Eighth Circuit -- Michele Hathorn v. Corwin Petty

Bankruptcy -- filing of challenge was timely.

Michele Hathorn  v.  Corwin Petty

Eighth Circuit -- United States v. Alireza Bakhtiari

Sentencing -- Within-guidelines sentence affirmed.

United States  v.  Alireza Bakhtiari

Eighth Circuit -- United States v. John Arrocha

Decision to tow vehicle was permissible, and evidence was therefore admissible as fruits of inventory search.

United States  v.  John Arrocha

Eighth Circuit -- Miles LaCross v. City of Duluth

S1983 suit after tasering of suspect - at the time of offense, officer could reasonably have believed that a tasering that inflicted minimal injury (as distinct from not employing excessive force) was not unconstitutional.

Taser not sui generis for excessive force claims.  Same analysis as other weapons.

Miles LaCross  v.  City of Duluth

Eighth Circuit -- Primitivo Alavez-Hernandez v. Eric H. Holder, Jr.

Immigration -- Mexico - past incidents in village against evangelicals do not justify withholding of removal, as relocation to city is possible.

Primitivo Alavez-Hernandez  v.  Eric H. Holder, Jr.

Eighth Circuit -- Luisa Chavez-Lavagnino v. Motivation Education Training

Complete diversity must exist at the time of removal to federal court -- subsequent move by party doesn't cure.

 Luisa Chavez-Lavagnino  v.  Motivation Education Training

Federal Circuit -- USHIP INTELLECTUAL PROPERTIES v. US

Patent -- validation of parcel receipt.

USHIP INTELLECTUAL PROPERTIES v. US 

Federal Circuit -- DECKERS OUTDOOR CORPORATION v. US

As a matter of law, slip-on shoes can be either shoes or boots.  Battle of dictionary definitions.

Dissent: Nope.  Legislative intent.

DECKERS OUTDOOR CORPORATION v. US 

Eleventh Circuit -- Franklin Owusu-Ansah v. The Coca-Cola Company

To have standing under the ADA's provision barring examination or inquiry into medical condition, plaintiff need not demonstrate that they have a disability protected under the ADA.

Employer's inquiry in this case was reasonable, given employee's statements.

Franklin Owusu-Ansah v. The Coca-Cola Company

Ninth Circuit -- THOMAS GOLDSTEIN V. CITY OF LONG BEACH

For purposes of S1983, California District Attorneys act as local policymakers (not state agents) when developing policies related to the use of jailhouse informants.

Concurrence -- California Supreme Court holding suggesting the contrary is imprecise in defining policy-making role of the DA.

THOMAS GOLDSTEIN V. CITY OF LONG BEACH

Seventh Circuit -- USA v. Charles Goodwin

Sentencing --

Offender registration law not an unconstitutional delegation of legislative authority.

Not registering is not a s-x offense.

Supervised release conditions reversed.

USA v.   Charles Goodwin

Seventh Circuit -- USA v. Tyrone Reynolds

Sentencing --

Leader of kidnapping troupe appropriately received leadership sentencing enhancement, but ransom sentence enhancement reversed, as there was no ransom demand communicated to a third party.

USA v.   Tyrone Reynolds

Seventh Circuit -- Terri Basden v. Professional Transportation

Plaintiff did not have a claim for discrimination under the ADA after only a preliminary diagnosis of disabling disease.

Plaintiff was ineligible for FMLA claim as she had not been employed for one year.

Terri Basden v.   Professional Transportation

Third Circuit -- USA v. Diego Duque-Hernandez

No plain error in modified-categorical approach to assessing drug trafficking enhancement based on a drug distribution prior.

USA v. Diego Duque-Hernandez

Third Circuit -- ACS Recovery Services, Inc., et al v. Larry Griffi

ERISA --

Claim for relief under the statute suffices for jurisdiction irrespective of final decision on merits.

Constructive trust can be imposed as equitable relief against Participant's trust which received commingled funds from a tort recovery, since the Administrator had a right to recover earlier payments.

Concur/dissent -- recovery from individuals, not the trust.

Concur/dissent -- Commingled funds in special needs trust are unreachable.

ACS Recovery Services, Inc., et al v. Larry Griffi

Second Circuit -- Weber v. SEFCU

Creditor must return repossessed articles to trustee or debtor-in-possession upon learning of the filing of Chapter 13 petition -- no affirmative suit by trustee or debtor-in-possession is required.

Minor circuit split flagged.

Belief that additional security was needed before release of the property does not excuse the retention.

Intention to retain the property made this a willful act, subject to penalties and costs.

Weber v. SEFCU

Second Circuit -- Edelhertz v. City of Middletown

Short per curiam -- zoning change with minimal notification didn't offend Due Process, as it was prospective in nature and generally applicable.

Edelhertz v. City of Middletown

First Circuit -- Nikitine v. Wilmington Trust Company

Denial of leave to amend without showing of cause one year after filing of suit upheld.

Nikitine v. Wilmington Trust Company 

First Circuit -- Bacardi International Limited v. V. Suarez & Co., Inc.

Parties to an arbitration are not, per se, required parties that must be joined for the judicial confirmation of the arbitrator's decision.  Decided without remand.

Federal action stayed due to parallel suit in state courts.

Bacardi International Limited v. V. Suarez & Co., Inc. 

First Circuit -- US v. LaPlante

Fraudulent misrepresentation theory of mail fraud does not add an element of misrepresentation to the common-law elements of mail fraud.

No need for unanimity jury  instruction as to which statement in particular was fraudulent.

