The Next Several Weeks

We' ll continue the list of weekly links for a bit longer.  Our ambition is to get back to the individually abstracted and cited format as soon as possible.

-MB

New Opinons - Very Short Form

Sorry Global Legal Community, running late, so case names & links only for yesterday and today..

MB

First:

03/30/2015	12-2490P.01A	12-2490	US v. Navedo-Ramirez     District Court of Puerto Rico, San Juan
03/30/2015	14-1018P.01A	14-1018	AFDI v. MBTA     District of Massachusetts, Boston
03/30/2015	14-1018P.01A	14-1289	AFDI v. MBTA     District of Massachusetts, Boston
03/30/2015	14-1286P.01A	14-1286	US v. Carpenter     District of Massachusetts, Boston
03/30/2015	14-1450P.01A	14-1450	Dutkewych v. Standard Insurance Company     District of Massachusetts, Boston

Second:

Taylor v. Rogich, et al.

Fourth Yesterday:

132003.P Georgia-Pacific Consumer Products v. Von Drehle Corporation 

Fifth:

USA v. Cesar de la Cruz
William Speer v. William Stephens, Director
USA v. Jose Pacheco-Alvarado
Moises Mendoza v. William Stephens, Director

Sixth:

USA v. Patrick Winters 

Seventh:

13-2200	USA v.   David Lockett	criminal	03/31/2015	Final  Opinion	PerCuriam
13-2234	USA v.   John Tomkins	criminal	03/30/2015	Final  Opinion	Tinder
14-2592	Linda Reed v.   Columbia St. Mary's Hospital	civil	03/30/2015	Final  Opinion	Hamilton

Eighth (Summaries from Circuit):

141123P.pdf  03/31/2015  United States  v.  Randy Never Misses A Shot
   U.S. Court of Appeals Case No:   14-1123
   U.S. District Court for the District of South Dakota - Pierre   
   [PUBLISHED] [Smith, Author, with Murphy and Gruender, Circuit Judges] 
   Criminal case - Criminal case. The district court's comments to the 
   prosecution at a sidebar regarding a possible deficiency in its evidence 
   and the court's decision to permit the government to reopen its 
   case-in-chief were not an abuse of the court' discretion and did not 
   prejudice defendant because the jury did not hear the comments and the 
   evidence at that point was, in any event, sufficient to convict defendant 
   on the count; evidence was sufficient to support defendant's convictions 
   for sexual abuse of a minor; the court did not err in rejecting 
   defendant's request for a lesser-included-offense of simple assault; no 
   error in admitting the testimony of six Rule 413 and 414 witnesses as the 
   court concluded the conduct covered by their testimony was similar enough 
   to the conduct charged to prove propensity; even if the admission of six 
   witnesses' testimony raised Rule 403 concerns, any error was harmless in 
   light of the other evidence of propensity; no error in excluding evidence 
   of past sexual assault against a victim under Rule 412. 

141929P.pdf   03/30/2015  Streambend Properties II, LLC  v.  Ivy Tower Minneapolis, LLC
  U.S. Court of Appeals Case No:  14-1929
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Loken, Author, with Bye and Smith, Circuit Judges] 
  Civil case - Interstate Land Sales Full Disclosure Act. For the court's 
  prior opinion in the case see Streambend Props. II, LLC v. Ivy Tower 
  Mpls., LLC, 451 F. App'x 627 (8th Cir. 2012). District court did not abuse 
  its discretion by refusing to permit plaintiff to re-add a party whose 
  prior dismissal on the merits was not challenged in the earlier appeal; 
  plaintiff's Count alleging violation of Section 1703(a)(2)(A)&(C) did not 
  satisfy the pleading requirements of Rule 9(b) because it failed to plead 
  intentional wrongdoing (scienter) and the district court did not err in 
  dismissing the Count; Rule 8 governed the Section 1703(a)(2)(B) 
  allegations in Count I of the complaint, and it was error to dismiss them 
  for failure to satisfy Rule 9; however, the Count failed to state a 
  plausible claim and the dismissal is affirmed; no error in refusing to 
  permit further amendment of the complaint; no error in granting defendant 
  Commonwealth's motion for summary judgment as there was no evidence it 
  made any representations or was involved in the sale of property to 
  plaintiff; the district court did not err in refusing to exercise 
  supplemental jurisdiction over plaintiff's state law claims. 

