U.S. 2nd Circuit, May 09, 2008
US v. Martinez, No. 06-5502
In a sentencing proceeding wherein the district court applied a four-level enhancement to defendant's base offense level after finding, by a preponderance of the evidence, that defendant had used or possessed a firearm in connection with another felony offense, judgment is affirmed where: 1) the district court applied the correct standard of proof to the facts supporting the enhancement; 2) the sentence imposed was reasonable; and 3) the doctrine of constitutional avoidance did not apply to invalidate the sentence imposed.
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U.S. 9th Circuit, May 09, 2008
Williston Basin Interstate Pipeline Co. v. An Exclusive Gas Storage Leasehold and Easement etc., No. 06-35660
In an action claiming that plaintiff has lost and is continuing to lose natural gas stored in its Elk Basin Storage Reservoir due to the operation of gas production wells owned by defendants, dismissal of the action is affirmed where: 1) the condemnation claim was properly dismissed, but on the ground that it failed to state a claim; 2) the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over the state law claim; and 3) state law claims were properly dismissed for lack of subject matter jurisdiction. A natural gas company may not condemn additional property that is not specifically described in its existing certificate of public convenience and necessity (CPCN), even if the natural gas company seeks to acquire such property in order to operate and maintain an existing storage facility.
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California Appellate Districts, May 09, 2008
Wolf v. Walt Disney Pictures and Television, No. B192656
In a breach of contract action involving Disney's alleged failure to fully compensate for its exploitation of the cartoon characters depicted in plaintiff's novel "Who Censored Roger Rabbit?", judgment for plaintiff including the amount of damages awarded is reversed in part and remanded where: 1) the trial court erroneously allowed the jury to interpret the term "purchaser" in a 1983 agreement when the meaning of that term was not dependent on the credibility of conflicting extrinsic evidence, and thus there was no factual issue for the jury to resolve; and 2) because plaintiff's royalty payments under the agreement did not include any entitlement to the gross receipt of Disney's subsidiaries, the trial court's award of that amount was erroneous.
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California Appellate Districts, May 09, 2008
California Highway Patrol v. Superior Court (Walker), No. C055614
Vehicle Code section 14602.6(a)(1) provides only discretionary authority to impound and therefore the California Highway Patrol cannot be held liable under Government Code section 815.6 for failing to perform a mandatory duty.
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U.S. D.C. Circuit Court of Appeals, May 09, 2008
Fashion Valley Mall, LLC v. National Labor Relations Board, No. 04-1411, 05-1027, 05-1039
Mall's petition for review of a National Labor Relations Board order, which held that it was a violation of a party's free speech rights under the California Constitution to require a permit applicant to agree not to urge consumers to boycott any of the mall's tenants as a condition to obtaining a permit to engage in expressive activities at the mall, is denied where petitioner failed to raise its constitutional arguments before the circuit court in prior proceedings, and waited until it petitioned the California Supreme Court for a rehearing.
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U.S. D.C. Circuit Court of Appeals, May 09, 2008
U.S. v. Day, No. 06-3063, 06-3076
A conviction for, inter alia, mail and wire fraud is affirmed in part over claims over error regarding: 1) the exclusion of an expert witness's testimony for failing to meet the requirements under Fed. R. Evid. 702 and Daubert; 2) the exclusion of testimony by a witness for failing to comply with Fed. R. Crim. P. 16(b)(1)(C)(ii); 3) an increase in the sentencing level based on a determination that defendant had caused a loss greater than the ones included in the indictment; 4) an obstruction of justice sentence enhancement; 5) a sentence enhancement for abuse of trust; and 6) a sentence enhancement based on the number of victims involved. However, decisions denying the government's requests for forfeiture and a money judgment are reversed as: 1) criminal forfeiture is available for general mail and wire fraud under 18 U.S.C. sections 1341 and 1343, and not only for mail and wire fraud affecting financial institutions; and 2) money judgments are appropriate in the criminal forfeiture context.
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U.S. 10th Circuit, May 12, 2008
U.S. v. Valadez-Valadez, No. 06-2341
Driving at a speed moderately below the speed limit does not, without more, constitute obstructing or impeding traffic. A conviction for for transporting illegal aliens is reversed and remanded pursuant to a claim of erroneous denial of a motion to suppress where an officer lacked reasonable suspicion to stop defendant for violating a state law against impeding traffic, based on his driving about 10 m.p.h. below the speed limit on a highway.
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U.S. 10th Circuit, May 12, 2008
Fischer v. Forestwood Co., Inc., No. 06-4121
In an action raising claims for unlawful discharge, retaliation, and failure to hire, summary judgment for defendant is affirmed in part as to the unlawful discharge and retaliation claims, but reversed and the case remanded as to the failure to hire claim, where: 1) plaintiff was not fired since he voluntarily left the company; 2) the level of harassment plaintiff experienced because of his religion and his resignation in protest of another employee being discharged did not rise to the level of constructive discharge; 3) a taped conversation between plaintiff and the deceased president of the company constituted an admission by a party opponent and was admissible; and 4) the tapes showed sufficient evidence of a failure to hire claim to survive summary judgment.
