A bankruptcy court's statutory contempt order issued for a violation of the automatic stay, and that denies compensatory and injunctive damages but incorporates a subsequent award of fees later agreed upon by the parties, is not final for purposes of appeal until the fee order issues.
Since 2011. An occasional commonplacing of the U.S. Circuit Courts of Appeal.
Neither an authoritative statement of the law nor legal advice. Quick work.
Tenth Circuit: C., et al. v. United Healthcare Insurance Company
Despite the issue raised as to whether the plan's administrator complied with the procedures, deferential review of coverage decisions as arbitrary and capricious is appropriate, though the outcome would be the same here absent deference, under de novo review.
Administrator's second medical opinion disregarding independent grounds for coverage was arbitrary and capricious.
Ninth Circuit: Lisa Kim, et al. v. Tinder, Inc. et al.
Court abused discretion in certifying a class with an inadequate representative; the representative was subject to an arbitration agreement that did not bind approximately 5% of the class, there was limited evidence of discovery, and a motion against the move to compel arbitration was made late--as a motion to file a supplementary brief.
Ninth Circuit: Abraham Bielski v. Coinbase Inc.
As long as the challenge to the arbitration agreement mentions the delegation provision and makes arguments against it, the threshold requirement of ensuring that the challenge is within statutory limits is met. In evaluating an unconscionability claim under state law, a court must necessarily look to the entirety of the arbitration agreement.
Although the agreement is per se procedurally unconscionable to some degree as a contract of adhesion, the dispute-resolution processes are not unduly surprising. Under state law, a one-sided agreement lacking mutuality of remedy is not inherently substantively unconscionable. In this case, not overly harsh or one-sided.
CONCURRENCE, CONCURRENCE IN JUDGMENT
The precedent cited to the contrary in other circuits, in which a court looks to the substance of the challenge in the threshold analysis, is not meaningfully distinct from considering whether arguments were made against the provision.
Eighth Circuit: United States v. Felipe Lorthridge
Bringing a pre-trial detainee to trial on charges of possessing a firearm after having been convicted of a felony is an important government interest; the court did not clearly err in ordering the administration of antipsychotic medication.
Eighth Circuit: Liberty Insurance Corporation v. HNTB Corporation
Where the contract encompasses both construction management and independent quality assurance, the question of whether the expert was functioning as a manager or an outside expert presents an issue for trial when determining the scope of an insurance policy.
Sixth Circuit: Rudolph Betancourt v. Indian Hills Plaza LLC
No abuse of discretion in fees and costs award, given the quality and manner of representation and securing expert witnesses. Court appropriately reduced lodestar calculation based on unnecessary filings, despite claim that the early fees award motions were justified, since simultaneous remediations of the property might have left the plaintiff as the non-prevailing party.
Sixth Circuit: Bradley M. Peterson v. Kristina M. Johnson
For purposes of the property interest in law, emeritus status at a state university is not considered employment. Absent pay or benefits, the status does not create a property interest at law. Property interest in the status is analogous to a liberty interest in reputation, which procedurally would require a request for a name-clearing hearing to exhaust non-judicial remedies.
Fifth Circuit: USA v. Villarreal
Where a Habeas petition claims that a prior offense wasn't a valid predicate because it wasn't limited to crimes involving a use of force, and subsequent to vacatur and remand, a certificate of appealability issues challenging the predicate on the ground that it includes reckless conduct, the fact that pro se prisoner Habeas petitions should be construed liberally allows the original petition to be decided on the latter grounds.
DISSENT:
The distinction between the act and the mental state isn't sophistry; the petition didn't originally intend to raise the recklessness challenge.
Third Circuit: USA v. Jamar Hunter
Where there is more than one passenger in the car, it is not unreasonable for the police officer conducting a traffic stop to conduct an extended criminal history check on the occupants of the car for reasons of officer safety. The check was a negligibly burdensome precaution justified by officer safety concerns.
CONCURRENCE:
The record check was part of the stop itself, so no reasonable suspicion was required. Although required by precedent, reason to doubt that history checks improve officer safety. Racial profiling concerns.
