Today's cases will be posted tomorrow.  If the crick don't rise.  

-MB

Short Form 3/12

First Circuit:

AngioDynamics, Inc. v. Biolitec AG -- 60(b) motion cannot be used to collaterally attack a preliminary injunction; civil contempt fines in excess of the judgment amount are permissible, but have to be capped at some point so that they don't  infinitely increase; alternative service was acceptable.

US v. Rojas  -- Appeal waiver in plea deal that doesn't recommend terms for supervised release still bars appeal of sentence terms imposing conditions on supervised release.

Raymond James Financial Servic v. Fenyk -- Arbitration - Statute of limitations not offended by award, as it was evolving at the time; Award under statute different from that claimed by the plaintiff does not indicate a manifest disregard of the law.  Circuit split on the issue flagged.

AngioDynamics, Inc. v. Biolitec AG -- Where deft corporation is at home in the forum state and makes a fraudulent transfer of assets out of the forum state, ancillary jurisdiction over other companies can be established (vague in decision, probably clearer in District Ct. opinion.); Tortious interference sufficiently pleaded; Entry of default judgment as discovery sanction wasn't an abuse of discretion; No need for evidentiary hearing before award of damages.


Second Circuit:

Prabhudial v. Holder -- Immigration: Agency may Constitutionally hold an argument (that a categorical instead of modified categorical approach was incorrectly used in offense determination) waived if not timely raised.  Circuit courts therefore have no jurisdiction over the appeal.


Fourth Circuit:

US v. Keith Reed -- Use of cell phone tracking map at trial that used deft's names instead of phone numbers was not an abuse of discretion; Post-arrest labeling of cell phone bag was not sufficiently testimonial to trigger Confrontation Clause (harmless error, as otherwise attributable); Sufficient evidence for convictions.

US v. Marco Flores-Alvarado -- Amended Opinion


Fifth Circuit:

Ralph Janvey, et al v. Golf Channel, Incorporated, -- State can reach under fraudulent transfer law advertising expenses paid by Ponzi scheme.  Although they had market value, they did not provide even speculative benefit to creditors.

Halliburton, Incorporated v. LABR -- Dissent from denial of en banc - Court should make a firm rule as to when the disclosure of a complainant's identity constitutes an adverse employment action.

USA v. Robert Kaluza, et al -- District Court holding that federal law did not apply to offshore drilling rig can't be bootstrapped into defts jurisdiction argument,as there was no cross-appeal by defts and the choice of law and jurisdictional elements of the statute are different; No error in District Court's use of ejustem generis to limit the ambiguous/general term in the statute to those persons responsible for the transportative functions of the vessel, thereby ruling out oil rig drilling employees.


Sixth Circuit:

Dawson Wise v. Zwicker & Associates PC -- State debt collection practices statute claim properly dismissed, as it doesn't apply to dealings between a consumer and a financial institution; Court must conduct interest analysis to determine if fee-shifting provision fundamentally offends public policy of forum state when the law of another jurisdiction is being applied.

Alfredo Montanez-Gonzalez v. Eric Holder, Jr. -- Immigration - even where refusal to consider a certain factor barring removal was constitutional error, prejudice must be shown; the phrase "on balance" does not establish that the court engaged in inappropriate balancing (as opposed to aggregation).


Seventh Circuit:


Kevin P. Gerard v. Michael J. Gerard -- Bankruptcy: Tort verdict against bankruptcy petitioner must be considered in totality to determine whether it was for malicious and willful harm, and therefore the basis for an undischargeable debt.


Ninth Circuit:

NRDC V. USEPA -- Chevron deference to EPA rulemaking creating alternative enforcement mechanism.

CHRIS TAYLOR V. JOHN CHIANG -- Constitutional concerns as to the appropriate means of locating owners of lost property vary by pre-escheat requirements and post-escheat requirements.


Eleventh Circuit:

SE Property Holdings, LLC v. Seaside Engineering & Surveying, Inc. -- Bankruptcy court may issue non-debtor releases of debt where necessary to preserve the viability of the post-petition entity.

