First Circuit: US v. Medina

Amended opinion.

US v. Medina 

Eleventh Circuit: USA v. Jerry Thomas Davis

Identifying witness as Chaplain did not violate FRE 610 barring religious/credibility identifications.

No need for contemporaneous renewal of objection.

Second modified Allen charge permissible, as it was noncoercive and an informal timeline was suggested.

Concurrence: Chaplain was merely identified as such, no great show made of it.

USA v. Jerry Thomas Davis

Tenth Circuit: United States v. Robinson

Deft's delay in challenging conviction, even prior to retaining second counsel, forecloses Coram Nobis relief.

United States v. Robinson

Tenth Circuit: United States v. Trotter (Mardell)

Anders application by counsel to withdraw from futile appeal granted.

Challenges foreclosed by earlier holding in the case -- although that opinion was vacated by Scotus, the vacatur was prompted by a separate issue and the deft did not timely challenge.

United States v. Trotter (Mardell)

Ninth Circuit: BYRON CHAPMAN V. PIER 1 IMPORTS

Cluttered aisles at Pier 1 Store violated ADA.

Handicapped accessible sales counter was not visited often enough to establish the clutter - summary judgement on that reversed.

BYRON CHAPMAN V. PIER 1 IMPORTS

Ninth Circuit: ROBERT YOUSEFIAN V. CITY OF GLENDALE

Given that romantic relationship between police officer and plaintiff's wife began after plaintiff's wife gave him the incriminating evidence, probable cause was not undermined.

Given bleeding victim, sufficient probable cause for arrest.

ROBERT YOUSEFIAN V. CITY OF GLENDALE

Eighth Circuit: United States v. Adam Lawin

No error, as sentencing court was not compelled to consider a pending amendment to the relevant Guidelines.

No error in denial of continuance for sentencing hearing.

Dissent: So file for the sentence reduction under the retroactive rule in a collateral challenge already.  Remand, don't affirm.

United States  v.  Adam Lawin

Eighth Circuit: United States v. Thomas Riehl

No error, as sentencing court was not compelled to consider a pending amendment to the relevant Guidelines.

Dissent: So file for the sentence reduction under the retroactive rule in a collateral challenge already.

United States  v.  Thomas Riehl

Eighth Circuit: United States v. Travis Peeler

Breadth of evidence in conspiracy case established that the drug buyer-seller relationship went beyond mere buyer-seller and became sufficent to establish an ongoing conspiracy.

United States  v.  Travis Peeler

Eighth Circuit: John Allard v. Tonia Baldwin

S1983 Prisoner medical challenge.

While it might have been medically negligent, treatment did not rise tot he level of deliberate indifference.

John Allard  v.  Tonia Baldwin

Sixth Circuit: Kathryn Pollard v. City of Columbus, Ohio

S1983 suit after deadly shooting of suspect by police.

Court has jurisdiction to rule on denial of qualified immunity via interlocutory appeal, as there are no contested facts.

Denial of qualified immunity for police officers was error, as they had reason to believe that he might have a concealed weapon, and given his sudden movement inside of car at the end of the car chase.

Kathryn Pollard v. City of Columbus, Ohio 

Sixth Circuit: Todd Rochow v. Life Ins. Co. of North America

Where plaintiff is made whole by reversal of ERISA decision, further statutory relief by means of equitable disgorgements of profits is unnecessary and duplicative.

Concurrence: absent formal remand after earlier appeal, subsequent litigation of subsidiary issues in the lower court might have been barred by the Mandate Rule.

Concur/Dissent: Case for disgorgement not proven.

Dissent: Breach of Fiduciary Duty claim was distinct from Denial of Benefits claim, and the second injury justifies the second relief.

Todd Rochow v. Life Ins. Co. of North America 

Fourth Circuit: Mounia Elyazidi v. SunTrust Bank

State debt collection writ does not violate the FDCPA (notices with unspecific fee award amounts, incidental disclosure of SSN during litigation)

Claims that notices to deft violated FDCPA not barred from federal review under Rooker-Feldman, as the court isn't addressing the merits of the award, but the congruence of notice with statute.

Mounia Elyazidi v. SunTrust Bank

Fourth Circuit: Shermaine Johnson v. Henry Ponton

Habeas challenge to life without parole sentence is justicable, even where a "three strikes" law would likely result in the same sentence anyway.