Third Circuit: Maria Del Rosario Hernandez v. MicroBilt Corp
When the arbitration association designated in the consumer contract refuses to arbitrate due to the company's refusal to waive a damages limitation inconsistent with its charter, it isn't a matter of arbitrability that might have to be formally decided by an arbitrator, but a threshold requirement properly decided by the association itself. It speaks to how the agreement operates, rather than whether it applies.
Plaintiff's court claim is not prohibited by the Exclusive Resolution term of the contract, as the plaintiff complied with all arbitration provisions, and claimants can return to court after an arbitration concludes. The return to court is without consideration of the merits of the arbitration, and further arbitration can't be compelled under the contract.
Second Circuit: Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen
There was substantial evidence for agency's determination that petitioner could safely relocate to a politically less dangerous area within home country, and no abuse of discretion in holding that this determination precluded a finding of well-founded fear of future persecution. Determination of the possibility of safe relocation precludes a finding of an objectively reasonable fear of future harm.
Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen
Second Circuit: Vans, Inc. v. MSCHF Product Studio, Inc.
Where an alleged trademark infringer incorporates with distortion the characteristics of the original product that indicate its origin and source, the enhanced First Amendment protections for parodies are properly not considered in the preliminary injunction analysis under the statute.
Given the strength of the original marks, the intention to evoke the original marks by using the distorted design established a likelihood of confusion, especially since the original brand occasionally sold special forms of the shoe. Although it might be difficult to actually wear the shoe, enjoining court's determination to the contrary worthy of deference. No clear error in determination that the alleged infringement was of lower quality, but the court erred in holding that legally this worked in the favor of the party claiming infringement.
No abuse of discretion in ordering escrow of gross revenues, as party seeking injunction sought an accounting, and a damages award would include costs and fees. No error in not requiring bond from party seeking injunction, as non-movant didn't request it.
Federal Circuit: VLSI Technology LLC v. Intel Corporation
Substantial evidence for finding of infringement. In determining similar function under the doctrine of equivalents, schematic diagrams of functions are less important than actual function-location maps, in addition to the determination of whether the differences in the allocations of functionalities are substantial. Abuse of discretion to base the damages calculation on the results of a scientific test that considered both infringing and non-infringing functions.
Denial of motion to amend the answer was an abuse of discretion given diligent pursuit of claim, and given that the question of whether affiliates are bound by a contract under the state law identified in the contract is not a black-letter rule, and would require further development.
Federal Circuit: Saha Thai Steel Pipe Company Limited v. US
Amendment to the statute allowing for a corrective methodology in calculating the constructed value of an item given a particular market situation cannot be applied by the agency to the parallel calculation of the cost of production, which is used to determine if a product is being sold at less than cost.
Tenth Circuit: Hampton v. Utah Department of Corrections
A preexisting disability-neutral list of approved firearms for correctional peace officers cannot be the sole basis for denying a disability-related request to use another type of firearm. The request was plausible and facially reasonable.
Claim of instructions to delay accommodation requests until after initial probationary period does not present an issue for trial as to the existence of a discriminatory policy. A claim that accommodation requests "generally filter up" to the decisionmaker does not, standing alone, present a genuine issue for trial as to whether the decisionmaker was aware of the request.
Court did not abuse discretion in refusing to allow plaintiff to testify about the disability as an expert, given lack of proof of reliable scientific methodology.
Ninth Circuit: Center for Biological Diversity, et al. v. Deb Haaland et al.
A claim of actual water savings elsewhere to offset water taken from a river under the Act must be established with reasonable certainty. An effect is reasonably certain if it is established by clear and substantial information, rather than speculation and conjecture. Reserving certain lands is insufficient absent proof that those lands would otherwise be used for agriculture.
Scientific proof that the species is an opportunistic forager provides sufficient evidence for the determination that its members are likely to migrate after the reduction in water levels. The distance a snake might travel away from a river is fundamentally different than the distance that a snake might travel along a river. Agency's determination of minimal impact to species not arbitrary and capricious.