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U.S. 10th Circuit, May 12, 2008
S. Utah Wilderness Alliance v. Kempthorne, No. 06-4251, 07-4223
In appeals involving appellants' post-judgment motions to intervene in a case affecting their interests in oil and gas leases, the circuit court dismisses one appeal where the district court had yet to rule on their motion to intervene at the time movants filed their appeal. Denial of the other motion to intervene is affirmed on grounds that movants chose to intervene only after the government agency from which they obtained the leases decided not to pursue an appeal, and must await a final decision by the administrative agency in order to have an appealable final decision.
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U.S. 10th Circuit, May 12, 2008
U.S. v. Ellis, No. 06-6340
A conviction and sentence for bank robbery is affirmed over claims of error regarding: 1) whether the indictment was inadequate for merely citing to the aiding-and-abetting statute without including language describing defendant's role; 2) the reasonableness of his sentence; and 3) violations to his right to a jury by having his sentence enhanced by the judge based on a preponderance of the evidence.
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U.S. 11th Circuit, May 12, 2008
Ocwen Orlando Holdings Corp. v. Harvard Prop. Trust, LLC, No. 07-13920
In a breach of contract action involving a forum selection clause which prevented the transfer of any action filed in any court to any other court, a judgment honoring the effects of underlying clause is affirmed where: 1) the plain meaning of the clause governed, as its unequivocal language was insusceptible of more than one interpretation; and 2) based upon the plain meaning of the word "transfer", the forum selection clause waived defendant's right to remove along with its right to transfer for the convenience of the parties and witnesses.
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U.S. 1st Circuit, May 12, 2008
US v. Wilder, No. 06-2213
Conviction for possession, transmission, and receipt of child pornography is affirmed over defendant's claims that: 1) the warrant permitting seizure of materials from his home was issued without probable cause; 2) the evidence at trial was insufficient to establish his knowingly receipt or knowingly possession of child pornography; and 3) the evidence was insufficient to support a finding that the photographs on which the convictions were based depicted real children, or that the images listed in his indictment depicted a minor engaging in sexually explicit conduct.
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U.S. 2nd Circuit, May 12, 2008
Bennett v. Mukasey, No. 06-2480
Motion to recall a mandate and reinstate a petition for review of a BIA decision is granted where a lawyer's practice of accepting an initial retainer fee and then deliberately failing to take required action due to non-payment of additional fees, thereby permitting his client's petition to be dismissed, was unacceptable.
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U.S. 2nd Circuit, May 12, 2008
Mendez v. Mukasey, No. 06-0032
Petition for review of a denial of cancellation of removal on grounds that petitioner had not demonstrated that his removal would cause exceptional and extremely unusual hardship to his US citizen children is dismissed where: 1) under binding precedential decisions, the determination of whether exceptional and extremely unusual hardship was present for the purposes of cancellation of removal is committed to the Attorney General's discretion; and 2) thus, the circuit court lacked jurisdiction to review such a determination.
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U.S. 3rd Circuit, May 12, 2008
Pardini v. Allegheny Intermediate Unit, No. 07-1403
In a case involving an attorney-parent who sought attorney's fees in a lawsuit filed on behalf of his daughter pursuant to the IDEA, denial of fees is affirmed where: 1) the court's earlier decision in this case did not decide the issue of whether plaintiffs were entitled to attorney's fees; 2) scope of prior precedent was not limited to representation by an attorney-parent in administrative proceedings only; 3) such precedent governed this appeal, as there was substantial doubt that the case's earlier decisions foreclosed the attorney's fees issue; and 4) plaintiffs were not entitled to recover cost for services other than conductive education.
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U.S. 4th Circuit, May 12, 2008
U.S. v. Lentz, No. 06-4691
A conviction for interstate kidnapping resulting in the death of defendant's ex-wife is affirmed over claims of error regarding: 1) whether a jury instruction given by the district court constructively amended the indictment; 2) denial of pre-trial motions to suppress testimony from a jail informant about a murder-for-hire plot; 3) denial of a motion to suppress a recorded telephone conversation between defendant and his counsel in which the murder-for-hire plot was discussed; 4) whether admission of recorded conversations as redacted were in violation of the rule of completeness as set in Fed R. Evid. 106; 5) admission of hearsay statements made by the victim; 6) admission of a missing person poster as unduly prejudicial; 7) a denial of a motion for recusal based on the court's alleged prejudgment on the ultimate issue of guilt; and 8) the sufficiency of the evidence to prove various elements of the kidnapping charge.
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U.S. 6th Circuit, May 12, 2008
Harden-Bey v. Rutter, No. 06-1473
In a 42 U.S.C. section 1983 action against several employees of the Michigan Department of Corrections challenging plaintiff's placement and continued confinement in administrative segregation, dismissal pursuant to section 1997e(c) of the Prison Litigation Reform Act is affirmed in part and reversed in part where: 1) the district court erred in dismissing a due process claim on the ground that the duration of plaintiff's prison discipline, three years and counting, does not affect whether he has a protected liberty interest; but 2) he failed to state a cognizable cruel-and-unusual-punishment claim or a cognizable equal protection claim.
