Reissue: Denial of En Banc
Richard Jordan, et al v. Marshall Fisher, et al
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.
Third Circuit: In Re: Nickleodeon Consumer Pr
Standing, ECPA, Preemption, Torts
Disclosure of online user data sufficiently particular & concrete for Article III standing.
One-party consent under the wiretap act & corresponding state statute has no implicit age restriction.
PCs are not protected computing facilities under SCA
.
State statute requires something beyond access to data - must establish use.
Search engine not covered by video privacy statute; that statute requires something more than an identifying number, since an observer must be able to associate a person with specific content. This holding cannot be reduced to a single sentence.
As claim derives from the expectation of privacy on the website, state intrusion on privacy tort not preempted by federal data statute.
Third party cookies on site don't present a cause of action under the tort, but standard tracking might, if duplicitous.
In Re: Nickleodeon Consumer Pr
First Circuit: Universal Truck & Equipment Co v. Caterpillar, Inc.
FRCP
Where a plaintiff fraudulently joins a deft to defeat diversity, the clock for deft to remove over the fraudulent joinder runs from first service. Here though, the plaintiff waived challenge to the lack of timely removal by not contesting the untimeliness of the theory of removal while contesting the removal itself. The post-deadline removal was in the jurisdiction of the court. Law of the case holding that the removal was ultimately timely prevails.
Summary approval of summary judgment.
Universal Truck & Equipment Co v. Caterpillar, Inc.
Where a plaintiff fraudulently joins a deft to defeat diversity, the clock for deft to remove over the fraudulent joinder runs from first service. Here though, the plaintiff waived challenge to the lack of timely removal by not contesting the untimeliness of the theory of removal while contesting the removal itself. The post-deadline removal was in the jurisdiction of the court. Law of the case holding that the removal was ultimately timely prevails.
Summary approval of summary judgment.
Universal Truck & Equipment Co v. Caterpillar, Inc.
First Circuit: Velez-Ramirez v. Commonwealth of Puerto Rico
ADA
Denial of reasonable accommodation is neither an actual nor a constructive discharge for purposes of the Act.
Automatically generated notification via company intranet sufficed for notice, despite actual notice that employee was not in the office.
Velez-Ramirez v. Commonwealth of Puerto Rico
Denial of reasonable accommodation is neither an actual nor a constructive discharge for purposes of the Act.
Automatically generated notification via company intranet sufficed for notice, despite actual notice that employee was not in the office.
Velez-Ramirez v. Commonwealth of Puerto Rico
First Circuit: US v. Hunter
Sentencing
No error in denying sentencing adjustment for acceptance of responsibility where a deft who later pleaded guilty took affirmative steps to cover up the crime and later made no showing to the contrary.
In assessing criminal history for purposes of sentencing, offenses without an intervening arrest are to be counted together only if imposed on the same day or contained in the same charging instrument.
Within guidelines sentence not substantively unreasonable.
US v. Hunter
Federal Circuit: BASCOM GLOBAL INTERNET v. AT&T MOBILITY LLC
Patent
(Which, we say again, we really don't know all that well. Rely on nothing on this website.)
Although each element of the process may be individually untenable, an ordered combination of claim limitations, considered holistically, might state a claim to be considered a single practical, particular application of the idea.
C in J: Bifurcation of eligibility/patentability is problematic.
BASCOM GLOBAL INTERNET v. AT&T MOBILITY LLC
Federal Circuit: OAKVILLE HILLS CELLAR, INC v. GEORGALLIS HOLDINGS, LLC
Trademark
Similarly spelled unfamiliar marks are sufficiently different.
OAKVILLE HILLS CELLAR, INC v. GEORGALLIS HOLDINGS, LLC
Eighth Circuit: United States v. Adrian Lomas
Crim, FRE, Sentencing
Admission of evidence that deft threw away a gun before the robbery not an abuse of discretion, as it established a knowledge of firearms.
Police evidence that they were in the area because of shots fired at a school was insufficiently prejudicial to justify a new trial.
Other hearsay, vouching challenges.
Sentencing.
United States v. Adrian Lomas
Eighth Circuit: Madonna Massey-Diez v. U of IA Community Medical etc
FMLA
Plaintiff's stated willingness to find ways to work while incapacitated meant that repeated tasks requested by employer during leave time were not contrary to the statute.
No discrimination in nonrenewal of contract, since comparator was in a rural area with different methodologies, and there was insufficient direct proof of discrimination.
Madonna Massey-Diez v. U of IA Community Medical etc
Eighth Circuit: Paul Ngugi v. Loretta E. Lynch
Immigration
Denial of withholding of removal under CAT upheld, as resistence to an armed gang is not a recognizabel social group; apparently contrary precedent since decision merely meant that the group didn't have to be oculary visible.
Paul Ngugi v. Loretta E. Lynch
Eighth Circuit: The Finley Hospital v. NLRB
Labor
Provision in CBA requiring a 3% raise on the anniversary of employment was not a bargained-for term that becomes part of the status quo after the end of the agreement; since each worker only received one raise, it could be considered a one-time benefit.
