Arbitration, dicta/holding
Since state law holds that a wrongful death action is held by the next of kin and not the decedent, a release signed by the decedent cannot compel arbitration of the claim.
Arbitration act does not preempt the state law, as the state law does not bar compelled arbitration of the claim.
Rule in earlier holding by state supreme court was an alternative holding, not dicta.
Earlier holding can be retroactive, as it was a restatement of the law, and the state courts have since retroactively applied it.
http://www.ca6.uscourts.gov/opinions.pdf/16a0011p-06.pdf
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.
Fourth Circuit: Donna Cisson v. C. R. Bard, Incorporated
FRE, Torts
No abuse of discretion in holding that compliance with a federal regulation was more prejudicial than probative in a state product liability claim, as the federal reg was a restatement of existing practices which merely required substantial compliance with similar product strategies.
Also correctly barred from punitive damages consideration, as minimal compliance wouldn't bar finding of high willfulness.
Error in allowing contents of MSDS in for the truth of the matter asserted as a list/directory, treatise, -- correct posture would have been for deft's knowledge - the difference is harmless.
No error in court's use of strict liability tort instruction as opposed to medical malpractice instruction in action involving manufacturer of medical devices.
Seven to one punitive damages ratio not constitutionally excessive.
Since the state created the right of action, state can take a percentage of the punitive award.
http://www.ca4.uscourts.gov/Opinions/Published/151102.P.pdf
No abuse of discretion in holding that compliance with a federal regulation was more prejudicial than probative in a state product liability claim, as the federal reg was a restatement of existing practices which merely required substantial compliance with similar product strategies.
Also correctly barred from punitive damages consideration, as minimal compliance wouldn't bar finding of high willfulness.
Error in allowing contents of MSDS in for the truth of the matter asserted as a list/directory, treatise, -- correct posture would have been for deft's knowledge - the difference is harmless.
No error in court's use of strict liability tort instruction as opposed to medical malpractice instruction in action involving manufacturer of medical devices.
Seven to one punitive damages ratio not constitutionally excessive.
Since the state created the right of action, state can take a percentage of the punitive award.
http://www.ca4.uscourts.gov/Opinions/Published/151102.P.pdf
Third Circuit: Josh Finkelman v. National Football League
Standing.
No Article III standing for challenge to NFL ticket prices, as no ticket was purchased, and the plaintiff didn't show that a more democratic ticketing system would have allowed him to go to the Super Bowl.
Second plaintiff who purchased ticket has no Article III standing, as he didn't attempt the lottery in additional to the premium ticket purchase, and can't therefore challenge the lottery practices, and the harm sustained by a secondary market purchase isn't the difference from face, but the unknowable difference from a ticket purchased in another version of the market.
Analogy to Twombly - facts consistent with a thing versus the thing itself.
http://www2.ca3.uscourts.gov/opinarch/151435p.pdf
No Article III standing for challenge to NFL ticket prices, as no ticket was purchased, and the plaintiff didn't show that a more democratic ticketing system would have allowed him to go to the Super Bowl.
Second plaintiff who purchased ticket has no Article III standing, as he didn't attempt the lottery in additional to the premium ticket purchase, and can't therefore challenge the lottery practices, and the harm sustained by a secondary market purchase isn't the difference from face, but the unknowable difference from a ticket purchased in another version of the market.
Analogy to Twombly - facts consistent with a thing versus the thing itself.
http://www2.ca3.uscourts.gov/opinarch/151435p.pdf
Second Circuit: Simmons v. Stanberry
Copyright- Statute of limitations
An exclusive license is identical to ownership for the purpose of the Copyright statute of limitations, which runs from the time that the initial licensee is aware of the primary infringement; the clock is not restarted by each attendant infringement.
http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/doc/14-3106_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/hilite/
An exclusive license is identical to ownership for the purpose of the Copyright statute of limitations, which runs from the time that the initial licensee is aware of the primary infringement; the clock is not restarted by each attendant infringement.
http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/doc/14-3106_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/fb6e4ccb-6ffa-40f1-b0a8-b38f555365b5/1/hilite/
Seventh Circuit: USA v. Acasio Sanchez
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
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
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
Federal Circuit: National Org. of Veterans Advoc. v. Secretary of Veterans Affairs.
Veterans, Administrative
Construing things in the manner most favorable to the veteran doesn't bar Chevron deference to decisions by Veterans Affairs.
Given statutory rulemaking mandate to the Secretary, rule requiring remand to agency from Board to substitute a claimant for a deceased petitioner is not arbitrary & capricious.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-7024.Opinion.1-11-2016.1.PDF
Construing things in the manner most favorable to the veteran doesn't bar Chevron deference to decisions by Veterans Affairs.
Given statutory rulemaking mandate to the Secretary, rule requiring remand to agency from Board to substitute a claimant for a deceased petitioner is not arbitrary & capricious.
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-7024.Opinion.1-11-2016.1.PDF
Federal Circuit: Ethicon Endo-Surgery Inc. v. Covidien LP
Patent, Due Process
Absent claims of extrajudicial influence, no Due Process harm in the initial and final review being performed by the same panel.
Statute does not bar.
Review correctly identified innovation as obvious, as infringing prior art that incorporated the innovation was primarily marketed under other aspects.
Dissent: As statute assigns one level of adjudication to the Director and one to the Board, there must be separate panels.
[Again, we don't know many things, but we especially don't know Patent Law. Just trying for comprehensive access to slips.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1771.Opinion.1-8-2016.1.PDF
Absent claims of extrajudicial influence, no Due Process harm in the initial and final review being performed by the same panel.