CONCURRENCE:
As the agency's determination doesn't meet the simple criterion of "likely," the standard of "reasonable certainty" is dicta.
Center for Biological Diversity, et al. v. Deb Haaland et al.
Ninth Circuit: Jaime Charboneau v. Tyrell Davis et al.
In a second or successive Habeas petition, the clear and convincing proof of actual innocence must have a direct nexus to the facts underlying the claim of the constitutional violation, and it examines all of the evidence in the record available to the reviewing court, without regard to admissibility.
The facts from the earlier findings that are to be taken to be true are not the ultimate determinations, but the evidentiary proffers underlying the claims; a presumption of correctness is attributed to findings of authenticity. A letter held to be a copy of an unavailable original is sufficiently established as to authorship, but may be questioned for probity and reliability.
Where the circumstances of the newly discovered evidence credibly suggest the petitioner's involvement in forgery, a rational factfinder might reasonably weigh the consciousness of guilt suggested by the events in determining the reliability and probity of the evidence.
Eighth Circuit: United States v. Juanita White Shield
Court did not abuse discretion in denying mistrial where a witness referred more than once to the deft being on probation. Evidence of guilt was more than ample, and a limiting instruction sufficed.
Where a court waives interest for a monetary penalty in the delivered judgment, but this term is omitted from the written judgment, the delivered version controls.
Eighth Circuit: Saul Aguilar-Sanchez v. Merrick Garland
Where the proposed generic federal definition of the crime includes a mens rea element of desire or gratification, a state statute requiring the intent to hire someone for those purposes has sufficiently similar scienter. State decision that an incidental harassing solicitation of passerby demonstrated sufficient intent for a parallel statute did not make the state statute's reach broader than that of the federal crime.
Sixth Circuit: Marlean Ames v. Ohio Dep't of Youth Servs
Plaintiff's own circumstances insufficient to establish a pattern of discrimination, and when combined with the fact that the decisionmakers for the allegedly discriminatory employment decision are members of the same majority classification, is insufficient to establish the background circumstances required to find that a member of a majority classification was discriminated against.
Sufficient evidence for the nondiscriminatory explanation. Having several nondiscriminatory reasons advanced for the decision after the fact is insufficient to establish pretext if the reasons don't contradict.
Sixth Circuit: Island Creek Coal Co. v. Elizabeth Maynard
Sufficient evidence for the ALJ to have discounted the medical opinions as conclusory and disagreeing with the specific disability criterion rather than refuting it.
Materials filed with the Board cannot be incorporated by reference in an Article III appeal. Sufficient evidence for the ALJ to find that the disability met the legal threshold, even absent proof that it met a clinical threshold.
Sixth Circuit: United States v. James Wilder, II
No plain error in admission of testimony on competence of police officer in identifying a firearm, where a prejudicial inference might have existed that firearms were common in the area.
Rational factfinder could have found that the deft's statements were a substantial step towards witness tampering, distinct from solicitation, in that they counseled, commanded, or induced someone to engage in the practice.
Represented deft's pro se motions by letter separate from attorney's filing not considered.
Fifth Circuit: USA v. Robinson
Sufficient evidence for the jury to have disbelieved the witness' recantation. Sufficient evidence for the federal obstruction charge where the prompting was procedurally about a separate state investigation, but dealt in substance with the set of events that became a federal matter.
Absent specific briefing, body camera footage outside of the portion agreed to be admissible as a prior statement of identification isn't coherent enough for appellate review as to specific statements. Admission not substantial injury and cumulative in nature with respect to admissible evidence. Portions of phone calls admitted for context with admissible portions of the call, but without a limiting instruction, were harmless error, as they were cumulative with admissible statements elsewhere. Deft did not identify portions of the record that would justify a prior-inconsistent-statements instruction. Closing remarks were not improper, as they accurately characterized the victims as vulnerable, the invocation of justice was not calculated to inflame, inferences were appropriately made from the evidence, and the court appropriately limited the influence of the lawyers' opinions in the closing instruction.