Scotus holding barring life without parole sentences for defts who were juveniles at the time of the offense is not retroactive to challenges on collateral review.

Application of the rule to a companion case is not an express statement that the rule is retroactive.

As Scotus holding was not a categorical bar, the ruling was procedural, not watershed.  (Teague)

Shermaine Johnson v. Henry Ponton

Second Circuit: Ministers & Missionaries v. Snow

Question certified to NY Court of Appeals:  Whether either common law or statutory New York choice of law rules (as well as New York substantive law) apply to contracts that opt for New York law but are not executed under the Large Contract Statute.

Ministers & Missionaries v. Snow

First Circuit: US v. Moran-Calderon

No error in calculating of restitution amount.

The creation of a payment schedule has to be done by the Court - it can't be delegated to probation officer.

US v. Moran-Calderon 

First Circuit: US v. Medina

Failing to register as an offender is not itself a s-- offense under the Guidelines.

Plain error in post-release sentencing conditions.

US v. Medina 

First Circuit: Rodriguez-Delgado v. Aero Investment Corp

(Souter)  Negligence

No error in summary judgment against plaintiff, as even if facts as pleaded were established, there would be insufficient proof that they caused the harm.

Rodriguez-Delgado v. Aero Investment Corp

Tenth Circuit: United States v. Gardner

Rule 36 motion cannot be used to update sentence clarifying the amount of time served prior to conviction.

United States v. Gardner

Tenth Circuit: United States v. Engles

State conviction of registered offender cannot be indirectly relitigated in challenge of revocation of Federal supervised release.

United States v. Engles

Ninth Circuit: CAL. DUMP TRUCK OWNERS ASS'N V. MARY NICHOLS

Environment -- Challenge to enforcement of emission levels is actually a challenge to the underlying EPA reg, over which the District Court has no jurisdiction.

CAL. DUMP TRUCK OWNERS ASS'N V. MARY NICHOLS

Ninth Circuit: PLOTT NURSING HOME V. SYLVIA MATHEWS BURWELL

Sufficient evidence for most agency sanctions of nursing home.

Given explicit statutory command, agency need not give operator opportunity to challenge findings before posting on website, but an opportunity for ex post review must be provided.

Concur/Dissent: Court only has jurisdiction to compel review of data that was the explicit basis for these sanctions.

PLOTT NURSING HOME V. SYLVIA MATHEWS BURWELL

Ninth Circuit: SANDI RUSH V. SPORT CHALET, INC.

Joinder of landlord was proper in ADA claim.

Prejudice review required before dismissal in lieu of severance of parties.

SANDI RUSH V. SPORT CHALET, INC.

Ninth Circuit: LEONARD FYOCK V. CITY OF SUNNYVALE

No abuse of discretion in denying preliminary injunction against ordinance restricting large-capacity magazine ordinance.

LEONARD FYOCK V. CITY OF SUNNYVALE

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

Ninth Circuit -- WALTER TAMOSAITIS V. URS INC.

Amended opinion.

WALTER TAMOSAITIS V. URS INC.

Eighth Circuit -- United States v. William Jones, Jr.

Tax -- Repetitive and coordinated scheme to defraud IRS suffices for sophisticated means sentencing bump.

United States  v.  William Jones, Jr.

Eighth Circuit: Civic Partners Sioux City, LLC v. Main Street Theaters, Inc.

No jurisdiction over bankruptcy appeal, as Bankruptcy Court orders were non-final, and no notice of appeal was filed.

Civic Partners Sioux City, LLC  v.  Main Street Theaters, Inc.

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: Stephany Draper v. Carolyn W. Colvin

Skidmore deference to Social Security Administration finding denying benefits given size of trust fund.

Stephany Draper  v.  Carolyn W. Colvin

Eighth Circuit: Ray Nassar v. Earnestine Jackson

As grounds were not mentioned in initial JMOL 50(a) motion, they cannot be renewed in 50(b) motion.

Where lost salary and benefits amount was clearly established during trial, remittur of damages to that number.

Fees award vacated and remanded given remittur.

Concur/Dissent - Remittur waived when relevant jury instruction wasn't challenged.

Ray Nassar  v.  Earnestine Jackson

Eighth Circuit: Patricia Wagner v. Kevin Campbell

No error in denial of motion to remove filed after the deadline of being joineed individually, but before being joined as corporate officers, as District Court jurisdiction was good at time of judgment.

Single reprimand is an insufficient adverse employment action.


