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.

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.

Ninth Circuit -- BANK OF MANHATTAN V. FDIC

FDIC can't ignore pre-receivership contractual provisions when taking over a failed bank.

Dissent: State common law of contract is preempted by federal legislation.

BANK OF MANHATTAN V. FDIC

Eighth Circuit: BancInsure, Inc. v. Highland Bank

Although forged signature was a but-for cause of bad loan, insurance company  is not bound to cover under the forgery provisions of the policy, as the forgery wasn't a proximate cause of the ultimate loss.

BancInsure, Inc.  v.  Highland Bank

Eighth Circuit: IPSCO Tubulars, Inc. v. Ajax TOCCO Magnathermic Corp.

Contractual claim -  discussion of quality metrics implied that the pipe should be rated according to that quality scheme generally.

Insufficient findings to support damages number.

Good faith attempts to remedy bar gross negligence claim.

IPSCO Tubulars, Inc.  v.  Ajax TOCCO Magnathermic Corp.

Fourth Circuit: Covol Fuels No. 4, LLC v. Pinnacle Mining Company, LLC

Breach of Contract and Tort claims in environmental cleanup.

Genuine dispute of material fact as to ambiguous contractual term.

Documents other than the contract not relevant, as not explicitly incorporated.

Error to give summary judgment on breach of covenant of good faith and fair dealing claim.

Gist of the action doctrine bars reproducing contract claims as tort claims.

Covol Fuels No. 4, LLC v. Pinnacle Mining Company, LLC 

Eighth Circuit: Hamid Yazdianpour v. Safeblood Technologies, Inc.

Any party to a breached contract has standing.

A reasonable finder of fact could hold that PL had no duty to investigate the status of a foreign patent, given explicit assurances of Deft.

Failure to deliver patent diminished the value of the agreement, didn't cancel distributorship.

Non-renewal of JMOL bars sufficient evidence claims.

Prejudgment interest excessively speculative.

Hamid Yazdianpour  v.  Safeblood Technologies, Inc.

Second Circuit: Sleepy’s v. Select Comfort

Contract claims -- "first quality" goods breach claim not proven, as goods were not inferior to other goods of same manufacturer.

Contractual termination is distinct from contractual expiration.

When PL elicits defamatory statements, the PL consents to the defamation to the degree that it expected the statements to be defamatory.

Statements as to business practices of the company were statements of fact, not opinion, for purposes of New York defamation law.

Sleepy’s v. Select Comfort

Seventh Circuit: Michael Underwood v. City of Chicago

Imprudent for Federal Court to resolve disputed state question of pension law.  Contracts Clause does not operate to give independent jurisdiction, as the deft is not the state, but the municipality.  Takings claim  not yet ripe.


Michael Underwood v. City of Chicago

Third Circuit: Carlyle Investment Management v. Moonmouth Company SA

Appellate court has jurisdiction over appeal of remand to state court when the remand is not according to the statute. (1447)

Nonparties can enforce forum selection clause in contract, as the nonparties are affiliated with the signatory corporation, and the claims would not arise but for the base agreement.

Carlyle Investment Management v. Moonmouth Company SA

Tenth Circuit -- Brecek & Young Advisor, Inc. v. Lloyds of London Syndicate 200

Where insurance policy unambiguously considers actions related where they have any factual elements in common, two arbitrations referencing the same parties during the same time period are interrelated, even where the substance of the first arbitration would not put the plaintiff on notice of the charges in the second.

Under New York law, the defense that a matter is not outside coverage, as the insurer has heretofore defended claims based on it, is estoppel, not waiver.

In an estoppel claim based on the insurer's conduct of a second matter, the court should address the degree of detrimental reliance incurred by the first insured, so long as any detrimental reliance was possible.  [We're stating this one a bit freely.  Entertainment purposes only.  Eds.]

Brecek & Young Advisor, Inc. v. Lloyds of London Syndicate 200

First Circuit -- PHL Variable Insurance Company v. P. Bowie 2008 Irrevocable

Under state law, a party is not required to return all consideration received when seeking rescission of contract -- court sitting in equity has power to fashion appropriate relief.

An action for rescission is not subject to the state election of remedies rule --  it is not an action on the contract, but rather an attempt to put the parties in the place they would have been absent the contract.

PHL Variable Insurance Company v. P. Bowie 2008 Irrevocable 

Seventh Circuit -- Zena Phillips v. The Prudential Insurance

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

Zena Phillips v.   The Prudential Insurance

Eighth Circuit -- Ser Yang v. Western-Southern Life

From the court's website: 

122021P.pdf   04/25/2013  Ser Yang  v.  Western-Southern Life
  U.S. Court of Appeals Case No:  12-2021
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Benton, Author, with Wollman and Bye, Circuit Judges]
  Civil Case - contract. Grant of summary judgment to insurer for
  disallowance of death benefits based on insured's signature on policy
  despite errors made by agent is reversed. A reasonable jury could find
  insured put agent on notice of prior medical history. Transcript of
  conversation was not attached to the policy and could not be used to
  contest the policy. Summary judgment is reversed

Seventh Circuit -- NES Rentals Holdings, Incorpor v. Steine Cold Storage, Incorpora

Indemnification clause in contract not a sufficiently knowing and explicit agreement under Indiana law where the counterparty's sole negligence is excepted, but not shared negligence.

NES Rentals Holdings, Incorpor v.   Steine Cold Storage, Incorpora

Sixth Circuit -- Cogent Solutions Group, LLC v. Hyalogic, LLC

Where business competitors enter into a settlement agreement barring deprecatory references to each others' products, only direct references are barred, absent language to the contrary in the agreement.

 Cogent Solutions Group, LLC v. Hyalogic, LLC 

Seventh Circuit -- Larry Harmon v. Ben Gordon

Basketball player manager's change in percentage take didn't transform the deal into a lifetime contract.

Larry Harmon v.   Ben Gordon

Second Circuit -- Scottsdale Ins. Co. v. R.I. Pools Inc.

Defects in installation count as 'accidents' for purposes of swimming pool insurer's duty to defend.

Scottsdale Ins. Co. v. R.I. Pools Inc.

Eighth Circuit -- Gear Automotive v. Wilshire Insurance Company

Sole owner and member of automobile dealership is an employee for purposes of the employee exclusion on the general liability insurance policy.

In brief, "Robert generally engaged in the same daily duties as his brother Darrell, which primarily consisted of selling cars."

Gear Automotive v. Wilshire Insurance Company

First Circuit -- Barclays Bank PLC v. Poynter

Contract provisions requiring lender to provide advance notice of intent to sell apply only to actions initiated pursuant to that subpoint -- it doesn't impose an umbrella notification requirement.

Barclays Bank PLC v. Poynter