Sentencing
Sufficient control over premises for sentencing bump, harmless error anyway.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-1356:J:Manion:aut:T:fnOp:N:1686660:S:0
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.
Fifth Circuit: Seth B., et al v. Orleans Parish School Board
IDEA
Standard of appellate review of district court statutory review for reimbursement is mixed - facts and law.
Statute requires that local school board prove its claim in a hearing, not call a hearing to prove its claim -- the board can therefore establish its case at a timely hearing invoked by the other party.
Statute requiring the school board to establish its case doesn't shift the burden of persuasion in the district court - the claimant still must carry.
Statutory language describing third party evaluations describes the substance, not the evaluator. Private evaluations must substantially match the substantive standards of the public evaluations, despite the opacity of the regulatory criteria.
Dissent: You just made that last bit up.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30164-CV0.pdf
Standard of appellate review of district court statutory review for reimbursement is mixed - facts and law.
Statute requires that local school board prove its claim in a hearing, not call a hearing to prove its claim -- the board can therefore establish its case at a timely hearing invoked by the other party.
Statute requiring the school board to establish its case doesn't shift the burden of persuasion in the district court - the claimant still must carry.
Statutory language describing third party evaluations describes the substance, not the evaluator. Private evaluations must substantially match the substantive standards of the public evaluations, despite the opacity of the regulatory criteria.
Dissent: You just made that last bit up.
http://www.ca5.uscourts.gov/opinions/pub/15/15-30164-CV0.pdf
Fifth Circuit: Loc 731 I.B. of T. Excavators v. Diodes, Incorporated
Securities, FRCP
Insufficiently strong inference of scienter in securities pleading, as top management was not necessarily aware of the specificities of the publicly-disclosed labor issues, early shipments would exacerbate the alleged labor troubles, and the sales of stock represented a small percentage of the executive's investments in the company.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41141-CV0.pdf
Insufficiently strong inference of scienter in securities pleading, as top management was not necessarily aware of the specificities of the publicly-disclosed labor issues, early shipments would exacerbate the alleged labor troubles, and the sales of stock represented a small percentage of the executive's investments in the company.
http://www.ca5.uscourts.gov/opinions/pub/14/14-41141-CV0.pdf
First Circuit: Copia Communications, LLC v. AMResorts, LP
Personal Jurisdiction
Insufficient purposeful availment of things Massachusetts to hale a Jamaica-based company into Massachusetts court, as it merely received shipments from Massachusetts and signed a contract identifying the counterparty as a Massachusetts corporation with a Massachusetts address.
http://media.ca1.uscourts.gov/pdf.opinions/15-1330P-01A.pdf
Insufficient purposeful availment of things Massachusetts to hale a Jamaica-based company into Massachusetts court, as it merely received shipments from Massachusetts and signed a contract identifying the counterparty as a Massachusetts corporation with a Massachusetts address.
http://media.ca1.uscourts.gov/pdf.opinions/15-1330P-01A.pdf
First Circuit: Giroux v. Federal National Mortgage
FRCP
Court does not violate the FRCP by summary denial of a 60(b) motion.
New evidence that is merely cumulative to past assertions is not a basis for a 60(b)2 motion.
Fraud in the foreclosure is distinct from fraud in the litigation, and therefore not a basis for a 60(b)3 motion.
Except in cases of willful default, a summary denial of a 60(b)6 motion on res judicata grounds doesn't violate the FRCP.
http://media.ca1.uscourts.gov/pdf.opinions/15-1270P-01A.pdf
Court does not violate the FRCP by summary denial of a 60(b) motion.
New evidence that is merely cumulative to past assertions is not a basis for a 60(b)2 motion.
Fraud in the foreclosure is distinct from fraud in the litigation, and therefore not a basis for a 60(b)3 motion.
Except in cases of willful default, a summary denial of a 60(b)6 motion on res judicata grounds doesn't violate the FRCP.
http://media.ca1.uscourts.gov/pdf.opinions/15-1270P-01A.pdf
First Circuit: Harrison v. Granite Bay Care, Inc.
FRCP, Principal Place of Business
Despite the fact that the out-of-state corporate headquarters adopts a hands-off approach to the day to day running of the company, the nerve center test designates it as the principal place of business when the overall goals of the corporation are set there and the upper management personnel decisions are made from there.
The relevant exception in the state whistleblower statute derives from the motivations of the employee, and not from his or her duties. An employee whose duties include raising concerns is not precluded from seeking relief under the statute so long as his or her intent was to raise the concern, and not just to follow a direct instruction by a superior in the corporation.
http://media.ca1.uscourts.gov/pdf.opinions/14-1988P-01A.pdf
Despite the fact that the out-of-state corporate headquarters adopts a hands-off approach to the day to day running of the company, the nerve center test designates it as the principal place of business when the overall goals of the corporation are set there and the upper management personnel decisions are made from there.
The relevant exception in the state whistleblower statute derives from the motivations of the employee, and not from his or her duties. An employee whose duties include raising concerns is not precluded from seeking relief under the statute so long as his or her intent was to raise the concern, and not just to follow a direct instruction by a superior in the corporation.
http://media.ca1.uscourts.gov/pdf.opinions/14-1988P-01A.pdf
First Circuit: Scott v. Gelb
Batson Habeas.
In holding that sufficient inference of racial discrimination at voir dire was not established by petitioner, since although the court sua sponte offered a nondiscriminatory reason for the strike, it was not generally indifferent to the racial composition of the jury, the state supreme court's denial of state Habeas was not an unreasonable application of the law.
http://media.ca1.uscourts.gov/pdf.opinions/14-1953P-01A.pdf
In holding that sufficient inference of racial discrimination at voir dire was not established by petitioner, since although the court sua sponte offered a nondiscriminatory reason for the strike, it was not generally indifferent to the racial composition of the jury, the state supreme court's denial of state Habeas was not an unreasonable application of the law.
http://media.ca1.uscourts.gov/pdf.opinions/14-1953P-01A.pdf
First Circuit: Hurtado v. Lynch
Immigration.
Quick affirmation of agency's denial of reconsideration, as arguments were available earlier but not raised in earlier proceedings.
http://media.ca1.uscourts.gov/pdf.opinions/14-1751P-01A.pdf
Quick affirmation of agency's denial of reconsideration, as arguments were available earlier but not raised in earlier proceedings.
http://media.ca1.uscourts.gov/pdf.opinions/14-1751P-01A.pdf
First Circuit: US v. Ramos-Pineiro
Trial Practice, Per Curiam (Souter on panel)
Judge's brusque comments were not evidence of plain error.
http://media.ca1.uscourts.gov/pdf.opinions/14-1462U-01A.pdf
Judge's brusque comments were not evidence of plain error.
http://media.ca1.uscourts.gov/pdf.opinions/14-1462U-01A.pdf
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