First Circuit -- Rosciti v. Insurance Company

Where a Rhode Island company self-insures and then goes bankrupt during pendency of liability suit, contract term prohibiting supplementary insurer from contributing until the company's retained limit had been paid out is unenforceable as contrary to public policy.

Rosciti v. Insurance Company

First Circuit -- Goncalves v. Plymouth County

Summary judgment on plaintiff's state law discrimination and ADEA claims appropriate where plaintiff hasn't established she was qualified to do the job.


Goncalves v. Plymouth County

TMB Reaches 1000 Posts

This post is the 1,001st.

That's more web posts than St. Thomas Aquinas, Proust, Diderot, and Samuel Johnson combined.

Federal Circuit -- BETTCHER INDUSTRIES, INC. V. BUNZL USA, INC.

Complex patent case - jury might reasonably have found infringement where competitor's products 'wear down' to a similar shape and function. 

Deft had adequate time to press claim construction at trial, no error in jury instructions.

(Again, these quick summaries are hardly comprehensive and quite possibly incorrect.)

Dissent - Patent void for anticipation.

BETTCHER INDUSTRIES, INC. V. BUNZL USA, INC.

Federal Circuit -- ROMERO V. DEPT. OF DEFENSE

DOD complied with correct procedures in revoking security clearance.

ROMERO V. DEPT. OF DEFENSE

Federal Circuit -- LEMANS CORP. V. U.S.

Motocross haberdashery correctly categorized by Customs svc.

LEMANS CORP. V. U.S.

Federal Circuit -- BLEDSOE V. MERIT SYSTEMS PROTECTION BOARD

No review available for Board decision declining to provide alternate work assignment for recuperating Postal worker.

Dissent - Board should have affirmed the administrative decision, not dismissed the appeal.

BLEDSOE V. MERIT SYSTEMS PROTECTION BOARD

Federal Circuit -- MEZZALINGUA ASSOCIATES, INC. V. INTERNATIONAL TRADE COMMISSION

"Domestic industry" element of Tariff Act not met.

Dissent.

MEZZALINGUA ASSOCIATES, INC. V. INTERNATIONAL TRADE COMMISSION

Federal Circuit -- ENGAGE LEARNING, INC. V. SALAZAR

Court of FC has jurisdiction over any express or implied contract with US.

Decision should be made on merits, not jurisdiction.


ENGAGE LEARNING, INC. V. SALAZAR

Federal Circuit -- IN RE STEPAN CO.

Deft did not have adequate warning of Board's new grounds for rejection of examiner's decision.


IN RE STEPAN CO.

Federal Circuit -- IGT V. BALLY GAMING INTERNATIONAL, INC.

Claim construction for gambling machines networking patent.

IGT V. BALLY GAMING INTERNATIONAL, INC.

Federal Circuit -- ATLANTIC RESEARCH MARKETING SYSTEMS, INC. V. TROY

Patent correctly invalidated for lack of adequate written description.

Can't argue that someone stole your patented trade secret. (As patents aren't secret.)

Mistrial granted, as juror brought prop from home, and court did not poll jurors as to possible prejudicial effects.

Multiple Allen charges are kosher in First Circuit law.


ATLANTIC RESEARCH MARKETING SYSTEMS, INC. V. TROY

Eighth Circuit -- Kreisler & Kreisler, LLC v. National City Bank

Given wording of loan agreement, when successor in interest lender moves from exact interest to bank interest in calculating the interest on a loan, borrower has no viable claim.

Kreisler & Kreisler, LLC v. National City Bank

Eighth Circuit -- Clayton Miller v. Mark Albright

 No plain error in denial of nominal damages after verdict against S1983 deft where there was no nominal damages jury instruction.

Clayton Miller v. Mark Albright

Seventh Circuit -- USA v. Joseph Persfull

Bankruptcy fraud conviction upheld, as debtor did not timely inform trustee of inheritance received on the day that debts were discharged.

USA v. Joseph Persfull

Seventh Circuit -- Belinda Egan v. Freedom Bank

Summary judgment inappropriate on Title VII gender discrim claims, given two sets of potentially plausible stories.

No jurisdiction to review magistrate's orders.

Belinda Egan v. Freedom Bank

Seventh Circuit -- USA v. Terrance McCauley

A bare-bones description and location is sufficient probable cause for an arrest.

If someone says that they saw you at the beatn' and you're arrested with a baseball bat, that's a dangerous weapon sentencing bump.

USA v. Terrance McCauley

Fifth Circuit -- Don Wesley v. General Drivers, et al

Errata.

Don Wesley v. General Drivers, et al

Fifth Circuit -- Wal-Mart Stores, Inc. v. Qore, Inc.

Where architect indemnified client against negligence claims, that contract provision can operate to compel the architect to cover fees when client successfully sues it for negligence.