No ineffective assistance claim based on deft's introduction of prior bad acts, as other evidence was overwhelming.

US v. LaPlante 

The Rest of Today's Decisions

Ninth:

USA V. VICTOR SIVILLA

Tenth:

FTC v. Chapman
Squires v. Breckenridge Outdoor Educ Cntr

Eleventh:

John D. Dupree v. Warden, Attorney General, State of Alabama

DC:

USA v. Larry Brinson-Scott
Judith Barnett v. PA Consulting Group, Inc.
Natl Assoc. of Manufacturers v. NLRB

Federal Circuit:

BARON SERVICES, INC. v. MEDIA WEATHER INNOVATIONS LLC 

- MB

Eighth Circuit -- Andrea Olsen v. Capital Region Medical Center

Discrimination --

No age discrimination / ADA claim for plaintiff subject to seizures, as they are not qualified to do the job when subject to seizures.

Andrea Olsen  v.  Capital Region Medical Center

Seventh Circuit -- USA v. Jeremiah Dorai Jacob

Appeal dismissed, as defendant is apparently now a fugitive.

USA v.   Jeremiah Dorai Jacob

Seventh Circuit -- Jose J. Loera, Jr. v. USA

Dismissal of indictment was insufficiently final judgment on the merits to allow for automatic exclusion of evidence barred in the first proceeding under exclusionary rule.

As there was no prejudice or invidious intent behind the delay, no basis for ineffective assistance claim on Speedy Trial Act violation.

Jose J. Loera, Jr. v.   USA

Sixth Circuit -- USA v. Stephen Graham-Wright

Court can use results of pretrial psychiatric examination requested by and available only to the defense (and court) in sentencing.

Dissent: Fifth Amendment.

USA v. Stephen Graham-Wright 

Fifth Circuit -- USA v. Wen Liu

Harmless error to exclude expert testimony of expert with limited personal knowledge of the facts.  Competency determines admissibility, familiarity with case determines weight given.

USA v. Wen Liu

Third Circuit -- USA v. Albert Savani

Sentencing.

Deft was sentenced to under mandatory minimums due to cooperation.  Guidelines ranges for the relevant offenses subsequently were lowered.  Deft can move for review of sentence under statute permitting such review where the "applicable guidelines range" has changed, as the mandatory minimum is not the "guidelines" range.

Concurrence: No need to invoke lenity.

Circuit split flagged.

USA v. Albert Savani

Second Circuit -- United States v. Chu

Sentencing --

Acceptance of responsibility sentencing reduction may be denied to an otherwise qualifying defendant who attempts a similar crime in the interval.  (Smuggling drugs into detention facility.)

Substantively reasonable, correct calculation of amount of drugs.

United States v. Chu

Second Circuit -- Steel Institute of New York v. City of New York

NYC laws regulating construction cranes are not preempted by federal workplace safety rules, as they are laws of general applicability, affecting both workplace safety and public safety.

Steel Institute of New York v. City of New York

Second Circuit -- Fezzani v. Bear, Stearns & Co.

Securities --

Pleading standard for private civil damage actions is higher than SEC civil actions -- knowing and substantial assistance in the fraud is insufficient.  (i.e., no specific reliance)

State statutory fraud claim stated.

Concur/Dissent:   Sufficient participation in the fraudulent scheme.  (i.e. fraud on the market)

Fezzani v. Bear, Stearns & Co.

First Circuit -- DeLong v. Dickhaut (5/6)

Habeas --

Prisoner's challenge to denial of extension of time to file challenge evinced an intention to challenge the underlying action, and the collateral challenge was therefore timely..

When dismissing a petition that has both exhausted and unexhausted claims, court must make specific findings as to good cause for the non-exhausted claims.

DeLong v. Dickhaut 

Eleventh Circuit -- Sylvia Bapte, et al. v. West Caribbean Airways, et al.

Plaintiff who argues in foreign forum that the action is limited to the initial domestic forum due to the Montreal Convention (despite the fact that the initial domestic forum dismissed the action under forum non conveniens) is not entitled to relief in the domestic forum for changed circumstances when they prevail in the foreign forum.

Sylvia Bapte, et al. v. West Caribbean Airways, et al.

Eleventh Circuit -- Odebrecht Construction, Inc. v. Secretary, Florida Department of Transportation

Sufficient likelihood of success of claim that state statute barring contracts with companies doing business in Cuba is preempted.

Odebrecht Construction, Inc. v. Secretary, Florida Department of Transportation

Eleventh Circuit -- Montgomery County Employees' Retirement Fund v. Vitacost.com, Inc., et al.

Securities -- statements did not materially mislead.

Plans to terminate the CEO did not alter the total mix of information, as the CEO's role was explicitly limited while under investigation.

Unannounced relocation of principal place of business doesn't state a claim.

Knowledge of all FDA violations is not imputed to he company after citation for only a few of them.

Meaningful cautionary language and lack of fore-knowledge TKO growth predictions claim.

Montgomery County Employees' Retirement Fund v. Vitacost.com, Inc., et al.

Eleventh Circuit -- David H. Crumpton v. Richard Stephens

Payment to shareholder of closely held S-corporation in order to offset tax liability generated by the corporation's assets was not a fraudulent transfer, as it was compensation for the S-corporation election.

David H. Crumpton v. Richard Stephens

Tenth Circuit -- Browning v. Trammell

Habeas grant under Brady where central prosecution witness had psychiatric issues.

Browning v. Trammell

[Thou shalt not kill.  - MB]

Tenth Circuit -- United States v. Copar Pumice Company

Post-judgment appeal suffices for review of privilege claim.