Statute does not bar.
Review correctly identified innovation as obvious, as infringing prior art that incorporated the innovation was primarily marketed under other aspects.
Dissent: As statute assigns one level of adjudication to the Director and one to the Board, there must be separate panels.
[Again, we don't know many things, but we especially don't know Patent Law. Just trying for comprehensive access to slips.]
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1771.Opinion.1-8-2016.1.PDF
Tenth Circuit: Martin Marietta Materials v. Kansas DOT
Administrative, Procedural DP
Federal statutory requirement that changes to state agency's plan receive federal approval in order to receive certain federal funds does not create a property interest assertable by the suppliers affected by the change.
Supplier is not in privvity with contractor in contract with state government.
Being on a list of approved suppliers does not create a property interest.
No mutually explicit understanding.
No liberty interest imperiled by defamation by removal from approved supplier list, as the test results were true.
No showing of concrete harm from gov't statements.
https://www.ca10.uscourts.gov/opinions/13/13-3314.pdf
Federal statutory requirement that changes to state agency's plan receive federal approval in order to receive certain federal funds does not create a property interest assertable by the suppliers affected by the change.
Supplier is not in privvity with contractor in contract with state government.
Being on a list of approved suppliers does not create a property interest.
No mutually explicit understanding.
No liberty interest imperiled by defamation by removal from approved supplier list, as the test results were true.
No showing of concrete harm from gov't statements.
https://www.ca10.uscourts.gov/opinions/13/13-3314.pdf
Tenth Circuit: Tripodi v. Welch
FRCP, Bankruptcy
Default judgment in securities action not susceptible to attack on the basis that the notes described in the pleadings were not securities, as they are not barred as a matter of law from being considered securities.
Securities judgment properly held nondischargable in bankruptcy, as relevant nondischargablilty statute requires a judicial order or verdict.
https://www.ca10.uscourts.gov/opinions/14/14-4084.pdf
Default judgment in securities action not susceptible to attack on the basis that the notes described in the pleadings were not securities, as they are not barred as a matter of law from being considered securities.
Securities judgment properly held nondischargable in bankruptcy, as relevant nondischargablilty statute requires a judicial order or verdict.
https://www.ca10.uscourts.gov/opinions/14/14-4084.pdf
Eighth Circuit: United States v. Peter Giambalvo
Tax, Statute of Limitations, FRE
Parenthetical inclusion of offense in statute did not incorporate the statute of limitations for the offense.
Testimony as to impact of tax-avoidance book properly excluded, as subjective reliance of the deft is the sole criterion.
Statements on direct by gov't expert did not open the door to testimony about the general lack of a tax obligation, as the actual amount objectively due is immaterial to the subjective belief in the falsity of a tax filing.
The fact that a zero-income 1040 filing is possibly not a tax return as a matter of law doesn't bar a prosecution for filing a false form.
http://media.ca8.uscourts.gov/opndir/16/01/151136P.pdf
Parenthetical inclusion of offense in statute did not incorporate the statute of limitations for the offense.
Testimony as to impact of tax-avoidance book properly excluded, as subjective reliance of the deft is the sole criterion.
Statements on direct by gov't expert did not open the door to testimony about the general lack of a tax obligation, as the actual amount objectively due is immaterial to the subjective belief in the falsity of a tax filing.
The fact that a zero-income 1040 filing is possibly not a tax return as a matter of law doesn't bar a prosecution for filing a false form.
http://media.ca8.uscourts.gov/opndir/16/01/151136P.pdf
Eighth Circuit: Charles Mitchael v. Carolyn W. Colvin
SSA, FRCP
As the question of retroactive application of a claims adjudication does not present an objective nondiscretionary agency duty, Federal jurisdiction under the mandamus statute is improper.
No equal protection or due process claim, as rules on retroactive application constitute a legitimate procedural bar, and plaintiffs did not challenge constitutionality of old rule in initial proceeding.
http://media.ca8.uscourts.gov/opndir/16/01/143220P.pdf
As the question of retroactive application of a claims adjudication does not present an objective nondiscretionary agency duty, Federal jurisdiction under the mandamus statute is improper.
No equal protection or due process claim, as rules on retroactive application constitute a legitimate procedural bar, and plaintiffs did not challenge constitutionality of old rule in initial proceeding.
http://media.ca8.uscourts.gov/opndir/16/01/143220P.pdf
Seventh Circuit: Roberta Jaburek v. Anthony Foxx
FRCP, Title VII
No error in the denial of motion to reconsider grant of extension of time to file, as opposing counsel had gout.
Summary judgment against plaintiff on lack of promotion upheld, as plaintiff merely claimed that she was doing the work equivalent of the higher position, and never actually applied for the position. Comparators antedated her employment.
Insufficient definition of core tasks.
No retaliation absent proof of cognizable assertion prior to adverse action.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2165:J:Bauer:aut:T:fnOp:N:1686153:S:0
No error in the denial of motion to reconsider grant of extension of time to file, as opposing counsel had gout.
Summary judgment against plaintiff on lack of promotion upheld, as plaintiff merely claimed that she was doing the work equivalent of the higher position, and never actually applied for the position. Comparators antedated her employment.
Insufficient definition of core tasks.
No retaliation absent proof of cognizable assertion prior to adverse action.
http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2016/D01-13/C:15-2165:J:Bauer:aut:T:fnOp:N:1686153:S:0
Subscribe to:
Posts (Atom)