BUT as K only indemnified against derivative acts of the negligence, the broad-based nature of suit means no recovery.

Wal-Mart Stores, Inc. v. Qore, Inc.

First Circuit -- Donahue v. FBI

Denial of en banc.

"Statement" - FTCA rule is absolute.

Dissent - The FBI done bad.  Sovereign Immunity has no constitutional foundation.

Dissent2 - Circuit has bias against en banc.  Injustice of outcome.

Donahue v. FBI 
The Estate of Edward Brian Hal v. US 
Donahue v. United States

And Tomorrow and Tomorrow. . . .

TMB is a few days behind on the Federal Circuit.  We'll make up the ground by the end of the week, if the crick don't rise.

Ninth Circuit -- DION STARR V. COUNTY OF LOS ANGELES

En banc denied.

Dissent - pleading not up to Iqbal standards.

DION STARR V. COUNTY OF LOS ANGELES

Eighth Circuit -- Yehud-Monosson USA, Inc. v. Habbo Fokkena

 Bankruptcy Court did not err in converting Chapter 11 filing to Chapter 7.

Yehud-Monosson USA, Inc. v. Habbo Fokkena

Eighth Circuit -- United States v. Robert Cole

 Manager/supervisor sentencing bump correctly applied, as deft had someone drive him to St. Louis.

Sentence substantively reasonable.

United States v. Robert Cole

Eighth Circuit -- Shirley Phelps-Roper v. City of Manchester, Missouri

 Municipality's ordinance restricting protesting at funerals insufficiently narrowly tailored.

Concur in J - Snyder v. Phelps controls.

Shirley Phelps-Roper v. City of Manchester, Missouri

Eighth Circuit -- Michael Osuji v. Eric H. Holder, Jr.

 Petitioner did not establish persecution.

Michael Osuji v. Eric H. Holder, Jr.

Eighth Circuit -- United States v. Geff Yielding

 TRO to enforce restitution order was properly issued.

United States v. Geff Yielding

Eighth Circuit -- United States v. Geff Yielding

Admittred statement neither hearsay nor confrontation clause violation.

No error in admitting evidence of prior bad acts.

Indictment not duplicitous.

Superseding indictment did not broaden initial indictment - no SOL issue.

No error in denial of hearing on evidence.

Representative of estate cannot waive attorney-client privilege against the interests of the estate.

No error in Obstruciton jury instruction.

Statute not too vague.

Evidence sufficient.

Several sentencing challenges - error in calculation of amount of loss to victims vs. benefit to deft.

United States v. Geff Yielding

Sixth Circuit -- In re: Richard Miller

Complex bankruptcy case.

Choice of law rules in the agreement do not trump the court's choice of law rules.

Mistaken overbid is not a ground for undoing foreclosure sale.

Overbid operates as a setoff against bank claim vs. debtor.

No due process violation for the bank where the court was irked with the bank.

In re: Richard Miller

Sixth Circuit -- Nora Ettienne v. Eric Holder, Jr.

BIA individualized determinations means that Article III courts can't assess agency congruence with precedent.

Nora Ettienne v. Eric Holder, Jr.

Fifth Circuit -- David Wilson v. Gerald Birnberg, et al

No procedural/substantive DP/EP violation in refusal to list candidate on primary ballot.

Candidate put wring address.

Not a property right.

David Wilson v. Gerald Birnberg, et al

Fifth Circuit -- Don Wesley v. General Drivers, et al

S1981 action by employee against union for insufficient representation TKO'd for lack of comparator.

Don Wesley v. General Drivers, et al

Fifth Circuit -- American Home Assurance Co., et al v. Cat Tech, L.

District Court erred in granting summary judgment, as arbitration outcome was too vague to establish whether contractual term was triggered.
 
American Home Assurance Co., et al v. Cat Tech, L.

Third Circuit -- USA v. Daniel Siddons

"Because my attorney wasn't ready for trial" not a valid reason to withdraw plea.

No ex post facto violation where sentencing bump not in existence at the time of crime is applied, so long as the crime is part of continuing related conduct later sentenced according to the latest version of the Guidelines.

No error in obstruction bump, sentence substantively reasonable.

USA v. Daniel Siddons

First Circuit -- Sony BMG Music Entertainment v. Tenenbaum

Errata.

Sony BMG Music Entertainment v. Tenenbaum

First Circuit -- Osorio v. One World Technologies, Inc.

Defective design plaintiff need not prove that alternative design meets state law test for viability.

Alternative design establishes that claim is not an impermissible categorical liability claim.

Court did not abuse discretion in allowing plaintiffs counsel to say "send a message."

No error in allowing witness to testify as to some machinery-related things.


Osorio v. One World Technologies, Inc.

Second Circuit -- John J. Fiero and Fiero Brothers, Inc. v. FINRA

FINRA has no statutory authority to bring an Article III action to collect a fine.