Plain error where the court indicated that it might be bound by the earlier sentencing judge's order that the sentence for revocation of supervised release run consecutively with the subsequent sentence for the second offense.
Fifth Circuit: Robinson v. Lopinto
Absent a showing as to an increased ability to afford the bail, Habeas is unavailable where at least one of the counts subject to retrial isn't affected by the claim seeking the writ; the pretrial detention would be justified under the single count.
Fifth Circuit: Marquette Trans v. Navigation Mrtm
Although the appellant LLC did not sufficiently establish diversity jurisdiction by pleading the citizenship of all of it members, the fact that its claims sound in admiralty is sufficient for appellate jurisdiction, and the pleading should be amended on remand.
As state harbor pilotage regulation is a statutory exception to the general preemption of admiralty, the higher burden of proof under state law is not preempted by the preponderance standard of admiralty.
The pretrial objection to the admission of the evidence sufficiently preserved the issue for appeal; the argument in a separate pretrial motion that the evidence was inadmissible as summary evidence did not. Challenge to the admission of the accident reconstruction was harmless, as there was ultimately no claim that it was inaccurate or unreliable,
Motion to strike the jury demand for lack of the amount in controversy and an implied consent to proceed in admiralty doesn't preserve for appeal a claim that the jury trial was error because of lack of diversity. Also no showing of harm or constitutional violation.
Challenge to jury finding of lack of negligence and award of damages was forfeited for lack of a post-judgment motion for judgment as a matter of law. Evidence was sufficient, even under the higher standard of proof.
Court appropriately limited expert testimony.
First Circuit: Gibson Foundation, Inc. v. Norris
As a reasonable finder of fact could determine that the agreement to keep the piano in the warehouse was a consensual agreement that ultimately benefitted both parties, and under state law, claims regarding bailments can be subject to either the contract-claim or tort-claim statute of limitations, there exists an issue for trial as to whether the shorter limitation term applies.
Possession is sufficient for rebuttable proof of ownership at the time of the creation of the bailment; ownership, and therefore the validity of the bailment, therefore presents a genuine issue of material fact for trial.
A reasonable juror could find that the acceptance of the piano created an enforceable contract, as the owner of the piano saved storage costs, making for sufficient consideration. The term of the contract need not have been definite; possessing it until it was requested by the owner would be sufficient.
Genuine issue for trial as to ownership, given corporate succession beforehand; employee's statement that the piano would be "all yours" if picked up states a claim for transfer of ownership.
DC Circuit: James Blassingame v. Donald Trump
An incumbent campaigning to retain their present office is not carrying out the duties of the office. A President's speech on matters of public concern is not invariably an official function. Motion to the contrary can be made at summary judgment after development of facts supporting the claim.
The President attempted to alter the declared election results by various means.
The President has official immunity for all acts within the outer perimeter of official presidential responsibility, including discretionary acts within a concept of duty associated with the office. An action's unlawful nature or inappropriate purpose does not move it past this outer perimeter.
Actions taken in a plainly and purely unofficial context could be included in a test identifying matters of public concern. Inquiry into public/private capacity is distinct from this. An incumbent seeks re-election in a private capacity. Inquiry into capacity is objective and context-specific; if the inquiry yields no clear answer, the conduct is immune.
Claim under the "Take Care" clause presumes official capacity rather than establishes it.
Structural separation of powers claim for lack of immunity actually establishes the contrary, as it's Executive action. E.g., Steel Seizure cases.
First Amendment/incitement is a distinct calculus -- would afford protection when least needed, and vice versa.
Deft. has a right to develop the record for purposes of immunity prior to merits stage, as the immunity is immunity from suit.
CONCURRENCE:
Motive inquiry is intrusive. Objective reading of content could mislead. Speech clothed in the trappings of the office generally immune.
PARTIAL CONCURRENCE:
Scope of the interlocutory analysis appropriately limited to the denial of absolute immunity as claimed, rather than setting out a calculus for the determination of context-specific immunity.
Ninth Circuit: Jigar Barabaria, et al. v. Antony Blinken et al.
