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.  

Watchous Enterprises v. Mournes, et al.

Second Circuit: United States ex rel. Weiner et al. v. Siemens AG et al.

 As the qui tam statute references both the unsealing of the complaint and the court's direction to serve the defendant, the clock for serving the defendant did not begin to run until the court ordered service.  

United States ex rel. Weiner et al. v. Siemens AG et al.

Fifth Circuit: La Union del Pueblo Entero v. Harris Cty Repub.

 As the motion was timely and the impaired interest might not be sufficiently protected by the state's defense of the law, partisan political committees had a right to intervene in litigation challenging an election reform law.

La Union del Pueblo Entero v. Harris Cty Repub.

Eleventh Circuit: John Doe v. Samford University, et al.

Errors in university investigation could be attributed to ineptitude, inexperience, and pro-complainant bias, and therefore don't raise a plausible inference sufficient to state a claim of discrimination on the basis of gender.

CONCURRENCE:

When resolving a motion to dismiss, a court must draw reasonable inferences in favor of the non-movant.

John Doe v. Samford University, et al.

Eighth Circuit: Leroy Leftwich v. County of Dakota

 Absent a showing of delioberate indifference or subjective awareness of risk to the detained arrestee, there is no issue for trial on the S1983 claim.

Absent a policy of mental health screening, using personal assessment to answer the mental health questions on the intake form was a discretionary act, rather than ministerial in nature, as was the staff's personal meeting with the arrestee.  County's decision to have a formal mental health assessment 72 hours later was policymaking, not operational, and therefore incurred statutory public entity immunity.

Court did not abuse its discretion in denying aleave to amend to a party who did not notice the depositions witnesses who could provide the information that ws the basis of the motion to amend prior to the last date to amend the claim.

http://media.ca8.uscourts.gov/opndir/21/08/201821P.pdf

Seventh Circuit: Thomas Prose v. Molina Healthcare of Illinois,

 

Evidence as to where, how, and to whom allegedly false representations were made can state a claim under the statute for fraudulent claims against the government.

Evidence as to the who, what, where, when, and how can state a claim for fraudulent inducement in contractual negotiations; a relator who is not a party to the negotiations might be unable to provide details of the negotiations.

Implied false certification is a species of fraud, and therefore subject to heightened pleading.   

Continuing to bill the set capitation after ending the subcontracting that provided enhanced services states a claim for implied false certification under the Act, since the services were a material term of the deal.

DISSENT (CJ)

Mere request for payment from the government while not materially complying with a contractual term is insufficient to state a claim under the Act, given the Act's extreme remedies, including treble damages.

Contract was a contract to provide beneficiaries with access to needed services, not needed services themselves.

These circumstances wouldn't state a claim, even absent heightened pleading.  There was no express factual falsity; the omission was an implied falsity.  Precedent requires that a request for payment also make specific representations in order to be actionable.  Suggesting that noncompliance is material means that any noncompliance is material.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-19/C:20-2243:J:Wood:aut:T:fnOp:N:2749985:S:0

Second Circuit: Revitalizing Auto Cmtys. Env’t Response Tr. v. Nat’l Grid USA

 

Under the FRCP, an entity (such as a trust) might be the real party in interest, but lack legal capacity to sue.

Under the state's law, the trust has no capacity to sue, since it is viewed as a fiduciary relationship rather than a distinct entity.  Additionally, the trust's organic docments vest legal capacity in the trustee.

Upon determination that the party lacks legal capacity, it is possible to remand with that finding on the expectation that the complaint will be amended.

A claim for both past and prospective costs incurred is prudentially ripe if the past costs are enough to sustain the claim, even though a ruling might bind the parties as to future costs incurred.