John J. Fiero and Fiero Brothers, Inc. v. FINRA

Another day

10/3 & 10/4  11th DC & FED CIRC. posted tomorrow.

-TMB

Tenth Circuit - Henry vs. City of Albuquerque

No error in judgment as a matter of law on S1983 claims

Excessive force jury instruction was sufficient.


Henry vs. City of Albuquerque

Ninth Circuit -- WASHINGTON STATE V. CHIMEI INNOLUX CORP.

Parens Patriae suits are not class actions within the meaning of CAFA.

WASHINGTON STATE V. CHIMEI INNOLUX CORP.

Ninth Circuit -- SUZLON ENERGY LTD V. MICROSOFT CORPORATION

ECPA applies to communications of foreign citizens as well.

SUZLON ENERGY LTD V. MICROSOFT CORPORATION

Ninth Circuit -- USA V. CORY KING

Drinking Water Act survives Commerce Clause challenge.

False statement to state inspector qualifies under federal statute.


USA V. CORY KING

Ninth Circuit -- USA V. DWIGHT GILCHRIST

No error in application of Obstruction sentencing bump where deft had given the information in a civil suit, unaware of the criminal investigation.


USA V. DWIGHT GILCHRIST

Ninth Circuit -- REBECCA RICKLEY V. COUNTY OF LOS ANGELES

Errata.


REBECCA RICKLEY V. COUNTY OF LOS ANGELES

Ninth Circuit -- CONSTANTINO CARRERA V. ROBERT AYERS, JR.

Ineffective assistance claim does not survive Strickland presumptions.


Dissent: Does too.


CONSTANTINO CARRERA V. ROBERT AYERS, JR.

Eighth Circuit - United States v. Ronald Shepard

No error in finding of supervised release violation - deft started another business & committed mail fraud.

United States  v.  Ronald Shepard

Eighth Circuit -- Reshetar Systems, Inc. v. Scott Alfred Thompson

No error in Bankruptcy Court holding that contractor did not have a fiduciary relationship with builder which would bar the later discharge of the debt.

Reshetar Systems, Inc.  v.  Scott Alfred Thompson

Seventh Circuit -- USA v. Jack M. Lee

Government restitution cannot attach more than 25% of the weekly periodic disbursements from pension plan.

USA v. Jack M. Lee

Seventh Circuit -- Kristine P. Purcell v. Bank of America

District Courts ingenuity in construing "laws" as applying to statues not common law (in order to preserve certain state claims against preemption) was error.  

Non-preemptive ground of the more specific of two statutes survives the general preemption of the more broad statute.

Kristine P. Purcell v. Bank of America

Seventh Circuit -- Affymax, Inc. v. Ortho-McNeil Pharm

District Court erred in setting aside arbitration result.

Affymax, Inc. v. Ortho-McNeil Pharm

Seventh Circuit -- Michael Marcavage v. City of Chicago

No 1A or EP violation for anti-gay protesters, given narrow tailoring & lack of comparators.

No downward limit to size of group for which a permit is needed.  Slight circuit split.

Remand for reassessment of 1A claims for Gateway Park protest.

Michael Marcavage v. City of Chicago

Sixth Circuit -- Van Hook v. Bobby

No Brady violation in withheld psychological report, as preponderance of evidence still has deft as sane.

Ineffective assistance claims procedurally defaulted.


Van Hook v. Bobby 

[Thou shalt not kill.  - TMB]

ixth Circuit -- Tony Davis v. Blaine Lafler

Sufficient evidence for carjacking conviction.

No ineffective assistance, as not calling the witness might have been a strategic call.

Concur/Dissent - Evidentiary hearing on ineffective assistance could establish prejudice prong.

Dissent - Drinking a glass of water while looking through a window doesn't necessarily make one a "lookout."


Tony Davis v. Blaine Lafler

Fifth Circuit -- HD Smith Whsle Drug, et al

 When bankruptcy trustee took the property, the creditors lien was unenforceable as against a homestead under Texas law.  


(Maybe.  TMB is in a hurry tonight.)


Other issues not preserved and submitted correctly for appeal.

HD Smith Whsle Drug, et al

Third Circuit -- Raritan Baykeeper v. NL Ind Inc

District Court erred in citing abstention when punting environmental suit.

Raritan Baykeeper v. NL Ind Inc

Third Circuit -- Muhammad Malik v. Atty Gen USA

No error in IJ's credibility determinations as to the validity of a marriage.


Muhammad Malik v. Atty Gen USA

Third Circuit -- Elizabeth Liggon-Redding v. Estate of Robert Sugarman

State rule requiring filing of Certificate of Merit in malpractice cases is a substantive rule that must be applied when other fora apply that state's law.