USA v. Shedrick D. Hollis -- Evidence found in protective sweep of third-party residence admissible; No abuse of discretion in barring expert testimony on fingerprint comparison from expert on fingerprint sufficiency based solely on the averral of the expert that the two are identical.


Federal Circuit

BANNUM, INC. v. US  -- As bidder for government contract did not formally object to solicitation prior to the award, post-award challenges are waived.

(We'd like to get back to individual postings to help enable the tags function, but time, like an e'er rolling stream is moving a bit fast at the moment.  MB)

Short Form: 3/11

Second Circuit:

United States of America v. Foreste -- 4A: Successive investigatory stops should be considered together where the probable cause for the stop and the basis for extending the stop are the same.  Where the reason for extending the duration of the stop is different (as here), they may be considered separately;  field performance reports of canine units are relevant and susceptible to discovery requests.

Stryker v. Securities and Exchange Commission -- Administrative Law: Chevron deference to SEC holding that a pre-statute tip is ineligible for a reward under the statute.  Alternative holding: statute not ambiguous.  

Rivas v. Fischer -- Habeas ordered on remand, as no reasonable finder of fact could determine that counsel was not ineffective.


Third Circuit:

Ashley McMaster v. Eastern Armored Services Inc -- FLSA -- Employee is subject to the Act and therefore eligible for overtime, as she is within the small-truck correction to the truck driver carve-out in the Act.

Fourth Circuit:

Fraternal Order of Police v. WMATA -- Subsequent unrelated dismissal of employee ordered reinstated by arbitration does not violate the arbitration order; Grievances should first be addressed by the mechanism in the collective bargaining agreement.

Alfredo Prieto v. Harold Clarke  --  Due Process: Prisoner does not have liberty interest sufficient to challenge harsh and atypical conditions on "Death Row," as there is no valid expectation of avoiding these conditions when sentenced for a capital crime.


Sixth Circuit:

USA v. Manuel Soto 

 USA v. Hector Santana 

 USA v. Christopher Espinoza

USA v. Juan Respardo-Ramirez


Seventh Circuit:


Scott Reeder v.  Michael Madigan


Saley Souley v. Eric Holder, Jr.


Eighth Circuit (Summaries from Court):

131748P.pdf  03/11/2015  United States  v.  Arthur Chappell
   U.S. Court of Appeals Case No:   13-1748
   U.S. District Court for the District of Minnesota - St. Paul   
   [PUBLISHED] [Riley, Author, with Smith and Shepherd, Circuit Judges] 
   Criminal case - Criminal law. For the court's prior opinion remanding the 
   case for a new trial based on an error in the jury instructions, see U.S. 
   v. Chappell, 665 F.3d 1012 (8th Cir. 2012). On remand, the district court 
   did not abuse its discretion by denying defendant's motion to reopen the 
   record on the issue of probable cause for defendant's arrest; police had 
   probable cause to arrest defendant even if the issue were reopened; claim 
   of vindictive prosecution rejected, as the new charges added after remand 
   concern different criminal acts against mostly difference victims. 

141619P.pdf  03/11/2015  St. Jude Medical S.C., Inc.  v.  Thomas Tormey, Jr.
   U.S. Court of Appeals Case No:   14-1619
   U.S. District Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Bye, Author, with Riley, Chief Judge, and Wollman, Circuit 
   Judge] 
   Civil case - Contracts. Because plaintiff failed to present evidence that 
   a claimed "walk-away"agreement releasing him from liability to repay a 
   loan was in writing as required by Minn. Stat. Sec. 513.33, the district 
   court did not err in granting defendant judgment as a matter of law on 
   this defense or on its collection claim; plaintiff's counterclaims were 
   time-barred; plaintiff failed to object under Fed. R. Civ. P. 72(a)to the 
   magistrate's order denying certain of his discovery requests, and the 
   court was without jurisdiction to review the issue. 