Contribution claim under a different section of the law was dismissed pendant to the dismissal of the earlier claim, and therefore unreasoned in light of the plaintiff prevailing on appeal; the case is remanded with both the contribution and recovery claims, and the District Court has the discretion to exercise supplemental jurisdiction  over any re-filed state law claims.

https://www.ca2.uscourts.gov/decisions/isysquery/748b2117-a5a7-43e5-a2d7-29a6eab2bab0/3/doc/20-1931_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/748b2117-a5a7-43e5-a2d7-29a6eab2bab0/3/hilite/

Seventh Circuit: Robert Bless v. Cook County Sheriff's Office

 

Court did not abuse discretion in quashing deposition of city sherriff, since the sherriff was not personally involved in the employment matters at issue, and the plaintiff did not describe the admissible evidence that might result from the deposition beyond the existence of a conversation at a political event.

Employment action was too attenuated from the employer's gaining knowledge of political activity to support a claim for political retaliation, and the nondiscriminatory bases offered by the employer for the action were insufficiently rebutted..  Claim of racial dicrimination doesn;t present a genine issue of material fact for trial, since there were decisionmakers outside of the protected class and the nondiscriminatory reasons for the action were insufficiently rebutted.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2021/D08-17/C:20-2733:J:Kanne:aut:T:fnOp:N:2748733:S:0

Tenth Circuit: United States v. Rollins

 

Motion to amend the judgment mailed prior to the formal entry of judgment, and that challenged the judgment under rule 59(e) tolled the time for appeal, making the appeal filing here timely.

In considering whether a pleading states a claim of conspiracy under S1983, only the content of the amended complaint should be considered.

Notice sent to the town's mayor wasn't sufficient according to the terms of the state notice act; actual notice is insufficient under the act.

Requesting default judgment from the appellate court is insufficient to challenge a denial of default judgment below.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110560714.pdf

Second Circuit: Sacerdote v. New York University

Fiduciary's purchase of retail class shares rather than institutional class shares in 63 of 103 funds states an ERISA claim under duty of prudence. The subsequent finding of prudent revenue sharing doesn't make the error harmless.  Deft has burden to establish that the losses didn't flow from the imprudent acts.

Refusal of discretionary leave to amend under Rule 16  was an abuse of discretion, since the scheduling order only listed the date beyond which amendments of right would not be timely.  Denial of leave to amend prejudiced post-trial motions.  

Lack of timely response to motion to strike jury trial demand was sufficient waiver.

Trial court's use of written direct testimony is not per se an abuse of discretion.

No clear error in rejeciton of claim that the Plan should have consolidated its record-keeping, given the testimony on IT difficulties.

No clear error in discrediting expert testimony on fund benchmarking.

Judge was not disqualified from presiding by the implicaitons of the fact that she left the bench six months later to re-join a law firm whose chairman, her mentor, is on the University's Board of Trustees.

DISSENT IN PART:

Since retail class share enable revenue sharing to offset recordkeeping costs, no error in dismissal of claim of breach of duty of prudence in opting for retail rather than institutional class shares; the fiduciary followed a sufficiently deliberative process.  Scheduling order setting date beyond which pleadings can;t be amended without leave is sufficient to indicate that in the normal course, no pleadings may be amended.

https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/1/doc/18-2707_complete_opinion.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/b3c5ec72-ddd7-427e-a6e6-2cf21cacd5eb/1/hilite/

Sixth Circuit: Brian Lyngaas v. Curaden AG

 

Because evidence establishes a business plan for eventual profitability undercapitalization is not per se proof of being a mere instrumentality of another corporation.

As there is no culpable conduct establishing that the foreign corporation used their control over the domestic corporation to effect a fraud or wrong on the complainant, there is insufficient basis to piece the corporate veil.

Jurisdiction is proper in the district under the FRCP, since the cause of action arises under federal law, the foreign entity is not within the jurisdiction of any other state, and the exercise of jurisdiction is consistent with the US constitution and laws.

Under Fifth Amendment due process, foreign company sufficiently purposefully availed itself of the American market generally by launching the domestic company and retaining a measure of control over it. The marketing faxes at issue sufficiently relate to the purpose of these minimum contacts, even though the foreign company might not be culpable for the sending of the faxes.  Asserting first US jurisdiction over the foreign company is reasonable, since there is a federal interest in the enforcement of the laws, and the plaintiff will not be able to find financial redress from the domestic corporation.

