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.
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9, 10, 11, Fed, DC Tomorrow
As CB has a couple hundred pages of early modern drama and legal history to read this afternoon, the rest of today's slips will be logged tomorrow.
NB: Apparently, there's an interesting CFAA slip in the 9th. Cheers.
Eighth Circuit: Others First, Inc. v. Better Business Bureau
FRCP
No genuine issue of material fact where the pleadings in a claim for tortious interference are completely conclusory.
Defamation pleaded with insufficient particularity.
Others First, Inc. v. Better Business Bureau
Eighth Circuit: Gary Smith v. United Parcel Service
Discrimination (Title VII?)
Plaintiff did not establish pretextual nature of claim that conduct presented a nondiscriminatory reason for the employment action.
Gary Smith v. United Parcel Service
Eighth Circuit: United States v. Kenneth Borders
Conspiracy, Crim, Accomplice, FRE
Different theories of crime on special verdict do not necessarily indicate separate conspiracies.
Rental of unit and possession of key insufficient for accomplice liability where there was no proof that the deft knew the items stored there to be stolen.
Admission of evidence about civil commercial violations was harmless error.
No abuse of discretion in limiting cross for cooperating witnesses.
Admission of earlier plea agreement as evidence of overt act wasn't double jeopardy.
Summary timeline did not violate FRE.
Sentencing correct on merits.
United States v. Kenneth Borders
Seventh Circuit: Kathryn Marchetti v. Chicago Title Insurance
Property, Insurance
Title insurance satisfied claim and was properly subrogated in ensuing action by redress of the capital losses on a fraudulent transaction for land, so long as all other claims were barred through release or preclusion.
Kathryn Marchetti v. Chicago Title Insurance
Seventh Circuit: Susan Shott v. Robert Katz
FRCP, S1981, Discrimination
Where a claim is dismissed without prejudice, an appeal filed prior to the final date for amendment becomes timely after that date has passed.
Under S1981, the claimed retaliation need not be employment-related. It suffices that the claim arise from contract or employment-related events.
Implied retaliation by co-workers theory implies some level of agency with the employer.
Susan Shott v. Robert Katz
Sixth Circuit: Construction Contractors v. Federal Insurance Company
Contracts, Insurance
Under state law, where an insured company discovers the means of a loss by theft after acquiring an insurance policy against theft, knowledge of prior analogous conduct by the same employee is sufficient to trigger the single-employee loss limitation of the plan, which permissibly incorporates a limitation against prior claims.
Construction Contractors v. Federal Insurance Company
Sixth Circuit: USA v. George Rafidi
Predicates, Brady, FRCrimP, Sentencing
Given the requirement of use of force, the crime at issue is categorically a violent crime predicate conviction.
Gov't fulfilled Brady obligations with computer modeling information by enclosing a CD of the scan in discovery -- there was no affirmative duty on the gov't to do crime-scene computer modeling.
No plain error in sleeping juror cure.
Sentence not grossly disproportionate.
USA v. George Rafidi
Fifth Circuit: Hermenegildo Gomez-Perez v. Loretta Lynch
Immigration
State misdemeanor assault statute does not necessarily involve sufficient violence to be considered a crime of violence for immigration purposes. The different means of accomplishing the crime are not substantive parts of the crime, but rather means of accomplishing the single substantive aspect of the crime.
Hermenegildo Gomez-Perez v. Loretta Lynch
Fifth Circuit: Judy Hunter, et al v. Berkshire Hathaway, Inc., et
ERISA
Although general amendment provision of Plan allowed repeal of provisions prohibiting reductions in benefits, the acquiring company was bound by the terms of the merger, and is therefore barred from causing the acquired company to make (some of?) the amendments at issue.
Judy Hunter, et al v. Berkshire Hathaway, Inc., et
Fifth Circuit: Claimant ID 100068236 v. BP Exploration & Prodn, I
Contracts
Under admiralty rules for contracts, switching from selling cars to leasing cars is insufficient to qualify as a start-up business.
District court was correct to deny discretionary review on the question.
Claimant ID 100068236 v. BP Exploration & Prodn, I
Fifth Circuit: Carlos Trevino v. Lorie Davis, Director
Habeas
Petitioner permitted to appeal denial of federal Habeas, as the trial Ineffective Assistance claim was not necessarily defaulted in state Habeas, given the Ineffective Assistance provided on initial collateral appeal, and while the lack of mitigation investigation at trial should have put initial collateral counsel on notice of claim (cause), the investigation that was done reveals enough of a claim to suggest that the error was dispositive (prejudice) as to the key aggravating factor.
Carlos Trevino v. Lorie Davis, Director
Fourth Circuit: Leopold Munyakazi v. Loretta Lynch
Immigration
Inconsistencies and vagaries in testimony offer substantial evidence for adverse credibility decision of IJ.
Substantial evidence for agency's finding that the petitioner will end up in the civilian justice system rather than the military prisons.
Leopold Munyakazi v. Loretta Lynch
Second Circuit: U.S. v. Gabinskaya
Corporations, Fraud, Conspiracy, Insurance
In state litigation involving no-fault insurance, courts may look beyond the formal indicia of ownership when attempting to determine whether a corporation has been fraudulently incorporated.
Testimony relating to the conspirators' legal advice doesn't speak to knowing participation in the scheme.
U.S. v. Gabinskaya
Second Circuit: Williams v. Correction Officer Priatno
S1983, Administrative, PLSRA
Claim was properly administratively exhausted, as there was no procedure for appealing a grievance that had been improperly not filed.
Williams v. Correction Officer Priatno
First Circuit: US v. Vazquez-Mendez
Sentencing
Court appropriately considered personal factors and legitimately considered community factors while performing the sentencing pavane.
US v. Vazquez-Mendez
First Circuit: Burns v. Johnson
Discrimination, Title VII, Employment
Circumstantial evidence can suffice to establish a claim under a mixed-motive theory of discrimination.
Discrimination need not be both severe and pervasive.
Fear of retaliation presents a genuine issue of material fact as to employer liability, despite reporting procedures.
Burns v. Johnson
First Circuit: US v. Ortiz-Islas
Souter, Crim, Conspiracy, FRE, Sentencing
Plan to sell drugs in the jurisdiction was a second plan within the same conspiracy, as opposed to a second conspiracy.
Post-indictment evidence was sufficiently probative to be allowed.
Courts potential assignment of minimum sentence was at most harmless error.
No abuse of discretion in disparate sentences for co-conspirators.
US v. Ortiz-Islas
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