Friday's post will happen Saturday

Today's cases will be posted tomorrow.  If the crick don't rise.  

-MB

Short Form 3/12

First Circuit:

AngioDynamics, Inc. v. Biolitec AG -- 60(b) motion cannot be used to collaterally attack a preliminary injunction; civil contempt fines in excess of the judgment amount are permissible, but have to be capped at some point so that they don't  infinitely increase; alternative service was acceptable.

US v. Rojas  -- Appeal waiver in plea deal that doesn't recommend terms for supervised release still bars appeal of sentence terms imposing conditions on supervised release.

Raymond James Financial Servic v. Fenyk -- Arbitration - Statute of limitations not offended by award, as it was evolving at the time; Award under statute different from that claimed by the plaintiff does not indicate a manifest disregard of the law.  Circuit split on the issue flagged.

AngioDynamics, Inc. v. Biolitec AG -- Where deft corporation is at home in the forum state and makes a fraudulent transfer of assets out of the forum state, ancillary jurisdiction over other companies can be established (vague in decision, probably clearer in District Ct. opinion.); Tortious interference sufficiently pleaded; Entry of default judgment as discovery sanction wasn't an abuse of discretion; No need for evidentiary hearing before award of damages.


Second Circuit:

Prabhudial v. Holder -- Immigration: Agency may Constitutionally hold an argument (that a categorical instead of modified categorical approach was incorrectly used in offense determination) waived if not timely raised.  Circuit courts therefore have no jurisdiction over the appeal.


Fourth Circuit:

US v. Keith Reed -- Use of cell phone tracking map at trial that used deft's names instead of phone numbers was not an abuse of discretion; Post-arrest labeling of cell phone bag was not sufficiently testimonial to trigger Confrontation Clause (harmless error, as otherwise attributable); Sufficient evidence for convictions.

US v. Marco Flores-Alvarado -- Amended Opinion


Fifth Circuit:

Ralph Janvey, et al v. Golf Channel, Incorporated, -- State can reach under fraudulent transfer law advertising expenses paid by Ponzi scheme.  Although they had market value, they did not provide even speculative benefit to creditors.

Halliburton, Incorporated v. LABR -- Dissent from denial of en banc - Court should make a firm rule as to when the disclosure of a complainant's identity constitutes an adverse employment action.

USA v. Robert Kaluza, et al -- District Court holding that federal law did not apply to offshore drilling rig can't be bootstrapped into defts jurisdiction argument,as there was no cross-appeal by defts and the choice of law and jurisdictional elements of the statute are different; No error in District Court's use of ejustem generis to limit the ambiguous/general term in the statute to those persons responsible for the transportative functions of the vessel, thereby ruling out oil rig drilling employees.


Sixth Circuit:

Dawson Wise v. Zwicker & Associates PC -- State debt collection practices statute claim properly dismissed, as it doesn't apply to dealings between a consumer and a financial institution; Court must conduct interest analysis to determine if fee-shifting provision fundamentally offends public policy of forum state when the law of another jurisdiction is being applied.

Alfredo Montanez-Gonzalez v. Eric Holder, Jr. -- Immigration - even where refusal to consider a certain factor barring removal was constitutional error, prejudice must be shown; the phrase "on balance" does not establish that the court engaged in inappropriate balancing (as opposed to aggregation).


Seventh Circuit:


Kevin P. Gerard v. Michael J. Gerard -- Bankruptcy: Tort verdict against bankruptcy petitioner must be considered in totality to determine whether it was for malicious and willful harm, and therefore the basis for an undischargeable debt.


Ninth Circuit:

NRDC V. USEPA -- Chevron deference to EPA rulemaking creating alternative enforcement mechanism.

CHRIS TAYLOR V. JOHN CHIANG -- Constitutional concerns as to the appropriate means of locating owners of lost property vary by pre-escheat requirements and post-escheat requirements.