Ninth:

JOSE MARQUEZ CARRILLO V. ERIC HOLDER, JR.
12-70779
Board of Immigration Appeals
FERNANDEZ, Ferdinand
Agency
03/31/2015
TROAS BARNETT V. DAVID NORMAN
13-15234
Fresno District Court
OWENS, John
Prisoner
03/31/2015
JOHN DOE V. ROBERT AYERS, JR.
15-99006
REINHARDT, Stephen
Prisoner Death Penalty
03/31/2015
USA V. FRANCISCO JIMENEZ-ARZATE
12-50373
San Diego District Court
Criminal
03/30/2015
USA V. TODD FRIES
13-10116
Tucson District Court
RAWLINSON, Johnnie
Criminal
03/30/2015

Tenth today:

Siloam Springs Hotel v. Century Surety Co.
Filed On:March 31, 2015
Docket #: 14-6119
United States District Court for the Western District of Oklahoma - Oklahoma City 
Type: Published Opinion
Greenbaum v. Bailey
Filed On:March 31, 2015
Docket #: 13-2176
United States District Court for the District of New Mexico - Albuquerque 
Type: Published Opinion


Tenth yesterday: Unknown.




Eleventh:


Richard Moss v. City of Pembroke Pines, et al
14-11240
0:11-cv-62595-WJZ
NEW
03-31-2015
Carlos Zelaya, et al v. USA
13-14780
0:11-cv-62644-RNS
NEW
03-30-2015



Federal Circuit:

APOTEX INC. v. DAIICHI SANKYO, INC. [OPINION]

No Post Today

Well, except for this one.  Expect one tomorrow, one Wednesday, and then next one Monday.

MB

3/23 -- 3/28

First Circuit:

US v. Munyenyezi 
Home Orthopedics Corp. v. Rodriguez 
US v. Kantengwa 
First State Insurance Company v. National Casualty Co 
US v. Habibi 
US v. Hufstetler 
US v. Molina-Gomez 
Advanced Flexible Circuits v. GE Sensing & Inspection 

Second Circuit:

United States v. Christine Wright-Darrisaw
Sebrena Robinson v. Concentra Health Services,Inc
In re: Advanced Battery Technologies 
Concerned Home Care Providers, Inc. v. Cuomo

Third Circuit:


Michael Torre v. Liberty Mutual Fire Insurance
EEOC v. Allstate Insurance Co
EEOC v. Allstate Insurance Co
Hernan Gonzalez-Posadas v. Attorney General United States
Agency
Phillip Fantone v. Fred Latini

Fourth Circuit:

Consolidation Coal Company v. Georgia Power Company 
Mark Lee v. Harold Clarke 
Robert Johnson v. American Towers, LLC

Professional Massage Training v. Accreditation Alliance of Career Schools 

Fifth Circuit:


USA v. Juan Martinez-Lugo
Micah Phillips v. City of Dallas
Tammy Bryant v. Texas Dept of Aging and Disab, et
Justin Richardson v. Axion Logistics, L.L.C.
Angus Chemical Company v. Glendora Plantation, Inc
Ronald Hines v. Bud Alldredge, Jr., et al
Donnika Ivy, et al v. Michael Williams
Michael Toney v. Rissie Owens, et al
Auto Parts Mfg MS Inc. v. King Const of Houston,   (II)

Sixth Circuit:


Elizabeth Goodwin v. City of Painesville 
Lexon Insurance Co. v. Aziz Naser 
USA v. Raymond Burch, Jr. 
USA v. Gerald Singer
USA v. Jose Solano-Rosales 
St. Marys Cement Inc. v. EPA 
Environmental Protection Administration
Michael Keller v. Miri Microsystems LLC 
Supplemental Benefit Committee v. Navistar, Inc. 