Patricia Wagner  v.  Kevin Campbell

Eighth Circuit: Dimple Jain v. CVS Pharmacy, Inc.

Employment Discrimination

No error in trial court's refusal to accept plaintiff's husband's non-expert analysis of the performance metrics numbers.

No error in summary judgment, given lack of viable comparator.

Dimple Jain  v.  CVS Pharmacy, Inc.

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.

Seventh Circuit: USA v. Bruce Brown

Earlier plea agreement does not explicitly bar subsequent prosecution for a related crime.


USA v. Bruce Brown

Fifith Circuit: Thomas Loden, Jr. v. Rick McCarty

Ineffective Assistance / AEDPA

Lower court findings get AEDPA deference when higher state courts don't review the question.

Deft waiver of mitigation phase need not be informed and knowing.

Thomas Loden, Jr. v. Rick McCarty

[Death penalty is wrong.  -MB]

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 

Fourth Circuit: Christopher Covert v. LVNV Funding, LLC

FDCPA claim barred by res judicata, given earlier Chapter 13 bankruptcy proceedings.

Christopher Covert v. LVNV Funding, LLC

Fourth Circuit: Jerome Gordon v. Daniel Braxton

Ineffective Assistance

District Court abused discretion in giving AEDPA deference to state court proceeding that made only a cursory review of the record in response to Petitioner claims that he was never consulted about an appeal.

Jerome Gordon v. Daniel Braxton

Fourth Circuit: US v. Marco Flores-Alvarado

Sentencing -- Insufficient factual findings to associate deft's conspiracy with drug quantities seized in various locations.

US v. Marco Flores-Alvarado

Fourth Circuit: Rafael Tiscareno-Garcia v. Eric Holder, Jr.

Immigration -- Although illegal entry is not a categorical bar to withholding of removal from the country, it is not absurd for the Agency to hold that conviction of the crime of illegal entry can be a bar to withholding of removal.

Petitioner failure to file paperwork presents jurisdictional bar.

Rafael Tiscareno-Garcia v. Eric Holder, Jr.

Second Circuit: Florez v. Holder

Immigration -- Chevron deference to broad agency interpretation of "crime of child abuse."

Florez v. Holder

Second Circuit: Johnson v. Nextel Communications Inc.

Reversal of class certification in legal malpractice suit challenging mediated outcome to employment suit.

Common issues do not predominate (Walmart).

PLs executed the agreement in different states, this complicates choice of law.

Johnson v. Nextel Communications Inc.

Next Update Wednesday

Next update will be Wednesday, 3/4.

MB

Monday - Links only

First:

 Brito v. Holder, Jr.
Arias Minaya v. Holder
Flood v. Bank of America Corporation
In Re: Tsarnaev

Second:

Santiago-Monteverde v. Pereira
United States v. Raymonda

Sixth:

Richard Wesley v. Alison Campbell 

Seventh:


Mir Iqbal v. Tejaskumar Patel

Christopher Gyorgy v. CIR



Eighth:

ISCLAIMER:  The following unofficial case summaries are prepared by the clerk's office
                         as a courtesy to the reader.  They are not part of the opinion of the court.



133388P.pdf  03/02/2015  R.J. Zayed  v.  Associated Bank, N.A.
   U.S. Court of Appeals Case No:   13-3388
   U.S. District Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Riley, Author, with Wollman and Bye, Circuit Judges] 
   Civil case - Fraud. In action by receiver against a bank used by the 
   creators of a Ponzi scheme in which the receiver alleged claims for aiding 
   and abetting fraud, breach of fiduciary duty, conversion and false 
   representations and omissions, the complaint sufficiently alleged the 
   actual knowledge aiding and abetting element and substantial assistance in 
   the Ponzi scheme, and the district court erred in dismissing the complaint 
   for failure to state a claim; remanded for further proceedings. 
  
133411P.pdf  03/02/2015  North Central Rental & Leasing  v.  United States
   U.S. Court of Appeals Case No:   13-3411
   U.S. District Court for the District of North Dakota - Fargo   
   [PUBLISHED] Smith, Author, with Murphy and Gruender, Circuit Judges] 
   Civil case - Federal Tax. The district court did not err in finding that 
   the financial transactions at issue were not entitled to nonrecognition 
   treatment under 26 U.S.C. Sec. 1031 and were structured to avoid the 
   purpose of Section 1031(f). 
  