Eleventh Circuit:

SE Property Holdings, LLC v. Seaside Engineering & Surveying, Inc. -- Bankruptcy court may issue non-debtor releases of debt where necessary to preserve the viability of the post-petition entity.

USA v. Shedrick D. Hollis -- Evidence found in protective sweep of third-party residence admissible; No abuse of discretion in barring expert testimony on fingerprint comparison from expert on fingerprint sufficiency based solely on the averral of the expert that the two are identical.


Federal Circuit

BANNUM, INC. v. US  -- As bidder for government contract did not formally object to solicitation prior to the award, post-award challenges are waived.

(We'd like to get back to individual postings to help enable the tags function, but time, like an e'er rolling stream is moving a bit fast at the moment.  MB)

Short Form: 3/11

Second Circuit:

United States of America v. Foreste -- 4A: Successive investigatory stops should be considered together where the probable cause for the stop and the basis for extending the stop are the same.  Where the reason for extending the duration of the stop is different (as here), they may be considered separately;  field performance reports of canine units are relevant and susceptible to discovery requests.

Stryker v. Securities and Exchange Commission -- Administrative Law: Chevron deference to SEC holding that a pre-statute tip is ineligible for a reward under the statute.  Alternative holding: statute not ambiguous.  

Rivas v. Fischer -- Habeas ordered on remand, as no reasonable finder of fact could determine that counsel was not ineffective.


Third Circuit:

Ashley McMaster v. Eastern Armored Services Inc -- FLSA -- Employee is subject to the Act and therefore eligible for overtime, as she is within the small-truck correction to the truck driver carve-out in the Act.

Fourth Circuit:

Fraternal Order of Police v. WMATA -- Subsequent unrelated dismissal of employee ordered reinstated by arbitration does not violate the arbitration order; Grievances should first be addressed by the mechanism in the collective bargaining agreement.

Alfredo Prieto v. Harold Clarke  --  Due Process: Prisoner does not have liberty interest sufficient to challenge harsh and atypical conditions on "Death Row," as there is no valid expectation of avoiding these conditions when sentenced for a capital crime.


Sixth Circuit:

USA v. Manuel Soto 

 USA v. Hector Santana 

 USA v. Christopher Espinoza

USA v. Juan Respardo-Ramirez


Seventh Circuit:


Scott Reeder v.  Michael Madigan


Saley Souley v. Eric Holder, Jr.


Eighth Circuit (Summaries from Court):

131748P.pdf  03/11/2015  United States  v.  Arthur Chappell
   U.S. Court of Appeals Case No:   13-1748
   U.S. District Court for the District of Minnesota - St. Paul   
   [PUBLISHED] [Riley, Author, with Smith and Shepherd, Circuit Judges] 
   Criminal case - Criminal law. For the court's prior opinion remanding the 
   case for a new trial based on an error in the jury instructions, see U.S. 
   v. Chappell, 665 F.3d 1012 (8th Cir. 2012). On remand, the district court 
   did not abuse its discretion by denying defendant's motion to reopen the 
   record on the issue of probable cause for defendant's arrest; police had 
   probable cause to arrest defendant even if the issue were reopened; claim 
   of vindictive prosecution rejected, as the new charges added after remand 
   concern different criminal acts against mostly difference victims. 

141619P.pdf  03/11/2015  St. Jude Medical S.C., Inc.  v.  Thomas Tormey, Jr.
   U.S. Court of Appeals Case No:   14-1619
   U.S. District Court for the District of Minnesota - Minneapolis   
   [PUBLISHED] [Bye, Author, with Riley, Chief Judge, and Wollman, Circuit 
   Judge] 
   Civil case - Contracts. Because plaintiff failed to present evidence that 
   a claimed "walk-away"agreement releasing him from liability to repay a 
   loan was in writing as required by Minn. Stat. Sec. 513.33, the district 
   court did not err in granting defendant judgment as a matter of law on 
   this defense or on its collection claim; plaintiff's counterclaims were 
   time-barred; plaintiff failed to object under Fed. R. Civ. P. 72(a)to the 
   magistrate's order denying certain of his discovery requests, and the 
   court was without jurisdiction to review the issue. 