Seventh Circuit:


Marshall King v. Robert McCarty

USA v. Timmy Reichling

Shaohua He v. Eric H. Holder, Jr.

USA v. Ambrosio Medrano

USA v. Gustavo Buenrostro

Kevin Voigt v. Carolyn Colvin

USA v. Jason White

Joyce Hutchens v. Chicago Board of Education

Lawrence Owens v. Stephen Duncan

Peter Metrou v. M.A. Mortenson Company

Eighth Circuit:

113423P.pdf   03/26/2015  Rodney Washington  v.  American Airlines
  U.S. Court of Appeals Case No:  11-3423
  U.S. District Court for the Western District of Missouri - St. Joseph    
  [PUBLISHED] [Colloton, Author, with Bye and Gruender, Circuit Judges] 
  Civil case - Employment discrimination. There was no evidence that 
  plaintiff's job skills testing or the treatment he received regarding his 
  application for the position of machinist was based on race, and the 
  district court did not err in finding that race was not a motivating 
  factor for the decision to deny plaintiff's application for the promotion. 
 
141356P.pdf   03/26/2015  Selective Insurance Company  v.  Smart Candle, LLC
  U.S. Court of Appeals Case No:  14-1356
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Kelly, Author, with Gruender and Shepherd, Circuit Judges] 
  Civil case - Insurance. Because there are no allegations in the complaint 
  - in either form or substance - regarding misuse of an advertising slogan, 
  the insurer properly concluded it did not have a duty to defend the claim 
  against its insured Smart Candle. 
 
141381P.pdf   03/26/2015  United States  v.  Tamiko Grandison
  U.S. Court of Appeals Case No:  14-1381
  U.S. District Court for the Western District of Missouri - Kansas City    
  [PUBLISHED] [Riley, Author, with Loken and Smith, Circuit Judges] 
  Criminal case - Criminal law and sentencing. A police officer's testimony 
  regarding a government witness's character and reliability was admissible 
  under Rule 608(a) and did not constitute improper "bolstering;" even if 
  admission of evidence during defendant's cross-examination regarding her 
  misrepresentation of her criminal record on applications for federal 
  employment was error, it did not impact the jury's overall opinion of 
  defendant's credibility and was harmless in light of the strong evidence 
  of her guilt; the government concedes it was error for the district court 
  to impose an enhancement under Guidelines Sec. 2D1.1(b)(12) for running a 
  drug house and this error affected defendant's substantial rights; her 
  sentence is vacated, and the case is remanded for resentencing. 
 
141741P.pdf   03/26/2015  Menard, Inc.  v.  Terry L. Clauff
  U.S. Court of Appeals Case No:  14-1741
  U.S. District Court for the District of Nebraska - Lincoln    
  [PUBLISHED] [Beam, Author, with Loken and Colloton, Circuit Judges] 
  Civil case - Contracts. In an action holding defendant Clauff jointly and 
  severally liable for a contract he signed on behalf of an LLC before it 
  came into existence, the district court did not err in finding, based on 
  the summary judgment record, that Clauff was not authorized to obligate 
  the LLC to a lease assignment because the LLC not yet properly organized 
  under Nebraska law and could not transact business or incur debt that was 
  not incidental to its organization; assuming the parties intended the LLC 
  to receive the assignment of the lease, Clauff cannot escape liability 
  under Nebraska Revised Statute Sec. 21-2635 (repealed 2013) merely because 
  the parties did not intend him to be personally liable; however, the 
  matter should be remanded for further proceedings on the question of 
  whether Nebraska common law and/or Sec. 21-365 preclude Clauff's argument 
  that his liability under the Lease Assignment may be relieved or avoided 
  because the LLC came into existence, adopted the contract and commenced 
  performance. Judge Colloton, dissenting.