As Petitioner is a party to the present civil action, no review is possible under non-party protective privilege (Perlman) doctrine.

No review under pragmatic finality doctrine, as the issue is insufficiently final, in a pragmatic sense.

Given alternate avenues of redress, Mandamus not warranted.

United States v. Copar Pumice Company

Ninth Circuit -- IN RE COMPLAINT OFJUDICIAL MISCONDUCT

Litigant with communications disability cannot ask as a reasonable accommodation that caretaker speak for him, as this amounts to the practice of law.

IN RE COMPLAINT OFJUDICIAL MISCONDUCT

Eighth Circuit -- Bank of the West v. National Bank of Kansas City

Similarity between two pieces of equipment is not sufficient basis to impose an equitable lien on the after-acquired piece when the interest on the first piece lapses / has insufficient seniority of claim.

[Entertainment purposes only, folks.]

Bank of the West  v.  National Bank of Kansas City

Eighth Circuit -- United States v. Kenneth Pappas

Sentencing -- enhancements correctly applied, sentence substantively reasonable.

United States  v.  Kenneth Pappas

Eighth Circuit -- United States v. John Perry

Crim  --

Sufficient evidence that the tax evasion happened within the statute of limitations period.

Interview during search of home did not elicit involuntary statements.

Franks challenge to warrant insufficiently detailed.

Sentencing challenge.

Decision on whether forfeiture should offset restitution to government is not ripe until forfeiture happens.

 United States  v.  John Perry

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

Sixth Circuit -- USA v. Keith Thompson, Jr.

Sentence insufficiently based on old crack/cocaine guidelines for purposes of subsequent revision when judge merely makes reference to "statutory" objectives.

USA v. Keith Thompson, Jr. 

Sixth Circuit -- Robert Shuler v. H. Edward Garrett, Jr.

A Rule 59 motion with the wrong docket number is nonetheless timely filed.

Robert Shuler v. H. Edward Garrett, Jr. 

Fourth Circuit -- Oakley Baldwin v. City of Greensboro

A Federal statute that created a right of action was sufficiently distinct from its predecessor statute to qualify under the generic federal 4-year statute of limitations, and its successor statute's elimination of limitations isn't retroactive to claims arising under it.

Agency investigation did not toll the statute of limitations.

Oakley Baldwin v. City of Greensboro

Second Circuit -- Berlin v. Renaissance Rental Partners, LLC

Chevron-ish deference to agency interpretation of a term that allows single-floor condominiums to qualify for reporting requirements of land lots.

Berlin v. Renaissance Rental Partners, LLC

Second Circuit -- Fink v. Time Warner Cable

False advertising class action claim not stated when the complaint doesn't include a copy of the ad.

Fink v. Time Warner Cable

Rest of Friday

Running short on time - so:

Sixth Circuit :

USA v. Robert Johnson, Jr. 
 Karl Kraus, Jr. v. Clark Taylor 
McCoy Elkhorn Coal Corporation v. Vernie Dotson 

Seventh:

Fidel Munoz-Avila v.   Eric Holder, Jr.
Keith Dookeran v.   Cook County   Dissent


Eighth (From site)

121617P.pdf  05/03/2013  United States  v.  Adekunle Olufemi Adetiloye
   U.S. Court of Appeals Case No:   12-1617
                          and No:   12-1919
   U.S. District Court for the District of North Dakota - Fargo   
   [PUBLISHED] [Bye, Author, with Wollman and Benton, Circuit Judges]
   Criminal case - Sentencing. District court thoroughly considered the
   3553(a) factors at the sentencing hearing, issued a 17-page sentencing
   memorandum and provided a sufficient explanation for its sentencing
   decision; district court did not err in denying defendant a reduction for
   acceptance of responsibility where defendant contested factual statements
   and nearly all applicable enhancements in the PSR; no error in imposing
   an enhancement under Guidelines Sec. 3B1.1(a) for leadership role in the
   offense; no error in imposing an upward enhancement on the ground the
   offense level substantially understated the seriousness of the offense;
   where the government failed to provide documentation with the required
   specificity and reliability to establish the amount of restitution, the court
   should have postponed the restitution proceedings for the gathering and
   presentation of additional evidence; similarly, the district court erred in
   ordering forfeiture in the limited amount set out in its restitution order;
   the restitution and forfeiture orders are vacated and remanded for further
   proceeding regarding the losses the victims sustained and the proceeds
   defendant gained from the scheme.
  

136011P.pdf  05/03/2013  David Lynd  v.  Charles Ries
   U.S. Court of Appeals Case No:   13-6011
   U.S. Bankruptcy Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Federman, Author, with Nail and Saladino,
   Bankruptcy Judges]
   Bankruptcy Appellate Panel. To the extent Lynd requested the
   bankruptcy court to deviate from the Code and order that his
   restitution claim be paid from some source not authorized by
   the Code, the bankruptcy court was without authority to grant
   such relief, and the court did not err in denying his request.






Ninth:



FRANCISCO MENDOZA-ALVAREZ V. ERIC H. HOLDER JR.