Ninth Circuit:


CPR FOR SKID ROW V. CITY OF LOS ANGELES


AIRCRAFT SERVICE INT'L V. WORKING WASHINGTON


MARGARET RUDIN V. CAROLYN MYLES


NRDC V. USEPA


CHRIS TAYLOR V. JOHN CHIANG



Federal Circuit:


AMERGEN ENERGY COMPANY, LLC v. US 



DC Circuit:




Stone & Webster, Inc. v. Georgia Power Company


Airlines for America v. TSA


Meina Xie v. John Kerry

Short form

Seventh:


Walter Love v. JP Cullen & Sons, Incorporated


Official Committee of Unsecure v. Rudolph Randa

Ninth:

NORTHSTAR FINANCIAL ADVISORS, V. SCHWAB INVESTMENTS

TODD FREALY V. RICK REYNOLDS

JOSE SANTOS V. LINDA THOMAS

Tenth:

Ellis v. J.R.'s Country Stores

Eleventh:

Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A.

Federal Circuit:
\
PAPST LICENSING v. FUJIFILM CORPORATION [ERRATA]

Summaries TK.  Vel non.

MB

Seventh Circuit: Official Committee of Unsecure v. Jerome Listecki

Catholic Archdiocesan bankruptcy / RFRA

RFRA does not apply where the government is not a party to the action, as the statute specifically requires the government to make a showing as to means narrowing.

Committee of creditors does not act under the color of state law.

Fact that Archdiocese was haled into court insufficient to establish as color of state law.  (Court holds that S1983 standard parallels RFRA.)

Avoiding pre-petition transfer of funds to cemetery fund is a sufficiently narrowly tailored implementation of a neutral policy of general applicability.

Failure to recuse was problematic.


Official Committee of Unsecure v. Jerome Listecki

Second Circuit: In re Peter S. Gordon

Immigration attorney reprimanded & suspended for motions without basis in law, lack of candor to investigating tribunal.

In re Peter S. Gordon

Coverage

 Very complex FLSA ruling out of the Tenth today, spotted a mention of FRE/hearsay as well.  11th has one case.  Unfortunately, I'm out of time here.  Will catch up these two with late-breaking posts from the senior circuits tomorrow.

Eighth Circuit: Marissa Walz v. Ameriprise Financial, Inc

If an employee failed to disclose a non-obvious disability that impaired the performance of the essential functions of his or her job, summary judgement for the employer on the ADA claim is appropriate.

Marissa Walz  v.  Ameriprise Financial, Inc

Eighth Circuit: Jacqueline Conners v. Gusano's Chicago Style Pizzeri

Denial of Motion to Compel Arbitration sufficiently final for purposes of appeal.

Absent showing that new arbitration agreement chilled potential challenges to the employer, past employees not covered by the agreement who are currently litigating against the employer have no standing to challenge it on behalf of putative co-plaintiffs.

Jacqueline Conners  v.  Gusano's Chicago Style Pizzeria

Eighth Circuit: United States v. Ismael Corrales-Portillo

Informant information was sufficient basis for search under the totality of the circumsatances when the police monitored the entire transaction, were given the description of the vehicle and the defts, and the informant visually indicated the vehicle.

No error in deliberate ignorance jury instruction where deft was generally aware of contraband and was clearly "learning the ropes" of the operation.

Testimony of the informant was sufficient for finder of fact to convict on conspiracy.

Proximacy and probable complicity sufficient for Possession with Intent to Distribute.

Within-Guidelines sentence upheld.  Sentencing court did not need to disavow mistaken statement by government during sentencing.

United States  v.  Ismael Corrales-Portillo

Eighth Circuit: United States v. Randy Hentges

Sentencing - announced upward variance means that the career offender predicates don't have to be established, as either would result in the same outcome.

Deft's history justified upward variance.

Permitting allocution after the announcing of sentence but before its imposition does not violate the 5A/FRCrimP rights of the deft.

United States  v.  Randy Hentges

Eighth Circuit: Brandon Pierce v. Collection Associates, Inc.

Co-petitioner in bankruptcy does not have standing to challenge pre-petition transfer of co-petitioner.

As the amount of wages garnished prior to the filing of the partition was under the statutory cap of $600, the garnishment can't be avoided by the petitioner.

Dissent: As garnishor is assigned value of the wages upon earning, the amount of the garnishment exceeds the cap.

Brandon Pierce  v.  Collection Associates, Inc.

Eighth Circuit: Mark Minnihan v. Mediacom Communications Corp.