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U.S. 6th Circuit, May 12, 2008
Jackson v. McKee, No. 07-1247
Denial of a habeas petition from convictions for felony murder and carrying a firearm during the commission of a felony is affirmed where state court decisions were neither contrary to, nor an unreasonable application of, Supreme Court precedent, in denying claims that: 1) petitioner's confession was involuntary; 2) a Miranda waiver was not knowing or intelligent; and 3) the admission of certain non-testimonial hearsay statements violated the Confrontation Clause.
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U.S. 7th Circuit, May 12, 2008
Samuel v. Frank, No. 07-1243
In a prosecution for sexual assault of a minor, denial of habeas corpus relief is affirmed over claims that the court inappropriately admitted testimony which the police had allegedly coerced from the minor by threatening to keep the minor away from her newborn child.
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U.S. 7th Circuit, May 12, 2008
U.S. v. Hatten-Lubick, No. 06-4310
Defendant's conviction and sentence for drug-related offenses is affirmed over claims of error regarding: 1) sufficiency of the evidence to sustain the conviction for conspiracy; 2) ineffective assistance of counsel; 3) the court's calculation of the drug quantity which could be attributable to the defendant; 4) the increase in the sentence based on his supervisory role in the offense; and 5) the judge's failure to set a payment schedule for a fine.
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U.S. 8th Circuit, May 12, 2008
US v. Buckley, No. 06-4092
Conviction and sentence for conspiracy to distribute a substance containing cocaine base is affirmed defendant's over claims that: 1) the underlying evidence was insufficient to support the drug conspiracy conviction; 2) he was prejudiced by a variance between the single conspiracy charged in the indictment and the multiple conspiracies proved at trial; 3) the district court abused its discretion in admitting evidence of a prior drug distribution offense; and 4) the Sentencing Guidelines are unconstitutional.
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U.S. 9th Circuit, May 12, 2008
Taylor v. Westly, No. 07-16902, 07-17223
In long-running litigation involving the constitutionality of California's statutory procedure addressing escheat, grant of a motion to dissolve an injunction preventing the operation of California's escheat process is affirmed in part and reversed in part where: 1) on its face, the state's new procedure complies with the due process standard previously established by the Supreme Court; 2) there was no abuse of discretion in dissolving the injunction; but 3) a denial of interim attorney's fees to plaintiffs was an abuse of discretion under the circumstances.
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U.S. 9th Circuit, May 12, 2008
US v. Caruto, No. 07-50041
A conviction for importation of cocaine and possession of cocaine with intent to distribute is reversed where a prosecutor's closing argument, emphasizing omissions from defendant's post-arrest statement that existed only because she invoked her right to counsel under Miranda, constituted a violation of her right to due process.
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California Appellate Districts, May 12, 2008
People v. Ross, No. B201673
When an arrestee lies to the booking officer by denying possession of a weapon and enters jail, the arrestee has violated Penal Code section 4574 and voluntarily chose to enter jail with a weapon.
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California Appellate Districts, May 12, 2008
In re Marriage of Holtemann, No. B203089
In a dispute about the legal effect of a spousal property transmutation agreement executed during marriage, judgment finding the underlying agreement effectuated a transmutation of husband's separate property into community property is affirmed where: 1) the unambiguous language in the parties' agreement evinced that the husband intended to, and did transmute his separate property; 2) nothing in the record suggested that the husband was misinformed or misled in light of the requisite express, unequivocal declarations of transmutations; and 3) his arguments for disparate treatment of his express declarations of transmutation based on his lack of separate counsel were unavailing, as he was fully advised of the consequences of failing to secure separate counsel, yet chose to proceed.
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California Appellate Districts, May 12, 2008
Evans v. Evans, No. D051144
In an action brought by a deputy sheriff against his former wife and former mother-in-law alleging, inter alia, harassment, defamation, and breach of privacy, a preliminary injunction enjoining defendants from publishing certain statements about plaintiff on the internet and also from contacting plaintiff's employer other than calling 911 to report criminal conduct is reversed and remanded where the preliminary injunction was overbroad, vague, and an unconstitutional prior restraint before trial.
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Supreme Court of California, May 12, 2008
People v. Superior Court (Humberto S.), No. S149123
Recusal of several prosecutors for conflict of interest arising from their alleged representation of the victim's interests is reversed and remanded where: 1) the court of appeal was incorrect in deciding that the prosecutor's zealous advocacy in preventing disclosure of the victim's medical records was in bad faith; and 2) the participation of the prosecutor in third party discovery process did not amount to advocacy of the victim's interests merely because their interests are similar.