BENITO ACOSTA V. CITY OF COSTA MESA

AMY & VICKY V. USDC, SACRAMENTO



Tenth:



Wilson v. Montano

United States v. Luna-Acosta



Eleventh:



Denise Schippers, et al. v. USA



Federal:






2013-05-03
12-7089
CAVC
ARNOLD PARKS v. SHINSEKI [OPINION]
Precedential
2013-05-03
12-7003
CAVC
ARNOLD KYHN v. SHINSEKI [OPINION]
Precedential
2013-05-03
12-1186
CIT
FORD MOTOR COMPANY v. US [OPINION]
Precedential







Summaries TK



MB

Fifth Circuit -- S. Washington v. Rick Thaler, Director

Habeas -- Jury Selection

No Supreme Court precedent requiring dismissal of juror absent objection by one of the parties.

S. Washington v. Rick Thaler, Director

Fifth Circuit -- Ray Miller v. Rick Thaler, Director

Habeas / AEDPA --

Denial of attempt to go pro se / Ineffective Assistance.

Ray Miller v. Rick Thaler, Director

Fifth Circuit -- USA v. Ernesto Becerril-Pena

Sentencing/ Immigration -- challenges to supervised release and denial of downward variance.

USA v. Ernesto Becerril-Pena

Fifth Circuit -- Richard Miller v. Raytheon Company (5/2)

Age-Discrimination JMOL

Although each element fell short, considered as a whole, the jury could reasonably have found for the plaintiff.

Discrimination in rehiring suffices for the willfulness requirement of ADEA.

Judgment for pension enhancement needs to be restated as for front pay so as not to be a speculative future harm.

Insufficient evidence for mental anguish 1M.

Single injury claim under federal and state statute is only entitled to one recovery.

Damage cap, fees, prejudgment interest claims addressed.

Richard Miller v. Raytheon Company

Fourth Circuit -- Unspam Technologies, Inc. v. Andrey Chernuk

FRCP --

Conclusory allegations of conspiracy do not justify exercise of personal jurisdiction over foreign banks.

No "arising under" jurisdiction absent proof of minimum contacts.


Unspam Technologies, Inc. v. Andrey Chernuk

Fourth Circuit -- John Coleman v. DEA (5/2)

Extended and inexcusable agency delay is, per se, a constructive exhaustion of agency remedies.

(FOIA)

John Coleman v. DEA

Second Circuit -- Reyes v. Holder

Immigration: Agency erred in applying same criteria to inadmissibility as deportability, as Congress might reasonably have attempted to impose a greater burden of compliance on those living under the laws of the country.

Reyes v. Holder

First Circuit -- Senra v. Smithfield, RI

Post-termination arbitration satisfied Due Process, as it addressed cause for firing; Constitutional and statutory violations can be beyond the scope of arbitration.

No Due Process right to the stated grievance procedures.

State statutory claims denied.

Special concurrence/ Concurrence in part: State law quibble.

 Senra v. Smithfield, RI 

First Circuit -- US v. Gomez

Crim --

Sufficient evidence for single conspiracy -- events introduced were therefore not outside the timeline and a variance from the indictment.

Sufficient probable cause for search, as police knew the substance of the transaction in the abandoned building.

No Apprendi violation in sentencing enhancement for quantity of drug above what was charged in the indictment, as the enhancement is found by a preponderance.

No unfair notice for same, as deft had knowledge of the amounts involved.



US v. Gomez 

First Circuit -- Nieves-Romero v. US

As there was no evidence as to when the situation became dangerous, the agency cannot be charged with constructive knowledge of the danger, and summary judgment was appropriate.

No abuse of discretion in granting summary judgment during pendency of extended discovery period.

Nieves-Romero v. US 

Circuit Break?

Only one published opinion from the circuits is up as of this writing -- from the Ninth, summarized, supra/infra.    No published opinions today -- the one in the Ninth is an amended opinion.  We'll check again tomorrow, as the Fourth apparently hasn't rolled yet, and the First and Second sometimes slip ones over the transom late in the day.

Odd -- having done this for about 2,500 posts, this is the lightest day in memory.

MB

Short Form -- Wednesday

Quick work today.  As always, entertainment value only.  Don't rely.

First Circuit:  (Souter pitches both games.)

US v. Rodas   Crim -- when the government proved the conspiracy, deft lost Confrontation Clause and prejudicial non-severance claims, as the taped statements in question were statements by conspirators in furtherance of the conspiracy.

US v. Stebbins, Jr.  -- Below-guidelines sentence upheld against deft appeal.  Deft had reason to know that the firearms would be used illicitly.  Motion for credit for previously served time was not made.  Not overall substantively unreasonable.

Second Circuit:

United States v. Richard James and Ronald Mallay  -- Crim. - Admission of lab report didn't violate Confrontation Clause.  Among other things:  trial issues, denial of severance, Confrontation Clause / taped statements.

Southern New England Telephone Company v. Comcast -- Telephone system deregulation -  No preemption, as no Congressional intent and agency indecision was a deliberate attempt to allow the states to experiment.   Merits.  State commission action reversed.    

Caronia v. Philip Morris USA  -- Tobacco liability - UCC and common law claims dismissed.  Question certified to NY top court as to whether the need for ongoing medical monitoring presents a viable separate claim.

Third Circuit:

USA v. Donald Turner -- Co-conspirators' statements aren't hearsay - the conspiracy was proved, as it was an organization devoted to popularizing the author's system of tax preparation, later found to be illicit.  Foreign bank documents had sufficient indicia of trustworthiness. Restitution to IRS upheld.

Fourth Circuit:

Mary DiFederico v. Marriott International, Incorporated   -- Forum non conveniens dismissal reversed for suit seeking damages for terrorist attack in Islamabad.

US v. Jervis Davis -- Restitution order to non-victim reversed, as plea agreement did not consent to it.

Fifth Circuit:

USA v. Melvin Towns, Jr. -- Crim - business record hearsay exception, safety valve sentencing reduction.

