Seventh Circuit: BRC Rubber & Plastics, Inc. v. Continental Carbon Company

Conditional right of first refusal requiring counterparty to allow vendor the chance to match any lower price for the contracted item is sufficiently binding on the first party to operate as consideration for the contract.  As the factual statements of the original claim support a theory of anticipatory repudiation, the court may allow the new theory of claim at summary judgment, absent prejudice.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D08-16/C:17-2783:J:Ripple:aut:T:fnOp:N:2203557:S:0

Second Circuit: Amy Colvin v. Hubert Keen, et. al.

Initial denial of summary judgment not binding under law of the case.  Denial of summary judgment is not an adjudication of rights or liabilities.

http://www.ca2.uscourts.gov/decisions/isysquery/d561ea22-a702-410d-a0e4-6e8d6bef72b9/1/doc/16-3650_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d561ea22-a702-410d-a0e4-6e8d6bef72b9/1/hilite/

Fifth Circuit: Malcolm Kelso v. Christine Butler, et al

Although the pragmatic function of a motion for judgment as a matter of law is to allow the opposing party to cure any defects in the case before presented to the finder of fact, the deft here was not prejudiced by the granting of the motion without receiving an opportunity to cure the defect, as no proof would have been possible.

http://www.ca5.uscourts.gov/opinions/pub/15/15-30169-CV0.pdf

Second Circuit: Lucia Lopez Catzin v. Thank You & Good Luck Corp.

Dismissing a long-running action sua sponte due to the fact that only supplemental jurisdiction remains requires, for reasons of basic fairness and reliable decisionmaking,  that the parties receive notice and an opportunity to be heard. 

Court's assertion that the federal claims had been pretextually asserted in order to manufacture jurisdiction required investigation and careful findings.

If the court has found that the supplemental jurisdiction arises from the same case or controversy, the statute requires a explicit selection of one or more of the enumerated statutory reasons for declining to exercise jurisdiction.

http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/doc/17-2497_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fdd539eb-5a30-4ce3-97bd-7a4291129ddb/1/hilite/

Ninth Circuit: Dutta v. State Farm

Plaintiff does not have a sufficiently concrete injury from the violation of the statute, since the declaration included in the Summary Judgment reply brief established that the violations were ultimately harmless, and plaintiff did not object or request a sur-reply.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/13/16-17216.pdf

Seventh Circuit: Karum Latin America S. de R.L. v. Lowe's Companies, Incorporated

Court did not abuse its discretion in striking expert testimony that had been disclosed as factual testimony, despite the fact that the sanction proved dispositive.

Other claims waived, harmless.  Loss from financial instruments subsequent to the plaintiff's withdrawal was correctly categorized as a permissive counterclaim, as the losses did not yet exist at the time of filing.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-13/C:18-1074:J:Bauer:aut:T:fnOp:N:2186752:S:0

First Circuit: Fustolo v. The Patriot Group LLC

Deft was not put sufficiently on notice by allegation of discovery misconduct and issues during the trial to permit a post-trial amendment of the claim to include a misconduct penalty that would result in a partial denial of discharge.

http://media.ca1.uscourts.gov/pdf.opinions/17-1984P-01A.pdf

Seventh Circuit: Pension Trust Fund v. Kohl's Corporaton

Although the real estate plans of the corporation should have alerted management that the accounting error would occur, the fact that it occurred several times and that executives sold shares is not enough to state a case under heightened statutory pleading, as the management might have overlooked the consideration, and there was sufficient time between the stock sales and the revised revenue statements.

Although it was error for the court below to dismiss with prejudice, it was not an abuse of discretion sufficient to justify reversal, as, in the interval, the opposing party hasn't made a showing of how the claim might be amended.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-12/C:17-2697:J:Wood:aut:T:fnOp:N:2185294:S:0

Sixth Circuit: Robert Hayes v. Comm'r of Soc. Sec.

As ledger entries indicate that attorney received a prejudgment notification of the administrative determination of the case, local rules as to the timeliness of application for fees apply, and there is no equitable basis for tolling the limitations period.

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0137p-06.pdf

Second Circuit: Leopard Marine & Trading, Ltd. v. Easy Street Ltd.

As jurisdiction over an in personam action under the Declaratory Judgment Act seeking a declaration of rights in a maritime lien is merely derivative of the jurisdiction over the lien, arrest or presence of the res is a matter of service, not jurisdictional, and jurisdiction can be gained by means of a forum selection clause in a contract for supplies between the operator of the vessel and the claimant on the lien.

As the present quasi in rem suit is an in personam action, abstention for comity in light of a foreign in rem action on the same res is not required.

Although the conduct of the enforcement of the lien is within the present forum's statute of limitations, which is generally held to be the common law rule, equitable considerations permitted the district court to extinguish the lien for laches -- due to the delay, the owner of the ship was unable to enforce a lien against the cargo carried by the operator who had incurred the fuel bill.