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U.S. 10th Circuit, May 13, 2008
Dossa v. Wynne, No. 07-3284
In an action brought by plaintiff who was discharged from her civilian position at an Air Force Base, dismissal of her claims of retaliation, and gender and national origin discrimination is reversed where: 1) plaintiff exhausted her administrative remedies, and thus the district court erred in dismissing her discrimination claims; and 2) Title VII
includes retaliation claims and 5 U.S.C. section 7703(b)(2) authorizes judicial review of them, and thus, the district court erred in concluding that it lacked jurisdiction over plaintiff's retaliation claim.
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U.S. 11th Circuit, May 13, 2008
US v. Padron, No. 07-11228
Conviction and sentence for mail fraud and conspiracy to commit mail fraud is affirmed over defendant's claims that: 1) the government's conduct in investigating him amounted to entrapment; 2) the district court made erroneous evidentiary rulings during trial; and 3) the district court erred in its calculation of victim's loss amount and that it lacked statutory authority to impose a forfeiture money judgment against him.
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U.S. 11th Circuit, May 13, 2008
Ferguson v. Culliver, No. 07-13030
Denial of petitioner's 28 U.S.C. section 2254 habeas corpus petition is vacated and remanded where: 1) in the habeas context, the district court needed to review the state trial court record, rather than rely solely on the state appellate court's findings as to what the trial record contained; and 2) the absence of the trial record precluded the district court from conducting a meaningful review of the state court decision, even under the deferential standard imposed by the AEDPA.
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U.S. 11th Circuit, May 13, 2008
Hendrix v. Sec'y, Florida Dep't. of Corrections, No. 07-13117
Denial of a habeas petition is affirmed where: 1) the mere appearance of a judge's alleged bias was insufficient to violate the Due Process Clause in light of clearly established federal law as set forth by the Supreme Court; 2) trial counsel's investigation and presentation of mitigating circumstances was reasonable and did not render ineffective assistance; and 3) the government's failure to disclose immaterial information about a witness did not amount to a Brady violation.
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U.S. 1st Circuit, May 13, 2008
US v. Rodriguez, No. 06-2719
Conviction and sentence drug- and firearm-related offenses is vacated in part and remanded where: 1) with regards to a brandishing firearms conviction, the record was devoid of any indication that defendant or his co-conspirator displayed firearms for the purpose of intimidating other persons; 2) the government conceded that a life sentence imposed on defendant's conspiracy to use firearms in furtherance of drug conspiracy exceeded the statutory maximum sentence for that conviction; and 3) the district court plainly erred in imposing multiple consecutive sentences for two acts of firearm possession arising from the same predicate drug conspiracy.
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U.S. 1st Circuit, May 13, 2008
US v. Bucci, No. 06-2746, 07-1087
Conviction for drug- and firearm-related offenses, as well as, witness tampering and making false statements to the Drug Enforcement Administration, is affirmed over claims of error regarding: 1) deficient trial counsel performance in violation of Sixth Amendment; 2) a denial of a motion to sever; 3) alleged structural error by the district court in closing the courtroom to the public on two occasions; 4) whether the district court permitted a constructive amendment of the indictment; 5) the sufficiency of the evidence; 6) erroneous jury instructions; 7) Sixth Amendment violation in the court's application of sentencing guidelines; and 8) a ruling allowing the government to redact portions of the recording and transcript of a conversation over a request for inclusion for impeachment purposes.
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U.S. 1st Circuit, May 13, 2008
Cao v. Commonwealth of Puerto Rico, No. 07-1394
In an action wherein plaintiff sought recovery under 42 U.S.C. section 1983 for alleged constitutional violations along with several state law causes of action after she was removed from her home, made to undergo a psychological evaluation, and placed in a state institution for the elderly, dismissal of plaintiff's complaint is affirmed where: 1) the district court properly dismissed plaintiff's section 1983 claim as untimely; and 2) with no federal cause of action remaining, the district court acted within its discretion in declining to exercise supplemental jurisdiction over remaining state law claims.
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U.S. 2nd Circuit, May 13, 2008
Estate of Pew v. Cardarelli, No. 06-5703
In an appeal primarily addressing whether a claim fell within the exception to the Class Action Fairness Act's ("CAFA") grant of original and appellate jurisdiction for class actions which solely involve claims concerning certain rights and duties related to any security, the circuit court: 1) rules that the suit at hand does not fall within such exception to CAFA jurisdiction, and thus it has authority to accept an appeal from a remand order; 2) grants defendant's petition for leave to appeal; and 3) reverses the district court's remand order on the merits.
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U.S. 2nd Circuit, May 13, 2008
US v. Douglas, No. 06-0581
Conviction for killing a person in connection with an attempt to steal money from ATM machines is affirmed over defendant's claims that: 1) being charged with an offense punishable by death entitled him to representation by two attorneys, and the district court erred in dismissing one of his two appointed attorneys after the government stated that it would not seek death penalty; 2) the government engaged in impermissible discrimination in the use of a peremptory challenge; 3) there were various errors in connection with the eyewitness identification evidence admitted against him; and 4) evidence obtained in violation of his privilege against self-incrimination should have been excluded from evidence in the government's rebuttal case.