Erica P. John Fund, Inc. v. Haliburton Company, et -- Securities - Price-impact fraud on the market evidence should not be considered at certification stage.  

Glory Truong v. Bank of America, N.A., et al -- Rooker-Feldman does not bar claim, as the borrower was challenging not the foreclosure judgment, but the related actions of the banks.  Defts, however are immunie from suit, as state statute exempts federally-insured lenders.

American Family Life Assurance v. Glenda Biles, et  -- No abstention.  Arbitration order does not violate Anti-Injunction Act.  Merits upheld.

Sixth Circuit:

Libertarian Party of Michigan v. Ruth Johnson   -- Election Law - challenge not moot, as capable of repetition, avoiding review.

Bridgeport Music, Inc. v. Smith  --

Eighth Circuit:

(From the court's website)

103137P.pdf  05/01/2013  B & B Hardware  v.  Hargis Industries
   U.S. Court of Appeals Case No:   10-3137
                          and No:   11-1247
   U.S. District Court for the Eastern District of Arkansas - Little Rock   
   [PUBLISHED] [Shepherd, Author, with Loken and Colloton, Circuit Judges]
   Civil case - Trademarks. For the court's prior opinions in the case, see
   B&B Hardware, Inc. v. Hargis Industries, Inc., 569 F.3d 383 (8th Cir.
   2009); and B&B Hardware, Inc. v. Hargis Industries, 252 F.3d 1010 (8th
   Cir. 2001). Assuming that Trademark Trial and Appeal Board decisions
   may be entitled to preclusive effect, such application is not appropriate
   here because the same likelihood-of-confusion issues were not decided by
   the Board as were brought in the action before the district court; the court
   rejects B&B's argument that the Board's factual findings from a
   trademark registration case are entitled to deference by the district court;
   district court did not abuse its discretion by refusing to admit the Board's
   decision into evidence as over the course of the seven-day trial the jury
   was presented with evidence regarding likelihood of confusion as it
   pertained to the factors under which the jury decided the claim of
   trademark infringement and the probative value of the Board's ultimate
   conclusion was minimal; the district court erred in including an award of
   attorneys' fees to Hargis for B&B's prior appeal as that appeal resulted in
   a ruling in B&B's favor and was not groundless or unreasonable; on
   remand, the court should amend its award of fees by deducting the fees
   for the appeal. Judge Colloton, dissenting. 
  
122913P.pdf  05/01/2013  United States  v.  Nathan Ozmon
   U.S. Court of Appeals Case No:   12-2913
   U.S. District Court for the Southern District of Iowa - Davenport   
   [PUBLISHED] [Murphy, Author, with Beam and Bye, Circuit Judge]
   Criminal case - Sentencing. Government did not breach the cooperation
   agreement when it used defendant's self incriminating statements from
   his proffer interview; sentence imposed was not substantively
   unreasonable. 
  


Ninth Circuit:


USA V. JEROME MANCUSO  -- Crim/Drugs - Multiple challenges to indictment, Question of whether the property was sufficiently used for illicit purposes,  sentencing challenges.


KEONE LABATAD V. CCA -- S1983 prisoner claim - summary judgment upheld, given lack of indifference by prison staff. (Assault by hostile gang member placed in same cell.)


Federal Circuit:


ALLERGAN, INC. v. SANDOZ INC. [OPINION]
STEPHANIE FIGUEROA v. HHS [OPINION]
VERSATA SOFTWARE, INC. v. SAP AMERICA, INC. [OPINION]


Long form tomorrow.  Still fighting equipment issues.  New Macbook Pros can be sent to the author, Poste Restante, Gotham.

MB

Short Form: Rest of Tuesday

Seventh:

Suriya H. Smiley v.   Columbia College Chicago
USA v.   Ivy Tucker

Eighth (from website):

121918P.pdf  04/30/2013  Columbia Casualty Co.  v.  Curtis W. McGhee
   U.S. Court of Appeals Case No:   12-1918
                          and No:   12-1922
   U.S. District Court for the Southern District of Iowa - Council Bluffs   
   [PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
   Civil case - Insurance. For a statement of facts in the case, see Genesis
   Insurance Co. v. City of Council Bluffs, 677 F.3d. 806 (8th Cir. 2012). In
   a declaratory judgment action to determine coverage under various
   insurance policies issued to the city, the district court did not err in
   rejecting the City's request to consider extrinsic evidence regarding the
   parties' intent or in denying the City's request for additional discovery on
   extrinsic evidence; in Genesis, the court determined that for purposes of a
   malicious prosecution action, the arrested persons' injuries occurred
   when they were prosecuted and were not a continuing injury; as a result,
   the policies, with one exception, were not in effect when the arrested
   persons' injuries occurred; with respect to that policy, which was in effect
   from August, 1977 to August 1978, when the charges were filed in the
   arrested persons' criminal prosecution, the City was entitled to coverage
   under the "reasonable expectations" doctrine. Judge Bye, concurring in
   part and dissenting in part.

123485P.pdf  04/30/2013  United States  v.  James Tebeau
   U.S. Court of Appeals Case No:   12-3485
   U.S. District Court for the Eastern District of Missouri - Cape Girardeau   
   [PUBLISHED] [Murphy, Author, with Wollman and Beam, Circuit Judges]
   Criminal case - Criminal law. District court did not err in determining
   that defendant, the owner of property he used for music festivals, may be
   indicted under 21 U.S.C. Sec. 856(a)(2) for making a property available
   for drug distribution without any further illegal purpose ; the statute does
   not require proof that defendant had the illegal purpose to use,
   manufacture, sell or distribute a controlled substance, as it is sufficient
   that he intended to make his property available to others who had that
   purpose; this interpretation of the statute does not violate the Fifth
   Amendment due process clause or defendant's First Amendment rights;
   indictment satisfied the requirements of Fed. R. Crim. P. 7(c).

