Federal Circuit -- STAR SCIENTIFIC, INC. V. R.J. REYNOLDS TOBACCO CO.

Patent claim which TMB will misconstrue later, as he's out of time now.  Much about best mode, infringement, obviousness - the usual patent argot.


STAR SCIENTIFIC, INC. V. R.J. REYNOLDS TOBACCO CO.

DC Circuit -- Christol English v. DC

No reversible error in exclusion of report on violations of procedures, as it wasn't directly probative to the S1983 claim.

Harmless error in gov't not amending expet disclosure under FRCP 26. 

Other evidence rulings upheld.

Christol English v. DC

DC Circuit -- Christol English v. DC

Errata.

Christol English v. DC

Eleventh Circuit -- Natalie Versiglio v. Board of Dental Examiners of Alabama

Board of Dental Examiners not entitled to sovereign immunity.

Natalie Versiglio v. Board of Dental Examiners of Alabama

Tenth Circuit -- United States v. Coleman

Oklahoma juvie drug convictions count as serious drug priors under ACCA.

Court must look to full sentence in statute without considering offsetting factors such as release at majority.

United States v. Coleman

Tenth Circuit -- Qwest Corporation v. Colorado Public Utilities

We conclude that 47 C.F.R. § 51.5 plainly states that all UNE loops count towards the number of business lines in a wire center.

No deference, as statute is not ambiguous.

Qwest Corporation v. Colorado Public Utilities

Ninth Circuit -- SEC V. HAROLD GEWERTER

Under FRCP (45), a motion to quash a subpoena must be presented to the court that issued the subpoena.

Attorney attempts to quash SEC third-party subpoena seeking his client banking records.

Jurisdiction, as third party has no incentive to contest, so no need to wait for noncompliance. 

SEC V. HAROLD GEWERTER

Ninth Circuit -- JEANENE HARLICK V. BLUE SHIELD OF CALIFORNIA

Although ERISA plan does not cover inpatient treatment for anorexia nervosa, state statute requires that plans of its type must provide such coverage.

JEANENE HARLICK V. BLUE SHIELD OF CALIFORNIA

Ninth Circuit -- MARK YOUNG V. COUNTY OF LOS ANGELES

S1983 Action for officer's pepper-spraying and striking with a baton during routine traffic stop upon plaintiff's refusal to go back into the car.

No state claim for false imprisonment, as officer could have arrested. 

Error in dismissing 4A excessive force claim.

Error in granting qualified immunity.

MARK YOUNG V. COUNTY OF LOS ANGELES

Ninth Circuit -- MANUFACTURED HOME COMMUNITIES V. COUNTY OF SAN DIEGO

Insufficient proof of actual falseness as required by California public speech lawsuit statute.

Where statute awards fees to prevailing party, no abuse of discretion where a party that lost on first motion but eventually prevailed gets all fees - law of the case does not bind.

MANUFACTURED HOME COMMUNITIES V. COUNTY OF SAN DIEGO

Ninth Circuit -- JUAN VALADEZ LOPEZ V. UNITED STATES OF AMERICA

Where plaintiff doesn't name the US on initial complaint, subsequently exhausts administrative remedy and then amends the complaint to add the US, exhaustion is kosher, there's no need to file a new action, and the amended complaint does not relate back to original filing for purposes of assessing exhaustion.

Claim not within FTCA waiver of sovereign immunity, as no specific negligent federal conduct alleged in pleadings.

No error in dismissal of S1983 & Monell claims.

JUAN VALADEZ LOPEZ V. UNITED STATES OF AMERICA

Ninth Circuit -- USA V. STINSON

Errata.

USA V. STINSON

Seventh Circuit -- Jaymz Hernandez v. Lakesha Foster

S1983 claim for improper removal of infant from family - substantive due process, 4A & procedural due process claims.

Infant has substantive due process claim on initial removal, as 4A protects, but parents can pursue SDP for removal.  Qualified immunity for defts, as probable cause existed.

Infant's continued withholding analysed under 4A, parents' claim under SDP.  Sufficient to survive summary judgment, no qualified immunity. 

Issue of coercion in agreeing to protective plan strong enough to survive summary judgment, as parents didn't have custy and were told that they wouldn't get custody unless they signed.  Caselaw put defts on notice that empty threats were clear violations of rights - no immunity. 

Qualified immunity on PDP for removal, as caselaw on removal/exigency was insufficient for notice .  PDP violation in withholding of custody during negotiating protective plan.


Jaymz Hernandez v. Lakesha Foster

Seventh Circuit -- Joseph A. Freda v. CIR

No clear error in funds received as a result of a settlement of a claim for misappropriation of capital assets being taxed as ordinary income as opposed to capital gains.

The settlement was not in lieu of a replacement of appropriated capital.

Nothing in agreement suggested that the payor viewed the deal as compensation for the use of capital assets.  Complaint was for lost profits.

Dissent: Nature and basis of claim is compensation for use of trade secret.


Joseph A. Freda v. CIR

Seventh Circuit -- Victoria L. Serednyj v. Beverly Healthcare LLC

Summary judgment upheld against Title VII claimant (pregnancy) who was denied a work accommodation and then left the gig because she didn't qualify for leave under FMLA.

Company's light-work policy does not violate the PDA, as it is pregnancy-blind.

Pregnancy complications may qualify under the ADA, but there were insufficiently limiting.

Insufficient proof for ADA record of disability claim to survive SJ.

Same for retaliation claim.


Victoria L. Serednyj v. Beverly Healthcare LLC

Seventh Circuit -- Owner-Operator Indep v. FMCS

Rulemaking TKO'd for not taking into account statutory requirement.

Rule dealt with electronic monitoring of truckers.  Court held that rulemaking was arbitrary and capricious under State Farm as the agency hadn't ever considered a statutory mandate barring electronic devices from being used in a manner harassing to drivers.