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U.S. 3rd Circuit, May 13, 2008
Beazer E., Inc. v. Mead Corp., No. 06-4993
In an on-going contribution claim against defendant under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), wherein the district court denied defendant's motion to dismiss for failure to state a claim and certified the question of whether certain caselaw precedent limited subject-matter jurisdiction over plaintiff's contribution claims under section 113(f)(1), the circuit court finds that: 1) the "civil action" requirement in section 113(f) is an element of the claim, and is not jurisdictional; 2) the district court retained its original jurisdiction to adjudicate the issues in this case; and 3) defendant waived its challenge to the applicability of section 113(f)(1).
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U.S. 5th Circuit, May 13, 2008
U.S. v. Hildenbrand, No. 07-10210, 07-10211
Defendants' guilty plea convictions for defrauding the Department of Housing and Urban Development (HUD) are affirmed over claims of error regarding the sufficiency of the factual resumes submitted in support of defendants' guilty pleas.
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U.S. 7th Circuit, May 13, 2008
U.S. v. Watson, No. 06-2680, 06-2963, 06-3114
Convictions for robbing an armored car outside a bank are affirmed over claims of error regarding: 1) admission of hearsay evidence under the exception for statements against the declarant's interest; 2) admission of the hearsay testimony in violation of the the Confrontation Clause; 3) the reasonableness of the sentence; 4) an improperly drafted indictment; and 5) the lack of a schedule for restitution payments.
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U.S. 7th Circuit, May 13, 2008
Chicago Truck Drivers v. El Paso CGP Co., No. 06-3362, 06-3397, 06-4040, 07-1353
In a suit for collection of withdrawal liability under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), a ruling finding that a proof of claim filed in 1999 in Chapter 7 bankruptcy constituted a statutory demand and cut off defendant's right to contest liability is affirmed where: 1) statutory notice and demand were not met when the plaintiffs filed the notice in Chapter 7 bankruptcy since it must be sent to the employer and Chapter 7 involves a trustee who is neither an agent of the debtor nor a fiduciary of the debtor; 2) notice to former members of the controlled group does not constitute constructive notice for the rest of the group; and 3) the notice did eventually get to the controlled group and they waived arbitration by not initiating the procedure and waiting until they were sued. However, the issue of damages is vacated and remanded where: 1) summary judgment granted to plaintiffs was not based on the motion presented by the plaintiffs; 2) plaintiffs were not given an opportunity to argue their case before summary judgment was granted on the issue of accelerated debt; 3) issues of liquidated damages depends on whether the debt was ever accelerated and when it acceleration occurred; and 4) payments by defendant should have applied first to accrued interest and then the principal.
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U.S. 7th Circuit, May 13, 2008
United Stars Indus., Inc. v. Plastech Engineered Prods., Inc., No. 07-2919, 07-3052, 07-3106, 07-3107
In an action over monies owed, judgment in favor of plaintiff and sanctions imposed against defendant's attorneys are affirmed where: 1) the compromise that was reached after the initial dispute over pricing and monies owed included defendant's overcharge claims; 2) the contract allowed plaintiff to pass on an increase in costs due to the use of additional materials other than nickel through a surcharge; 3) defendant was liable to pay for the entire cost of the materials bought even though some of it was lost during the production process; and 4) the district judge did not abuse her discretion by sanctioning defendant's lawyers for making unsupported allegations during litigation.
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U.S. 8th Circuit, May 13, 2008
Roemmich v. Eagle Eye Dev., LLC, No. 07-1264
In an action brought by shareholder-plaintiff alleging various violations of his rights as a minority shareholder, partial summary judgment for defendants is affirmed where: 1) plaintiff's claim for breach of fiduciary duty to a minority shareholder was time barred by North Dakota's statute of limitations; 2) the continuing wrong doctrine did not toll the limitations period; 3) there was no error in findings of fact concerning freeze-out of a minority shareholder, breach of fiduciary duty, and unfair deprivation of reasonable expectations; and 4) in applying North Dakota state law, the district court did not abuse its discretion in awarding attorney's fees and expenses to defendant.
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U.S. 8th Circuit, May 13, 2008
US v. Ironi, No. 07-2295
Conviction for aiding and abetting possession with intent to distribute cocaine is affirmed over defendant's claims that: 1) the district court erred in refusing to admit certain out-of-court statements tending to exculpate him; 2) the district court erred in allowing the government to admit evidence of his prior drug crimes; 3) the district court erred in not giving the jury a buyer-seller instruction; and 4) there was insufficient evidence to support his conviction.
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U.S. 8th Circuit, May 13, 2008
Lash v. Hollis, No. 07-2356/3066
In a civil rights action arising from injuries sustained during an arrest wherein jury awarded damages as well as attorney's fees, denial of a motion for a new damages-phase trial is affirmed, but the attorney's fees award is vacated and remanded, where: 1) the district court did not err in finding that plaintiff's evidence was insufficient to show that defendant's action in subduing him with a Taser induced or contributed to his rhabdomyolysis; 2) Missouri's sudden onset doctrine was inapplicable to underlying case, which involved multiple possible causes, rather than one alleged event preceding the harm; but 3) the record was unclear as to whether the district court considered the relationship between plaintiffs' successful and unsuccessful claims or overall degree of success obtained in determining the fee award.