Denial of the temporary restraining order was appealable, given notice to parties, the fact that it was tantamount to the denial of a preliminary injunction, and the fact that it essentially decided the merits of the action.
Where the statute governing adjudication of status refers to availability of visas at the time of filing, but is silent as to availability at the time of adjudication, administrative rule requiring availability at adjudication is a reasonable construction of the statute.
Eighth Circuit: Ind.-Alliance Party of Minn. v. Steve Simon
Associational burden of a petition oath swearing to the lack of present intent to vote in a primary election for the contest in question is an insubstantial, and there are policy arguments in favor. Those signing are presumed to know the law, and therefore that the lack of present intent to do so doesn't keep them from actually voting in the primary--the deterrent effect as to the associational burden on the petition signing isn't to be considered under per se/strict scrutiny.
Fifth Circuit: USA v. Abbott
Given documentary evidence, treaty claims, and the fact that the Supreme Court has taken judicial notice of the fact, there was no clear error in holding that the Rio Grande is a navigable river in Texas. Navigability can include ferry traffic across the river.
No clear error in the District Court's holding that the floating obstruction devices tended to interfere with or diminish the navigable aspects of the river. Structures were sufficiently permanent to come with the scope of the Act.
The constitutional gravity of a state's declaration of invasion and decision to mount an independent defense is inapposite to a motion for a preliminary injunction. Court appropriately considered policy considerations when balancing equities.
DISSENT:
No showing that this segment of the river was historically navigable. Statutes and treaties precautionary and precatory, respectively. Use of the river must have been more than sporadic, ineffective, and exceptional. Out of context quote from the Supreme Court doesn't outweigh Texas geography. Injunction directs the moving of the barrier, so the diplomatic harms aren't redressable. Balance of equities favors the state. Allowing certain newspaper articles in under judicial notice was error.
Fifth Circuit: USA v. Croft
Listing qualified staff members who never showed up to work for purposes of a certification by a state agency was a violation of the identity theft statute, as the misrepresentation was at the crux of the fraud.
CONCURRENCE:
("Dubitante") The fraudulent aspect wasn't in the identities of the staff members, but in their qualifications.
Fourth Circuit: US v. Brent Brewbaker
Motion to shift the ground from per se violation to rule of reason was properly construed as a motion to dismiss the indictment, as it would have been an impermissible constructive amendment of the indictment.
Where two parties are alleged to have engaged in bid-rigging, and also relate vertically as supplier and contractor for awarded bids, the alleged conduct isn't an inherently anticompetitive restraint on trade subject to per se analysis. Precedent requires that the companies be considered in their totality, so the horizontal bid-rigging isn't separable from the supply relationship.
Expert testimony as to the anticompetitive effects of the business practices should not have been excluded when considering a (constructive) motion to dismiss.
By ensuring that their competitor/distributor won the bidding war, the bidder could increase the demand for the supplier's product.
Fraud convictions for submitting a noncompetitive bid were not infected by the Sherman Act instructions reversed here.
Third Circuit: PJM Power Providers Group v. FERC
Sufficient injury for standing from the electric rate increases; as vacating the underlying order would revert the scheme to its prior arrangement, rather than make it subject to change on remand, the injury is sufficiently redressable.
As the statutory cause of action references the generic act, the standard of review is the generic test, rather than a specific threshold in the statute.
Where the vote of the commissioners is tied, and the individual statements of the commissioners therefore in no way constitute an order of the commission, judicial review properly incorporates the entire record, including the individual statements.
When an agency shifts position on an issue, it need not prove that its new approach is better than the previous one. Agency's constructive acceptance of the new policy was neither arbitrary nor capricious, and was supported by substantial evidence in the record.
Tenth Circuit: Watchous Enterprises v. Mournes, et al.
Local rule that uncontroverted facts were to be used against the nonmovant at summary judgment did not limit the effects of nonresponse to summary judgment. The nonmovant must either contest the facts or show that the facts should not be established at the summary judgment stage. Absent that, the facts, if not contested later at trial, could be included in the court's instructions for the verdict or used as a basis for in limine exclusion orders (subject to challenge as to the uncontroverted facts).