Despite past accommodation, driving was an essential task for the employee, so an employee incapable of driving does not have ADA standing.

Dialogue with HR and the offer of another position was sufficient interaction to establish lack of bad faith on the part of the employer.

Mark Minnihan  v.  Mediacom Communications Corp.

Eighth Circuit: Zachary Makworo Mogeni v. Eric H. Holder, Jr.

Immigration -- Petitioner's past sham marriage means that the IJ can decline to grant a continuance in removal action when family-based petition is still pending.

Zachary Makworo Mogeni  v.  Eric H. Holder, Jr.

Eighth Circuit: Tyrone Patterson v. City of Omaha

Bifurcation of trial into individual liability and corporate liability (government) didn't create a second action for the purposes of the deadline for filing notice of appeal.

No abuse of discretion in finding that unlawful force was used in the arrest and award of nominal damages where there is doubt as to causation of injuries.

Grant of summary judgment does not violate plaintiff's right to a jury trial.

Tyrone Patterson  v.  City of Omaha

Eighth Circuit: Estate of Nell G. Pepper v. Nancy Whitehead

A reasonable finder of fact could decide that the phrase "keep it" imparted a conditional gift.

Estate of Nell G. Pepper  v.  Nancy Whitehead

Eighth Circuit: Survivors Network v. Jennifer Joyce

State statute restricting profane speech outside of houses of worship violates the Fist Amendment, as there are content -neutral alternatives that might be employed to the same ends.

Survivors Network  v.  Jennifer Joyce

Short Form: Seventh Circuit and points (mostly) West

Seventh Circuit:


Eugene Bailey v.  City of Chicago - S1983 dismissal of claims in mistaken arrest after schoolyard brawl.  Sufficient cause for arrest, no showing of malice in motive for detention lasting less than 48 hours, insufficient showing on state IIED & malicious prosecution tort claims.

Eighth Circuit (Summary from Circuit site):

142220P.pdf  03/06/2015  David Zink  v.  George Lombardi
   U.S. Court of Appeals Case No:   14-2220
   U.S. District Court for the Western District of Missouri - Jefferson City   
   [PUBLISHED] [Per Curiam En Banc Decision - Chief Judge Riley and Judges 
   Wollman, Loken, Smith and Gruender join in this opinion. Judge Colloton 
   joins all but Part II.A of the opinion and Judge Shepherd joins all but 
   Part II.B of the opinion.] 
   Prisoner case - habeas - Death Penalty. The Missouri prisoners' second 
   amended complaint failed to adequately allege that Missouri's 
   lethal-injection protocol created a substantial risk of severe pain 
   because none of the alleged potentialities the prisoners identified 
   relating to compounded penobarbital rise to the level of "sure or very 
   likely" to cause serious harm or severe pain; even if one of the harms 
   identified were to occur, the prisoners offer nothing in their pleading to 
   support the allegation that it would be more than an isolated incident, 
   and an isolated incident, while regrettable, would not result in an Eighth 
   Amendment violation; the claim, therefore is inadequately pled as a matter 
   of law, and the district court did not err in dismissing it; the existence 
   of an alternative method of execution is a necessary element of an Eighth 
   Amendment claim and this element must be pleaded adequately in the 
   complaint; here,the second amended complaint merely conceded that other 
   methods the Department of Corrections could choose would be 
   constitutional, and this concession, without additional factual 
   enhancement, is insufficient to allege the necessary element of the 
   existence of an alternative method; in sum, without a plausible allegation 
   of a feasible alternative method of execution that would significantly 
   reduce a substantial risk of serious pain, or a purposeful design by the 
   State to inflict unnecessary pain, the plaintiff prisoners have not stated 
   an Eighth Amendment claim based on the State's use of compounded 
   pentobarbital in executions, and the district court did not err in 
   dismissing the prisoners' Eighth Amendment claim; the prisoners have not 
   pleaded that the use of pentobarbital will result in unnecessary and 
   wanton infliction of pain, and they have failed to state an Eighth 
   Amendment deliberate-indifference to medical needs claim; where only the 
   mode of execution has changed, with no allegation of superadded punishment 
   or superior alternatives, the Ex Post Facto Clause is not implicated; 
   prisoners failed to show that changes to the execution protocol deprived 
   them of the timely and adequate notice needed to litigate the lawfulness 
   of the procedures; the prisoners' allegations that the State violates its 
   own execution protocol by executing prisoners while legal actions are 
   pending fails to state a claim under the Equal Protection Clause; the 
   State's decision to carry out a lawful execution when there is no judicial 
   stay in place does not burden a prisoner's rights under the Eighth 
   Amendment or other constitutional provision; the prisoners failed to state 
   a claim of qualified right of public access to information regarding the 
   source of the compounded pentobarbital to be used in their executions 
   because they did not plausibly allege a history of openness to the general 
   public; challenges to use of compounded pentobarbital under the Food, Drug 
   and Cosmetic Act and the Controlled Substances Act rejected as there is no 
   private right of action under the statutes and the prisoners cannot use 
   the Missouri Administrative Procedures Act to allege the denial of a 
   private legal right under the federal statutes when the federal statutes 
   themselves do not create such a private legal right. Judge Bye, with whom 
   Judges Murphy and Kelly join, dissenting. Judge Shepherd, dissenting in 
   part. 
  