Ninth Circuit:


CPR FOR SKID ROW V. CITY OF LOS ANGELES


AIRCRAFT SERVICE INT'L V. WORKING WASHINGTON


MARGARET RUDIN V. CAROLYN MYLES


NRDC V. USEPA


CHRIS TAYLOR V. JOHN CHIANG



Federal Circuit:


AMERGEN ENERGY COMPANY, LLC v. US 



DC Circuit:




Stone & Webster, Inc. v. Georgia Power Company


Airlines for America v. TSA


Meina Xie v. John Kerry

Short form

Seventh:


Walter Love v. JP Cullen & Sons, Incorporated


Official Committee of Unsecure v. Rudolph Randa

Ninth:

NORTHSTAR FINANCIAL ADVISORS, V. SCHWAB INVESTMENTS

TODD FREALY V. RICK REYNOLDS

JOSE SANTOS V. LINDA THOMAS

Tenth:

Ellis v. J.R.'s Country Stores

Eleventh:

Palm Beach Golf Center-Boca, Inc. v. John G. Sarris, D.D.S., P.A.

Federal Circuit:
\
PAPST LICENSING v. FUJIFILM CORPORATION [ERRATA]

Summaries TK.  Vel non.

MB

Seventh Circuit: Official Committee of Unsecure v. Jerome Listecki

Catholic Archdiocesan bankruptcy / RFRA

RFRA does not apply where the government is not a party to the action, as the statute specifically requires the government to make a showing as to means narrowing.

Committee of creditors does not act under the color of state law.

Fact that Archdiocese was haled into court insufficient to establish as color of state law.  (Court holds that S1983 standard parallels RFRA.)

Avoiding pre-petition transfer of funds to cemetery fund is a sufficiently narrowly tailored implementation of a neutral policy of general applicability.

Failure to recuse was problematic.


Official Committee of Unsecure v. Jerome Listecki

Second Circuit: In re Peter S. Gordon

Immigration attorney reprimanded & suspended for motions without basis in law, lack of candor to investigating tribunal.

In re Peter S. Gordon

Coverage

 Very complex FLSA ruling out of the Tenth today, spotted a mention of FRE/hearsay as well.  11th has one case.  Unfortunately, I'm out of time here.  Will catch up these two with late-breaking posts from the senior circuits tomorrow.

Eighth Circuit: Marissa Walz v. Ameriprise Financial, Inc

If an employee failed to disclose a non-obvious disability that impaired the performance of the essential functions of his or her job, summary judgement for the employer on the ADA claim is appropriate.

Marissa Walz  v.  Ameriprise Financial, Inc

Eighth Circuit: Jacqueline Conners v. Gusano's Chicago Style Pizzeri

Denial of Motion to Compel Arbitration sufficiently final for purposes of appeal.

Absent showing that new arbitration agreement chilled potential challenges to the employer, past employees not covered by the agreement who are currently litigating against the employer have no standing to challenge it on behalf of putative co-plaintiffs.

Jacqueline Conners  v.  Gusano's Chicago Style Pizzeria

Eighth Circuit: United States v. Ismael Corrales-Portillo

Informant information was sufficient basis for search under the totality of the circumsatances when the police monitored the entire transaction, were given the description of the vehicle and the defts, and the informant visually indicated the vehicle.

No error in deliberate ignorance jury instruction where deft was generally aware of contraband and was clearly "learning the ropes" of the operation.

Testimony of the informant was sufficient for finder of fact to convict on conspiracy.

Proximacy and probable complicity sufficient for Possession with Intent to Distribute.

Within-Guidelines sentence upheld.  Sentencing court did not need to disavow mistaken statement by government during sentencing.