Ninth:

IN THE MATTER OF: FITNESS HOLDINGS INTERNATIONAL
HORACE FRIEND V. ERIC HOLDER, JR.
USA V. LAWRENCE MICHAEL STANFILL EL

Tenth:

Rawlins v. State of Kansas
Karki v. Holder

DC:
NetCoalition v. SEC
Quantum Entertainment Limited v. Department of the Interior

Sixth Circuit -- Estate of William R. Barney, J v. PNC Bank, National Association

Bank not liable for money that fiduciary of depositor squandered.

 Estate of William R. Barney, J v. PNC Bank, National Association 

Fifth Circuit -- National Rifle Association, et al v. Bureau of Al

Dissent from denial of en banc:  As 18-20's were expected to serve in the militia at the Founding, they have a right to buy them now.

Pot-shot at "scattershot approach to history."

National Rifle Association, et al v. Bureau of Al

Third Circuit -- MD Mall Associates v. CSX Trans Inc

Issue raised for the first time on appeal isn't barred by waiver where the issue is one of public importance.

No judicial estoppel where the party did not benefit from the inconsistent positions.

No express preemption where the federal statute does not address the same harms as the state statute.

Remand for determination of conflict preemption.

Dissent: preemption analysis should consider the impact of the statute, not the intent.

MD Mall Associates v. CSX Trans Inc

Second Circuit -- Magi XXI, Inc. v. Stato della Città del Vaticano

To enforce forum selection clause against signatory party, relationship between signatory and nonsignatory party making the claim must be such that invocation of the clause is foreseeable to the signatory.

Magi XXI, Inc. v. Stato della Città del Vaticano

Second Circuit -- Richmond v. Holder

Immigration -- case remanded to agency to determine if petitioner's false claim to be an American citizen disqualifies him from relief.  (Remanded because of lack of agency precedent on the question - interesting.)

Richmond v. Holder

First Circuit -- US v. Rogers

Sufficient evidence for conviction, as the pr0n was found on the laptop at the pawn shop, filed under the username of the deft.

Restitution amount and findings as to causation were reasonable.

US v. Rogers 

First Circuit -- US v. Quirion

As false statements to investigators were related to the charges against the defendant, they were material, although made prior to the commencement of the investigation and with the motive of protecting a second principal.  Asseverations to the contrary are to no avail.

US v. Quirion 

Short Form: Friday and Monday

Second Circuit:

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.  -- Gender discrimination claim under NYCHRL gets past summary judgment
Kelly v. Howard I. Shapiro & Assocs. Consulting Eng’rs., P.C. -- Gender discrimination - Title VII and NYSHRL claims dismissed, as "paramour preference" is insufficient basis for claim.

Third Circuit:

Robert A. Mariotti, Sr. v. Mariotti Bldg Products -- For purposes of employee standing under the ADA, shareholder-directors of corporations other than professional corporations must be considered under common-law criteria of agency, and they must act according to their own right in exercising their authority, as opposed to exercising delegated authority.

Fourth Circuit:

US v. 4219 University Drive, Fairfax   -- Crim - trial questions & JMOL
C Dept of Education v. US Secretary of Education -- IDEA (education rights of disabled)
US v. Raymond Allen -- Crim - sufficient evidence, crack/cocaine FSA adjustment
US v. Adley Abdulwahab -- Crim - Money laundering, mail fraud, conspiracy
Central Telephone Company of VA v. Sprint Communications Company  -- Phone carrier tie-in: Article III vs. State review of administrative decisions, Exhaustion, Judicial recusal, Contract interpretation.
The Country Vintner of NC v. E. & J. Gallo Winery -- FRCP - neither data storage nor transmittal count as costs that can be recovered under the fee-shifting statute - only when the file is converted to TIFF/PDF or printed onto CD.
US v. Frederick Springer  -- Civil commitment - mootness, merits.  Dissent.

Fifth Circuit:

USA v. Julian Garza-Guijan -- Sexual battery counts as a crime of violence for immigration purposes.
USA v. Fred Cooper   -- Crim - trial issues, for-cause strike denied, lesser-included instruction, viability of firearm at issue.
Terry Lonatro, et al v. Orleans Levee District -- The Quiet Title Act only waives sovereign immunity when the underlying dispute is between the plaintiff and the United States.

Seventh Circuit:

USA v.   Jose Tovar-Pina -- Sentencing - challenge to PSRs sustained despite lack of contemporaneous objection.
Gerald Kamlager v.   William Pollard  -- "De facto" confession not entitled to per se reversal after 6A challenge
Ji Cheng Ni v.   Eric H. Holder, Jr.
Big Ridge, Incorporated v.   Federal Mine Safety and Review

Eight Circuit (From snazzy new website):

111380P.pdf   04/29/2013  United States  v.  Daniel Lee
  U.S. Court of Appeals Case No:  11-1380
  U.S. District Court for the Eastern District of Arkansas - Little Rock    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Prisoner case - habeas. Lee's trial counsel's use of peremptory strikes
  based on race in violation of Georgia v. McCollum, 505 U.S. 42 (1992)
  did not deprive him of effective assistance of counsel; Lee's
  constitutional challenges to his sentence were rejected in his direct appeal
  and cannot be relitigated by way of a petition for postconviction relief
  under Section 2255; other challenges to the death sentence were outside
  the scope of the certificate of appealability.