Dissent: Maritime liens are stricti juris, and arise from the custody of the res.  The interpleader precedent cited by the majority relies on consent to federal jurisdiction, with the lien then found to be inextricably intertwined.  The operator's consent to the forum selection provision is distinct from a general consent to federal jurisdiction, and jurisdiction cannot be manufactured by consent of the parties.

http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/2/doc/16-1356_complete_pdf.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/2b424590-d624-49bf-bc3b-f406f744f01c/2/hilite/

Seventh Circuit: Emma Cehovic-Dixneuf v. Lisa Wong

As the company retained administrative functions, the life insurance plan was within the statute, even though all premiums were paid by the employee; equitable reassignment of the beneficiary is therefore unavailable.

Where hearsay challenges are raised for the first time on a motion to reconsider summary judgment, the court may accept the challenged evidence as tending to point to some admissible method of proof, since the rules bar from the motion to reconsider any claims that might have been raised earlier on the merits.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-1532:J:Hamilton:aut:T:fnOp:N:2184892:S:0

Seventh Circuit: Nicholas Knopick v. Jayco, Inc.

If courts do have a prudential power to discern real parties in interest, such a power would be inapposite here, as the plaintiff who used an LLC to purchase a vehicle, and the LLC assigned the right of action to the plaintiff after the commencement of suit.

Absent an equitable "lemon law" showing to the contrary, repairs on a vehicle owned by an LLC and therefore excluded from warrantied repairs did not effect an intentional relinquishment of a known right by the manufacturer that would allow a subsequent claim against the warranty by the LLC.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D07-11/C:17-2285:J:Hamilton:autcon:T:fnOp:N:2184815:S:0

First Circuit: Tang v. Citizens Bank

Counsel's response of "okay, fair enough" after overrule of objection withdrew the objection, and there was sufficient evidence to establish that the jury might reasonably have rejected the "quid pro quo" theory of harassment.

http://media.ca1.uscourts.gov/pdf.opinions/17-1365U-01A.pdf

Eleventh Circuit: William B. Newton, et al v. Duke Energy Florida, LLC, et al

Domestic customers of a utility in a regulated monopoly are outside the zone of interests of the Dormant Commerce Clause where the local utility is not subject to competition with out-of-state utilities.

State laws promoting the construction of nuclear power plants are not preempted by federal legislation.

While request for leave to amend in response brief was permissible, the description of the amendment wasn't sufficient to allow the court to consider the motion.

http://media.ca11.uscourts.gov/opinions/pub/files/201710080.pdf

Tenth Circuit: Polukoff v. St. Mark's Hospital

Realtor's claim that a physician was billing the government for unnecessary cardiac surgeries states a claim where the medical opinion that a procedure is reasonable and necessary does not comport with the government's definitions of reasonability and necessity.

Such a claim survives elevated pleading under the rules, as a general state of mind can be alleged.

https://www.ca10.uscourts.gov/opinions/17/17-4014.pdf

Tenth Circuit: Warnick v. Cooley

Absolute prosecutorial immunity shields prosecutors from a S1983 claim arising out of allegedly false charges, despite allegations of related unshielded conduct.

Balance of claims pleaded with insufficient particularity, leave to amend properly denied, as no draft claim was filed, no formal motion to amend was filed, and three years have passed since filing of claim.

https://www.ca10.uscourts.gov/opinions/17/17-4065.pdf

Eighth Circuit: Ken Ross, Jr. v. Special Administrative Board

Third party intervenors have Article III standing in an action centered on a consent decree where the intervenor claims that a likely improper enforcement of the consent decree will have adverse consequences for the funding of the schools that their children attend.

http://media.ca8.uscourts.gov/opndir/18/07/163437P.pdf

Ninth Circuit: Fleshman v. Volkswagen AG

Statute grants absolute right of intervention only to citizens who are barred from filing their own suit to enforce the law due tot he government's attempt to enforce that specific law.

As the government filed suit under the law regulating the devices, citizen suits seeking to enforce clean air laws are not barred, and the potential plaintiffs have no absolute right to intervene.

The present request to intervene seeks relief that is distinct from the government's relief; absent Article III standing (which can't be manufactured by simply seeking absolute compliance with the Act), the potential intervenor does not have an intervention of right.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/03/16-17060.pdf

DC Circuit: Jennifer Campbell v. DC, et al

Motions during trial claiming that petitioner had suffered insufficient harm under the statutory tort did not preserve a claim that the theory of harm found by the finder of fact was in fact based in the events alleged in the claim rejected by the finder of fact.

Claim rooted in improper dismissal does not have to allege any fixed period of unemployment to state a claim under the statute.

https://www.cadc.uscourts.gov/internet/opinions.nsf/018EBEB666041BD2852582BB005130D4/$file/16-7077.pdf

Seventh Circuit: Isaac Capps v. Kevin Drake

Sua sponte referral of postjudgment motion to another court is within the inherent authority of the court.

Whatever the legal status of the fee agreement, error to deny fees under S1988 where petitioner's primary interest is the vindication of the claim and the award is not de minimis; the fact that the award was under the last settlement offer does not negate the basis for the award.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D06-29/C:17-1876:J:Kanne:aut:T:fnOp:N:2179169:S:0