Owner-Operator Indep v. FMCS

Seventh Circuit -- Mariana Kasalo v. Harris & Harris

District Court's decision to dismiss an individual suit for lack of prosecution while plaintiff was attempting to certify a class was an abuse of discretion.

Lesser remedies wiser.

Mariana Kasalo v. Harris & Harris

Seventh Circuit -- USA v. Juan P. Lua-Guizar

 No procedural error in sentencing where judge declines to depart downwards in anticipation of pending change to guidelines; No procedural error in sentencing where judge declines to depart downward in recognition of fast-track programs in other districts and states that the court recognizes that it has the power to do so.

(Illegal entry case.)

USA v. Juan P. Lua-Guizar

Seventh Circuit -- Zakaria Bullen Wani v. Eric H. Holder, Jr.

Though government claims court has no remaining jurisdiction over immigration case, court retains ability to review for errors of law.  Case is not moot due to gov't cessation of removal process.

Three legal claims forfeited by the gov't accepted by court here - (1) fact that petitioner's deported family member has not yet been tortured isn't dispositive; (2) no requirement that petitioner have personal knowledge of the certainty of his impending torture; (3) unopposed evidence stating that foreign nation tortures repatriates. 

Petition is not moot when gov't states that removal has been stopped, so long as there is an active removal order and court has jurisdiction. 

Zakaria Bullen Wani v. Eric H. Holder, Jr.

Sixth Circuit -- Nancy Dickson v. Countrywide Home Loans

Although lender did not have a perfected lien on manufactured home prior to foreclosure - as no notation was made to title and lis penden does not suffice - subsequent conversion to improvement to real estate perfected the claim.

A manufactured home is personalty, until converted to an improvement to real estate.

Petitoner can avoid the lien, however, since the operative act wasn't the mortgage (as the property was personalty at the time) but the (involuntary) state court default judgement, and all other requirements for avoidance are met.

Nancy Dickson v. Countrywide Home Loans

Sixth Circuit -- Christina Roberts v. Christopher Hamer

Children of a lessee have no statutory standing to sue for lead paint violations under RLPHRA.

Statutory standing is dismissed under 12(b)(6), not subject matter jurisdiction.

Even where children have legal status of third-party beneficiaries under state law, plain reading of federal statute reveals Congress' intent to limit.

Christina Roberts v. Christopher Hamer

Sixth Circuit -- EA Management v. JP Morgan Chase Bank NA

Bank was not required to honor cashiers checks when it acted as both payor and depositor, meaning that it received no consideration on the deal, defeating any UCC claim against it.

Plaintiff was not legally in a position to enforce the instrument, separately defeating the claim.

 EA Management v. JP Morgan Chase Bank NA

Sixth Circuit -- Christian Heyne v. Metropolitan Nashville Public

Where plaintiff sufficiently alleges imposition of school suspension based on impermissible considerations of race, no qualified immunity for initial adjudication (Due Process & EP) - Qualified immunity granted for DP allegations on appeal, as there was no constitutional right to an appeal.

Where plaintiff in S1983 claim does not plead a plan or agreement among defts, court is to consider defts separately in analyzing qualified immunity -- not as conspirators.

Denial of qualified immunity to school official who imposed a suspension upheld -- sufficient pleading that adjudication's impartiality had been manifestly compromised.

Immunity for officials who handled case after initial appeal to board, as such appeals were not constitutionally required.

Qualified immunity for EP violation (race) denied to initial decisionmaker, but granted for others, given allegations in pleading.

Christian Heyne v. Metropolitan Nashville Public Schools

Third Circuit -- USA v. Wayne Bryant

[Third Circuit server is down at this writing.]



USA v. Wayne Bryant

First Circuit -- EMC Corp v. Arturi

Under Massachusetts law, court cannot impose a post-employment equitable remedy beyond the length of time agreed upon in the employment agreement.


EMC Corp v. Arturi

First Circuit -- Glik v. Cunniffe

The filming of government officials in a public space is a clearly established right under 1A - court did not err in denying qualified immunity.

Contradicts unpublished decision from the Fourth Circuit.

Despite the fact that the recording was done with a cell phone, sufficient notice for the police officers to have actual knowledge of the recording , defeating any violation of the Massachusetts wiretap statute.  No immunity for 4A violation.


Glik v. Cunniffe

First Circuit -- Martinez-Burgos v. Guayama Corp.

Where other performance-related factors would justify the decision not to hire, no error in dismissal of Title VII pregnancy- based hiring claim.

 Claim based on decision not to rehire after pregnancy TKO'd by fact that replacement had outperformed her in her absence.

(Full disclosure - your correspondent worked for the same temp firm many years ago.)


Martinez-Burgos v. Guayama Corp.

First Circuit -- Donald v. Spencer

District Court correctly denied discovery request for DNA examination, given the overwhelming evidence for conviction.

AEDPA restriction of habeus review to existing Scotus precedent is not unconstitutional.

Donald v. Spencer

First Circuit -- Perez-Cordero v. Wal-mart Puerto Rico, Inc.

District court's dismissal of Title VII suit for  lack of severity and pervasiveness reversed - plaintiff had raised genuine issues of material fact.

Error in dismissal of retaliation claim as well, as deft has not explained actions of managers and no explanation is evident in the record. 

Perez-Cordero v. Wal-mart Puerto Rico, Inc.

Second Circuit -- Interpharm, Inc. v. Wells Fargo Bank, N.A.

 Where a lender has the right to cut off credit and demand repayment, threats to do so are not wrongful, and therefore not grounds for a claim of economic duress.


No threat to withhold performance of contract.

Interpharm, Inc. v. Wells Fargo Bank, N.A.