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U.S. 8th Circuit, May 13, 2008
Tri-State Fin., LLC v. Lovald, No. 07-2430, 07-2433
In consolidated bankruptcy proceedings wherein the bankruptcy court denied a motion seeking recusal of the bankruptcy judge, approved a settlement negotiation, denied a motion for hearing on the settlement, and approved an award of attorneys' fees, judgment is affirmed where: 1) the recusal motion was made untimely; 2) upon reviewing the totality of the circumstances, the bankruptcy court did not abuse its discretion in approving the settlement agreement or denying the motion for settlement hearing; and 3) because the fee award was only challenged on the basis of a conflict and not contested as to whether the amount was reasonable, the court did not abuse its discretion in its award of attorneys' fees.
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U.S. 8th Circuit, May 13, 2008
Union County, Iowa v. Piper Jaffray & Co., Inc., No. 08-8003
In a diversity action wherein the district court certified an interlocutory appeal concerning a discovery order, the appeal is dismissed for lack of jurisdiction where the district court abused its discretion in certifying the interlocutory appeal when the statutory requirements were not satisfied.
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U.S. 9th Circuit, May 13, 2008
Garcia v. Brockway, No. 05-35647
An aggrieved person must bring a private civil action under the Fair Housing Act (FHA) for a failure to properly design and construct within two years of the completion of the construction phase, which concludes on the date that the last certificate of occupancy is issued. (Panel opinion adopted by the en banc court with amendments)
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U.S. 9th Circuit, May 13, 2008
US v. Crandall, No. 06-50592
Defendants' convictions for mail, wire, and honest services fraud are affirmed where are affirmed where their proposed jury instruction on "intent to defraud" was not supported by law and the jury instructions that were given adequately covered their lack of intent defense theory. However, their sentences and a restitution order are vacated where: 1) the district court improperly relied on an Application Note to calculate the loss that resulted from the fraud; and 2) it was unclear whether the restitution amount was based on what was actually lost by the victims of the fraud.
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California Appellate Districts, May 13, 2008
Steele v. Youthful Offender Parole Bd., No. C053553
A judgment finding an employer liable under Fair Employment and Housing Act for retaliation against a plaintiff-employee and awarding economic damages along with attorney's fees is affirmed where: 1) substantial evidence supported a finding that plaintiff was engaged in a protected activity, subjected to adverse employment action, and that a causal link existed between plaintiff's participation as a witness and the adverse employment action; and 2) consequently , the attorney's fees award was proper.
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U.S. Fed. Circuit Court of Appeals, May 13, 2008
Acumed LLC v. Stryker Corp., No. 2007-1115
In a patent case involving a product used to treat proximal humeral bone fractures, dismissal of the action based on claim preclusion is reversed and remanded where defendant conceded that the accused devices were not essentially the same, and thus it failed to meet its burden to show that the infringement claim in the prior action was the same as the infringement claim in the present action.
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U.S. 11th Circuit, May 14, 2008
Oravec v. Sunny Isles Luxury Ventures, L.C. , No. 06-14495
In an action brought by plaintiff-architect under the Copyright Act alleging that defendants infringed his copyrighted architectural designs via the design, development, and construction of certain Trump buildings, summary judgment for defendants, as well as a denial of a motion for leave to file a third amended complaint, are affirmed where a thorough review of the record indicated that the district court properly made its rulings under the specific facts of the case and did not abuse its discretion in denying the motion for leave to amend.
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U.S. 11th Circuit, May 14, 2008
Newland v. Hall, No. 05-15981
In a death penalty case, denial of habeas relief is affirmed where the state habeas court properly applied the relevant and controlling Supreme Court precedent in rejecting petitioner's ineffective assistance of counsel claims.
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U.S. 4th Circuit, May 14, 2008
U.S. v. Black, No. 06-4986
In a prosecution for firearms possession and drug possession, defendant's sentence and a denial of his motion to suppress are affirmed where: 1) the totality of the circumstances surrounding the defendant's encounter with police would give rise to reasonable suspicion to support a Terry stop and a subsequent pat down; and 2) there was no error in an upward departure from the recommended Guidelines sentence based on the substantial underrepresentation of the defendant's criminal history.
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U.S. 4th Circuit, May 14, 2008
Saunders v. Branch Banking and Trust Co. of Virginia, No. 07-1108
In an action alleging violation of defendant-lender's duties as a furnisher of information under the Fair Credit Reporting Act (FCRA), judgment against defendant including a denial of defendant's motions for judgment as a mater of law and for remittitur is affirmed where: 1) a decision by defendant to report a debt to credit reporting agencies without mention of a dispute was in violation of section 1681s-2 of the FCRA; 2) plaintiff was able to demonstrate that defendant knowingly and intentionally withheld information of a valid dispute from credit reporting agencies; 3) there were sufficient facts for a jury to find that plaintiff had an excuse for failing to make payments; and 4) an $80,000 punitive award was not grossly excessive in light of defendant's reprehensible conduct and the fact that a lower award would not have a punitive or deterrent effect.