142163P.pdf  03/06/2015  Russell Bucklew  v.  George Lombardi
   U.S. Court of Appeals Case No:   14-2163
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Loken, Author, for the Court En Banc] 
   Prisoner case - habeas - Death Penalty. This opinion should be read in 
   conjunction with the court en banc's March 6, 2015 opinion in No. 14-2220, 
   Zink v. Lombardi,as Bucklew's due process claim is not materially 
   different than the due process claims raised in Zink and is resolved in 
   the opinion in that case. With respect to Bucklew's "as applied" Eighth 
   Amendment claim arising out of his congenital cavernous hemangioma, the 
   district court erred in dismissing the complaint sua sponte as it was not 
   patently obvious that Bucklew could not prevail and would not amend his 
   as-applied challenge to include a plausible allegation of a feasible and 
   more humane alternative method of execution; on remand, the pleadings 
   should be narrowly tailored and expeditiously conducted to address only 
   those issues that are essential to resolving Bucklew's as-applied Eighth 
   Amendment challenge; at the earliest possible time Bucklew must identify a 
   feasible, readily implemented alternative procedure that will 
   significantly reduce a substantial risk of severe pain and that the State 
   has refused to adopt. Judge Bye, with whom Judges Murphy and Kelly join, 
   concurring in the result. Judge Shepherd, with whom Judges Murphy and Bye 
   join, concurring. 




Ninth Circuit:




CHRIS KOHLER V. FLAVA ENTERPRISES -- ADA.  Bench that exceeds the length permitted by the statute is nonetheless legal under the statute, as it possesses a latent equivalent facilitation   (Parallel transfer from wheelchair as opposed to diagonal.)  No error in denial of fees, as it was a tough question to figure out.




Tenth Circuit:




United States v. Hicks  Violation of Speedy Trial Act, as a pro forma motion without hearing only tolls the STA clock for 30 days.  No Constitutional violation.




Al-Yousif v. Trani -- Error in granting AEDPA equitable tolling due to mistaken log entry in computer system for date of judgement; Deference to state supreme court on Miranda claims.




DC Circuit




Center for Sustainable Economy v. Sally Jewel -- Rather complex administrative law challenge having to do with oil, and continental shelves and such.  As we're in a rush, here's the stated holding: We deny CSE’s petition and conclude that: (1) CSE has  associational standing to petition for review, (2) CSE’s NEPA  claims are unripe, (3) two of CSE’s Program challenges are  forfeited, and (4) CSE’s remaining challenges to Interior’s adoption of the 2012-2017 leasing schedule fail on their merits.




Federal Circuit




G4S TECHNOLOGY LLC v. US [OPINION] -- Subcontractor is not a third party beneficiary of government contract, given government's responsibilities to the people and lack of direct benefits to the subcontractor.  Dissent: It's called "reliance," people.




OTAY MESA PROPERTY, L.P. v. US [OPINION] -- Takings award for placement of sensors at the border - no error in partial denial of compensation for "development" lands, no error in the court's arriving at its own figure for the other lands.