Eighth Circuit: Compart's Boar Store, Inc. v. United States

FTCA


Scientific testing with ambiguous results that required expert interpretation qualifies for the discretionary function exception to federal liability under the FTCA.


Compart's Boar Store, Inc.  v.  United States

Eighth Circuit: Blake Marine Group v. CarVal Investors LLC

Choice of Law, Admiralty, FRCP


Although application of the (Erie) forum's law would allow greater recovery in the forum state, as the forum state borrows the statute of limitations from the state providing the relevant substantive law, the forum state's choice of law rules minimize the importance of recoveries other than those involved in the case, and the law of the plaintiff's state should therefore control.

Insufficient basis for claim of laches under Admiralty jurisdiction, as there's no showing of navigable waters.

Claims of fraud pleaded with insufficient particularity to justify an equitable toll to the statute of limitations.


Blake Marine Group  v.  CarVal Investors LLC

Eighth Circuit: United States v. Donald Harvey

F.R.Crim.P, Double Jeopardy, Sentencing


No abuse of discretion in denial of permission to withdraw nolo contendre plea where deft subsequently professes innocence, claims to have been unaware of the subpoena power, and claims that evidence was manufactured.

Simultaneously charging receipt and possession under separate statutes was still Double Jeopardy.

Concurrence: No resentencing necessary where the sentences were set to run concurrently.



United States  v.  Donald Harvey

Seventh Circuit: Gilbert Knowles v. Randy Pfister

Discrimination, Religion, Injunctions


Given statutory rights to religious expression, prison inmate demonstrates the possibility of irreparable harm and likely success on the merits in claim seeking to wear a Wiccan pendant.


Gilbert Knowles v.   Randy Pfister

Fifth Circuit: Clarence Brown v. Allison Taylor, et al

Prisons, FRCP


Prisoner mailbox rule is potentially applicable in cases of civil confinement.

Sua sponte dismissal of pro se claim without notice or opportunity to amend was error.


Clarence Brown v. Allison Taylor, et al

Fifith Circuit: USA v. Tomas Puga-Yanez

Statutory Construction


State statute is categorically a crime of violence, as harm to the victim is not an element of the generic crime.


 USA v. Tomas Puga-Yanez

Fourth Circuit: Keith Clark v. Larry Cartledge

Fed.R.App.P, FRCP


Request for additional time to file an application for a certificate of appeal may be construed as sufficient notice of appeal.

Dissent: No, and the rule is jurisdictional.


Keith Clark v. Larry Cartledge

Second Circuit: In re Motors Liquidation Co.

Bankruptcy, Jurisdiction, Procedural Due Process,  Mootness


As direct and indirect post-sale claims against the successor corporation arose within the bankruptcy process and related to the injunctions issued, the bankruptcy court properly exercised jurisdiction over the claims.

Prepetition tort claims against a successor corporation state a claim in bankruptcy where the both the contingent flaw and the relationship from which the duty arose were present prior to the order of sale. 

No clear error in court's holding that Procedural Due Process requires--prior to approval of sale--direct purchaser notice of flaws that manufacturer reasonably should have known about.

To determine PDP prejudice, court must have a fair assurance that the prior decision was not substantially swayed.

Given high stakes, there was a substantial likelihood of settlement for claims directly relating to the defect.

 Court's ruling that claims against successor corporation were equitably moot was advisory and is therefore vacated.


In re Motors Liquidation Co.

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RSS has been activated.  This changes everything.  Or at least those things that can be changed by having an RSS feed.  Links are on the right menubar and below, viz:

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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