133253P.pdf   03/25/2015  United States  v.  Fred Robinson
  U.S. Court of Appeals Case No:  13-3253
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Benton, Author, with Wollman and Colloton, Circuit Judges] 
  Criminal case - Criminal law. Agents could reasonably rely on binding 
  Supreme Court precedents permitting them to attach a tracking device to 
  defendant's vehicle at the time they did so, and the GPS evidence in the 
  case was properly admitted; counts alleging two different schemes for 
  federal programs theft were not misjoined, as the evidence overlapped and 
  evidence from each scheme would have been admissible in the separate trial 
  of the other scheme; further, the court instructed the jury that each 
  offense was a separate or different crime, thereby minimizing any 
  prejudice; Batson claim rejected; instructions on theft concerning 
  programs receiving federal funds were not erroneous, and the court 
  properly rejected defendant's proposed instructions as they did not 
  correctly state the applicable law; evidence was sufficient to support 
  defendant's conviction for accepting wages for work not performed at his 
  parking meter inspection job for the City of St. Louis as he was agent of 
  the City government which received federal funds; below-Guidelines 
  sentence was substantively reasonable; restitution order was not an abuse 
  of discretion. 
 
141567P.pdf   03/25/2015  Jose Torres  v.  Simpatico, Inc.
  U.S. Court of Appeals Case No:  14-1567
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] Wollman, Author, with Smith and Shepherd, Circuit Judges] 
  Civil case - Arbitration. Arbitration provision in plaintiffs' franchise 
  agreements was enforceable and was not unconscionable because of the costs 
  associated with individual arbitration proceedings; argument that the 
  agreements were unconscionable because they waived punitive or exemplary 
  damages and attorneys' fees went to the merits of the dispute and were for 
  the arbitrator to resolve; agreements were broad enough to permit 
  non-signatory parties, as third party beneficiaries of the agreement, to 
  invoke and enforce the arbitration provision. 
 
141894P.pdf   03/25/2015  E3 Biofuels, LLC  v.  Biothane, LLC
  U.S. Court of Appeals Case No:  14-1894
  U.S. District Court for the District of Nebraska - Omaha    
  [PUBLISHED] [Gruender, Author, with Riley, Chief Judge, and Beam, Circuit 
  Judge] 
  Civil case - Negligence. The district court did not err in finding 
  plaintiff's claims arising out of methane plant explosion were barred by 
  Nebraska's two-year statute of limitations for professional negligence. 

133253P.pdf   03/25/2015  United States  v.  Fred Robinson
  U.S. Court of Appeals Case No:  13-3253
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Benton, Author, with Wollman and Colloton, Circuit Judges] 
  Criminal case - Criminal law. Agents could reasonably rely on binding 
  Supreme Court precedents permitting them to attach a tracking device to 
  defendant's vehicle at the time they did so, and the GPS evidence in the 
  case was properly admitted; counts alleging two different schemes for 
  federal programs theft were not misjoined, as the evidence overlapped and 
  evidence from each scheme would have been admissible in the separate trial 
  of the other scheme; further, the court instructed the jury that each 
  offense was a separate or different crime, thereby minimizing any 
  prejudice; Batson claim rejected; instructions on theft concerning 
  programs receiving federal funds were not erroneous, and the court 
  properly rejected defendant's proposed instructions as they did not 
  correctly state the applicable law; evidence was sufficient to support 
  defendant's conviction for accepting wages for work not performed at his 
  parking meter inspection job for the City of St. Louis as he was agent of 
  the City government which received federal funds; below-Guidelines 
  sentence was substantively reasonable; restitution order was not an abuse 
  of discretion. 
 