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U.S. 5th Circuit, May 14, 2008
Stroman Realty, Inc. v. Antt, No. 05-20803
An order enjoining California and Florida from applying their licensing and regulatory requirements on a Texas-based real estate broker is reversed and dismissed where: 1) personal jurisdiction over California did not arise from merely having sent cease and desist orders to the Texas Real Estate Commission; and 2) personal jurisdiction over Florida did not arise from the state's contact with the Texas Attorney General's Office in order to obtain information on the plaintiff for a suit in Florida.
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U.S. 5th Circuit, May 14, 2008
Cruz v. State of Louisiana, No. 07-30501
Dismissal of state and federal claims of sexual discrimination against defendants is affirmed where dismissal of a federal claim due to plaintiff's failure to timely serve defendant prevented interruption of the prescriptive period in state courts against defendants from Louisiana.
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U.S. 7th Circuit, May 14, 2008
Walker v. Sheahan, No. 07-2817
In a prisoner's action claiming excessive force, deprivation of access to medical care, and retaliation for exercising his constitutional rights, summary judgment for defendants is affirmed in part where: 1) plaintiff failed to show the widespread practice of the use of excessive force; and 2) the court properly denied additional discovery requests by defendant. However, the case is reversed and remanded in part where: 1) the two year statute of limitations did not apply to some of the claims since the period is tolled while a prisoner completes the administrative grievance process; 2) there was sufficient evidence to support a claim of excessive force and inadequate access to medical care; 3) plaintiff's state law claims were not barred by the one year statute of limitations since defendants failed to raise it as a defense; and 4) summary judgment on a retaliation claims was improperly granted since plaintiff had no notice that the adequacy of his evidence was being challenged.
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U.S. 8th Circuit, May 14, 2008
Gross v. FBL Fin. Serv., Inc., No. 07-1490/1492
In an employment age discrimination action wherein the jury returned a favorable verdict for plaintiff-employee, the judgment is reversed and remanded for a new trial where: 1) the jury instructions improperly shifted the burden of persuasion in light of the absence of direct evidence that age played a substantial role in an adverse employment decision; and 2) section 2002-e-2(m) of Title VII does not apply to claims arising under the ADEA.
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U.S. 8th Circuit, May 14, 2008
US v. Peralez, No. 07-1649
In a prosecution for illegal possession of a firearm, grant of defendant's motion to suppress evidence is reversed and remanded where, even though the evidence was the fruit of an improperly extended traffic stop, the dog sniff which resulted in the seizure of evidence was not a result of that improper extension.
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U.S. 8th Circuit, May 14, 2008
In re: M & S Grading, Inc.,, No. 07-2434
In an appeal following a bankruptcy court's denial of a motion to require a Chapter 7 bankruptcy trustee to show cause why he should not be found in contempt for failing to pay contributions ordered while the debtor's case was in Chapter 11, the appeal is dismissed for lack of jurisdiction where: 1) the bankruptcy court's order denying a motion to show cause was not a final appealable order; and 2) the order did not qualify as a collateral order, for purposes of the collateral order doctrine.
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U.S. 9th Circuit, May 14, 2008
Ctr. for Biological Diversity v. Rey, No. 07-16892
In a suit challenging a decision by the United States Forest Service to permit logging in accordance with certain changes made in 2004 by the USFS in the relevant forest, denial of a preliminary injunction against the USFS is reversed and three projects preliminarily enjoined where the district court abused its discretion in: 1) concluding that the USFS complied with NEPA's requirement to "[r]igorously explore and objectively evaluate all reasonable alternatives" with regard to a Supplemental Environmental Impact Statement (SEIS); and 2) in its balancing of equities.
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U.S. 9th Circuit, May 14, 2008
Correll v. Ryan, No. 03-99006
Denial of petition for writ of habeas corpus is reversed and the case remanded for a new penalty hearing where defendant was constitutionally entitled to the presentation of a mitigation defense, but did not have an opportunity to offer mitigating evidence. (Amended opinion on denial of rehearing en banc)
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U.S. Fed. Circuit Court of Appeals, May 14, 2008
E.I. Du Pont de Nemours and Co. v. MacDermid Printing Solutions, L.L.C., No. 2007-1568
In a patent infringement case brought by DuPont, an order denying its motion for a preliminary injunction against defendant is vacated and the case remanded for further proceedings where the district court: 1) abused its discretion in finding that a substantial question as to validity existed because of uncertainty regarding the priority date; and 2) did not reach the parties' remaining arguments as to validity and enforceability as well as the remaining preliminary injunction factors.