  
142016P.pdf  03/02/2015  The Midwestern Indemnity Co.  v.  Malissa Brooks
   U.S. Court of Appeals Case No:   14-2016
   U.S. District Court for the Western District of Missouri - Kansas City   
   [PUBLISHED] [Riley, Author, with Colloton and Kelly, Circuit Judges] 
   Civil case - Insurance. The insurance policy in question clearly forbids 
   stacking of underinsured motorist coverage, and the district court did not 
   err in granting the insurer's motion for summary judgment. 





Ninth:


HENRY WEILAND V. AMERICAN AIRLINES, INC.

C. W. V. CAPISTRANO USD

USA V. JUAN MENDEZ-SOSA







Tenth:



Rodas-Orellana v. Holder



Eleventh:




Kelly Renee Gissendaner v. Commissioner, Georgia Department of Corrections, et al

Patricia L. Clements v. LSI, et al

Putu Indrawati v. U.S. Attorney General

Rodolfo Hernandez v. USA



Federal Circuit:


PATO
COUTURE v. PLAYDOM, INC. [OPINION]

DCT
WARSAW ORTHOPEDIC, INC. v. NUVASIVE, INC. [OPINION]



  

This one goes to eleven

Running late - links only for the nonce:

Tenth

Goudeau v. Dowling

Conkleton v. Raemisch

Eleventh:

Paul Glen Everett v. Secretary, Florida Department of Corrections	14-11857	5:11-cv-00081-RS	NEW	02-27-2015
Pruco Life Insurance Company v. Gary A. Richardson, et al.	13-15859	1:12-cv-24441-FAM	CON	02-27-2015
Pruco Life Insurance Company v. Wells Fargo Bank, N.A.	13-12135	9:10-cv-80804-JIC	CER	02-27-2015
Severin Hegel, et al v. The First Liberty Insurance Corporation	14-10549	8:12-cv-01161-EAK-MAP	NEW	02-27-2015

Ninth Circuit: ROBERT MCDANIELS V. RICHARD KIRKLAND

Summary en banc order.

ROBERT MCDANIELS V. RICHARD KIRKLAND

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.

Fifth Circuit: Allen Thompson v. City of Waco, Texas

Summary denial of en banc.

Allen Thompson v. City of Waco, Texas

Fifth Circuit: USA v. Armelinda Castillo

Where the deft has a good-faith dispute as to the factual findings in a PSR, it is impermissible for the govt to therefore decline to move for an ":acceptance of responsibility" sentence reduction.

USA v. Armelinda Castillo

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

Federal Circuit: GILEAD SCIENCES, INC. v. LEE

Deference to agency finding that a statute prohibits both litigation delays that actually delay the prosecution of the patent and those that merely intended to do so.

GILEAD SCIENCES, INC. v. LEE

Federal Circuit: MINISTERIO ROCA SOLIDA v. US

Pending suit in District Court bars jurisdiction over second claim in Court of Federal Claims, despite potential hardship of non-overlapping remedies.

Concurrence: Yep, but Tucker Act 10K cap on Takings compensation might under other circumstances present a legit claim to a second action in Federal Claims.

MINISTERIO ROCA SOLIDA v. US

Eighth Circuit: United States v. Reginald Cole

ACCA predicates --- Sentencing court did not need specific finding of fact in the record that the three gun-related occurrences happened on three separate days.

United States  v.  Reginald Cole

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

Seventh Circuit: Betty Ruth Nelson v. Peggy Holinga-Katona

Not filing eitehr JMOL motion at close of trial or 50(b) motion after verdict means that verdict can't be challenged for sufficiency of evidence.


Betty Ruth Nelson v. Peggy Holinga-Katona

Sixth Circuit: Kishna Brown v. Bradley Lewis

S1983 - Qualified immunity, unlawful arrest.

Appeals court has jurisdiction, despite remaining differences on questions of fact.

Sufficient grounds for stop, but irregularities in the Terry stop sufficient to deny Qualified Immunity.

State statute is subjective test, not objective, and given that the officers acted under misinformation, but violence of arrest still presents a claim.

Kishna Brown v. Bradley Lewis 

Fifth Circuit: Michael Toney v. Rissie Owens, et al

No liberty interest under the Federal Constitution is imperiled where a prison, for internal purposes only,  designates a prisoner as a sex offender.