Dissent: One-time nature is an affirmative defense that should be considered when deciding if the union waived continuance of the term, and here, the union didn't waive the continuance of the term.
The Finley Hospital v. NLRB
Provision in CBA requiring a 3% raise on the anniversary of employment was not a bargained-for term that becomes part of the status quo after the end of the agreement; since each worker only received one raise, it could be considered a one-time benefit.
Dissent: One-time nature is an affirmative defense that should be considered when deciding if the union waived continuance of the term, and here, the union didn't waive the continuance of the term.
The Finley Hospital v. NLRB
Eighth Circuit: United States v. Alexander Faulkner
Fourth Amendment, ACCA, Confrontation Clause
Affidavit statement that tipster was reliable sufficed for credibility.
Placement of GPS on car in county outside the scope of the search warrant was a violation of state law, but not one that rises to the level of suppression.
Reputation of deft as drug dealer sufficed for warrant for home.
No confrontation clause in inability to question tipster, as there was no contact with case after the affidavit.
Possession with intent and conspiracy with intent correctly counted as two predicates under ACCA.
United States v. Alexander Faulkner
Eighth Circuit: United States v. Garron Gonzalez
FRE
Where the deft agrees to the admission of a recording at trial with the proviso that it be heard in full if requested by the jury during deliberations, no abuse of discretion in allowing the jury to hear it then, even if the tape had not been played in trial.
Substantial evidence.
United States v. Garron Gonzalez
Eigth Circuit: United States v. Christopher Strong, Sr.
FRE
Preliminary hearings sufficed for procedural reasonable balancing in weighing evidence of prior bad acts under 403/413. Severing counts unrelated to 413 was a sufficient remedy.
Exclusion of expert testimony to refute claim that deft pushed victim into path of car was proper, as the incident was primarily proffered to establish that she had been hit by the car.
Where two crimes are specifically barred from being simultaneously charged as they are similar enough to be considered "double counting," an enhancement based on one can be applied with relation to a third crime.
United States v. Christopher Strong, Sr.
Eighth Circuit: United States v. Yoirlan Rojas
FRE
Agent's testimony establishing elements of crime was harmless error, given that elements were established, and that the intent element could be inferred from the patterns of activity.
Fraudulent credit cards suppressed prior to trial were properly introduced to rebut deft's contention that he was unfamiliar with the distinction between credit cards and gift cards.
United States v. Yoirlan Rojas
Seventh Circuit: Venita Miller v. GreenLeaf Orthopedic Associate
FRE
No abuse of discretion in denial of impeachment on cross & rebuttal when impeachment has been accomplished in prior appearance on the stand.
No abuse of discretion in exclusion of diary as present sense impression, as there's no indication that it was a present sense impression.
No abuse of discretion in limited admission to rebut fabrication, given trial judge's understanding of the theories of the case.
Venita Miller v. GreenLeaf Orthopedic Associate
Seventh Circuit: Nationwide Advantage Mortgage v. GSF Mortgage Corporation
Contracts, Posner
Where one party to a contract initiates a relationship with a stranger to the contract based on the contractual relationship between to the two parties and unknowingly incurs costs for the counter-party in doing so, the counterparty does not have a claim for unjust enrichment.
Nationwide Advantage Mortgage v. GSF Mortgage Corporation
Seventh Circuit: Marcos Gray v. Marcus Hardy
Prisons
Although individual claims of infestation are insufficient to present a genuine issue of fact, the claim must be assessed holistically.
Harms of infestation present an issue for the finder of fact. (1984 quote.)
Knowledge of conditions can be imputed to incoming warden (caption not changed).
Marcos Gray v. Marcus Hardy
Although individual claims of infestation are insufficient to present a genuine issue of fact, the claim must be assessed holistically.
Harms of infestation present an issue for the finder of fact. (1984 quote.)
Knowledge of conditions can be imputed to incoming warden (caption not changed).
Marcos Gray v. Marcus Hardy
Seventh Circuit: Board of Trustees of the Autom v. Full Circle Group, Inc.
Posner, Successor liability
Where a sophisticated buyer acquires a company and there is a genuine issue of continuity of business, the hypothetical nature of a funded pension liability exit payment at the time of acquisition is not sufficient for summary judgment for lack of liability.
Alter ego liability requires fraud. Probably.
Board of Trustees of the Autom v. Full Circle Group, Inc.
Where a sophisticated buyer acquires a company and there is a genuine issue of continuity of business, the hypothetical nature of a funded pension liability exit payment at the time of acquisition is not sufficient for summary judgment for lack of liability.
Alter ego liability requires fraud. Probably.
Board of Trustees of the Autom v. Full Circle Group, Inc.
Seventh Circuit: John Otrompke v. Bradley Skolnik
Posner, Free Speech, Standing
Candidate for admission to the state Bar has no standing to preemptively challenge a an allegedly unconstitutional provision of the rules, since the Bar might decide not to unconstitutionally enforce it.
John Otrompke v. Bradley Skolnik
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