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U.S. 1st Circuit, May 15, 2008
Greenwood v. New Hampshire Pub. Util. Comm'n, No. 07-2322
In a case wherein the district court enjoined a state public utilities commission from enforcing an order purportedly issued under the Public Utility Regulatory Policies Act of 1978, the judgment is reversed and matter dismissed where: 1) the suit was barred by the statute of limitations; and 2) even if the statute of limitations had not expired, plaintiff's claim for injunctive relief called upon equitable powers of the federal court, and thus it would be inherently inequitable to allow the action to proceed and allow any relief to be granted.
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U.S. 1st Circuit, May 15, 2008
UMass Mem'l Med. Ctr., Inc. v. United Food and Commercial Workers Union, No. 07-2527, 07-2528
In an employer-union dispute wherein the district court upheld an arbitral award in favor of the union but denied the union's request for attorney fees, judgment is affirmed where: 1) the case failed to meet the exceedingly high threshold for judicial interference with arbitral awards; 2) the arbitral award drew "its essence from the collective bargaining agreement"; and 3) the district court did not abuse its discretion in concluding that the employer's federal claim was sufficiently justified to avoid a payment of attorney's fees.
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U.S. 2nd Circuit, May 15, 2008
Topps Co., Inc. v. Cadbury Stani S.A.I.C., No. 06-5316
In an action alleging breach of contract and misappropriation of trade secrets involving a chewing gum licensing agreement, summary judgment for defendant is reversed and remanded where: 1) the licensing agreement was ambiguous as to defendant's entitlement to continual usage of trade secrets after the agreement's terminate date; and 2) extrinsic evidence did not weigh overwhelmingly in defendant's favor to permit a resolution of the agreement's ambiguity by summary judgment.
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U.S. 6th Circuit, May 15, 2008
In re Scrap Metal Antitrust Litigation, No. 06-4511
In an antitrust action involving the scrap metal market in Northeastern Ohio, judgment and damages award for plaintiffs are affirmed where: 1) there was no abuse of discretion in allowing expert testimony based on allegedly erroneous data; 2) the fact that the jury awarded damages are below the figure mentioned by an expert witness did not mean that there was insufficient evidence since the jury was entitled to award damages based on expert testimony it found credible; 3) there was no "impermissible fluid recovery" since plaintiffs provided evidence of a class-wide aggregate injury; 4) there was no abuse of discretion in the certification of a class ; and 5) any error in instructions to the jury regarding fraudulent concealment was harmless since the jury heard evidence of fraudulent concealment dating before the earliest date of consideration set by the court.
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U.S. 8th Circuit, May 15, 2008
US v. Coleman, No. 07-1970
Conviction and sentence for conspiracy to distribute crack cocaine is affirmed over claims that: 1) the evidence was insufficient to support the conviction; 2) the sentence was unreasonable; and 3) the district court failed to make specific perjury findings to support an obstruction-of-justice enhancement.
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U.S. 8th Circuit, May 15, 2008
US v. Cole, No. 07-2593, 07-2808
Conviction and sentence for drug-and-firearm related offenses is affirmed where: 1) the district court did not err in holding that defendant's possession of handguns was part of the same course of conduct as possessing an unregistered shotgun, and hence relevant conduct for the offense of conviction; 2) the district court did not err in applying an enhancement for possession of a stolen firearm; 3) a denial of a downward departure was unreviewable; 4) an evidentiary ruling was proper; 5) there was sufficient evidence supported the conviction; and 6) the sentence was reasonable.
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U.S. 9th Circuit, May 15, 2008
US v. W.R. Grace, No. 06-30192
A U.S, Attorney's simple certification under 18 U.S.C. section 3731, that the government's interlocutory appeal in a pending criminal case is not taken for purpose of delay and that the evidence the district court suppressed or excluded is substantial proof of a fact material in the proceeding, is sufficient to establish the circuit court's jurisdiction to hear the interlocutory appeal. Prior decisions to the contrary are overruled. Also, the district court in the case at hand had the authority to order pretrial disclosure by the government of its final list of witnesses and evidentiary documents and to exclude witnesses and evidence not timely disclosed in compliance with such orders.
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U.S. 9th Circuit, May 15, 2008
Medtronic, Inc. v. White, No. 06-16229
In a contract dispute over ownership of a patent, a judgment resulting from a jury verdict in favor of defendant-doctor is reversed and remanded where both an agency jury instruction and a corroboration jury instruction were given in error, and each was prejudicial.
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U.S. 9th Circuit, May 15, 2008
US v. Wealth & Tax Advisory Servs., Inc., No. 06-55915
In a tax case, an order denying the government's petition to enforce a summons issued by the IRS is reversed where: 1) a 29-page "draft opinion letter" sent by taxpayers' accountants to the taxpayers' tax lawyers, containing extensive legal authority and analysis of a complicated tax transaction, constituted a "memorandum"; and 2) thus, even though the letter was characterized as a "draft," it was nevertheless subject to disclosure pursuant to taxpayers' agreement to provide to the IRS "[a]ll opinions and memoranda that provide a legal analysis" of the transaction in question.
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