On appellate review, there must be a showing as to each disputed fact, not just a list of facts claimed to have been disputed. Court did not abuse discretion in admitting the challenged facts, given the testimony.
Ninth Circuit: Anthony Sanders, et al. v. County of Ventura
Where, under a voluntary flexible-benefits reimbursement scheme, an employer retains as healthcare-related administrative fees some portion of the funds disbursed to an employee who has opted out of the employer's health insurance scheme, although the deduction is listed as a deduction from earnings, it is not part of the base salary used to calculate overtime wages under the statute, because the statute specifically exempts funds paid to a third party for an employee-related health scheme.
As a rulemaking that purported to set a hard ceiling for the amount of the employer's reservation contradicted an earlier holding, made no textual changes to the rule, and was based on determinations considered in the earlier case, the earlier holding controls.
Sixth Circuit: State of Ohio v. Xavier Becerra
The Supreme Court has held that the statute's mandate is sufficiently ambiguous to allow for agency construction. The agency's reading isn't contrary to the law. Agency adequately explained its decision to revise the rule.
The claim that the agency looked to the policy views of professional associations and federal statutes rather than the policies of the states states a legitimate concern, but since the state regulating bodies concede that one could practice within the state while taking either view of the question, the agency's decision wasn't arbitrary and capricious.
Where the agency states that it is changing its course on a certain issue, it need not address specific earlier conclusory determinations contrary to the new course.
Agency must offer a clearer definition of the nature of a program to ensure the mandated separation of programs. Panel takes judicial notice of the list of pending grant recipients, which is sufficient to establish irreparable harm to the states, given the loss of federal funding. Relief in the form of a preliminary injunction should be limited to the state plaintiff that established sufficient harm by affidavits.
CONCURRENCE/DISSENT:
Agency's program separation requirements not manifestly against the statute. Statute itself defines the contested term. Rulemaking wasn't arbitrary and capricious--there is no increased threshold for subsequent agency action relative to initial agency action. Attendant harms required where plaintiff claims injury from loss of federal funds. Public interest calculation of the injunction calculus should consider the decision of Congress.
Sixth Circuit: Inner City Contracting LLC v. Charter Twp. of Northville
Despite being a disappointed bidder for a government contract, the plaintiff alleged a specific injury, and therefore the claim isn't presumptively disfavored for purposes of standing. The dignitary harm in racial discrimination and the lost profits from the contract suffice for Article III standing.
A corporation's claim of racial discrimination falls within the zone of interests of the statute prohibiting racial discrimination in contract awards. Supreme Court holding saying that a corporation has no racial identity referred to constitutional standing, not statutory standing.
Claims against state government entities must be under the general statute (S1983), as there is no cause of action against states under the particular statute. Under the general statute, establishing that a contract was awarded to a higher bidder of a certain race states a claim absent any proffer as to the racial identity of the plaintiff corporation.
Private company reviewing bids and making a recommendation wasn't a state actor for purposes of the statute. Lack of investigation of bidding process insufficient for municipal liability. No equal protection or due process claim where alleged discrimination was by the private entity of a private-public collaboration. No property interest in a lost contract bid, where the state actor had discretion to accept the bid.
Inner City Contracting LLC v. Charter Twp. of Northville
Second Circuit: Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen
Sufficient injury for standing where an investor has progressively accumulated a position in a fund, and the administrators pass a measure limiting the voting rights by default above a certain imminent threshold; this is not a "someday intention," and the possibility that the terms could be renegotiated after a proffer would merely constitute another injury from the costs.
Diminishment of the value of the shares is an injury in law, as it violates the statute; as the loss in value is analogous to conversion or other tort claim, there is a sufficient historical analogue to establish the concrete nature of the harm.
Default restriction on the voting rights of the shares of some purchasers inherently violates the statutory requirement of present, equal voting rights in shares. The share-shareholder distinction has only been recognized in limited terms, such as compliance with incorporation requirements, and other shareholder-based restrictions on voting are less fundamental than blocking the voting rights entirely.