141567P.pdf   03/25/2015  Jose Torres  v.  Simpatico, Inc.
  U.S. Court of Appeals Case No:  14-1567
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] Wollman, Author, with Smith and Shepherd, Circuit Judges] 
  Civil case - Arbitration. Arbitration provision in plaintiffs' franchise 
  agreements was enforceable and was not unconscionable because of the costs 
  associated with individual arbitration proceedings; argument that the 
  agreements were unconscionable because they waived punitive or exemplary 
  damages and attorneys' fees went to the merits of the dispute and were for 
  the arbitrator to resolve; agreements were broad enough to permit 
  non-signatory parties, as third party beneficiaries of the agreement, to 
  invoke and enforce the arbitration provision. 
 
141894P.pdf   03/25/2015  E3 Biofuels, LLC  v.  Biothane, LLC
  U.S. Court of Appeals Case No:  14-1894
  U.S. District Court for the District of Nebraska - Omaha    
  [PUBLISHED] [Gruender, Author, with Riley, Chief Judge, and Beam, Circuit 
  Judge] 
  Civil case - Negligence. The district court did not err in finding 
  plaintiff's claims arising out of methane plant explosion were barred by 
  Nebraska's two-year statute of limitations for professional negligence. 

141623P.pdf   03/24/2015  Henry Lyons  v.  F. Wayne Vaught
  U.S. Court of Appeals Case No:  14-1623
  U.S. District Court for the Western District of Missouri - Kansas City    
  [PUBLISHED] Loken, Author, with Murphy and Melloy, Circuit Judges] 
  Civil case - Civil rights. In action alleging defendants retaliated 
  against plaintiff after he engaged in protected speech concerning 
  preferential treatment for student-athletes at the University of Missouri 
  Kansas City, the district court erred in determining defendants Vaught and 
  Bassa were not entitled to qualified immunity on plaintiff's First 
  Amendment retaliation claims; plaintiff failed to allege that the 
  defendants knew of plaintiff's protected speech when they declined to 
  recommend him for reappointment. 


132729P.pdf   03/23/2015  Andre Porter  v.  Dave Dormire
  U.S. Court of Appeals Case No:  13-2729
  U.S. District Court for the Western District of Missouri - Jefferson City    
  [PUBLISHED] [Benton, Author, with Wollman and Colloton, Circuit Judges] 
  Prisoner case - Prisoner civil rights. Plaintiff failed to exhaust his 
  medical treatment claims through the Department's grievance procedure and 
  the district court did not err in dismissing the action; because dismissal 
  is mandatory, the district court erred in granting the defendants' motion 
  for summary judgment, and the summary judgment order is vacated and the 
  case is remanded for dismissal without prejudice. 

141054P.pdf   03/23/2015  United States  v.  Jermaine Roy
  U.S. Court of Appeals Case No:  14-1054
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Benton, Author, with Wollman and Colloton, Circuit Judges] 
  Criminal case - Criminal law. In this prosecution for sex trafficking, the 
  district court did not abuse its discretion by refusing to permit 
  defendant to show a video of the victim performing a sex act on him; the 
  district court did not err under Fed. R. Evid. 412(a) in refusing to 
  permit defendant to introduce evidence of he victim's past sexual 
  behavior; nor did exclusion of the evidence violate defendant's Sixth 
  Amendment rights; in any event, defendant's failure to file a timely 
  notice under Rule 412(c)(1)(B) was sufficient grounds to deny the request; 
  claim of Brady violation rejected as defendant had access to the relevant 
  information, which was in a published Arkansas Supreme Court decision, and 
  the government was unaware of the fact that the victim had made a false 
  statement to state police in an unrelated case. 
 