103076P.pdf   04/26/2013  Shirley Phelps-Roper  v.  Chris Koster
  U.S. Court of Appeals Case No:  10-3076
  U.S. District Court for the Western District of Missouri - Jefferson City    
  [PUBLISHED] [Bye, Author, with Wollman and Shepherd, Circuit Judges]
  Civil case - Funeral Protests. Plaintiff's speech at funerals, while
  repugnant to some listeners, is entitled to constitutional protection; since
  the plaintiff established that she engages in First Amendment expressive
  conduct protected by the First Amendment, the district court properly
  placed the burden of proof on the State as the proponent of the funeral
  protest laws which restricted plaintiff's right to engage in the conduct;
  given the en banc court's decision in Phelps-Roper v. City of Manchester,
  Mo., 697 F.3d (8th Cir. 2012), Missouri has shown a significant
  government interest in protecting the peace and privacy of funeral
  attendees for a short time and in a limited space; the failure, however, to
  define the spatial extent of the buffer zone in Missouri Rev. Stat. Sec.
  578.501 resulted in the statue burdening substantially more speech than is
  necessary to serve Missouri's interests and prevents the section from
  being narrowly tailored; both Sec. 578.501 and 578.502 use the word
  "processions" in their definition of a funeral, and the use of this word
  creates a "floating zone," giving both sections impermissibly broad reach;
  however, severing the word from the statutory sections, results in a three-
  hundred-foot buffer zone in Section 578.502, and, with the word severed,
  this statutory section is constitutional since it is narrowly tailored and
  leaves open ample alternative channels for communication of plaintiff's
  message; elimination of the word from Section 578.501 does not solve
  the remaining constitutional problems for that section, and the district
  court did not err in finding it unconstitutional.


121342P.pdf   04/26/2013  United States  v.  Lowell Baisden
  U.S. Court of Appeals Case No:  12-1342
  U.S. District Court for the District of Nebraska - Lincoln    
  [PUBLISHED] [Smith, Author, with Beam and Gruender, Circuit Judges]
  Criminal case - Criminal law. The record established the district court
  properly reviewed defendant's request for new counsel and correctly
  denied it; defendant's attempt to withdraw his guilty plea did not have
  factual or legal support and was properly denied; the record further
  showed defendant had received competent, effective assistance of counsel
  in connection with his plea.


121786P.pdf   04/26/2013  Smith Flooring  v.  Pennsylvania Lumbermens Mutual
  U.S. Court of Appeals Case No:  12-1786
  U.S. District Court for the Western District of Missouri - Springfield    
  [PUBLISHED] [Smith, Author, with Beam and Gruender, Circuit Judges]
  Civil case - Insurance. The district court erred in finding there were no
  issues common to the parties' legal and equitable claim, and plaintiff had
  a Seventh Amendment right to trial by jury on the common issue of what
  the terms of the parties' intended contract were; the court also erred in
  treating the jury's verdict as merely advisory under Fed. R. Civ. P. 39
  insofar as this issue was concerned; however the errors doe not
  necessitate reversal of the court's order granting post-verdict judgment to
  defendant as the evidence was not sufficient to support the jury's verdict
  for plaintiff, and the district court did not err in reforming the insurance
  policy.


121806P.pdf   04/26/2013  American Bank of St. Paul  v.  TD Bank, N.A.
  U.S. Court of Appeals Case No:  12-1806
                         and No:  12-1862
                         and No:  12-2399
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Benton, Author, with Smith and Melloy, Circuit Judges]
  Civil case - Torts. The district court did not err in denying defendant
  Mercantile's Rule 50 motion for judgment as a matter of law on
  plaintiff's aiding and abetting and conspiracy claims; excluding
  defendant's evidence of other banks' reactions to the borrower's fraud
  was not error; challenges to jury instructions rejected; denial of plaintiff's
  motion for additur was not an abuse of discretion, as the amount of
  damages was properly left to the jury.


122376P.pdf   04/26/2013  United States  v.  Matthew Olsson
  U.S. Court of Appeals Case No:  12-2376
  U.S. District Court for the Western District of Missouri - Jefferson City    
  [PUBLISHED] [Shepherd, Author, with Riley, Chief Judge, and Loken,
  Circuit Judge]
  Criminal case - Criminal law and Sentencing. Challenges to cross-
  examination of the government's witnesses rejected; defendant's prior
  conviction for second-degree burglary qualified as a crime of violence for
  purposes of career offender sentencing under Guidelines Sec. 4B1.1.


122482P.pdf   04/26/2013  David Longaker  v.  Boston Scientific Corporation
  U.S. Court of Appeals Case No:  12-2482
  U.S. District Court for the District of Minnesota - Minneapolis    
  [PUBLISHED] [Wollman, Author, with Bye and Benton, Circuit Judges]
  Civil case - Contracts. The district court did not err in determining
  plaintiff lacked standing to pursue his breach of contract claim against his
  former employer as the claim belonged to plaintiff's bankruptcy estate;
  plaintiff never asked the court for leave to amend his complaint to include
  a retaliation claim under Minnesota's Human Rights Act, and the court
  could not err by failing to grant leave under these circumstances. Judge
  Bye, concurring in part and dissenting in part.