Plain meaning of the statute controls, rather than interpretations of its stated purposes.
Saba Cap. CEF Opportunities 1, Ltd., Saba Cap. Mgmt., L.P. v. Nuveen
First Circuit: Milton, MA v. FAA
Municipality's claimed injury to itself from revised airport flight-paths is insufficiently particularized to itself as a municipality to confer standing. Similarly, the losses from litigation and challenge costs aren't injuries, since the function of a municipality is to spend money on things that might benefit the citizens. Argument that the plans caused people to move away is legally and factually distinct, and therefore raised too late in the reply brief.
Eleventh Circuit: USA v. Kendrick Eugene Duldulao, et al.
Although the conspiracy instruction might have been faulty, a prior panel held that it sufficiently conveyed the mens rea required for culpability, and circuit precedent can't be changed within the circuit absent en banc review. Circuit precedent to contrary was for general offense of conspiracy, rather than specific statute.
Although the other challenged instruction was suggested by the deft at trial (in accordance with longstanding precedent), subsequent changes in the caselaw are an exception to the invited-error doctrine, and sufficient under plain error review.
Sufficient evidence for conviction. Expert medical testimony on appropriate standard of care, even when dispositive, wasn't plain error.
Tenth Circuit: Team Industrial Services v. Zurich American Insurance Company, et al.
Second company that assumed the obligations of a first company by a series of agreements consolidating and retiring the earlier agreements was not covered under the insurance of the counterparty, as the new agreements set such coverage at the discretion of the counterparty. Use of the first company's credentials by the second company to file insurance paperwork insufficient to offset. No cause for reformation absent evidence that the counterparty had any other intent. If there was a fiduciary duty of the counterparty, it was owed only to the first company. Promissory estoppel unjustified.
Team Industrial Services v. Zurich American Insurance Company, et al.
Ninth Circuit: Tellez-Ramirez v. Garland
Under modified categorical review, the state drug statute is a valid immigration predicate. The list of drug classes doesn't establish several means of committing a single crime in itself, but is rather a list of elements establishing distinct violations--this is due to the varying lengths of sentence, caselaw referencing the need to prove specific substances within a single class, and the fact that the specific illicit substance is named within the jury instructions.
The overbreadth of the state statute relative to the federal crime doesn't import a similar overbreadth into the mens rea; a belief that the substance was proscribed under state law would suffice for a state conviction that could pass Immigration muster, as the state mens rea and federal mens rea requirements are identical.
State caselaw incorporating solicitation into aiding and abetting, and under which, by statute, the conduct is culpable as the conduct of a principal under the specific state statute doesn't make the specific state statute broader than the federal version, since solicitation alone would be an inchoate offense distinct from an accessory's conviction as a principal under the specific statute, which would require a completed offense--not mere solicitation.
Sixth Circuit: In re: Cal. Palms Addiction Recovery Campus, Inc.
Shifting the bankruptcy proceeding to another statutory title for purposes of liquidation finalized the rights of the parties with significant and irreparable consequences, so the order is sufficiently final for purposes of appeal.
Court did not abuse its discretion in moving to liquidation, despite the possibility that the order would diminish the party's ability to recover funds in pending lawsuits, given concerns about the management of the estate.
Party insufficiently prejudiced by two-day violation of notice requirement. Lack of counsel at hearing not prejudicial, as there was no objection to withdrawal or request for continuance.
Fifth Circuit: Sligh v. City of Conroe
Police dog's directed attack was a violation of pedestrian's constitutional rights, but not a clearly established violation of constitutional rights for liability purposes, since precedent cited was of a non-resisting suspect. Similarly, claims against bystander officers and the municipality were not against clearly established law. Police knowledge that pedestrian was a mental patient insufficient for a claim under the disability act.
Fourth Circuit: US v. Dearnta Thomas
The federal racketeering violence statute is a crime in itself, and satisfies the requirements for a crime of violence without looking through the statute to the underlying state-law predicates of the conviction.
Subscribe to:
Posts (Atom)