141422P.pdf   03/23/2015  United States  v.  Cesar Gonzalez
  U.S. Court of Appeals Case No:  14-1422
  U.S. District Court for the Southern District of Iowa - Davenport    
  [PUBLISHED] [Gruender, Author, with Riley, Chief Judge, and Beam, Circuit 
  Judge] 
  Criminal case - Criminal law and sentencing.UPS employees were not acting 
  as government agents, and the search they conducted of a package was a 
  private search and did not implicate the Fourth Amendment; temporary 
  seizure of a second package was based on a reasonable suspicion of 
  criminal activity; duration of seizure (three and one-half hours) was not 
  unreasonable; drug dog alert provided an adequate basis for issuance of a 
  search warrant; omission from the warrant application of the fact that the 
  drug dog initially also showed interest in another package was not the 
  kind of reckless disregard of the truth which requires a Franks hearing; 
  no error in denying defendant's request for a two-level reduction under 
  Guidelines Sec. 3E1.1(a) for acceptance of responsibility; district court 
  properly weighed the 3553(a)factors and considered defendant's request for 
  a downward variance; disparity between defendant's sentence and a 
  co-defendant's was justified by defendant's escalating pattern of criminal 
  conduct and the fact that he was on probation when he committed this 
  offense. 
 
141425P.pdf   03/23/2015  Allan Rodgers  v.  Daniel Knight
  U.S. Court of Appeals Case No:  14-1425
                         and No:  14-1454
  U.S. District Court for the Western District of Missouri - Jefferson City    
  [PUBLISHED] [Colloton, Author, with Murphy and Kelly, Circuit Judges] 
  Civil case - Civil rights. Prosecutors had absolute immunity for filing a 
  criminal charge against plaintiff Greg Rodgers and the officers were 
  entitled to qualified immunity for recommending an unlawful use of weapons 
  charge; officers were entitled to qualified immunity on charge they 
  violated plaintiff's rights by seeking a search warrant; search was 
  reasonable and officers were entitled to qualified immunity for the scope 
  of the search; officers were entitled to hold the weapons as evidence and 
  returned them within a reasonable time after the close of the criminal 
  proceedings; plaintiffs' Second Amendment claims were correctly dismissed 
  as lawful seizure and retention of weapons does not violate the Second 
  Amendment; officers were entitled to qualified immunity on claim they 
  seized the weapons in retaliation for plaintiff's exercise of his First 
  Amendment rights since they had probable cause to arrest plaintiff and 
  seize his weapons; failure to train and instruct claims against the City 
  of Columbia and Boone County rejected; claim that a senior judge cannot 
  preside over the case is foreclosed by Eighth Circuit precedent, and claim 
  the judge should have recused was raised for the first time on appeal and 
  would not be considered. With respect to plaintiff Franklin's appeal, the 
  officers had probable cause to seek a warrant and arrest him and were 
  entitled to qualified immunity; guns seen in plain view during the 
  execution of a "drug warrant" could be seized as tools of the drug trade 
  and evidence of the offense; weapons could be retained for evidence 
  purposes; First Amendment retaliation claim was properly dismissed as the 
  officers had probable cause to arrest defendant; failure to train claims 
  were properly dismissed. 
 
141664P.pdf   03/23/2015  Sherrita Harris  v.  Hartford Fire Insurance Co.
  U.S. Court of Appeals Case No:  14-1664
  U.S. District Court for the Western District of Missouri - Kansas City    
  [PUBLISHED] [Benton, Author, with Wollman and Colloton, Circuit Judges] 
  Civil case. In an action on a statutorily-required bond, the district 
  court erred in determining the case was governed by Missouri's three-year 
  statute of limitations for an action upon a statute for a penalty or 
  forfeiture; the action was governed by the ten-year statute of limitations 
  for an action upon any writing for the payment of money or property (MO. 
  Rev. Stat. Sec. 516.110(1) RSMO 2000). 
 