123028P.pdf   04/26/2013  United States  v.  David Nicklas
  U.S. Court of Appeals Case No:  12-3028
  U.S. District Court for the Western District of Arkansas - Fayetteville    
  [PUBLISHED] [Bye, Author, with Riley, Chief Judge, and Benton,
  Circuit Judge]
  Criminal case - Criminal law. In a prosecution for transmitting a fax
  containing a threat to injure in violation of 18 U.S.C. Sec. 875(c), the
  court did not err in granting the government's motion to strike the word
  "wilfully" from the indictment as the section creates a general intent
  crime and the section does not require the government to prove a
  defendant specifically intended his or her statements to be threatening;
  instead, the government must prove a reasonable recipient would have
  interpreted the fax as a serious threat to injure; as a result, the word
  willful was properly stricken as surplusage; evidence was sufficient to
  support defendant's conviction; no error in refusing to give defendant's
  proposed instruction on reasonable doubt as it was foreclosed by circuit
  precedent.


123211P.pdf   04/26/2013  Shawna Hess  v.  Carol Abels
  U.S. Court of Appeals Case No:  12-3211
  U.S. District Court for the Eastern District of Arkansas - Pine Bluff    
  [PUBLISHED] [Gruender, Author, with Murphy and Smith, Circuit Judges]
  Civil case - Employment law. In action brought by an city employee
  who was terminated after refusing to take a drug test, the district court did
  not err in granting the defendants' motion for summary judgment based
  on qualified immunity as it was not clearly established at the time of the
  termination that such an action violated an employee's Fourth
  Amendment rights; plaintiff's Fifth Amendment and Fourteenth
  Amendment claims failed to allege a constitutional violation; the district
  court properly dismissed the official capacity claims against the
  individual defendant and the claims against the City; no error in
  dismissing claims under the Arkansas Civil Rights Act.
 


Ninth Circuit:


CLEVO CO. V. HECNY TRANSPORTATION, INC.
ROBIN PETERSEN V. BOEING COMPANY
GRAND CANYON SKYWALKDEVELOPMENT V. 'SA' NYU WA INCORPORATED
USA V. MICHAEL RAMIREZ


Tenth Circuit - nothing published today, unknown if any published opinions were posted Friday.


DC Circuit:


Flagstaff Medical Center, Inc. v. NLRB
American Petroleum Institute v. SEC
AstraZeneca Pharmaceuticals LP v. FDA


Federal Circuit:


ROBERT MACLEAN v. DHS [OPINION]
BIOSIG INSTRUMENTS, INC. v. NAUTILUS, INC. [OPINION]




Incomplete summaries today. Time/equipment limits. Better results in the next at-bat.

MB

Next update Monday

Still short one DC Circuit opinion from the past week.

MB

DC Circuit -- Defenders of Wildlife v. Lisa Jackson (4/23)

Consent decree does not impose procedural injury on environmental group by compressing notice-and-comment period.  No proof of increased information-gathering costs.

Barred intervenor limited on appeal to appeal of the barred intervention.

Defenders of Wildlife v. Lisa Jackson

Ninth Circuit -- MONDACA-VEGA V. HOLDER

District court holding as to whether petitioner is an American citizen is reviewable only for clear error.

Burden of production on petitioner to prove citizenship by a preponderance, but the government still bears the ultimate burden of showing non-citizenship.

Dissent: De novo appellate review.  Government must show by clear, unequivocal, and convincing evidence.

MONDACA-VEGA V. HOLDER

Ninth Circuit -- CONSERVATION NORTHWEST V. HARRIS SHERMAN

Agency cannot substantially and permanently change rule that would otherwise be subject to statutory checks on modification by entering into a judicial consent decree.

CONSERVATION NORTHWEST V. HARRIS SHERMAN

Eighth Circuit -- United States v. Joel Castillo

From the court's website:

122898P.pdf   04/24/2013  United States  v.  Joel Castillo
  U.S. Court of Appeals Case No:  12-2898
  U.S. District Court for the Western District of Arkansas - Ft. Smith    
  [PUBLISHED] [Murphy, Author, with Smith and Gruender, Circuit Judges]
  Criminal Case - conviction and sentence. Viewing the evidence in the
  light most favorable to jury verdict, government presented sufficient
  evidence for rational jury to find Castillo possessed methamphetamine
  knowingly or intentionally, as drugs were found in truck he alone drove,
  he appeared nervous at traffic stop, drugs smelled of mustard, he was
  unsurprised when drugs discovered, and story was implausible. District
  court did not clearly err in denying offense level reduction for mitigating
  role and considered the section 3553(a) factors in determining sentence. 
  District court did not abuse its discretion in sentencing Castillo.

Eighth Circuit -- Laclede Gas Company v. St. Charles County

From the court's website:

122755P.pdf   04/25/2013  Laclede Gas Company  v.  St. Charles County
  U.S. Court of Appeals Case No:  12-2755
  U.S. District Court for the Eastern District of Missouri - St. Louis    
  [PUBLISHED] [Kopf, Distric Judge, Author, with Bye and Melloy,
  Circuit Judges]
  Civil Case - preliminary injunction. In dispute involving right of local
  government and rights of public utility in shared easements, the district
  court had jurisdiction to grant preliminary injunction and did not abuse its
  discretion in doing so. No categorical rule that before addressing
  preliminary injunction motion a court must rule on the opposing party's
  assertion that the court lacks jurisdiction. Imminent threat of physical
  damage to pipeline sufficient to provide district court with jurisdiction
  under the Natural Gas Pipeline Safety Act. District court did not abuse its
  discretion in failing to abstain. Judge Bye concurs.