United States  v.  Ismael Corrales-Portillo

Eighth Circuit: United States v. Randy Hentges

Sentencing - announced upward variance means that the career offender predicates don't have to be established, as either would result in the same outcome.

Deft's history justified upward variance.

Permitting allocution after the announcing of sentence but before its imposition does not violate the 5A/FRCrimP rights of the deft.

United States  v.  Randy Hentges

Eighth Circuit: Brandon Pierce v. Collection Associates, Inc.

Co-petitioner in bankruptcy does not have standing to challenge pre-petition transfer of co-petitioner.

As the amount of wages garnished prior to the filing of the partition was under the statutory cap of $600, the garnishment can't be avoided by the petitioner.

Dissent: As garnishor is assigned value of the wages upon earning, the amount of the garnishment exceeds the cap.

Brandon Pierce  v.  Collection Associates, Inc.

Eighth Circuit: Mark Minnihan v. Mediacom Communications Corp.

Despite past accommodation, driving was an essential task for the employee, so an employee incapable of driving does not have ADA standing.

Dialogue with HR and the offer of another position was sufficient interaction to establish lack of bad faith on the part of the employer.

Mark Minnihan  v.  Mediacom Communications Corp.

Eighth Circuit: Zachary Makworo Mogeni v. Eric H. Holder, Jr.

Immigration -- Petitioner's past sham marriage means that the IJ can decline to grant a continuance in removal action when family-based petition is still pending.

Zachary Makworo Mogeni  v.  Eric H. Holder, Jr.

Eighth Circuit: Tyrone Patterson v. City of Omaha

Bifurcation of trial into individual liability and corporate liability (government) didn't create a second action for the purposes of the deadline for filing notice of appeal.

No abuse of discretion in finding that unlawful force was used in the arrest and award of nominal damages where there is doubt as to causation of injuries.

Grant of summary judgment does not violate plaintiff's right to a jury trial.

Tyrone Patterson  v.  City of Omaha

Eighth Circuit: Estate of Nell G. Pepper v. Nancy Whitehead

A reasonable finder of fact could decide that the phrase "keep it" imparted a conditional gift.

Estate of Nell G. Pepper  v.  Nancy Whitehead

Eighth Circuit: Survivors Network v. Jennifer Joyce

State statute restricting profane speech outside of houses of worship violates the Fist Amendment, as there are content -neutral alternatives that might be employed to the same ends.

Survivors Network  v.  Jennifer Joyce

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.

Sixth Circuit: Susan B. Anthony List v. Steven Driehaus

Error for District Court to dismiss defamation suit on First Amendment grounds, but affirmed, as there was insufficient falsity and malice for state law defamation claim.

Susan B. Anthony List v. Steven Driehaus 

Sixth Circuit: USA v. Jason Carter

Error for trial court to allow evidence of prior bad acts -- past illegal distribution of drug insufficiently probative of intent to illegally manufacture.

 USA v. Jason Carter 

Fifth Circuit: Carla Frew, et al v. Thomas Suehs, et al

No abuse of discretion in dissolution of consent decree where the explicit terms have been compled with, but a credible showing is made that some implicit aims have not been realized -- the written terms prevail.

No 'law of the case' deference to District Judge's construction of terms.

FRCP terms addressing termination of order / satisfaction of judgment should be construed liberally.

Carla Frew, et al v. Thomas Suehs, et al

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

Amended opinion.

Rafael Tiscareno-Garcia v. Eric Holder, Jr.

Third Circuit: Harold Werkheiser v. Pocono Township

Qualified immunity for elected officials who allegedly retaliated against speech by a fellow elected official by stripping him of administrative duties.  No clearly established constitutional right was violated.

Harold Werkheiser v. Pocono Township

A day away.

Rest of today's opinions posted tomorrow.

MB

First Circuit: Ayala v. Shinseki

No equitable tolling for Title VIII claims, as the alleged harms were discrete occurrences.

Ayala v. Shinseki 

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