Elizabeth Liggon-Redding v. Estate of Robert Sugarman

Third Circuit -- USA v. Wayne Bryant

Errata

USA v. Wayne Bryant

First Circuit -- CQ International Co., Inc. v. Rochem International, Inc., US

No abuse of discretion in not issuing Rule 11 sanctions on motion.

CQ International Co., Inc. v. Rochem International, Inc., US

First Circuit -- Davis v. Travelers Property Casualty

Where an auto insurance policy lists two rates and says that one of them applies, the one that the policy says applies is the applicable rate.

Contract trumps choice of law (last paragraph).

Davis v. Travelers Property Casualty

First Circuit -- Bhatti v. Trustees of Boston

Summary judgement appropriate on Title VII and S1981 racial discrimination claims given the paucity of evidence.

Bhatti v. Trustees of Boston

First Circuit -- US v. Rogers

Where member of the military is ordered to his residence while the police are conducting a search, the circumstance is sufficiently custodial to trigger Miranda.

Sufficiency of warnings is in question when preceded and followed by other questions.

US v. Rogers

Second Circuit -- United States v. Leslie

In a sentencing context, incarceration does not necessarily signal withdrawal from a financial conspiracy.

United States v. Leslie

Second Circuit -- Rojas v. The Roman Catholic Diocese of Rochester

No error in summary judgement on Title VII and state claims where plaintiff's testimony is disjointed and contradictory.

Rojas v. The Roman Catholic Diocese of Rochester

"Peace ho - Caesar speaks!"

In recognition of today's beginning of the October Term of  The Supreme Court of the United States, all of today's Circuit opinons will be posted tomorrow.

(Also, your correspondent still has Crim Pro to do from the weekend.)

Federal Circuit -- POWERTECH TECHNOLOGY INC. V. TESSERA, INC.

Where liability for licensing payments is at issue, sufficient declaratory judgment controversy exists - company does not have to breach license before seeking declaratory judgment on the validity of the underlying patent.

District Court should have enforced forum selection clause.

POWERTECH TECHNOLOGY INC. V. TESSERA, INC.

Eleventh Circuit -- Findwhat Investor Group v. Findwhat.com et al

Even though there was no change in the stock price after the misleading disclosure, as it was a reinforcement of an already-inflated stock price, the statement is actionable under 10(b).

Not disclosing materially adverse situation while claiming processes are in place to prevent it is actionable under 10(b).  (But here, no scienter.)

CEO's representation of profitability not actionable, even though part of the profits were from click fraud, since it was a statement of the company's general financials.

Findwhat Investor Group v. Findwhat.com et al

Tenth Circuit -- Luevano v. Holder, Jr.

Allegedly race-based stop did not rise to the 'fundamentally unfair' standard for exclusion from BIA proceedings.

No error in denial of continuance pending adjustment of status.

Luevano v. Holder, Jr.

Ninth Circuit -- USA V. CHRISTOPHER KORTLANDER

After the investigation has finished, the public has a qualified common-law right of access to materials filed in support of a warrant.

Court must make specific findings in support of any restrictions on the right.

USA V. CHRISTOPHER KORTLANDER

Ninth Circuit -- USA V. PETER KRUPA

An investigator's affadavit reporting "suspected contraband" image in a residence with multiple computers to which police had responded to investigate a report of child neglect was sufficient probable cause for warrant.

Dissent: Investigator's description of single image is insufficient probable cause for warrant.

USA V. PETER KRUPA

Eighth Circuit -- United States v. Michael Borromeo

 Within-guidelines sentence substantively upheld.

Court did not give too much weight to [rather bad] uncharged offenses.

United States v. Michael Borromeo

Eighth Circuit -- Tactical Stop-Loss, LLC v. Travelers Casualty and Surety

 Where an insurance policy bars claims resulting from embezzlement by officers or those working with them, a claim basing a loss on the actions of a non-employee working with an officer is barred by the terms.

No need to look outside the four corners.

Reasonable expectations test of no avail.

Tactical Stop-Loss, LLC v. Travelers Casualty and Surety

Fifth Circuit -- Antonio Juarez v. Brownsville Indep School Dist,

 Denial of qualified immunity upheld, as relevant District Court findings of fact can't be questioned in interlocutory appeal.

Adverse employment decisions can be taken informally.


Antonio Juarez v. Brownsville Indep School Dist

Fifth Circuit -- Southgate Master Fund, L.L.C. v. USA

While the transaction had economic substance, the effectuating partnership was a sham. (A sham, I tells ya.)

Proper recategorization is that the transaction was an acquisition by the principals of the partnership.

Southgate Master Fund, L.L.C. v. USA

Second Circuit -- Maslow v. Board of Elections, NYC

Requiring that signatures on a nominating petition be from voters of the same political party as the nominee does not unduly burden 1A speech and association rights of voters.


Maslow v. Board of Elections, NYC