The regulation making culpable under the statute the person whose goods and services are advertised only applies to persons who have some level of knowledge that an unsolicited fax has been sent.

Consistent with agency findings, fax-to-computer transmissions are within the Act, as the receiving machine has the capacity of transcribing the image to paper.

Given proffer of eventual admissibility, the class was correctly certified using unauthenticated telephone logs, as nonexpert evidence may be sufficiently probative at the early stages of the litigation.

As the logs were generated by a machine, they were not hearsay -- hearsay requires the assertion of a person.  Court correctly excluded expert testimony.

List of affected phone numbers reasonably necessitated the claims administration procedure.

In a federal class action, the court need not have personal jurisdiction over the defendant as to each plaintiff.  The question of jurisdiction looks to the relationship between the defendant, the forum, and the litigation -- it does not depend on unnamed class members.  

CONCURRENCE/ DISSENT:

As state courts couldn't resolve the clams of out of state class members, neither can federal courts resolve the claims of those outside its jurisdiction. 

14A Determines the due process limits on federal jurisdiction under the 5A  in federal court.

The statute doesn't apply to faxes received on computers, since, on its own, a computer can't receive messages from a phone line or print the fax on paper; additionally, Congress listed computers as senders, but not receivers.  

Brian Lyngaas v. Curaden AG

Eighth Circuit: Meierhenry Sargent LLP v. Bradley Williams

 

Appellate injunction limiting fee arbitrability resulting in an order form the district court on remand that further limited the arbitability to issues that had not been before the appellate court was not impermissibly modified by the order on remand.  The court was free to expand the scope of its initial order.

Appellate court has no jurisdiction over a stay no longer in effect, or matters not subject to interlocutory review.

CONCURRENCE:

Arbitration statute does not empower courts to remove areas from the scope of the arbitration by means of injunction, but the parties didn't raise this defense.

Meierhenry Sargent LLP  v.  Bradley Williams

DC Circuit: BCP Trading and Investments, LLC v. Cmsnr. IRS

 

Investigation of accountancy firm did not create a situation of undue contractual influence on the taxpayers, as some had multiple advisors, and some were sophisticated business professionals; the accountancy firm notified the taxpayers of the investigation in a manner that allowed for outside advice on at least some of the relevant transactions.

For purposes of determining whether the partnership was a sham, while the correct business purpose test is distinct from the court's intent-based test, the two are not mutually exclusive, since intent is necessary to prove business purpose.  The transaction had no practical economic effects other than the creation of intentional artificial tax losses.

Tax court's refusal to allow intervenor is reviewed for clear abuse of discretion, given the broad FRCP rule and the court's procedural discretion.  Denial of intervention of right or denial of permissive intervention would both have been appropriate, given the existing representation of interests.

BCP Trading and Investments, LLC v. Cmsnr. IRS

Ninth Circuit: Academy of Country Music v. Continental Casualty Company

 

Since an order of remand deprives the nonmovant party of access to the federal courts, precedent dictates that the transmittal of the remand did not divest the court of jurisdiction or the appellate courts of the power to review the remand or any antecedent orders.  Since the sua sponte remand to state court rested upon the finding that the removing party must plausibly plead jurisdictional elements, and not upon the stated finding that there was no subject matter jurisdiction, the case falls outside the statute limiting jurisdiction and appeal after remand.

Academy of Country Music v. Continental Casualty Company

Third Circuit: Desmond Conboy v. SBA

 

As the appellant's brief was largely cut and pasted from a trial court filing,  appellee awarded damages under the Rules.  Award against client, but counsel ordered to pay.

Sanctions for making a frivolous argument at the District Court do not preclude sanctions for filing the same arguments on appeal.  Response to appellate sanctions motion needed to be more than a cut and paste from the trial level sanctions filing.

Desmond Conboy v. SBA

DC Circuit: Christiana Tah v. Global Witness Publishing, Inc.