141669P.pdf   03/23/2015  United States  v.  Acie Evans
  U.S. Court of Appeals Case No:  14-1669
  U.S. District Court for the Western District of Missouri - Kansas City    
  [PUBLISHED] [Shepherd, Author, with Bye and Kelly, Circuit Judges] 
  Criminal case - Criminal law. Police officers' decision to impound 
  defendant's vehicle was based on department policy regarding towing; 
  district court's determination that the manager of the apartment complex 
  where the vehicle was parked had asked officers to remove the vehicle was 
  not clearly erroneous; district court did not err in determining the 
  officers did not have an improper investigatory motive for the search of 
  the vehicle. 
 
141787P.pdf   03/23/2015  United States  v.  Mark Brewer
  U.S. Court of Appeals Case No:  14-1787
  U.S. District Court for the District of Nebraska - Omaha    
  [PUBLISHED] [Shepherd, Author, with Loken and Colloton, Circuit Judges] 
  Forfeitures. The government made reasonable attempts to notify Brewer of 
  the forfeiture proceedings by mailed notices and publication; the evidence 
  established Brewer was well aware of the seizure and could have filed a 
  timely claim; government proved a substantial connection between the 
  seized funds and drug activity, and the court did not err in forfeiting 
  the cash; Brewer did not meet his burden of proving innocent ownership; 
  seizure of the cash was not an excessive fine under the Eighth Amendment. 
 
141928P.pdf   03/23/2015  United States  v.  Elfred William Petruk
  U.S. Court of Appeals Case No:  14-1928
  U.S. District Court for the District of Minnesota - St. Paul    
  [PUBLISHED] [Bright, Author, with Loken and Kelly, Circuit Judges] 
  Criminal case - Criminal law. The evidence was not sufficient to establish 
  that defendant committed the offense of carjacking as the initial theft of 
  the truck was accomplished when the truck was unoccupied and his actions 
  in attacking someone who followed him and attempted to recover the truck 
  amounted to retaining rather than acquiring control of the stolen truck; 
  no rational trier of fact could conclude that in attempting to secure a 
  false statement in December, 2012 that defendant contemplated a 
  particular, foreseeable "official proceeding" as defined by 18 U.S.C. Sec. 
  1515(a)(1)(A), and his conviction for obstructing an official proceeding 
  under 18 U.S.C. Sec. 1512(c)(2) is vacated; however, defendant's efforts 
  to obtain a false statements after the initiation of this federal 
  prosecution did amount to a violation of 1512(c)(2), and this conviction 
  is affirmed. Remanded for resentencing. 

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. 

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:

ROBERTO MALDONADO V. ERIC HOLDER, JR.
USA V. MARIA MOE
USA V. LAWRENCE SHAW
ADAM RICHARDS V. ED PRIETO
EDWARD PERUTA V. COUNTY OF SAN DIEGO
TEOFILO MEDINA, JR. V. KEVIN CHAPPELL
CROW TRIBAL HOUSING AUTHORITY V. USHUD
TEOFILO MEDINA, JR. V. KEVIN CHAPPELL
USA V. MICHAEL DREYER
USA V. HEIDI HAISCHER
USA V. AARON HYMAS
CHRIS KOHLER V. BED BATH & BEYOND OF CALIF.
HECTOR NAVARRO V. ENCINO MOTORCARS
USA V. MERLIN MARCIA-ACOSTA
MTB ENTERPRISES V. ADC VENTURE 
MARK MUNNS V. JOHN F. KERRY
BRUCE LISKER V. CITY OF LOS ANGELES
CHRIS KOHLER V. EDDIE BAUER

Tenth:

Certain Underwriters v. Bartle
Filed On:March 27, 2015
Docket #: 13-3310
United States District Court for the District of Kansas - Kansas City 
Type: Published Opinion

(The Tenth makes it hard to identify past published opinions -- see their site.)

Rest TK

MB

Sorry folks, no post today

At worst, we'll do a comprehensive rundown this weekend.

MB

Next update Thursday

Crick rose.  Back to normal soon.

MB

No posts today

Comprehensive update, at least a list, tomorrow.

MB

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.