Michael Toney v. Rissie Owens, et al

Fourth Circuit: Almaz Nezirovic v. Gerald Holt

Extradition to Serbia not barred by Statute of Limitations, as comparator Federal statute has no SOL.

Given that alleged victims were civilians, totality of circumstances means that the political offenses exception in the treaty doesn't apply.

Almaz Nezirovic v. Gerald Holt

Second Circuit: Flores v. Holder

Immigration --

Agency abuse of discretion in not granting continuance given prima facie validity of underlying application.

Agency erred in modified categorical evaluation of statute -- illicit sexual contact is not abuse per se.

No error in holding that the crimes were sufficiently serious to bar withholding of removal without considering danger of Petitioner to community.

Flores v. Holder  

Second Circuit: United States of America v. Ortiz

Resentencing after revocation of parole s according to the law in force during the initial sentencing.  Subsequent changes in the classification of the offense do not automatically retroactively apply.

United States of America v. Ortiz

Second Circuit: Newton v. City of New York

Liberty interest under New York law in exoneration from wrongful conviction.

14th Amendment can be basis of challenge to municipal actions that endanger the otherwise viable right.

No duty on the state to preserve the evidence, but there is an obligation to account for the evidence on hand.


Newton v. City of New York

Second Circuit: Bricklayers v. Moulton Masonry

Failing to answer for nine months justifies a default judgement, no matter that deft expected settlement.

Pleading recited in complaint survives to establish predicate for verdict, given that it went unchallenged.

District court needs more reasoning for fee shifting, award of prejudgment interest.

Bricklayers v. Moulton Masonry

Second Circuit: Matthews v. City of New York

Free speech , police officer speaking matters of public concern.

Where duties do not include formulating, implementing, or providing feedback on policies, and a civilian channel of communication is used, the officer speaks as a private citizen, and the speech is protected.


Matthews v. City of New York

First Circuit: Fire and Police Pension Assoc v. Abiomed, Inc.

Errata.

Fire and Police Pension Assoc v. Abiomed, Inc. 

First Circuit: US v. Joubert

Errata.

US v. Joubert 

Ninth Circuit: ANTHONY NIGRO V. SEARS, ROEBUCK AND CO.

Employment Discrimination -- PL Deposition can suffice to establish animus.

Deprecating statement by supervisor should have been in under party admission hearsay exception.

ANTHONY NIGRO V. SEARS, ROEBUCK AND CO.

Sixth Circuit: USA v. Chattanooga-Hamilton Cnty. Hosp.

FCA claims are not barred because of prior public disclosure, as the audit (though released to the government) was not generally released.

USA v. Chattanooga-Hamilton Cnty. Hosp.

Fifth Circuit:" Pilgrim's Pride Corporation v. CIR

Tax.

Company's abandoned securities do not have to be accounted as Capital Losses.  The relevant statute refers to derivative obligations and claims relating to the capital asset, not the actual ownership of the asset.

Pilgrim's Pride Corporation v. CIR

Fourth Circuit: Robert Reynolds v. Douglas Middleton

County panhandling prohibition makes sufficient showing to survive Summary Judgment, as government did not sufficiently establish narrow tailoring of law.

Robert Reynolds v. Douglas Middleton

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

Second Circuit: Johnson v. United States

Subsequent vacatur of on-point predicate conviction count doesn't bar the subsequent ACCA sentencing bump, as the statute merely requires that the offense be committed, not that the deft be convicted of it, and the other (non-vacated) counts can encompass the valid predicate offense.

No Ineffective Assistance as to that sort of stuff.

Johnson v. United States

Second Circuit: United States v. George

No plain error in jury instruction that omitted mens rea element of the offense.

Sufficient evidence of harboring undocumented live-in worker.

No 8th Amendment Excessive Fine violation in forfieture.

United States v. George

Second Circuit: Marcel Fashions Group, Inc. v. Lucky Brand Dungarees, Inc., et al.

Despite the fact that PL didn't move to preserve claims against future infringement, suits alleging further infringement and unfair competition by same parties to earlier suit are not barred by res judicata.

Marcel Fashions Group, Inc. v. Lucky Brand Dungarees, Inc., et al.

Second Circuit: Carol Leitner v. Westchester Community College, et al.

While the SUNY system is an arm of the state, and therefore subject to 11th Amendment protections of Sovereign Immunity, the local community colleges that compose it are not sufficiently controlled and funded by the state to qualify for the immunity.

Carol Leitner v. Westchester Community College, et al.