 

Although the district has recently clarified that the special motion to dismiss statute imposes a burden equivalent to summary judgment in the federal courts, the statute can't be applied in federal court, because the movant under the statute has no burden to make any showing on the merits and the statute limits the discovery process.

Nothing in the denials by the targets of the investigative reporting constituted readily verifiable evidence needed to support a plausible case that the publisher had a degree of awareness of probable falsity sufficient to establish reckless disregard for the truth.

DISSENT:

Even absent contradictory evidence, a story might be inherently implausible, and a publisher has an affirmative duty to reasonably dispel their own doubts.  First consider the inherent plausibility, then consider counterarguments.

The concession that there was no evidence that the counterparty to the transaction alleged to be the motive for the bribery knew of the payments, and the lack of motive for self-dealing bribery in the bonuses awarded make the story sufficiently inherently improbable.

The facts cited in the denials were sufficient to cast doubt on the story.

Circuit split suggested.

NYT v. Sullivan should be overruled.

Christiana Tah v. Global Witness Publishing, Inc.

Fifth Circuit: Anokwuru v. City of Houston

 

S1983 False arrest claim was immunized by an intervening indictment from the grand jury and the lack of a specific claim that the officers involved had deliberately or recklessly provided false information to the magistrate or the grand jury.

Circuit precedent does not recognize a freestanding malicious prosecution complaint under S1983.

Equal protection claim dismissed for lack of comparators or discriminatory intent.

A claim against the municipality for inadequate training that relies on a single incident must demonstrate the complete lack of training.

No abuse of discretion in denying leave to amend the fourth amended complaint.

Sua sponte dismissal of claims upheld, since magistrate had recommended it and plaintiff briefed the issue -- so long as the plaintiff has a fair opportunity to plead their best case.

Anokwuru v. City of Houston

Third Circuit: Terry Klotz v. Celentano Stadtmauer and Wale

 

Federal equal credit law's prohibition on discrimination according to marital status  doesn't preempt the state's common law doctrine of necessities, which holds a medical bill to be valid against a spouse; the medical debt is an incidental credit, distant from the traditional credit-provision intent of the law.

Spouse's action against the medical entity for not fulfilling the common law requirement of demand doesn't state a claim, even in the absence of the facility's having made a demand on the estate of the patient, since public records indicate the lack of an estate.

Court did not abuse discretion in denying leave to amend, since there was no showing of claims falling outside the entitlement under the doctrine of necessities.

Terry Klotz v. Celentano Stadtmauer and Wale

Eleventh Circuit: Alberto Ruiz v. Officer Jennifer Wing, et al.

 

Since the unauthorized pro se Rule 59 motion was timely filed, by the plain terms of the rules, the time to file an appeal ran from the time that the court disposed of the motion; no merits consideration was required in order to toll the time limit.

By agreeing to the introduction of the exhibit and referring to it several times during the trial, the plaintiff waived any challenge to admissibility.  

No plain error in inappropriate remarks at trial, as they did not impair substantial rights.

No plain error in bench questioning the plaintiff during testimony.

Motion for mistrial was not properly made when court twice expressed dissatisfaction after being told that plaintiff had a motion to make.

When a plaintiff's representation agreement covers only the trial itself, a pro se motion made after the verdict is not in order if counsel has not yet formally withdrawn or the court ordered a substitution.

Alberto Ruiz v. Officer Jennifer Wing, et al.

Second Circuit: Cho et al. v. BlackBerry Ltd. et al.

 

Since the named members of a putative class didn't individually join the appeal, they can't participate in any action subsequent to the disposition of the appeal; they were not included in their capacity as others similarly situated, although they might have been included if the appeal had been filed by a putative representative et al.

Since the defendant added subsequent to the appeal was in privity with the original defendants and the cause of action arose from the same transaction or occurrence, res judicata prevents the named non-appellants from pursuing their claims against the new party.

Court did not abuse discretion in denying the motion to reconsider.

Cho et al. v. BlackBerry Ltd. et al.